INSTREAM WATER RIGHTS
(1) These rules, promulgated in accordance with ORS 537.332 to 537.360, set the policy, procedures, standards, methodology, and definitions for instream water right applications made by the Oregon State Parks and Recreation Department to the Water Resources Department, for the protection of recreational values and scenic attraction.
(2) These rules set out: The methodology for determining flow requirements and water surface elevations for recreational use(s) and scenic attraction, the standard for setting the priority for processing instream water right proposals, the internal procedures for application for and coordination of instream water rights, and the process for assisting with transfers of regular water rights to instream water rights.
It is the policy of the Parks and Recreation Department to apply to the Water Resources Department for instream water rights on the streams, rivers, lakes, and wetlands of the state to protect scenic attraction and recreational values for the benefit of present and future generations of citizens of this state.
As used in these rules:
(1) "Application" means the instream water right application form developed by the Water Resources Department as referenced in OAR 690-077-0020(1).
(2) "Commission" means the Parks and Recreation Commission.
(3) "Department" means the Oregon State Parks and Recreation Department.
(4) "DEQ" means the Department of Environmental Quality.
(5) "Director" means the director of the Parks and Recreation Department.
(6) "Instream Water Rights Coordinator" or "Coordinator" means the staff person in the Department whose responsibility includes receiving, reviewing, and preparing all material pertinent to filing for and obtaining an instream water right from the Water Resources Department.
(7) "Instream Water Right Study" means a recreation flow requirement proposal developed by the Department or the public-at-large utilizing the Oregon Recreation Methodology.
(8) "ODF&W" means the Oregon Department of Fish and Wildlife.
(9) "Oregon Recreation Methodology" means the methodology developed by the Department to determine the recreation flow or water level requirements for scenic attraction and recreational values of a stream, river, lake or wetland. (See OAR 736-060-0015.) Definitions specific to this methodology are as follows:
(10) "Recreation Flow Requirement" means the amount of water needed to accommodate the predominant recreational use(s) or scenic attraction occurring during any given month. This is determined by the Oregon Recreation Methodology (section (9) of this rule). This requirement may be quantified as:
(a) An amount of flow in cubic feet per second (cfs), such as in a stream or river;
(b) A water surface elevation above mean sea level (feet); or
(c) Acre feet.
(11) "Amount of Recreation Use" means the number of users that participate in each specific recreational use. This is usually expressed in number of visitors over a certain period of time (e.g., one visitor in a 24 hour period is one visitor day).
(12) "Competing Uses" means all water uses that are perceived to be in competition with recreational uses, including both competing instream recreational uses (for example white water rafting and fishing) and out of stream uses.
(13) "Experience Setting" means a description of the natural surroundings, land, recreation facility developments, and public recreation use conditions encountered by recreational users.
(14) "Location of Recreational Use" means the site or river segment where the recreational activity takes place.
(15) "Time Period of Recreation Use" means the time period, by month, for any given recreation use.
(16) "Type of Recreational Use" means specific recreational use(s) that are stream flow or water-level dependent (for example boating, fishing, white water kayaking).
(17) "Scenic Attraction" means a picturesque natural feature or setting of a stream, river, or lake, including, but not limited to, waterfalls, rapids, pools, springs, wetlands, and islands that may create viewer interest, fascination, admiration, or attention.
(18) "WRD" means the Water Resources Department.
Recreation Flow Requirement Methodology
(1) Recreation flow requirements requested in Department instream water right applications shall be based on the methodology in this section. According to this methodology, the recreation flow is the flow or water level needed to accommodate the predominant recreational use(s) occurring during any given month. The Department shall make this determination using the following procedure:
(a) Each existing type of recreational use shall be identified and fully described. Each type may have separate, discrete, instream flow requirements and seasons of use. Some stream flow dependent uses may occur on the riverbank including, but not limited to, scenic attraction and wildlife viewing, camping, hiking, boating access, and picnicking;
(b) Each type of recreational use shall be described as follows and according to the definitions (OAR 736-060-0010):
(A) Time period of recreational use;
(B) Stream flow, or range of flows, that support the use depicted by month, or by half-month if appropriate, and quantified in cubic feet per second (cfs), or, if for a lake or other standing water body, in feet above mean sea level or acre feet;
(C) Location(s) of recreational use. Locations may be described in any way that provides sufficient details to identify a common location for the use, including by reference to the Environmental Protection Agency's stream reach numbering system or other such documented system in wide use;
(D) Experience setting. Reference to the "Recreation Opportunity Spectrum" system of the U.S. Forest Service is helpful, but not mandatory. A discussion of current and planned recreation developments and management programs must be included;
(E) Amount of recreational use. The popularity of a stream, river, lake, or wetland, while not the sole basis for instream water rights requests, must be taken into account. The Department will use its best efforts to obtain quantifiable data on actual recreational use. Professional judgment described in relative terms (i.e., low, moderate, or high) may be used when precise data are not available;
(F) Competing use(s), if any;
(G) Institutional constraints. These may include, but are not limited to:
(i) Recreation use permits;
(ii) Fishing regulations;
(iii) Dam releases;
(iv) Minimum perennial streamflows or other instream water rights;
(v) Court decisions;
(vi) Standards contained in OAR 690-077-0045 (WRD);
(vii) Acknowledged comprehensive land use plan of local government.
(c) Depict the flows needed by month to accommodate the predominant recreational use(s), and explain how these flows were established.
(2) The following sources may be consulted for information described in subsections (1)(a) and (b) of this rule and for determining recreation flow requirements. Other appropriate sources may be used:
(a) "Recreational Values on Oregon Rivers" prepared for the Northwest Power Planning Council (1987) by State Parks and Recreation Department;
(b) Local, state, and federal managing agency plans, records, and reports;
(c) Professional guide service records (i.e., trip logs, etc.);
(d) River recreation guides and publications;
(e) Professional or expert opinion, i.e., published authors, professional guides, agency staff, etc.;
(f) On-site surveys of recreational users;
(g) Water Resources Department records, basin reports, and water use programs pertinent to recreation flow;
(h) U.S. Geologic Survey and Oregon stream gauge records;
(i) Reports prepared under the National Environmental Policy Act;
(j) "Nationwide River Inventory" prepared by the National Park Service;
(k) "Oregon Outdoor Recreation Plan" (SCORP) prepared by the Department;
(l) Findings and conclusions of other instream recreation flow studies conducted using generally accepted methods where consistent with goals and policies of the Parks and Recreation Department;
(m) Recreation flow assessments conducted by WRD.
(3) In situations where recreation flow data does not exist, the instream flow requirements of ODFW or DEQ, whichever is higher, may satisfy the recreation flow requirement necessary for recreational value and scenic attraction.
(4) Staff gauges or other generally established river level measuring devices shall be used to report recreation flow requirements only when a stream cross section analysis has been conducted which will allow accurate conversion to cfs. Direct measurement shall be used to determine lake water surface elevations above mean sea level necessary to maintain recreational value or scenic attraction.
[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]
Responsibilities to WRD
(1) The Department shall coordinate with WRD on establishing priorities for monitoring of flows of instream water rights: The Department shall coordinate with WRD watermasters to develop monitoring plans for instream water rights. The location and method of instream flow measurement shall be selected to ensure that the instream water right is adequately monitored throughout the entire reach. Monitoring plans may include:
(a) Use of volunteers and Department personnel to conduct monitoring;
(b) The frequency of monitoring;
(c) A system for reporting and enforcing violations of instream water rights.
(2) In cases where it is known that the request for flows is higher than the estimated average natural flow, as defined by WRD, the Department shall provide in the application justification for additional flow or identify the intended source of water in accordance with OAR 690-077-0045(3)(e) (WRD).
Internal Application Process for Instream Water Right
(1) While only Parks, ODF&W, and DEQ may request instream water rights, requests may be initiated by the Department, by other local, state, or federal agencies, or by the public at large.
(2) All requests and studies shall be submitted to the instream water rights Coordinator, using a typewritten or printed format and including the following information:
(a) A description of the location of recreational use, including a description of the existing flow regime by month following the Oregon Recreation Methodology (OAR 736-060-0015);
(b) A summary of the study participants and a list of authors and their qualifications;
(c) The recreation flow requirement recommendation expressed in cubic feet per second, or, if for standing water body, in feet above mean sea level or in acre feet; and
(d) The date and the signature of the submitting authority, organization, or individual.
(3) The instream water rights Coordinator shall review all studies within a reasonable time for compliance with this rule and Department goals, objectives, and policies. The study may be returned to the initiator for amendment, changes, or additional justification.
(4) If the study is found to be consistent with this rule and Department goals, objectives, and policies, the Coordinator may prepare a draft application. If competing instream recreational uses exist, the Director may choose to apply for only the predominant recreational use or uses. The Director shall maintain a record of the reasons for the decision. The draft application shall contain all the information required by OAR 690-077-0020.
(5) The Coordinator shall notify ODF&W and DEQ of the proposed application. Changes or corrections to the draft application suggested by DEQ and ODF&W shall be reviewed and made if they are determined to be consistent with available information, this rule, Department goals, objectives, policies, and the purposes for the instream water right application.
(6) DEQ, or ODF&W, or both, may incorporate the public uses for which they are responsible into a Department application for instream water rights in accordance with OAR 690-077-0020.
(7) To the greatest extent possible, the final application shall accommodate the requests of ODF&W and DEQ, provided such amendments are consistent with available data, this rule, Department goals, objectives, and policies, and the purposes of the instream water right application. In the event the Department withdraws an application of an instream water right that was proposed by anyone other than the Department, it shall endeavor to notify the party of the reasons for withdrawal.
(8) The final application shall be signed by the Director or the Director's designated representative. If DEQ or ODF&W, or both, are combining their applications for an instream water right with the Department's application, the application must be signed by designated representatives of the respective agencies.
(9) The Coordinator shall notify affected local governments, pursuant to OAR 690-077-0020(4), and, by request, any other interested parties, of the instream water right application.
(10) The Department at any time in the application process, may withdraw an application on which it is the sole signator. If the Department is a co-applicant with ODF&W or DEQ, or both, any party may withdraw its interest in the application.
(11) The priority of instream water right acquisition shall be for streams:
(a) Designated as a State Scenic Waterway, or National Wild and Scenic River;
(b) With significant statewide recreation opportunities;
(c) With recreation opportunities of regional significance;
(d) With potential of being adversely impacted by continued out of stream appropriation; or
(e) Identified as important recreational resources in comprehensive plans or regional economic strategies.
(12) Amendments, whether for greater or lesser flows than those previously granted, will be processed under the standards contained in OAR 690-077-0080 (WRD).
Purchase, Lease, or Gift of Water Rights for Instream Water Rights
(1) The Department may purchase, lease, or accept as gifts, water rights for the purpose of transferring the water right to an instream water right for the public uses and purposes set forth in OAR 736-060-0000 through 736-060-0040:
(a) Water rights that may be transferred to instream water rights shall be reviewed for potential benefits and adverse impacts to recreation values and scenic attraction;
(b) Standards set out in this rule shall apply to establish priorities for water rights that are to be bought or leased;
(c) Gifts of water rights shall be accepted regardless of priorities set out in OAR 736-060-0020, if the transfer does not harm recreation or scenic attraction values. Donors of gifts shall be recognized through a formal Commission process.
(2) Instream water rights are held by the Water Resources Department in the public interest in accordance with ORS 537.332 to 537.360.