Bill Text: OR SB839 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to water; appropriating money; and declaring an emergency.

Spectrum: Committee Bill

Status: (Passed) 2013-08-21 - Effective date, August 14, 2013. [SB839 Detail]

Download: Oregon-2013-SB839-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3890

                         Senate Bill 839

Sponsored by COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Establishes Water Supply Development Account. Continuously
appropriates funds in account to Water Resources Department to
make loans and grants for qualifying projects and for cost of
administering loan and grant program. Establishes criteria for
projects to qualify for grants and loans from account.
  Allows recipient of grant for critical ground water storage
project in Umatilla Basin to apply for change in grant terms and
conditions.
  Declares emergency, effective on passage. 
                        A BILL FOR AN ACT
Relating to water; creating new provisions; amending section 17,
  chapter 907, Oregon Laws 2009; appropriating money; and
  declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + As used in sections 1 to 16 of this 2013 Act:
  (1) 'Conserved water' has the meaning given that term in ORS
537.455.
  (2) 'Economic benefit' means:
  (a) Improved economic conditions related to job creation, the
encouragement of economic development, increased local, state or
tribal revenues or increased efficiency and innovation;
  (b) Enhanced economic value of infrastructure, farmlands,
public resource lands, industrial lands, commercial lands or
other land uses;
  (c) Increased revenues from tourism, recreational use,
commercial fishing and other activities that result from the
restoration or protection of waters for in-stream use;
  (d) Reduction the risk or damage that may occur in the absence
of the project;
  (e) Enhanced ability to leverage other funds; and
  (f) Other improvements in economic conditions identified by the
Water Resources Department.
  (3) 'Environmental benefit' means:
  (a) A measurable improvement in protected streamflows that:
  (A) Restores the natural hydrograph;
  (B) Restores floodplain function; or
  (C) Supports state or federally listed sensitive, threatened or
endangered fish species;

  (b) A measurable improvement in ground water levels that
enhances environmental conditions in ground water restricted
areas or other areas;
  (c) A measurable improvement in the quality of surface water or
ground water;
  (d) Water conservation;
  (e) Increased ecosystem resiliency to climate change impacts;
  (f) Improvements that address one or more limiting ecological
factors in the project watershed; and
  (g) Other improvements in environmental conditions identified
by the department.
  (4) 'Newly developed water' means the new increment of water:
  (a) Stored by a project that provides new or expanded storage;
or
  (b) Allocated under a secondary water right by a project that
allocates water stored under an existing water right.
  (5) 'Seasonally varying flows' means the streamflows needed to
protect and maintain the following biological, ecological and
physical functions in a given basin:
  (a) Stream channel development and maintenance;
  (b) Longitudinal, lateral and vertical connectivity to
floodplains;
  (c) Sediment transport and deposition;
  (d) Migration triggers for upstream movement of adult fish and
downstream movement of fry and juveniles;
  (e) Fish spawning and incubation;
  (f) Juvenile fish rearing; and
  (g) Adult fish passage.
  (6) 'Social or cultural benefit' means:
  (a) The promotion of public health and safety and local food
systems;
  (b) A measurable improvement in conditions for members of
minority or low-income communities, tribal communities and other
communities traditionally underrepresented in public processes;
  (c) The promotion of recreation and scenic values;
  (d) Contribution to the body of scientific data publicly
available in Oregon;
  (e) The promotion of state or local priorities;
  (f) The promotion of place-based integrated water resources
planning under the integrated state water resources strategy or
of other collaborative basin planning efforts; and
  (g) Other improvements in social or cultural conditions
identified by the department. + }
  SECTION 2.  { + (1) The Water Supply Development Account is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Water Supply Development
Account shall be credited to the account. Moneys in the account
are continuously appropriated to the Water Resources Department
for use in carrying out sections 1 to 16 of this 2013 Act.
  (2) The department may expend moneys from the account for
activities supporting the assessment, planning and development of
in-stream and out-of-stream water development projects, including
but not limited to:
  (a) Loans and grants to:
  (A) Repair or replace infrastructure;
  (B) Provide new or expanded water storage;
  (C) Improve or alter operations of existing water storage
facilities;
  (D) Create new, expanded, improved or altered water
distribution, conveyance or delivery;
  (E) Allocate stored water;
  (F) Promote water reuse;
  (G) Promote water conservation;
  (H) Provide streamflow protection or restoration;
  (I) Provide for water management or measurement; and
  (J) Determine seasonally varying flow requirements; and
  (b) Paying the related administrative costs of the department
in carrying out sections 1 to 16 of this 2013 Act. + }
  SECTION 3.  { + Loans and grants may be issued from the Water
Supply Development Account to persons as defined in ORS 536.007,
Indian tribes as defined in ORS 391.802 and nonprofit
organizations. The Water Resources Department may require an
applicant that is a municipal or agricultural water supplier to
have water management and conservation plans submitted to or
approved by the department prior to department acceptance of an
application for a loan or grant from the account. + }
  SECTION 4.  { + (1) A potential applicant for a loan or grant
from the Water Supply Development Account may participate in a
preapplication conference with the Water Resources Department.
  (2) At the preapplication conference, the department shall
inform the potential applicant of the procedural and substantive
requirements of a loan or grant application and of the scoring
system used by the department to evaluate loan and grant
requests.  The department shall help the potential applicant to
identify issues that may affect project eligibility for a loan or
grant from the account.
  (3) Not less than 14 days before the preapplication conference,
the applicant must provide the department with adequate project
information to prepare for the preapplication conference.
  (4) The applicant may request additional preapplication
consultation with the department. + }
  SECTION 5.  { + Applications for a loan or grant from the Water
Supply Development Account must be in a form prescribed by the
Water Resources Department and must include the following:
  (1) A description of the need, purpose and nature of the
project, including what the applicant intends to complete and how
the applicant intends to proceed.
  (2) Sufficient information for the department to score and rank
the application according to the public benefits of the project.
  (3) Current contact information for the principal contact,
fiscal officer and involved landowners.
  (4) For applications involving physical changes or monitoring
on private land, evidence that landowners are aware of and agree
to the proposal and are aware that monitoring information is a
public record.
  (5) The location of the proposed project, using public land
survey reference points, latitude and longitude, county,
watershed, river and stream mile if appropriate.
  (6) An itemized budget for the project, including fiscal and
administrative costs.
  (7) A description of funds, services or materials available to
the project.
  (8) A project schedule, including beginning and completion
dates.
  (9) Any conditions that may affect the completion of the
project.
  (10) A completed feasibility analysis if appropriate.
  (11) Suggestions for interim and long-term project performance
benchmarks.
  (12) If the application is for a grant, demonstrated in-kind
and cash cost match of not less than 25 percent of the amount of
the grant sought from the account.
  (13) If the application is for a loan, evidence demonstrating
ability to repay the loan and provide collateral.
  (14) Letters of support for the proposed project.
  (15) Any other information required by the department. + }
  SECTION 6.  { + (1) The Water Resources Commission shall adopt
rules establishing a system for scoring and ranking project types
for purposes of determining which projects receive loans and
grants from the Water Supply Development Account. The system
shall be designed to provide funding for projects having the
greatest public benefit. The Water Resources Department shall
make the loan and grant funding decisions once each year. The
department shall accept an application for a loan or grant at any
time but shall establish a yearly deadline to consider a pool of
applications.
  (2) The department shall check for completeness, eligibility
and minimum requirements upon receipt of each application. The
department shall return incomplete applications to the applicant.
The department shall provide public notice by posting new funding
applications on the department's website for a 60-day period
prior to reviewing the applications. The department shall provide
for the receipt of public comment on the applications during the
60-day period that applications are posted on the department's
website.
  (3) The department shall conduct a preliminary review and
scoring of all applications and submit the results, along with
any comments received from applicants or the public, to a
technical review team consisting of representatives of the
department, the Department of Environmental Quality, the State
Department of Fish and Wildlife, the State Department of
Agriculture, affected Indian tribes and additional experts as
determined by the Water Resources Department. The technical
review team shall score and rank the projects described in the
applications, consider comments from applicants and the public
and return loan and grant funding recommendations to the Water
Resources Department. Before the department makes a final
decision on an application, the department shall offer one
additional opportunity for public comment.
  (4) The department shall evaluate a project that is the subject
of an application for a loan or grant from the account to
determine the social and cultural benefits, economic benefits and
environmental benefits of the project. The department shall issue
loans or grants to projects that the department determines to
have the greatest overall benefit.
  (5) The department is not required to obligate all available
account moneys during a funding cycle. Any available account
moneys that are not obligated during a funding cycle shall be
carried forward and be made available for projects in future
funding cycles.
  (6) The department shall document the ranking of all
applications and make the application ranking publicly available
after funding decisions have been published. + }
  SECTION 7.  { + (1) The Water Resources Department shall design
criteria for the project scoring and ranking system described in
section 6 of this 2013 Act to achieve the following outcomes:
  (a) The issuance of grants or loans only to projects that
provide benefits in each category of public benefit.
  (b) Preference for partnerships and collaborative projects.
  (c) The funding of projects of diverse sizes, types and
geographic locations.
  (2) The department shall review the loan and grant program on a
biennial basis to assess to what extent the outcomes described in
subsection (1) of this section are being achieved, report the
review findings to the Water Resources Commission and modify the
project selection process as necessary to better achieve the
outcomes described in subsection (1) of this section. + }
  SECTION 8.  { + (1) The recipient of a grant from the Water
Supply Development Account must agree to the conditions set forth
in subsection (2) of this section if the grant is for the
development of a new or expanded above-ground storage facility
that:
  (a) Impounds surface water on a perennial stream;
  (b) Diverts water from a stream that supports state or
federally listed sensitive, threatened or endangered fish
species; or
  (c) Diverts more than 500 acre-feet of water annually.

  (2) Twenty-five percent of conserved water or newly developed
water from a project described in subsection (1) of this section
must be dedicated to in-stream use. + }
  SECTION 9. { +  (1) A project that receives a loan or grant
from the Water Supply Development Account must:
  (a) Demonstrate social and cultural benefits or economic
benefits sufficient to qualify the project under the scoring and
ranking system described in section 6 of this 2013 Act; and
  (b) Demonstrate environmental benefits:
  (A) By dedicating 25 percent of conserved water or newly
developed water to instream use; or
  (B) If the project is not subject to section 8 of this 2013
Act, sufficient to qualify the project under the scoring and
ranking system described in section 6 of this 2013 Act. + }
  SECTION 10.  { + If a project dedicates water to in-stream use
under the requirements described in section 8 of this 2013 Act or
as allowed under section 9 of this 2013 Act, the Water Resources
Department shall issue in-stream use permits for the dedicated
water. Dedicated water may come from other sources and be put
in-stream at other locations in the watershed if the department,
in consultation with the State Department of Fish and Wildlife,
determines that the alternate location would provide greater or
equal environmental benefit. The Water Resources Department, in
consultation with the State Department of Fish and Wildlife,
shall determine the timing of the flows to maximize in-stream
benefits in a manner consistent with public health and
safety. + }
  SECTION 11.  { + (1) The Water Resources Department shall make
a determination as provided under subsection (2) of this section
if an application for a loan or grant from the Water Supply
Development Account is for a project that requires a new water
storage or aquifer recharge permit, certificate or limited
license outside of the official irrigation season and:
  (a) Impounds surface water on a perennial stream;
  (b) Diverts water from a stream that supports state or
federally listed sensitive, threatened or endangered fish
species; or
  (c) Diverts more than 500 acre-feet of surface water annually.
  (2) The department shall review a completed application for a
project described in subsection (1) of this section to determine
whether seasonally varying flow requirements have been
established for the stream of interest. If the department
determines that the requirements have not been established, the
department shall establish seasonally varying flow requirements
before issuing a loan or grant from the account. For purposes of
establishing the requirements, the department may rely upon
existing scientific data and analysis or may fund new data and
analysis. The department may use account moneys to pay the cost
of establishing seasonally varying flow requirements.
  (3) The department shall develop methods and standards for
establishing seasonally varying flows in consultation with the
State Department of Fish and Wildlife and affected Indian tribes.
  (4) The Water Resources Department shall provide the applicant
and the public an opportunity for comment prior to establishing
seasonally varying flow requirements under subsection (2) of this
section. The burden of rebutting the accuracy of a seasonally
varying flow requirement proposed by the department is on the
applicant or member of the public.
  (5) The department shall condition any new water storage or
aquifer recharge permit, certificate or limited license issued
for a project receiving a grant or loan from the account upon the
project complying with seasonally varying flow requirements. + }
  SECTION 12.  { + (1) Before loan or grant moneys are expended
from the Water Supply Development Account for any construction
project, the recipient must obtain all applicable local, state,
tribal and federal permits and show that the project complies
with local land use laws. Project materials must include a
notation indicating that Water Resources Department funding was
used for the project.
  (2) Project completion and operation must comply with
applicable local, state, tribal and federal laws and permitting
requirements.
  (3) Loan or grant recipients must complete and operate the
funded project as described in the loan or grant application.
Before commencing implementation of a project funded with account
moneys, the recipient must demonstrate to the satisfaction of the
department that the public benefits identified for the project,
including any environmental benefits proposed at a location other
than the project site, will be realized in a timely fashion.
  (4) At regular intervals, and upon completion of the project,
the loan or grant recipient must submit updates to the department
that describe the completed work, the public benefits achieved
and project expenditures. The recipient must regularly measure
and report the water diverted and used from the project. The
recipient must monitor, evaluate and maintain the projects for
the life of the loan, or for a specified number of years for a
grant, and provide annual progress reports to the department. The
department may impose other project-specific conditions by noting
the conditions during project evaluation and including the
condition in the funding agreement for the project.
  (5) The department may terminate, reduce or delay funding for a
project if the loan or grant recipient fails to comply with any
provision of subsections (1) to (4) of this section. + }
  SECTION 13.  { + (1) The Water Resources Commission shall adopt
rules establishing standards for borrowers obtaining loans issued
from the Water Supply Development Account. The commission shall
design the standards to ensure that all loans have a high
probability of repayment and that all loans are adequately
secured in the event of a default. The commission shall solicit
comments from the Oregon Department of Administrative Services
and the State Treasurer when designing the standards. The
standards may include, but need not be limited to, standards that
give preference to entities with ad valorem taxing authority.
  (2) If the Water Resources Department approves the financing
for the implementation of a water development project, the
department and the applicant may enter into a loan contract,
secured by a first lien or by other good and sufficient
collateral in the manner provided in ORS 541.740. + }
  SECTION 14.  { + The Water Resources Department may enter into
water service contracts to recover all or a portion of moneys
loaned from the Water Supply Development Account. Moneys received
through the water service contracts, or as repayment of account
loans, must be deposited in the account. + }
  SECTION 15.  { + The Water Resources Commission shall adopt
rules to implement sections 1 to 16 of this 2013 Act. + }
  SECTION 16.  { + The Water Resources Department may:
  (1) Invest in water development projects;
  (2) Assess the feasibility of water development projects; and
  (3) Enter into and issue contracts to put water to beneficial
use. + }
  SECTION 17.  { + Grants and loans issued from the Water Supply
Development Account are not subject to sections 20, 25 or 26,
chapter 907, Oregon Laws 2009. + }
  SECTION 18. Section 17, chapter 907, Oregon Laws 2009, is
amended to read:
   { +  Sec. 17. + } (1) As used in this section, 'critical
ground water storage project' means an underground or
below-ground storage of river water in a critical ground water
area designated under ORS 537.730 for use in:
  (a) Aquifer storage and recovery as described in ORS 537.534
and streamflow augmentation and restoration; or

  (b) Recharging ground water basins and reservoirs as described
in ORS 537.135 and streamflow augmentation and restoration.
  (2) The Water Resources Department may issue a grant under this
section only for a critical ground water storage project that is
located in the Umatilla Basin and that meets the conditions
described in this section.
  (3) { + (a) + }   { - Except as provided in subsection (4) of
this section, notwithstanding ORS 537.534, - }  If the project
uses artificial recharge to recharge an alluvial aquifer that is
not confined, the project must be designed:
    { - (a) - }  { +  (A) + } To provide   { - for no more than
75 percent of new stored water to be withdrawn and for not less
than 25 percent of the new water to be dedicated for the purpose
of providing - }  net environmental public benefits   { - or
in-stream benefits - }   { + in an amount equal to at least 25
percent of the water stored by the project + }; and
    { - (b) - }  { +  (B) + } To the extent practicable, to
 { - return dedicated new stored water for stream - }
 { + deliver any net environmental public benefit water to be
provided in the form of in-stream flow + } augmentation at a time
of year that the Water Resources Department, in consultation with
the State Department of Fish and Wildlife and relevant tribal
governments, determines will provide the maximum net
environmental public benefit or in-stream benefit.
   { +  (b) Net environmental public benefit shall be determined
under paragraph (a) of this subsection based upon the lesser of
the water development amount described in a final grant report
submitted by the grantee to the department or 25,000 acre-feet of
aquifer recharge. + }
  (4) If more than 25 percent of the funding for an aquifer
storage and recovery project is from grants of state moneys and
is not subject to repayment, the project must be designed to
  { - dedicate for the purpose of providing - }   { + provide + }
net environmental public benefit   { - or in-stream benefit a
percentage of the new stored water created by the project - }
 { + in an amount + } that equals or exceeds the percentage of
funding for the project that is from grants of state moneys. The
Water Resources Department shall manage the   { - dedicated
increment of new stored water - }   { + amount of water
provided + } for net environmental public benefit   { - and
in-stream benefit - }  { +  in the form of in-stream flow + }.
  (5) On or before the earlier of six years after the issuance of
the ground water recharge permit or the date the water right
certificate is issued, the department shall quantify and legally
protect in-stream the increment of new water returned in stream
from a project described in this section.
  (6) The department shall require as a contractual condition for
issuing the grant, and as a condition of any new ground water
recharge permit or water right certificate issued for the
project, that if the project receives grants or loans from state
moneys other than a grant issued under this section { +  or other
state moneys used to complete the feasibility design and pilot
phase of project development funded by a grant under this
section + }, the project must be operated in a manner that
actually dedicates the percentage of new stored water for net
environmental public benefit or in-stream benefit that the
project was designed to dedicate for those purposes.
   { +  (7) At the request of the grantee, the terms and
conditions of a grant approved by the department under this
section may be amended to replace the terms and conditions
originally imposed for the grant with terms and conditions
similar to the terms and conditions imposed for grants issued
from the Water Supply Development Account established under
section 2 of this 2013 Act. + }

    { - (7) - }   { + (8) + } This section does not limit the
authority granted the Environmental Quality Commission or the
Department of Environmental Quality under ORS chapter 468B.
    { - (8) - }   { + (9) + } This section is repealed January 2,
2030.
  SECTION 19.  { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
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