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 Lisa BrownWaterWatch of OregonDear Transfer Section: Thank you for opportunity to comment on the application for Transfer T-14176. Due to formatting challenges in WRIS, we are also are submitting this comment letter via email. Comments 1. T-14176 would result in injury and enlargement. Certificate 62227 allows beneficial use for Fish Culture and Recreation, which are typically non-consumptive uses. The proposed transfer changes the non-consumptive use to a consumptive use for Livestock watering. This creates the high-risk situation of both injury and enlargement issues. Injury occurs when “The type of use under water right “A” is changed to a use which would be more consumptive than could reasonably occur under the existing right and results in less water available to water right “B” (OWRD Field Manual p.180). Livestock is a use that requires and consumes more water than a reservoir uses for fish culture and recreation and therefore T-14176 would result in injury and enlargement. Further, if the application moves forward, we request that WRD establish—or ask BLM to establish—the existing capacity of the reservoir. 2. Certificate 62227 does not appear eligible for transfer because it does not appear to have been used in the last five years according to the terms of the certificate, the application does not establish the requisite use, and the certificate appears subject to forfeiture. a) The affidavit of use included with the Transfer Application appears to relate only to a reservoir. Certificate 62227 is not a reservoir right; it is a water right to use water for fish and recreation from the sources Willow Creek and Willow Creek reservoir constructed under permit R-5371, not a reservoir right. The Transfer Application does not appear to provide any evidence that was used as described in the certificate. The fact that there was or wasn’t a reservoir there does not address the transfer requirements. b) In the Transfer Application, BLM says the reservoir is an, “Existing reservoir since 1968 abandoned by Oregon State Game Commission [that] uses fish and recreation. BLM took over the right as we are the land owner and changed to livestock use” (Application p.14) According to OAR 690-380-640, transfer rules only allow the use of water for allowed character of use unless you get a transfer approving the change, meaning BLM can't just start using it (or the water in it) for the proposed beneficial use. BLM’s use of the reservoir for livestock use violates the certificate and thus constitutes illegal use. Any use of the water for livestock use is not use that meets the requirements of ORS 540.520(2)(g), which requires evidence that the water has been used over the past five years “consistent with the terms and conditions” of the right. Using this reservoir certificate for livestock use when it was issued only for fish and recreation does not meet this standard and nor does it constitute use for purposes of analyzing forfeiture. ORS 540.520(2)(g); ORS 540.610. c) The Water Use Report for Certificate 62227, available in WRIS, shows no recorded water use from 1991 to 2010. Pursuant to ORS 540.610, a five year period of non-use amounts to forfeiture, but can be rebutted upon a showing that the last year of the alleged period of non-use occurred more than 15 years ago. ORS 540.610(2)(f). Thus period of apparent non-use from 2004-2010 falls within the forfeiture assessment period. (2023 – 19 years). d) Aerial photos included in the Transfer Application appear to show an empty reservoir without any water present. This does not support a finding that water has been used from the reservoir or otherwise, or that the reservoir itself was in use, in the last five years, or that it is not subject to forfeiture. e) Finally, it is not clear what BLM means by stating in the application that the Oregon State Game Commission “abandoned” the reservoir, when this happened, or whether the Game Commission also abandoned the water use under Certificate 62227 (one of the sources for which is that reservoir). If the certificate was voluntarily abandoned, it may not now be transferred. Thank you for considering these comments. We look forward to further reviewing this transfer as more information becomes available. Sincerely, Lisa A. Brown Staff Attorney WaterWatch of Oregon lisa@waterwatch.org