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DateNameCompanyComment
 Steph HayesWaterWatch of Oregon1. The Department should withhold action on the transfer applications until the land use approval process is completed. Bandon Biota, LLC is seeking these three transfers for the purpose of irrigating its proposed new golf course located south of Bandon in Coos County in the South Coast Basin. There is currently no approved land use application for the proposed use. Oregon state law requires the coordination of agencies with respect to land use and water management, which are integrally related. ORS 197.180(1); OAR 690-005-0020(1). The Water Resources Commission places a “high priority” on achieving compatibility with state and local goals and land use plans, and state water laws require protection of the “public interest in all waters of the state.” OAR 690-005-0020(1). Water right transfer decisions are actions that must be coordinated with local land use governments to protect important local water resources. OAR 690-005-0025(3); OAR 690-005-0035. On 2/1/23, the transfer applicant, Bandon Biota LLC, withdrew its land use application with the Coos County Planning Department for approval of the golf course. (withdrawal_notice.pdf (coos.or.us)) The land use application had received considerable public opposition largely due to its likely adverse impacts on the local water supply and consequential injuries to other water rights and local industry. Allegedly, a new land use application for the golf course has been submitted, but Coos County has not yet deemed it complete. There is no information publicly available on this application and if or how it differs from the previous application. OAR 690-005-0035(4)(a) requires an applicant to submit land use information prior to the Department taking action on the water use. If local land use approvals are pending, the Department shall withhold issuance of the water use approval until the applicant obtains all required local land use approvals, or place conditions on the approval to preclude use and any associated construction until the applicant obtains all required land use approvals. OAR 690-005-0035(4)(c). At this point, there are many unknowns and uncertainties about the proposed project. Because the prior land use approval process revealed multiple land use and water issues that were controversial and contested by the local community, the current land use process may very likely end in denial. The Department should therefore withhold action on the three transfer applications until the local land use approval process is complete. This will ensure compliance with state law and policy requiring coordination of land use and water management to protect the public interest in state waters. 2. The water rights involved in these transfer applications may be subject to forfeiture. In determining if a right is subject to transfer, OWRD is required to assess whether the water right was forfeited within the time limit set by ORS 540.610, which covers a five-year time period that ended no more than 15 years before the potential issuance of a notice of cancellation. ORS 540.610(2)(f). The “clock” for OWRD’s forfeiture assessment required for review of this transfer, therefore, is not just the previous five-year period but includes this full look-back period. Additionally, OWRD must initiate cancellation proceedings “[w]henever it appears to the satisfaction of the Water Resources Commission upon the commission’s own determination… that a perfected and developed water right has been forfeited.” ORS 540.631. The Evidence of Use Affidavits for certificates 86449, 86448, 89934, offer an explanation for the absence of profitable operations from 2014 -2019, but the evidence of use receipts only indicate energy charges for 2019, with only one charge for 2020. These affidavits do not explain other multiple years of non-use evident in OWRD’s online WRIS system. 3. T-14440 would result in enlargement. Transfer application T-14440 proposes changes to certificates 89934 which allows beneficial use for irrigation, temperature control, and flood harvesting of 13.8 acres of cranberry bogs. The proposed transfer changes the place of use for the irrigation portion. The proposed transfer also changes the character of use for the temperature control portion to irrigation and changes its place of use. These changes would result in enlargement. Enlargement is an expansion of a water right that can occur when the user uses a greater rate or duty per acre than is currently allowed, increases the acreage irrigated under a right, fails to keep the original place of use from receiving water from the same source, or diverts more water at the new point of appropriation or diversion than is legally available at the original point of appropriation or diversion. OAR 690-380-0100(2). The Department shall not approve a transfer application that results in enlargement. OAR 690-380-5000(1)(c). These transfers would result in enlargement because irrigation of golf courses, which typically use thirsty turf grass, is a much more consumptive use than irrigation and temperature control for cranberry operations, especially since cranberry bogs are typically lined and they recycle water. Further, the use of water for temperature control is likely a non-consumptive use. The current cranberry operations also occur on a compact area of land; the irrigation and temperature control occur on the same 13.8 acres in quadrants NENW and SENW of Section 25. The proposed irrigation will spread out over 20.9 acres across four quadrants: NWSW Section 24, SWSW Section 24, NWNW Section 25, and SWNW Section 25. This change from overlap in use and size of the place of use would result in an increase of the acreage irrigated under the right and therefore result in enlargement in violation of OAR 690-380-0100(2). 4. Certificate 89934 may not be in compliance with the New River Agreement. Permit G-13022, the permit that was perfected and became Certificate 89934, contained a provision to ensure compliance with the New River Agreement. It states: “Diversion and use of water under this permit must comply with the Clean Water Act and utilize best management practices as identified in the plan developed as specified in the New River Alternative Dispute Resolution Team Agreement on file with the Department.” (Page 2) However, Certificate 89934 is missing this permit condition and lacks any reference to the New River Agreement. Presumably, this is a scrivener’s error, and we request that WRD immediately correct the certificate to include the permit conditions stated on the permit.