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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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OREGON WATERSHED ENHANCEMENT BOARD

 

DIVISION 46

WATER LEASE AND TRANSFER GRANTS

695-046-0010

Purpose

The purpose of this rule is to supplement the OWEB Grant Program rules under OAR 695-005 and to add specific guidance regarding the OWEB water acquisition grant program. The Oregon Watershed Enhancement Board does not itself hold an interest in water rights in grants authorized under these rules, but rather allocates funding for water allocation projects to other entities to hold the interest in water rights, subject to their contractual and statutory obligations and the compliance requirements set forth in OAR 695-046-0220.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2005, f. & cert. ef. 2-1-05; OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0020

Definition of Water Acquisition Project

(1) "Water Acquisition Project is a program or project that plans for or implements, or both, the acquisition of an interest or interests in water from a willing seller for the purpose of increasing instream flow to do either or both of the following:

(a) Address the conservation needs of habitats and species;

(b) Improve water quality in a water-quality-limited area as determined by the Oregon Department of Environmental Quality.

(2) A water acquisition project may include the following activities:

(a) Strategic planning and development, project design, landowner outreach, and other activities associated with water acquisitions in a given basin or other defined area;

(b) Acquisition of an interest in water and associated due diligence;

(c) Monitoring and other associated activities to ensure the interest is maintained through time.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2005, f. & cert. ef. 2-1-05; OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0175

Nature of Application

In accordance with Section 4(b) of Article XV of the Oregon Constitution, OWEB may consider grant applications in partnership with other funders for projects that plan or implement the acquisition of an interest in water from willing sellers for the purpose of maintaining or restoring watersheds and habitat(s) for native fish or wildlife. Interest in water includes, but is not limited to, instream leases (including split season use instream leases), water use agreements that result in protectable instream flows, conserved water projects as determined by the Oregon Water Resources Department’s Allocation of Conserved Water Program, and permanent and time-limited instream transfers. These projects must be designed to increase instream flow to do either or both of the following:

(1) Address the conservation needs of habitats and species; or

(2) Improve water quality in a water-quality-limited area as determined by the Oregon Department of Environmental Quality. Applications must address the conservation and restoration needs of habitat(s) and species consistent with ecological priorities and principles identified by the Board.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0180

Application and Subsequent Grant Processing Requirements

(1) Grant applications for water acquisition projects must be submitted on the most current form that conforms with the process prescribed by the Board.

(2) This Board-prescribed process may be conducted in cooperation with other funders of water acquisition projects.

(3) In the event of any conflict between these requirements and requirements identified in OAR 695-005, the water acquisition requirements in this division will take precedence.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0185

Use of Grant Funds

Water acquisition grant funds may be applied towards reasonable costs, as determined by OWEB, related to the planning and/or implementation of acquisition of interest in water from willing sellers, including:

(1) The purchase price and the purchase option fees associated with acquisition of an interest in water.

(2) The monetary interest on loans.

(3) The staff costs incurred as part of acquiring the interest in water.

(4) The cost of water-owner outreach activities necessary for the funded project.

(5) The cost of due diligence activities, including appraisal or valuation of the interest to be acquired, title report, assessment of the timing and extent of water use and regulation associated with the interest in water, Oregon Water Resources Department application costs, and other customary due diligence activities.

(6) The legal fees incurred.

(7) The transfer and closing fees related to the acquisition of an interest in water.

(8) The cost of monitoring the acquisition to certify that the water interest is being used and managed consistent with Section 4(b), Article XV of the Oregon Constitution.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0190

Matching Contributions

(1) All applicants shall demonstrate at least 25% of the actual water acquisition project cost is being sought as match, with the grant applicant required to provide matching funds and efforts necessary to complete the purchase. The following costs and activities will qualify as match:

(a) All costs listed under OAR 695-046-0185, including in-kind contributions of those costs.

(b) Funding commitments made by others as a result of grant applicant efforts (including funding to be secured from other funders as part of a Board-prescribed process conducted in cooperation with other funders).

(c) Any donated portion of the interest in water.

(2) OWEB funds provided under OAR 695-046-0185 shall not qualify as matching contributions.

(3) The Director retains the discretion to determine that specific matching costs are unreasonable in a particular grant context and would not be recognized as qualifying matching costs.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0195

Coordinating and Partnering with Other Funders

OWEB may consider grant applications in partnership with other funders for the purpose of creating operational efficiencies and better coordinating investments in water acquisitions to maintain or restore watersheds and habitat(s) for native fish or wildlife that are designed to increase instream flow to do one or both of the following:

(1) Address the conservation needs of habitats and species; or

(2) Improve water quality in a water-quality-limited area as determined by the Oregon Department of Environmental Quality.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0200

Application Evaluation Process

(1) Grant applications for water acquisition projects shall be evaluated in accordance with guidance (including priorities, principles, and process) adopted and periodically reviewed by the Board and made available to the public via the agency’s website and Board meeting materials.

(2) The evaluation may be conducted in cooperation with other funders.

(3) The grant application evaluation process shall include reviews for:

(a) The consistency of the water acquisition project with the Board’s established priorities and principles for water acquisitions.

(b) The significance of the projected ecological outcomes.

(c) The business plan for the water acquisition project, including:

(A) Socio-economic strategy, including the community impacts or benefits resulting from the project (including, but not limited to, description of both current and proposed water uses, potential effects on existing water rights and uses, and other relevant socio-economic information).

(B) The capacity of the grant applicant to complete the acquisition and to achieve and sustain the proposed ecological outcomes over time.

(C) The soundness of the planning and of the legal and financial terms of the proposed water acquisition project, and its feasibility to achieve the projected ecological outcomes.

(D) Priority will be given to projects that are planned or implemented, or both, by grant applicants with a sound program to acquire interests in water rights to address the conservation needs of habitats and species and improve water quality in a water-quality-limited area, as determined by the Oregon Department of Environmental Quality.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0205

Public Involvement

The public shall be provided with opportunities to comment on grant applications for water acquisition projects being considered by the Board. OWEB will provide written notice through its website of the Board’s intent to consider water acquisition grant applications. The Board will accept:

(1) Written comments received at least 14 days before the Board meeting at which the application is to be considered by the Board; and

(2) Oral comments made at the Board meeting at which the grant application is considered.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0210

Board Approval and Delegation of Authority

The Board shall conditionally approve grants in accordance with guidance adopted by the Board and made available to the public. The Director is delegated the responsibility of ensuring that funding conditions required by the Board are fully satisfied by the grant applicant.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0215

Director’s Funding Approval and Distribution of Funds

The Director may approve the distribution of grant funds when:

(1) The terms of the proposed acquisition of an interest in water are approved by the Director.

(2) A grant agreement is executed by the Director and either the grant applicant or the entity or entities identified under the Board-prescribed process for other funders as referenced under OAR 695-046-0180. In the latter case, the other funder(s) must subsequently execute a grant agreement with the applicant to utilize OWEB funds in support of a water acquisition project. The Director has reconciled conditionally-approved funding with actual costs.

(3) The grant applicant has satisfied the match requirements under 695-046-0190.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0220

Compliance and Enforcement

(1) The ongoing use of the water interest acquired with OWEB water acquisition grant funds shall be consistent with the purposes specified in section 4(b) Article XV of the Oregon Constitution. If significant compliance issues cannot be resolved to the full satisfaction of the Director, the Director, after informing the Board and providing reasonable written notice to the recipient of the grant, may in his or her discretion initiate any and all legal remedies available to OWEB, including recovery of the OWEB grant funds that were used to purchase the water interest, and reasonable interest and penalties at the option of the Director.

(2) OWEB, its grantees, contractors and cooperating agencies must be provided sufficient legal access to property to which the water interest acquired with OWEB funds is appurtenant, for the purpose of monitoring to certify that the water interest is being used and managed consistent with Section 4(b), Article XV of the Oregon Constitution.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0225

Subsequent Conveyances

A water interest acquired with OWEB grant funds shall not be conveyed to another party unless the conveyance is approved by the Board, and may not be conveyed for the purpose of consumptive uses.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

695-046-0230

Waiver and Periodic Review of Rules

The Director may waive the requirements of Division 46 for individual grant applications, not including mandatory statutory requirements, when doing so is reasonably calculated to result in more efficient or effective implementation of the Board’s water acquisition grant program. Any waiver must be in writing and included in the grant file to which the waiver applies. The administrative rules for water acquisition grants shall be periodically reviewed by the Board and revised as necessary and appropriate.

Stat. Auth.: ORS 541.906
Stats. Implemented: ORS 541.932(9)
Hist.: OWEB 2-2013, f. & cert. ef. 6-19-13

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