Swalley Abstract: The Homestead Act
allows a specified type of citizen to acquire one quarter
section (160 acres) or less of "unappropriated public
lands." If no one else makes a claim, the homesteader
would get a patent five years after making an application
to the General Land Office. There is no mention in this
law about irrigation, water rights, or easements.
"An Act to provide for the sale of desert land in
certain States and Territories" (Desert Lands Act)
U.S. Statutes at Large, Vol. 19, p.377, 44th Cong.,
Sess.II, 1877. "Carey Act" Chap. 107--An act to provide
for the sale of desert lands in certain States and Territories.
Swalley Abstract: This was the first act to provide
a way for homesteaders to acquire water for agricultural
purposes on desert land. The homesteader had to file
a declaration under oath with the General Land Office
for no more than one section (640 acres). The applicant
had to get water to the land within three years. Desert
lands are defined as, ". . . all lands exclusive of
timber lands and mineral lands which will not, without
irrigation, produce some agricultural crop . . ." There
is no mention of easements or irrigation districts/companies.
"An Act to provide for the sale of desert land in
certain States and Territories" (Desert Lands Act)
Amendments of 1891 51st Congress, Sess. II, Ch. 561,
1891. An act to repeal timber-culture laws, and for
other purposes.
Swalley Abstract: This amendment of the Carey Act was
the natural progression from the 1877 Act for the sale
of desert lands (section 2, page 1096). The 1877 Act
did not provide any details for how irrigation was going
to work. This Act amends the 1877 Act by adding much
needed detail such as how to get a water right and mentioning
irrigation companies. Right-of-ways for irrigation companies
are discussed on page 1101 in sec. 18.
"Sec. 18. That the right of way through the public
lands and reservations of the United States is hereby
granted to any canal or ditch company formed for the
purpose of irrigation and duly organized under the laws
of any State or Territory, which shall have filed, or
may hereafter file, with the Secretary of the Interior
a copy of its articles of incorporation, and due proofs
of its organization under the same, to the extent of
the ground occupied by the water of the reservoir and
of the canal and its laterals, and fifty feet on each
side of the marginal limits thereof; also the right
to take, from the public lands adjacent to the line
of the canal or ditch, material, earth, and stone necessary
for the construction of such canal or ditch: Provided,
That no such right of way shall be so located as to
interfere with the proper occupation by the Government
of any such reservation, and all maps of location shall
be subject to the approval of the Department of the
Government having jurisdiction of such reservation,
and the privilege herein granted shall not be construed
to interfere with the control of water for irrigation
and other purposes under authority of the respective
States or Territories."
"Carey Act" Amendments of 1894
U.S. Statutes at Large, vol.28, p.372-423, 53rd Congress,
Sess. II, 1894.
Swalley Abstract: This amends or adds to section 4
of the 1877 "Desert Land Act" and the amendments of
1891. It adds authority to the States to make contracts
and submit plans of proposed irrigation. It also gets
the Secretary of the Interior involved in making regulations.
Appropriated $1,000 for Interior to examine any of the
lands selected by the State. No mention of right-of-ways
(refer back to Desert Land Act of 1891).
There will be more to come later. If you have any comments
at all, please email
us at Swalley
ASSESSMENT
POLICY
Payment in Full Prior to April 1
All charges must be paid
in full by April 1
so that assessments may be collected prior to the beginning
of irrigation season. This includes charges from the
current year and any prior year delinquencies, interest,
lien collection costs or fees.
All charges must be paid in full by April 1 so that
assessments may be collected prior to the beginning
of irrigation season. This includes charges from the
current year and any prior year delinquencies, interest,
lien collection costs or fees.
No Waiver of Assessment (Resolution 10-01)
No assessment for the next irrigation season shall be
waived after November 1 because a patron does not choose
to irrigate that year or wants to give their water right
back to the district. If the water has not been transferred
off the land by November 1 the assessment for the next
irrigation season is due and payable in full according
to the assessment policy. No assessments shall be reduced
or waived because a patron does not receive the maximum
delivery rate as long as the district has equitably
distributed the water available throughout the entire
district.
Withholding of Water Delivery
District staff will provide water to all water users
paid in full. If charges are not paid in full by April
1, delivery will not be provided. Where feasible, unpaid
water user delivery boxes or weirs will be locked or
closed to prevent delivery.
(Per Oregon Statutes 545.496)
Turn-On Fee After April 5
When charges are paid after April 5, there will be a
turn-on fee of $75.00 to cover staff time. Staff must
reallocate by each lateral and weir for all of the customers
on that portion of the canal. If someone pays after
the allocation is completed, then staff needs to spend
time to reallocate that portion of the canal. Turn on
will occur within 1 week of payment.
Interest on Unpaid Charges
Nonpayment after April 1 accrues interest at a fixed
rate of 1.33% per month (16% annually) on the unpaid
balance. (Statutory interest rate)
Late Payment of $ 50.00 After May 1
The Secretary of the District shall cause a late payment
notice to be mailed to each parcel for which delinquent
charges are owed. Said notice shall be provided and
mailed to landowner after April 1, advising the landowner
that an administrative fee of $50.00 will be added to
the unpaid balance on May 1, if not paid before May
1 of the current year.
Notice of Lien
For each account remaining delinquent and unpaid as
of June 30 of the current year, a second notice will
be mailed to each parcel for which delinquent charges
are owed. Said notice shall be provided on or after
July 1 of the current year. The landowner will be advised
that the unpaid charges are earning interest and that
a Notice of Claim of Lien for any unpaid and accrued
charges will be prepared and recorded if charges are
not paid by July 31 of the current year.
For each account remaining delinquent and unpaid as
of July 31 of the current year, the Secretary shall
refer the account to the District’s legal counsel
to prepare and record in the County Clerk’s office,
a Notice of Claim of Lien for the amount of the unpaid
charges, the delinquent charge, administrative fee,
cost of preparing, recording and releasing said Lien
and any legal fees.
Foreclosure
After 90 days following the filing of a lien, or at
the discretion of the Board beyond 90 days, for each
account remaining delinquent and unpaid from July 31
of the current year, the Secretary shall refer the account
to the District’s legal counsel for collection
under the foreclosure law, for each lien that remains
unpaid.
Utility Enforcement
Utility statutes authorize that anyone taking water
that is not authorized to do so, due to non-payment,
lack of water right, vandalism to measurement or delivery
structure, exceeding amount of right, or other actions
taking water without authorization, is subject to fees
and can also be penalized under enforceable state law.
(ORS 164.125; Class A or C misdemeanor or Class B or
C felony, depending upon conditions, value, number of
enforcement actions). If the control measurement device
cannot be locked, blockage will occur to prevent delivery
and the amount of water at the diversion will be reduced.
Removal of the blockage and taking the water when not
authorized will result in utility enforcement.
FIRST OFFENSE: Verbal or written warning; stop taking
water immediately.
SECOND OFFENSE: Second warning and a fee of $100 will
be assessed.
THIRD OFFENSE: District requests outside enforcement
authority to respond under ORS 164.125 utility theft
statute. All legal and enforcement fees billed to account.
Adopted May 13, 2009
Amended February 9, 2010
Amended April 14, 2010
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DRINKING
WATER Important Information Concerning Water
Use
Congress has passed
the Safe Drinking Water Act. Among other provisions,
the Act prohibits water providers, including irrigation
districts, from delivering water that has not been treated
and purified. Enforcement of the Federal Act has been
delegated to the Oregon State Department of Health.
Although most of our water users have
already provided for their drinking water and water
for other domestic use through private wells, or hooking
up to a public or private water system, we believe some
users may have been using district
water for other domestic purposes. The District has
been advised that the irrigatation water is unsafe and should
not be used for drinking water or other domestic purposes
such as bathing, showering, dishwashing, cooking, or
maintaining oral hygiene. Please communicate this to
all those in your household or living on property you
own within the District.
Resolution Restricting Human Consumption
of Irrigation Water
Passed by SID's Board of Directors August 14, 2001
Swalley Irrigation District hereby
adopts this resolution in light of several factors:
First, Swalley's Water Rights Certificate
authorizes Swalley to allocate only a portion of its
total water rights for domestic use.
Second, the operational costs of providing
water for human consumption (which include administrative,
liability and insurance costs for both
routine and extraordinary events) would be prohibitive.
Third, if Swalley were to attempt
to provide water for human consumption, that water would
have to meet the rigorous requirements of the National
Primary Drinking Water Regulations of the United States
Environmental Protection Agency (as directed by the
Oregon Department of Health and attached hereto).
In light of the forgoing Swalley hereby
adopts this resolution:
a) prohibiting use of irrigation water
for human consumption or any use which might result
in human consumption; b) requiring notice to Swalley
customers of this prohibition and explaining the dangers
of using untreated irrigation water for human consumption,
and c) requiring written acknowledgment by Swalley customers
of the notice of prohibition and explanation of dangers
described in (b).
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WATER
RIGHT TRANSFERS
Transfers of
water rights are administered by the Oregon Water Resources
Department. The district prepares the state application,
upon a water user's request, as the district is responsible
for providing the necessary documents and assurances
to the state. The state's fee is incorporated into our
transfer fees and we have included the requirements
of the state's transfer laws and rules in our transfer
policy and process.
TYPES
OF TRANSFERS
1) Annual District Petition - OAR Division 385 (Oregon
Administrative Rules) By December 31st of each calendar
year, the district can group together all requests from
district water users to move irrigation water rights
from one location to another within the district on
a permanent basis. This is called "change in place of
use."
2) Other Permanent
Transfers - OAR Division 380 To change the "point of
diversion" or to change the "type of beneficial use"
requires a more significant process that must be done
on an individual user basis. To change from irrigation
to any other use (to scenic, fish pond, nursery, industrial,
etc.) is a change in the type of beneficial use. These
transfers require the use of a CWRE (certified water
right examiner) to be hired by the applicant to complete
both a before and after map for each parcel affected.
3) Temporary
Transfers - The district can also submit transfers to
be effective only for one irrigation season.
4) Instream
Leases - Instream leases are another type of temporary
transfer and allow the water user to lease an irrigation
right instream for one irrigation season up to 5 seasons.
TRANSFER
FEES
Transfer fees for "change in use" applications
filed as part of an annual district petition are less
expensive because state fees are reduced when multiple
water users file under cover of the annual petition
in electronic form. Transfer fees for "other permanent
transfers" will be higher as more information and higher
state fees are required.
Fees for mapping
will vary according to the type of map required:
1) Annual District Petition with acreage under 5.0 acres
2) Annual District Petition with acreage 5.0 acres or
more
3) Other Permanent Transfer, any acreage amount
Transfer Fee:
$250 for each tax lot involved in the transfer (including
the tax lot from which water is removed and the tax
lot to which water is moved to)
Map Fee: $250
for each tax lot in the transfer receiving or removing
less than 5.0 Acres
Mapping 5.0
acres or more sites: These must be accomplished by a
Certified Water Rights Examiner (CWRE). These consultants
are approved by the State of Oregon and can be found
in the yellow pages (engineering firms, surveyors) or
contact the Bend Regional office of the Oregon Water
Resources Department at 388-6669 for a list of qualified
CWREs.
Transfer
procedures for "place of use" applications
These transfers move water rights for irrigation
purposes from one parcel of land to another, or from
one location on a parcel of land to another location
on the same parcel.
Requirements prior to transfer:
1) Application fees paid in full
2) Assessments and all user charges paid in full on
all parcels involved
3) Water used one or more years in previous 5 year period
4) Approval of field staff that the transfer can be
accommodated within the system
5) Submittal of preliminary maps*
6) Completion of notice for transfer by petition as
provided by the district office (notarized consent for
transaction)
7) Water must be able to be applied beneficially in
the current irrigation season.
To begin the transfer process,
contact the district office and set up an appointment
to go through the steps of the process and to make arrangements
for field staff review.
Upon request the district will
provide you with a copy of the map of the water rights
on the property from which they are to be removed and
a copy of the map of the property to where the rights
will be relocated, from the district's GIS records.
In addition we will provide you with a copy of your
water rights of record (billing state with legal description).
*On the copies of the maps draw in the approximate area
which is to have water removed from and draw in on the
map where water is to be moved to, draw in the approximate
area to be irrigated. These can be simple handdrawn
maps at this stage. They will be replaced by professional
maps after the water right has been beneficially used
on the property, after the irrigation season.
While SID maintains listings
in its office of water rights for sale and water users
wanting to buy rights, SID is not involved in the sale
of water. The terms between water users are private
sales. The price of the sale is set by individuals.
There is no specific price set by the district. Water
sales have varied from $500-$3,500 per acre in the Tumalo
area.
At the end of the irrigation
season the district will assess the actual use. If the
person applying the water to the new location does not
irrigate the total amount requested, part of that water
right could be lost as the state will take that portion
not applied away from the user and the district if the
full amount is not applied.
The watermaster, in reviewing
the transfer after it is submitted to the state, will
check to see that there is evidence of the use of water
within the last five years on the property from which
water is being removed and he will also verify that
the right amount of water has been applied to the new
land. After the watermaster verifies the use, the district
will receive a confirmation that the right is officially
designated at the new location.
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