UTILITY CROSSINGS

UTILITY CROSSING OF CANAL - HORIZONTAL DIRECTIONAL DRILLING

No work shall be conducted within the Irrigation District’s easement until written permission has been obtained. This includes work of any kind, underground or above. To receive written permission, project plans must be submitted with detailed descriptions of easement crossing methods, and all applicable Irrigation District fees must be paid.

Drilling operation must remain outside of Irrigation District’s easement. This includes drill staging pits, and all associated actions and wastes. A detailed description of any work to be done within the easement must be submitted. This includes transporting of materials and/or equipment through the easement.

Drilling path must remain a minimum of three (3) feet away from the Irrigation District’s facilities. The three (3) foot buffer is to be measured from the nearest part of the drilling to the nearest part of any of the District’s facilities. District facilities may include, but are not limited to; structures, pipes, and canal surfaces. All drilling must be thoroughly backfilled with Bentonite Clay, eliminating voids. Placement of Bentonite must be done to the District’s satisfaction.

Damage caused to District facilities shall be repaired or replaced in such a way that the facility is left in as good or better condition. The cost associated with the damages shall be paid for by Contractor. In addition to the cost of damaged facilities, liquidated damages may be assessed due to distribution disruption caused by the damages. Any damages caused by District water that has been released on fault of the contractor must be paid by the contractor.

EASEMENTS
Easements for "Carey Act" Irrigation Districts were estblished under the 1891 Federal Right-of-Way Act..

What follows is the beginning of a chronological chain of acts that developed into irrigation district law.

"Homestead Act" U.S. Statutes at Large, Vol. 12, p.392-393, 37th Cong., Sess.II, 1862. Chap.LXXV.--An Act to secure Homesteads to actual Settlers on the Public Domain.

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

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EASEMENT AGREEMENT
[This is a pdf document. If you need Adobe Acrobat Reader click here for free download.]

FEES

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.

Withholding of Water Delivery
District staff will provide water to all water users paid in full by April 1. 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 1
When charges are paid after April 1, there will be a turn-on fee of $75 to cover staff time.

Interest on Unpaid Charges
Nonpayment after April 1 accrues interest at a fixed rate of 1-1/3% per month (16% annually) on the unpaid balance. (Statutory interest rate)

Late Payment of $150 After May 31
The Secretary of the Board 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 on or after May 1, 2004, advising the landowner that an administrative fee of $150 will be added to the unpaid balance on June 1, 2004, if not paid by May 31 of the current year.

Notice of Lien
For each account remaining delinquent and unpaid as of August 31 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 September 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 September 30 of the current year.

For each account remaining delinquent and unpaid as of September 30 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 On September 30 of the current year, for each account remaining delinquent and unpaid from September 30 of the prior year, the Secretary of the District shall refer the account to the District's legal counsel for collection including foreclosure as provided by law, for each lien that remains unpaid.

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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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