Section 538.430 - Medford and Eagle Point Irrigation District; right to waters of Big Butte Creek; generation, sale and distribution of electric energy by irrigation district(1) Subject to water rights existing on May 29, 1925, the City of Medford, in Jackson County, is granted the exclusive right to use for municipal purposes all the waters of Big Butte Creek, a tributary of Rogue River situated in Jackson County, and of the springs at the head which form the creek, and of its tributaries. The City of Medford, any of its officers, and others on its behalf may appropriate all the waters for these purposes and an application therefor may be made for the benefit of the city, either by it in its own name, or by any of its officers or by any other person on its behalf. No person shall appropriate or be granted a permit to use any of the waters except as provided in this section, and for the use and benefit of the city. But the City of Medford may, under this grant, divert such waters from their watershed and convey them to the city and elsewhere for use by it for municipal purposes, either within or without the city limits. All of such waters are withdrawn from future appropriation, except for such use and benefit of the City of Medford; provided however, that the Eagle Point Irrigation District may establish and use an additional point of diversion below the diversion point in use on April 1, 1953, under its permit number 6396 which authorizes the appropriation of not to exceed 100 cubic feet per second.(2) Subject to rights existing on July 21, 1953, to the use of the waters of Big Butte Creek, and of the springs at the head which form the creek, and of its tributaries, including the rights granted in subsection (1) of this section to the City of Medford to the use of such waters and the right of future appropriation of such waters, the Eagle Point Irrigation District is granted the right to appropriate and use up to and including 100 cubic feet per second of the waters of Big Butte Creek, using the diversion site of the Eagle Point Irrigation District existing on April 1, 1953, for the purpose of generating electric energy; provided, however, that not less than 10 cubic feet per second of said waters shall be permitted to pass said diversion point and remain in the channel of said stream at all times other than times when said waters are diverted for irrigation purposes. The Eagle Point Irrigation District may: (a) Enter into such contracts and perform such other acts as it deems necessary or desirable for the generation of electric energy and the construction and maintenance of facilities for the generation of electric energy.(b) Enter into such arrangements as it deems proper for the use, sale or distribution of the electric energy which is generated.(3) In performing any of the acts under subsection (2) of this section, the Eagle Point Irrigation District shall not be deemed a public utility as defined in ORS 757.005.(4) Subsections (1) and (2) of this section shall not prevent the appropriation of the waters of Clark Creek, in Jackson County, for the development of hydroelectric power not to exceed two megawatts if the facility will be constructed and operated in compliance with recommendations by the State Department of Fish and Wildlife concerning fish conservation, including streamflow requirements based upon biological criteria.Amended by 1953 c.572 §2; 1963 c.231 §1; 1983 c.650 §2