Water Rights in Oregon

OCEAN - Connect

April 22, 2015

Teri Hranac

Water Right Services Division

OWRD

“All the surface and ground water

of the state…”

Public Water

Oregon’s water

resources are

managed by

the Oregon

Water

Resources

Department.

Water Rights in Oregon:

A System of Allocating & Using Water

• “Public water”

• 1909 Water Code

• Water rights

system

Photo courtesy of Oregon State Library

Oregon’s Water Laws

• First water code enacted in 1909

• Based on doctrine of “prior appropriation”

– The first person to obtain a water right is the

last to be shut off in times of low water

availability.

• Beneficial use without waste

– Water for personal or public good.

Oregon’s Water Laws

• “Priority date” – Establishes a water

right holder’s place

in line when water

becomes scarce.

Oregon’s Water Laws

• “Regulation” based on priority date

– Junior water rights are regulated to meet the

entitlement of senior water rights.

“First in time,

first in right…”

• Source of water Ground water or surface water

• Type of use The “beneficial use” of water

or appropriation Where water is captured or drawn

• Place of use Where water is applied

A Water Right Consists Of:

• Point of diversion

• Quantity of water Rate, duty and season of use

Must be Used

• Terms and conditions

– Limited to rate, duty, period of use and conditions of water right.

• May not go unused for five consecutive years

– Subject to forfeiture and cancellation.

– Some exceptions to forfeiture, as outlined in ORS 540.610(2).

Appurtenancy

• Certificated water rights

attached to the land

– If land is sold, the

water right stays with

the land… not with the

previous owner.

Exempt Uses of Surface Water

• Livestock watering On- or off-stream

• Emergency fire-fighting

• Land management practices

Soil conservation and water quality

• Rainwater collection Artificial, impervious surface

Do not require a water right

ORS 537.141

Exempt Uses of Ground Water

• Single and Group Domestic

Household, washing, etc.

15,000 gallons per day

• Lawn and Garden Up to ½ acre

• Commercial and Industrial uses

5,000 gallons per day

• Livestock watering

• Down-hole heat exchange

Do not require a water right

ORS 537.545

The Water Right System

“Proving Up”

Application

Permit

Certificate

Non-Use Change in Use

Transfers Cancellation

When a completed application is

received, the priority date is

assigned. Then the Department

processes the application using a

combination of basin rules, water

availability reports and public

interest review.

If approved, the

Department issues a

permit. Now, the water

user must begin

applying the water to

beneficial use. When

their system is complete

they must hire an

examiner to prepare a

report of beneficial use.

A water right holder

may change their point

of diversion, point of

appropriation, place of

use or type of use by a

formal transfer.

With some exceptions

(such as those for a

municipality), if the

water right is not used

for more than five

consecutive years, it

may be considered

forfeited and could be

cancelled.

“Priority Date”

Application for Water Use Permit

• Application submitted

– “Priority Date” assigned to the application.

– Application is processed by the Department

using a combination of:

• Basin rules;

• Water availability reports; and

• Public interest review.

Availability of Surface Water for

New Appropriations

The Application Review

Application

Permit

When a completed

application is

received, the priority

date is assigned.

“Priority Date” The Department

processes the

application using

a combination of

basin rules,

water availability

reports and

public interest

review.

Initial Review

Proposed Final Order

Final Order

Water Use Permit

• Permit issued (if allowable), specifying:

– Source allowed;

– Type of use allowed;

– Maximum rate & duty allowed;

– Period of use allowed;

– Priority date;

– Timeline (date) to complete construction and full application of water to beneficial use

• Generally 5 years (20 years for a municipal permit); and

– Other conditions of the permit.

Conditions of the Permit

• Conditions for permits may include:

– Date for completion of construction and full

application of water to beneficial use (5 years);

– Installation/maintenance of water meter and/or

fish screens;

– Annual well static water level measurements;

– Annual water use reporting to OWRD; and/or

Once a Permit is Issued…

Permit Amendment

Permit

Certificate

Permit Extension of Time

“Proving Up” The water user must

apply the water to

beneficial use, consistent

with permit conditions.

When their system is

complete (including any

permit amendment) they

must hire an examiner to

prepare a report of

beneficial use.

A permit holder may

amend the point of

diversion, point of

appropriation or

place of use under a

permit through a

formal permit

amendment.

If more time beyond the

dates specified in the

permit is needed to

complete construction,

accomplish full

beneficial use of water

and/or comply with

conditions, the permit

holder may request an

extension of time for the

permit.

“Proving Up” on a Permit

• Must demonstrate (or “prove up” on)

beneficial use of water under the permit

• Beneficial water use under the permit

must be:

– Consistent with the terms and conditions

of the permit; and

– Accomplished within the authorized

timeline (date) specified in the permit.

Permit Extension of Time

• A Permit Extension can allow more time

(beyond the permit timeline) in which to:

– Complete construction of the water diversion

and/or water delivery system; and/or

– Accomplish beneficial use of water to the

fullest extent of the permit.

• (i.e., if only 5.0 cfs out of the permitted 10.0 cfs

has been diverted and beneficially used within the

authorized timeline in the permit)

Permit Extension of Time

• …Can also allow more time (beyond

the permit timeline) in which to:

– Comply with permit conditions.

• More time allows a condition to be satisfied

within valid, authorized timelines under the

permit.

Exception:

Failure to install fish screens prior to diverting water

cannot be cured. This situation would likely result

in denial of a Permit Extension request.

Permit Extension of Time

• A Permit Extension can be allowed if:

– Reasonable diligence and good faith of the

permit holder in developing and “perfecting”

the water use is demonstrated; and

– Good cause for the additional time to “prove

up” on the use of water is shown.

Permit Amendment

• A permit can be modified through submittal

of a Permit Amendment Application to:

– Change the location of a point of diversion or

a point of appropriation;

– Add a point of diversion or a point of

appropriation; and/or

– Change the place of use.

NOTE: The type or character of use cannot be changed

through a Permit Amendment.

Permit Amendment

• A Permit Amendment can be allowed if:

– The permit has valid completion timelines (dates)

that have not expired;

– The proposed change does not result in injury to

an existing water right; and

– For a change in place of use, the proposed “to”

lands are:

• Owned or controlled by the permit holder of record; and

• Contiguous to the lands authorized under the permit.

Claim of Beneficial Use

Once water use is “perfected” under a permit…

• A Claim of Beneficial Use (CBU) and survey

map are submitted to OWRD

– The CBU must be prepared by a Certified Water

Right Examiner.

• OWRD evaluates the CBU and survey map

• Issuance of a water right certificate is based

on results of the CBU evaluation

After a Certificate is Issued…

Certificate

Non-Use Change in Use

Transfers Cancellation

A water right

holder may

change their point

of diversion, point

of appropriation,

place of use or

type of use by a

formal transfer.

With some exceptions

(such as those for a

municipality), if the

water right is not used

for more than five

consecutive years, it

may be considered

forfeited and cancelled.

Water Right Transfer

• A water right certificate can be modified

through submittal of a Transfer

Application to:

– Change the location of a point of diversion

or point of appropriation;

– Add a point of diversion or point of

appropriation;

– Change the place of use; and/or

– Change the type or character of use.

Water Right Transfer

• A Water Right Transfer can be allowed if:

– The water right is valid and not subject to

forfeiture;

– The water user is ready, willing and able to use the

full amount of water allowed under the water right;

– The proposed change would not result in

enlargement of the water right; and

– The proposed change would not result in injury to

another existing water right.

Ground Water Registrations

(also known as a “GR”)

• GR claims filed with OWRD

– Claims document beneficial use of ground

water accomplished prior to August 3, 1955.

• Claim filing period:

– August 3, 1955 through August 3, 1958.

Ground Water Registrations

• Certificates of Registration were provided

to the claimants and are on file at OWRD

• At some point in the future…

– GR claims will be adjudicated and the rights

will be determined.

Ground Water Registration

Modification

• A GR can be modified through submittal of

a Ground Water Registration Modification

Application to:

– Change the location of a point of appropriation;

– Add a point of appropriation;

– Change the place of use; and/or

– Change the type or character of use.

Ground Water Registration

Modification

• A Ground Water Registration Modification can

be allowed if the proposed modification would:

– Not enlarge the ground water registration;

– Not injure another existing water right; and

– Not result in a state Scenic Waterway not

receiving previously available water… • During periods in which streamflows are less than

quantities needed for the free-flowing character of the

waters for recreation, fish and wildlife.

Assignment / Ownership Update

• For permits, permit amendments,

transfers and ground water registrations:

– An “Assignment” form is used to change the

ownership of (or interest in) a water use

record.

• For certificated water rights:

– an “Ownership Update” form is used to

update the contact information for the right.

Questions ?

• Teri Hranac, Allocation of Conserved Water

OWRD Water Right Services Division

Phone: 503-986-0881

E-Mail: teri.k.hranac@state.or.us

• General OWRD Phone: 503-986-0900

Website: www.wrd.state.or.us