Oregon Water Access and Water Rights (19-OR-a)
Water rights are obtained in a three-step process in Oregon. The applicant will first apply to the WRD for a permit to use water. Once a permit is granted, the applicant must construct a water system and begin using water. When water is applied, the permit holder must hire a certified water rights examiner to complete a survey of water use and submit to the WRD a map and report detailing how and where water is being applied. If water has been used according to the provisions of the permit, a water right certificate is issued based upon the report findings.Additionally, beyond Oregon's specific requirements and limitations on appropriation of water in the state, the public trust doctrine may prevent appropriation on waters that are "navigable-for-title" or "navigable-in-fact."
Water Access and Water Rights Process
19-OR-a.1 to 19-OR-a.2 - Will Geothermal Fluids Produced be Greater Than 250 Degrees F
Oregon characterizes Geothermal resources as water if the bottom hole temperature is less than 250 degrees Fahrenheit and as a mineral if the bottom hole temperature is greater than 250 degrees Fahrenheit. The WRD does not issue permits to appropriate geothermal resources. The appropriation requirement does not apply to the production of geothermal fluids with a temperature greater than 250 degrees Farenheit (ORS 537.090). However, Oregon claims ownership of all geothermal resources located on state and private lands and the developer should consult the geothermal lease process in Oregon.
19-OR-a.3 - Application for Permit to Appropriate, Maps, and Fee
Unless provided for within a specific exemption in Chapter 537, any person intending to acquire the right to beneficial use of water in Oregon must submit an application to WRD (ORS 537.130). The developer may obtain more information about permits and the water rights process in Oregon at the webpage: About Applying for Water Rights.
To access the WRD's Application form, follow the like here: WRD Forms
The Application should include all of the information required under ORS 537.140, including:
- The name and mailing address of the applicant;
- The source of water supply including the name and mailing address of any owner of the land upon which the source of the water supply is located;
- The nature and amount of the proposed use;
- The location and description of the proposed ditch, canal or other work, including the name and mailing address of the owner of any lands that are not owned by the applicant and that are crossed by the proposed ditch, canal or other work even if the applicant has obtained written authorization or an easement from the owner;
- A statement declaring whether the applicant has written authorization or an easement permitting access to non-owned land crossed by the proposed ditch, canal or other work;
- The time within which the project proposes to begin construction;
- The time required for completion of the construction;
- The time for the complete application of the water to the proposed use; and
- Any other information required in the application form that is necessary to evaluate the application as established by statute and rule.
Each application must also be accompanied by a map or drawing and all other data concerning the proposed project and the applicant's ability and intention to construct the project. The fee required for an application may be determined based on the fee schedule set out in ORS 536.050(1).
19-OR-a.4 to 19-OR-a.5 - Review Application Materials for Completeness
The WRD will determine if the application is complete and includes all applicable information required under Chapter 537 within 15 days after receiving the application (ORS 537.150). If the application is incomplete, WRD will return the fees paid and the application to the applicant. If the application is deemed complete, WRD will mark the date of receiving the application, which will constitute the priority date for any water right issued in connection with the application.
19-OR-a.6 - Is the Proposed Appropriation Prohibited by ORS Chapter 538
If the application is complete, WRD will determine whether the proposed project is prohibited by Chapter 538 (Withdrawal of Certain Waters from Appropriation). If the proposed use is prohibited, WRD will reject the application and return all fees to the applicant.
19-OR-a.7 - Initial Review
If the proposed use is not prohibited by ORS Chapter 538 (Withdrawal of Certain Waters from Appropriation), WRD will initiate an initial review of the application and make a preliminary determination of the following:
- Whether the proposed use is restricted or limited by statute or rule;
- The extent to which water is available from the proposed source during the times and in the amounts requested; and
- Any other issue the department identifies as a result of the initial review that may preclude approval of or restrict the proposed use.
In reviewing the application the WRD must presume that a proposed use will not impair or be detrimental to the public interest if the proposed use is allowed in the applicable basin program established pursuant to ORS 536.300 and 536.400 or given a preference under ORS 536.310(12) if:
- Water is available;
- The proposed use will not injure other water rights; and
- The proposed use complies with rules of the Water Resources Commission.
The above presumptions may be overcome by a preponderance of the evidence if:
- One or more of the criteria for establishing the presumption(s) are not satisfied and
- The proposed use will impair or be detrimental to the public interest as demonstrated in comments, a protest, or a finding of the WRD that demonstrates the specific public interest under ORS 537.170(8) would be impaired or detrimentally affected and how the identified public interest would be affected.
After the initial review has been completed, WRD will notify the applicant of its preliminary determinations and allow the applicant 14 days from the date of the mailing to notify the department to either stop processing the application or to proceed with the application (ORS 537.150(5)).
19-OR-a.8 - Proposed Final Order
In conducting the initial review and creating the proposed final order, WRD will consider the conditions and make any necessary assumptions as provided for in more detail in ORS 537.153. The proposed final order must cite findings of fact and conclusions of law, including, but not limited to:
- A Confirmation or modification of the preliminary determinations made in the initial review;
- A brief statement that explains the criteria considered relevant to the decision, including the applicable basin program and the compatibility of the proposed use with applicable land use plans;
- An assessment of water availability and the amount of water necessary for the proposed use;
- An assessment of whether the proposed use would result in injury to existing water rights;
- An assessment of whether the proposed use would impair or be detrimental to the public interest as provided in ORS 537.170;
- A draft permit, including any proposed conditions, or a recommendation to deny the application;
- Whether the rebuttable presumption that the proposed use will not impair or be detrimental to the public interest has been established; and
- The date by which protests to the proposed final order must be received by the department.
19-OR-a.9 - Public Notice and Comment Period
Within 7-days after processing the application and receiving notice from the applicant to proceed, WRD will give public notice of the application in the weekly notice published by the department. Notice will include a request for comments on the application and information pertaining to how an interested person may obtain future notice about the application and a copy of the proposed final order (ORS 537.150(6)).
Any person interested in the application must submit written comments to the department within 30 days of the public notice. Public notices of pending applications can be found online at the following webpage: Water Rights Public Notice.
19-OR-a.10 to 19-OR-a.11 - Have Any Parties Contested the Order
The WRD will mail copies of the proposed final order to the applicant and any other persons who have requested copies and will publish notice of the proposed final order for public review. Oregon statutes provide that "Any person who supports a proposed final order may request standing for purposes of participating in any contested case proceeding on the proposed final order or for judicial review of a final order" (ORS 537.153(5)). Any request for standing must be in writing and accompanied by the required fee under ORS 536.050(1)(n).
Any person may submit a protest against the proposed final order. The protest must include:
- The name, address, and telephone number of the protestant;
- A description of the protestant's interest in the final order and if the interest is a public interest, a statement of the public interest;
- A description of how the action would impair or be detrimental to the protestant's interest;
- A description of how the proposed final order is in error or deficient and how to correct the alleged error or deficiency;
- Any citation of legal authority that supports the protestant's claim; and
- The protest fee required under ORS 536.050.
If a contested case hearing is scheduled, the WRD will hold the hearing and consider issues limited to those identified by the administrative law judge assigned to the case. Parties to the hearing will be limited to the applicant, any person who timely filed a protest, and any person who filed for standing under ORS 537.153 and who requested to intervene (ORS 537.170). The hearing will be conducted in accordance with the provisions of ORS Chapter 183 and of ORS 537.170.
19-OR-a.12 to 19-OR-a.13 - Final Order Approving Application and Water Right Permit
If the presumption of public interest is overcome, then before issuing a final order, the director or the commission, if applicable, must make the final determination of whether the proposed use or the proposed use as modified in the proposed final order would impair or be detrimental to the public interest by considering:
- Conserving the highest use of the water for all purposes, including irrigation, domestic use, municipal water supply, power development, public recreation, protection of commercial and game fishing and wildlife, fire protection, mining, industrial purposes, navigation, scenic attraction or any other beneficial use to which the water may be applied for which it may have a special value to the public;
- The maximum economic development of the waters involved;
- The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control;
- The amount of waters available for appropriation for beneficial use;
- The prevention of wasteful, uneconomic, impracticable or unreasonable use of the waters involved;
- All vested and inchoate rights to the waters of this state or to the use of the waters of this state, and the means necessary to protect such rights; and
- The state water resources policy formulated under ORS 536.295 to 536.350 and 537.505 to 537.534.
The permit will be mailed to the applicant and the permittee may proceed with the proposed project upon receipt of the final order approving the application. The permittee should then construct any necessary diversion structures and begin diverting water under the permit conditions.
19-OR-a.14 to 19-OR-a.17 - Does the Developer Need an Extension to Complete Work
The permittee must construct any proposed irrigation or other works with reasonable diligence and complete the construction within a reasonable time as fixed in the individual permit terms (not to exceed 5 years). However, the holder of a permit may extend their permitted time to complete construction upon a showing of good cause (ORS 537.230).
19-OR-a.18 - Map and Report Detailing Water Use
Unless WRD has waived the requirement under ORS 537.230(5), the water right permittee must hire a certified water right examiner to survey their appropriation upon completion of beneficial use (ORS 537.230(4)). The permittee must also submit a map of the survey along with the request for a water right certificate. WRD provides a query of certified water right examiners at the following link: Certified Water Right Examiners Query.
19-OR-a.19 - Issue Certificate of Water Right for Amount of Water Beneficially Used
The WRD will issue the applicant/diverter a certificate of water right for the amount of water that is beneficially used.
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