Shonee D. Langford
I. Overview of Oregon Water Law
The basic rule of water law is that a water right is required for almost all types of water use—whether the water comes from a surface source (such as a stream or river) or from ground water through a well or pit. A water right, issued by the state, authorizes use of a certain amount of water for a specific purpose – called "beneficial use." Typical beneficial uses include: industrial (such as would be issued for a mining operation), irrigation, domestic, municipal, and commercial. It is important to note that a water right may be used only for the type of use designated in the right – a water right issued for irrigation purposes, for example, cannot be used for industrial purposes without completing a formal "transfer" process.
In addition, the water right includes a "priority date" relative to other water rights that have already been issued for use of the same source of water. The priority date is a key part of water law, reflecting the concept "first in time, first in right." In times of shortage, water is distributed on the basis of priority dates, from the most senior to the most junior. There is no proportional distribution during drought; the most senior rights are entitled to take all of the water authorized for their use before anyone else receives water.
Once issued, the water right can last forever, so long as water is regularly used in accordance with the terms and conditions of the water right. Many water rights in the state have priority dates in the mid- to late-1800s, and they remain valid today. Fully developed and vested water rights are "appurtenant" to the land, and treated as a property right under the law. However, if the water right is not used for a period of five or more years, it may be subject to forfeiture and cancellation.
II. "Exempt Uses" That Do Not Require a Water Right
There are a few important exemptions to the basic rule that a water right is required. Most importantly for the industry, Oregon law allows use of up to 5,000 gallons per day of ground water for commercial and industrial purposes, and up to 15,000 gallons per day for domestic (drinking water) use. Ground water may also be used for irrigating up to ½ acre of non-commercial lawn and garden (such as for maintaining limited landscaping.) There are no similar exemptions for the use of surface water. Almost all surface water uses will require a water right. The obvious exception is that a water right is never required for emergency fire-fighting purposes.
There is a common misconception that a water right is not required for small reservoirs. This is not the case, but the confusion is understandable. In the mid-1990s, owners were given a one-time opportunity to register certain types of pre-existing but unauthorized reservoirs with the Oregon Water Resources Department (WRD.) If a registered reservoir met certain requirements, WRD issued a letter to the owner confirming that the reservoir was exempt from permitting requirements, or issued an after-fact water right certificate for the reservoir. This was essentially an "amnesty" program intended to deal with the fact that there were literally thousands of existing ponds and reservoirs that had been constructed without proper water right permits. Since then, however, the law has clearly required that any new reservoirs – or any pre-existing reservoirs that were not registered during the temporary amnesty program – must obtain a water right. In addition, it is important to keep in mind that a separate water right is required for pumping water from a reservoir for secondary use (such as for gravel washing, dust control, or other purposes).
III. How To Get Water Rights
Water rights are issued and monitored by WRD. The application process for new water rights requires approximately one year, if all goes smoothly. But it is not unusual for the water rights process to require longer when complications arise due to resource concerns or when protests are filed by "interested parties." Major issues affecting whether a new water right would be approved include: fish and wildlife protection under the state and federal Endangered Species Acts (ESA), water quality concerns, water availability, and related land use controversies. These issues arise in connection with a "public interest" determination that must be made as part of the application review process. The WRD must conclude that a new water right will not "impair or be detrimental" to the public interest. In making this determination, the WRD consults with other state and federal agencies, including the Oregon Department of Fish and Wildlife. U.S. Fish and Wildlife Service, and the National Marine Fisheries Service (NOAA Fisheries).
As an alternative to applying for new water rights, some operations may be able to purchase existing water rights from other locations which can be "transferred" to the mining site. A transfer application must be filed with the WRD, and can request changes in the place of use, type of use, or point of diversion. Although the transfer process can be lengthy, due to a growing backlog of applications on file at WRD, the scope of review is more limited for a transfer than for a new water right application. The only issue that can be considered is whether the proposed change(s) will result in "injury" to other water rights.
IV. Mining Operations
Sand and gravel mining operations typically present three types of water use needs: de-watering related to material extraction; consumptive use to mix aggregate and provide water to industrial sites; and non-consumptive use to wash gravel. As a result of efforts by OCAPA in 2003, state law now clearly provides that a water right is not required for de-watering activities associated with surface mining, so long as no additional "beneficial use" is made of the water removed from the site. (ORS 537.141, enacted as Chapter 248 Or Laws 2003). Any subsequent use of the water from the site – such as for mixing aggregate or even for non-consumptive use in washing gravel - is a "beneficial use" under Oregon water law, and would therefore require a water right. A water right would also clearly be required if the source of water for industrial use was surface water from a nearby stream or river. As noted above, up to 5,000 gallons per day of ground water may be used without a water right; however, for most operations, the 5,000-gallon limit is not sufficient for more than drinking water and incidental uses.
A separate water right is not required for sites served by a municipal water provider – such as a city or water district.
V. Environmental and Land Use Issues
In addition to water rights, mining operations in and near water must comply with numerous other potential regulatory concerns, such as the ESA, Clean Water Act, and land use issues tied to development of sensitive water resources. The ESA directly affects in-water removal operations, and is a key consideration in the application process for new water rights or regulatory permits. These regulatory concerns can also affect upland operations that result in discharges of waste water or alteration of wetlands. OCAPA's Environment Committee is currently working with operators and state and federal agencies to clarify regulatory concerns and develop operating guidelines for in-water work and upland operations.
Water rights and related water issues can be a sleeping giant for the industry. OCAPA's bill, HB 2945 in 2003, was an important step forward in clarifying situations in which water rights are not required for mining operations. However, that law applies in only limited fact situations. In other cases, producers should evaluate current operations to determine whether water rights are required and if so, whether they are in place and properly maintained. The process of obtaining water rights – through new applications or through a "transfer" of existing water rights – can be time-consuming and may raise environmental questions under the Endangered Species Act, Clean Water Act and state land use laws. These water-related regulatory issues can also arise in connection with project siting, and ongoing operations subject to state and federal permit requirements.