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. The most important exemptions for rural landowners relate to the use of ground water (from a well) for domestic purposes. Oregon law allows up to 15,000 gallons per day for single or group “domestic use.” This includes use of water for all customary household purposes as well as for related outdoor uses such as swimming pools, washing cars and use in out-buildings such as barns and shops. Ground water may also be used for irrigating up to ½ acre of non-commercial lawn and garden (such as for maintaining limited residential landscaping). Other exempt uses include up to 5,000 gallons per day for commercial or industrial use. A complete list of exempt ground water uses is found in ORS 537.545. Although these uses do not require the landowner to obtain a water right, once established, the exempt ground water use is recognized and protected in the same fashion as other water rights. The “priority date” for an exempt ground water use is based on when the well was constructed and first put to beneficial use. 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, landowners may be able to purchase existing water rights from other locations which can be “transferred” to change the type of use, place of use or point of diversion. A transfer cannot be used to change the source of water. 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.

V. Environmental and Land Use Issues

In addition to water rights, landowners who wish to make use of water may be subject to numerous other potential regulatory concerns, such as the federal Endangered Species Act (ESA) and Clean Water Act (CWA), and local land use restrictions tied to development of sensitive water resources. For example, the ESA is a key consideration in the application process for new water rights or regulatory permits, but may also be enforced against water right holders if the use of water is determined to result in “take” of a listed species of fish.  In most cases, ESA issues relating to the use of water can be addressed through fish screening or passage adjustments. These regulatory concerns can also affect upland operations that result in discharges of waste water into stream systems.

VI. Conclusion

In most cases, use of water from Oregon’s rivers, streams and ground water aquifers requires a “water right” issued by the Oregon Water Resources Department. A significant exemption to this general rule allows for the use of ground water for domestic/household purposes, and for limited non-commercial lawn and garden irrigation. 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.

For More Information:

Martha O. Pagel
mpagel@schwabe.com

Shonee D. Langford
slangford@schwabe.com