On June 7, 2023, Governor Tina Kotek signed into law SB 718, which provides an additional layer of protection for Oregon water right holders in drought-stricken counties. The new law goes into effect January 1, 2024.
Oregon water laws require most water right holders to periodically exercise their water rights. This is known as the “use it or lose it” principle. More specifically, “[w]henever the owner of a perfected and developed water right ceases or fails to use all or part of the water appropriated for a period of five successive years, the failure to use shall establish a rebuttable presumption of forfeiture of all or part of the water right.” ORS 540.610(1).
The forfeiture statute recognizes several so-called exemptions that can be used to rebut a presumption of forfeiture due to non-use. Current exemptions include, for example, any non-use that occurred when the “owner or occupant … was unable to make full beneficial use of the water because water was not available” and non-use that occurred “during a period of time within which the exercise of all or part of the water right was not necessary due to climatic conditions, so long as the water right holder had a facility capable of handling the full allowed rate and duty, and was otherwise ready, willing and able to use the entire amount of water allowed under the water right.” ORS 540.610(2).
The new drought exemption provides additional protection from forfeiture in situations where current exemptions may or may not apply. Under the new law, “[a] drought year does not count as a year for purposes of forfeiture under this section for a holder of a perfected and developed water right within the county for which the drought year was declared, if the holder has a facility capable of handling the entire rate and duty authorized under the water right and is otherwise ready, willing and able to make full use of the water right.” A “drought year” is defined as “a calendar year in which the Governor declares … that a severe, continuing drought exists, or is likely to exist, within a county.”
The new law further states that “[a] year, during which nonuse occurs, that precedes or follows a drought year counts as a year for purposes of forfeiture under this section for a holder of a perfected and developed water right within the county for which the drought year was declared.” It also provides that the new exemption “may not have any effect on consideration of an application [to transfer a water right] under ORS 540.520.”
The new drought exemption provides a new layer of legal protection and, more importantly, peace of mind for Oregon water right holders who choose not to exercise their rights during times of severe drought.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
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