gaining authorization to use water
Most water rights are obtained in a three-step process. The applicant first must apply to the Department for a permit to use water. Once a permit is granted, the applicant must construct a water system and begin using water. After water is applied, the permit holder must hire a certified water right examiner to complete a survey of water use and submit to the Department a map and a report detailing how and where water has been applied. If water has been used according to the provisions of the permit, a water right certificate is issued after evaluation of the report findings.
In most areas of the state, surface water is no longer available for new uses on a year-round basis. Ground water supplies may also be limited in some areas. Allocation of new uses of water is done carefully to preserve the investments already made in the state, whether in farms, factories, or improvement of fish habitat.
Water rights are not automatically granted. Opportunities are provided for other water right holders and the public to protest the issuance of a permit. Water users can assert that a new permit may injure or interfere with their water use, and the public can claim that issuing a new permit may be detrimental to the public interest. This provides protection for both existing water users and public resources.
The First Step: requesting a water-use permit
A permit is the authorization from the Department necessary to begin constructing a water system and begin using water. Once the Department issues a permit, if the user complies with the conditions of the permit and develops their water right, the Department cannot later decide to revoke or change the permit or impose new standards for the use.
For an application to be considered, an applicant must submit a completed application to the Department along with other information and maps, as required by statute. Types of information that may be required:
1. A legal description of the property involved (may be found on a deed, land sales contract, or title insurance policy).
2. A map showing the features of the proposed use and proposed source located according to township, range, and section including any roads or other right of ways crossed by proposed diversion works.
3. In most cases, a statement declaring whether the applicant has written authorization permitting access to land not owned by the applicant (including land crossed by proposed diversion works).
4. The names and addresses of any other property owners that may be affected by the proposed development.
5. Land use information obtained from the affected local government planning agency.
6. Supplemental Form (if necessary) such as Form I for irrigation or Form M for a municipal right.
Oregon law also requires that the applicant pay a fee set by statute. This fee contributes to the costs of reviewing and handling the application. A fee schedule is available from the Department on request and can be found online at www.wrd.state.or.us.
It is important that application instructions are carefully followed. If application materials are incomplete, they will be returned to the applicant.
in the protest(s). A contested case hearing often extends the process beyond eight months.
Applicants with complex requests, or applicants who are unfamiliar with the application process, are encouraged to contact the Department to schedule a “pre-application conference.” The Department’s Water Rights Section staff are available to meet with applicants about their proposed project.
During the application review stage, applications are examined by the Department to ensure that allowing the proposed use will not cause injury to other users or public resources. The Department also determines if water is likely to be available for use and considers many other
factors in its analysis of the application. These factors include basin plan restrictions that might prohibit certain uses or further appropriations, local land use restrictions, water quality, and other state and federal rules.
For example, when considering a water right application in or above a state scenic waterway, the Department is required by law to find that the proposed use will not impair the recreational, fish, and wildlife values in the scenic waterway. The Department has prepared estimates of the streamflow levels needed to satisfy these uses. These flows may be used in determining whether new water rights in or above a scenic waterway should be authorized.
Also during the application review stage, other water right holders, government agencies, and the public may comment on or protest the application. For example, the Department consults with the Oregon Department of Fish and Wildlife to evaluate impacts on sensitive, threatened or endangered species, and ensure instream values are protected.
When applicants seek to use stored water only, the application will receive an expedited review leading directly to a final order, unless public interest issues are identified following the public notice of filing. If such issues are raised adequately, the application will undergo the standard review process to allow thorough public participation.
The Second Step: constructing the system and using water
Once the Department determines that a new water use can be allowed, a permit is issued. The permit will contain time limits to develop the water use. Other conditions may also be placed on the permit, such as a requirement for metering the water use, reporting water use, or installing and maintaining fish screens.
Permits generally require the water user to develop the water use within four or five years. The permit holder may apply for an extension of time to fully develop the water use. The Department considers each request for an extension of time on a case-by-case basis. If there is good
cause for not completing the water use in a timely manner and the permit holder has shown diligence in trying to meet the requirements of the permit, an extension may be granted.
Changing or modifying a permit
The point of diversion or the place of water use under a permit may be changed by submitting an application to the Department. The application is similar to a transfer application (discussed on pages 29-33), except the required map does not have to be prepared by a certified water right examiner. The change in the permit will be allowed only if it will not cause injury to other water rights. Under certain, limited circumstances, permit holders may also change a surface water point of diversion to a nearby ground water source. The other terms and conditions in the permit cannot be changed.
The Third Step: “proving up” the water use
Once the water project is completed, the permit holder must send notice to the Department that work has been completed. The permit holder is then required to submit proof of water use to the Department.
Except for certain small ponds, as described on pages 22-23, a water user must hire a certified water right examiner (CWRE) to survey the extent of water use, and within one year of completion (or the completion date, whichever is sooner) submit a map and claim of beneficial use to the Water Resources Department. This allows the Department to evaluate the extent of water use developed within the terms and conditions of the permit. Certified water right examiners are registered, professional surveyors, geologists, or engineers who have passed a test given by the Oregon State Board of Examiners for Engineering and Land Surveying. For a list of CWREs, call the Department in Salem at (503) 986-0900 or your local watermaster listed on pages 40-41.
In some instances, personnel from the Department may conduct a brief field inspection of the completed appropriation to check the accuracy of the survey supplied by the CWRE. The inspector may want to check the size and type of equipment or verify that the amount of water requested has been put to use according to the permit. If necessary, water measurements may be taken. In some cases, applicants inadvertently ask for too much water or simply use less water than originally intended. Oregon’s water law provides that a certificate may be issued only for the quantity of water that is used beneficially: the quantity of water that can be applied without waste or the amount allowed by the permit, whichever is less.
Final Certificates: the “perfected” water right
With the final proof survey map and water-use report, the Department will determine if the permit holder has met the conditions of the permit. If so, a water right certificate is issued. The water right certificate will continue to be valid as long as the water is used according to the provisions of the water right at least once every five years. (For exceptions to this requirement, see pages 33-34 on cancellation of water rights.)
The amount of water allowed in the certificate will be an instantaneous rate and/or an annual volume. The appropriator may divert a certain maximum rate, but may not exceed the total amount allowed for the year. The instantaneous rate is usually expressed in cubic feet per second (cfs) or gallons per minute (gpm) and the annual amount in acre-feet (af). A conversion table for cfs, gpm, and af is located on the inside cover of this booklet.
A water right permit or certificate will not guarantee water for the appropriator. Under the prior appropriation doctrine, the water right authorizes diversion of water only to the extent water is available. The amount of water available to a water right holder depends on the water supply and the needs of senior water rights, including water rights for instream use.
Water Dedicated to Instream Uses
The Department also approves water rights for protecting fish, minimizing the effects of pollution, or maintaining recreational uses. These water rights are called “instream water rights”. Instream water rights establish flow levels to remain in a stream on a month-by-month basis and are usually set for a certain stream reach and measured at a specific point on the stream. Instream water rights have a priority date and are regulated in the same way as other water rights.
Instream water rights were established by the 1987 Legislature. This law allows the Departments of Fish and Wildlife, Environmental Quality, and Parks and Recreation to apply for instream water rights. The law gives instream water rights the same status as other water rights. However, in a Governor-declared drought, Oregon law allows the Department to give preference to human consumption and livestock watering over other uses, including instream uses.
Instream water rights are not guarantees that a certain quantity of water will be present in the stream. When the quantity of water in a stream is less than the instream water right, the Department will require junior water right holders to stop diverting water. However, under Oregon law, an instream water right cannot affect a use of water with a senior priority date.
Oregon law also allows water right holders to sell, lease, or donate water rights to be converted to instream water rights. This is done through a short-term lease agreement or by a formal transfer of the existing right from the current use to a new type of use. Instream leases and transfers are discussed on pages 29-33.
Rights to Store Water
Reservoirs and Ponds
The construction of a reservoir or pond of any size to store water requires a permit from the Department. A permit to construct a reservoir allows storage of streamflow and is usually filled from higher streamflows that occur during the winter months.
A permit for a reservoir with the sole purpose of storing water is considered the primary permit. Permittees intending to divert and use or maintain water stored in the reservoir or pond, will need an additional, or secondary, water use permit.
A holder of a water right to the natural flow of a stream has no right to water stored in the reservoir of another water right holder. A reservoir water right holder usually does not have to release stored water to satisfy the needs of senior, natural flow rights on the same stream system. The operator of the reservoir must, however, provide some means of passing natural streamflow through or around the reservoir to satisfy downstream prior water right holders and instream water rights.
Reservoirs with a dam 10 feet or greater in height and that store 9.2 acre-feet or more of water must submit a map prepared by a CWRE, as well as engineering plans and specifications for approval by the Department before the reservoir is constructed. Smaller reservoirs and dams do not require CWRE application maps or engineered designs and plans; however, the Department highly encourages dam builders to seek the Department’s technical review of plans before beginning construction. This will help ensure a sound dam with the necessary safeguards in place for the protection of downstream property owners.
Alternate review process for smaller reservoirs
An alternative permit application process is available to persons interested in building small reservoirs storing less than 9.2 acre-feet of water or in reservoirs with dams less than 10 feet in height.
This process involves an expedited review and requires the Department to grant a permit or deny the application within six months. Fees for this type of permit are generally lower than those required for other types of permits. For certain reservoirs or ponds filed under this process, those that store less than 9.2 acre-feet and do not have a secondary permit to use the stored water, a CWRE survey is not required to receive a water right certificate. Instead, permittees may submit information on the dimensions, capacity, and location of such reservoirs to the Department. If you have questions about which type of application process is best for you, please call the Department at (503) 986-0900 or contact your local watermaster (see pages 40-41).
|Commission and Department
1. Oregon Water Laws
water management in Oregon
2. Protections and Restrictions
managing water appropriations
3. New Water Rights
gaining authorization to use water
4. Other Water Rights
authorization for water use
5. Transferring Rights
existing rights for new users
6. Canceling Rights
loss of water rights through non-use
encouraging efficient water use
8. Finding Water Rights
determining if you have a water right
9. Enforcing Water Laws
watermasters and field staff protecting rights and resources
10. Region Managers and Offices
other development permits
Water Measurement Conversions