authorizations for water use
Rights Through Customary Use
If water was used prior to enactment of the 1909 water code and has been used continuously since then, the property owner may have a “vested” water right. Because a water right is attached to the place of use, this is true even if the ownership of the property has changed.
A claim to a vested water right can be determined and made a matter of record only through a legal process known as an “adjudication proceeding.” The responsibility of the Department in the adjudication process is to gather information about the use of water and present its findings to the circuit court in the county where the water is used. The court then issues a decree that states who has the right to use water, the amount and location of water use, and the priority date for each right. The Water Resources Department then issues a water right certificate for each decreed right. The date of priority for a right determined through an adjudication proceeding is usually the date construction of the project began or the date when water was first used on the property.
Adjudication proceedings have been completed for most of the major stream systems in eastern and southern Oregon and a few of the larger tributaries to the Willamette River. Nearly 100 decrees have been issued on individual streams in Oregon. Water right certificates have been issued for most of the decreed rights. An adjudication proceeding is underway in the Klamath Basin, which involves private water users, the Bureau of Reclamation, other federal agencies, and the Klamath Tribes.
Legislation passed in 1987 required persons claiming pre-1909 rights in areas not yet adjudicated to file surface water registration statements before December 31, 1992.
Failure to file this registration statement by the deadline created the rebuttable presumption that the person had no claim to a water right. These statements do not automatically assure rights will be granted to those who have filed. Each vested right will be determined through the courts in an adjudication proceeding.
Adjudication proceedings are also used to determine the water rights for federal reservations of land. This includes Indian reservations and other federal reservations. Legislation passed in 1987, and amended in 1993, allows the Director of the Department to act on behalf of the State of Oregon to negotiate settlements for these rights. These negotiations allow the Director to include claimants, state and federal agencies, other water users, and public interest groups in discussions that resolve and quantify the use of the water on these reservations.
Oregon law also provides a method for obtaining permission to divert and use water for a short-term or fixed duration. Under current law, certain types of uses can be allowed using a “limited license”, provided that water is available and the proposed use will not injure other water rights. These authorizations allow landowners and developers to use water for purposes that do not require a permanent water right. A limited license may be available as soon as three weeks after filing an application with the Department.
Limited licenses are “junior” to all other uses and subject to revocation at any time. There is no guarantee that water will be available.
Uses under a limited license may include, but are not limited to, road construction, fire fighting, general construction, rangeland management, and emergency use authorization. Uses of a longer duration may also qualify for limited licenses.
Generally, irrigation uses are not allowed under a limited license. In some cases, however, a limited license may be used to establish a crop that will not require further irrigation once established. In cases of severe drought, the Department may issue limited licenses so landowners can avoid irreparable crop damage by continuing the use of water after the close of the irrigation season. In addition, a limited license may be used for irrigation purposes in cases where the license is issued for use of stored water, provided certain criteria are met.
The Department conducts a review of an application for limited license to assess the proposed use, diversion, and location for water availability and public interest concerns such as threatened or endangered fish, water quality limited streams or scenic waterways. The Department provides an opportunity for the public to comment on a proposed limited license. If the Department finds that water is available and the proposed use will not impair the public interest, a limited license is issued with terms and conditions similar to those of a water use permit. The license includes a condition that specifies when it expires.
|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