Text Size:   A+ A- A   •   Text Only
Find     
Site Image

Drought Watch
Water Resources' Role

The Water Resources Department’s role during a drought continues to be one of overseeing a managed, responsible use of Oregon’s water according to the water rights in place.  Each year WRD staff shut off many junior users to provide water for users with earlier priority dates.  A junior user is one who has a permit priority date more recent than another user.  For instance, a permit with a June 1, 1998, priority date is junior to a permit with a December 1, 1946, date. In some instances, the users with junior water rights are required to restrict use of water to in home use or stock watering only.  Where supply is insufficient to satisfy all water rights calling upon the same water source, junior water rights often are regulated from using water entirely in order to satisfy older water rights.  During a drought, water supplies are sufficient to supply fewer users and many more water rights are shut off.
 
In counties where the Governor has declared a drought, residents may apply for emergency use permits.  This means that a person in the county may apply to the Department for a permit to use water that they otherwise would not have right to.  The permitting process for these counties is expedited in order to provide the use as soon as possible, if there is water available.  The permit, however, is only valid for the extent of the drought and no longer than one year.  Once the Governor undeclares the drought in the county, the emergency permits immediately become invalid.  Additionally, due to the expedited review of the permits, potential for unseen harm to other users may be found later.  In cases such as that, the emergency use permit may be suspended or rescinded immediately.
 
In some dry years, surface water is scarce, but ground water, in general, is in relatively normal supply.  Therefore, new permits would be ground water permits, and in most cases, drilling a new well would be necessary.
 
For greater detail of the emergency use permitting process, please read further.
 
 

 
What is the Department Doing?
Water Resources has three primary mechanisms to help communities respond to drought:
 
1.  Emergency Water Use Permit
Revised Division 19/Drought Mitigation Rules (PDF 69 KB)
 
Online forms available here.
 
Water right holders who are unable to use water as a result of drought conditions may be able to obtain an Emergency Use Permit to temporarily use water from an alternate source.         
    
In 2010 the Department created drought-specific application forms that are shorter than standard application forms in an effort to expedite the application process. Unlike non-drought applications, Land Use Information Forms and legal descriptions are not required, though in rare circumstances, the Department may require a Land Use Information Form to be submitted prior to water use.
   
You can file an Emergency Use Permit Application if (a) the Governor has declared that a severe, continuing drought exists in the county where the proposed water use will occur, and (b) drought conditions have created an inability on your part to obtain water under an existing right.  In other words, to obtain an Emergency Use Permit, you must already have a water right (certificate, permit, adjudication claim, etc.) which is not being satisfied as a result of the drought.
    
Emergency Use Permit Applications consist of: (a) An emergency use application to appropriate surface water or groundwater, or to store water (b) a map of the proposed use that meets mandatory mapping requirements (these can be found in the standard application Guidebooks), (c) Form M if your use is Municipal or Quasi-Municipal, and (d) appropriate fees, made payable to Oregon Water Resources Department.
 
Emergency Use Permit Applications require an examination fee of $200.00 plus a permit recording fee of $400.00 for the first cubic foot per second or fraction thereof, plus $100 for each additional cubic foot per second or fraction thereof. Unlike standard permit applications, all fees must be paid at the time the application is submitted in order to expedite the process.
    
Emergency Use Permit Applications are processed as quickly as possible. A well-prepared application for emergency use generally takes less than ten business days to process, unless issues arise during technical review.
    
Use of water under the Emergency Use Permit may be regulated at any time, and is subject to prior water right permits, certificates, scenic waterway flows and minimum stream flows. Issuance of an Emergency Use Permit does not protect you from liability for improper use of the water under the permit.
 

2.   Temporary Drought Transfers
Any person holding a water right permit, certificate, decree or claim to a right who is unable to use water because of drought may apply to temporarily change the character of use, place of use or point of diversion/appropriation of water from another water right certificate, decree or claim to a right without complying with the notice and waiting requirements of ORS 540.520.

In other words, water users who are unable to use water as a result of drought conditions may be able to temporarily transfer another water right to the lands needing the water. This in no way allows the transfer of a water right to land without an existing water right appurtenant to it through the drought transfer process.

The full value of the right may be transferred. However, if a right proposed for transfer is for irrigation purposes and the transfer is made after the beginning of an irrigation season, only the remainder of the water available for use during the rest of that season may be used at the new place of use.

The Director shall approve a temporary drought transfer, with any appropriate conditions if 1) the temporary drought transfer will not result in injury to an existing water right; and 2) the total water use at the receiving location does not exceed the maximum rate and duty for the receiving location. The Director may later revoke a temporary drought transfer order if injury to existing water rights is shown and cannot be mitigated to the satisfaction of the Director and the injured parties.

An Emergency Drought Transfer Application consists of:
  1. A Water Right Transfer Application Form
    Please check the Drought Transfer box at the top of the form and fill out the remainder of the application completely.
     
  2. An Evidence of Use Affidavit Form in which the applicant swears and documents that the water has been used during the past five years in accordance with the terms and conditions of the right, or that the right is not subject to forfeiture.
     
  3. A Land-Use Form signed by the appropriate county or city planning official.
     
  4. A map meeting the requirements of OAR 690-380-3100. This map need not be completed by a Certified Water Rights Examiner.
     
  5. Appropriate fees, made payable to the Oregon Water Resources Department. Emergency Drought Transfer Applications require an examination fee of $100.00, plus a recording fee of $100.00 for the first cubic foot per second or fraction thereof, plus $50.00 for each additional cubic foot per second or fraction thereafter.
     
  6. Any other attachments listed on page 7 of the Transfer Application Form as required. Please note that an incomplete application may be returned to the applicant for corrections and inclusion of missing information.
The expiration date for the temporary drought transfer granted may not exceed one year or the term of the Governor´s declared drought, whichever is shorter.
Emergency Drought Transfers are processed in an expedited manner and generally take less than 7 business days. For more information about Drought Temporary Transfers, see OAR 690-019-0055; or contact the Department at 503-986-0900.

3.   Option or Agreement for Use of Existing Right (690-019-0080)
(1) In order to plan for and mitigate the effects of severe, continuing drought, a local government or public corporation may enter into an option or agreement for the use of water under an existing permitted, certificated or decreed water right.  If approved as provided in sections (2) to (6) of this rule, an option or agreement may be exercised during a period of declared drought after the parties to the option or agreement notify the Department.
 
(2) Water used under the terms of an approved option or agreement may be used at locations, at points of diversion and for beneficial uses other than those described in the water right.
 
(3) The holder of the option or agreement is not required to construct any diversion or other appropriation facilities or works.
 
(4)
(a) An option or agreement proposed under section (1) of this rule shall be subject to approval of the Director or Commission.  The Director must find that the use of water under the proposed option or agreement will not cause injury to existing water rights and will not impair or be detrimental to the public interest;
 
(b) A local government or public corporation proposing an option or agreement shall submit an application to the Director.  The application shall be accompanied by the fee set forth in ORS 536.050 (1)(a)(B).  The application shall include the following information:
(A) The name of the local government or public corporation applying for approval of the option or agreement;
 
(B) The name of the holder of the permitted, certificated, or decreed water right that will be affected by the option or agreement;
 
(C) A copy of the water right permit, certificate or decree that shall be affected by the option or agreement;
 
(D) A copy of the proposed option or agreement;
 
(E) A statement that the water is intended for in-stream use, or a description of the lands on which the water is currently used, and a description of the lands on which the water shall be used under the option or agreement;
 
(F) Evidence that the water to be used under the option or agreement has been used over the past five years according to the terms and conditions of the owner´s permitted, certificated, or decreed water right.
 
(G) If not intended for in-stream use, evidence that the water shall be used to supplement an existing water right held by the local government or public corporation, and that water is not available under the existing right.
(5) Upon receipt of an application for an option or agreement, the Director will provide notice in the regular weekly notice of the Department pertaining to applications received and by publication once a week for at least three successive weeks in a newspaper having general circulation in the area in which the water supply for the permitted, certificated or decreed water right is located and in which the option or agreement shall be exercised.  The Director shall not take action on an application until at least 20 days after the last date the notice appeared in the newspaper.
 
(6) Any person whose use of water under an existing water right may be affected by the option or agreement, or any person who represents a public interest that may be affected by the option or agreement, may file a protest against approval of the application with the Department.  The protest shall be filed with the Department within 30 days from the date of the first publication.  If the petitioner seeks to protect a use of water under an existing water right, the protest shall contain a detailed statement of the petitioner´s water use and how the use may be affected by approval of the option or agreement.  If the petitioner represents a public interest, the protest shall contain a detailed statement of such public interest and the manner in which the public interest shall be affected by the option or agreement.
 
(7) Whenever a timely protest is filed or in the opinion of the Director a hearing is necessary to determine whether the exercise of a proposed option or agreement will result in injury to an exis-ting water right or may impair or be detrimental to the public interest, the Director shall schedule a hearing and refer the matter to the Commission for final determination.  Notice and conduct of the hearing shall be in accordance with the provisions of ORS 183.310 to 183.550 applicable to contested cases, and the hearing shall be held in the area where the underlying water rights that are subject to the proposed option or agreement are located unless all parties agree to a different location.
 
(8) If, after a hearing by the Commission or examination by the Director, it is found that the option or agreement can be implemented without injury to existing water rights or the public interest, the Director shall issue an order approving the option or agreement.  The order shall:
(a) Contain conditions describing the period of time in which use may occur and include a limitation that use may occur under the option or agreement only after a declaration of severe, contin-uing drought has been made by the Governor, and use may not continue after the drought declaration has been rescinded; and
 
(b) Remain in effect until terminated by the parties to the option or agreement or by order of the Commission.
(9) The Director may review any order issued under section (8) of this rule to determine whether the order shall be continued in effect, modified or terminated in order to insure protection of other existing water rights and the public interest.  Before making such determination the Director shall provide notice and an opportunity for hearing in the manner described in sections (2) to (6) of this rule.
 
(10) Any proposed change to an option or agreement shall be submitted to the Director for approval before the changes may be implemented.  Upon receipt of any proposed change, the Director shall proceed as described in section (5) of this rule.  Prior to the date the Director may take action on the change, any person wishing to protest may proceed as allowed under section (6) of this rule.  Only the proposed change may be addressed in the process.  The Director shall then proceed as per sections (5), (6), and (7) of this rule.
 
(11) The Commission may enter into an agreement for the use of water for instream uses during the time in which a severe, continuing drought is declared to exist.  The total use of water by the water right holder and the Commission must be within the rate, volume and seasonal limits of the water right, and must not cause injury to any other water right.
 
(12) When the Governor declares that a severe, continuing drought exists, the Commission, a local government or a public corporation may proceed with the terms of an approved option or agreement.  In addition to the conditions in the agreement, the terms of the use shall be as follows:
(a) Use may begin at any time, but the total use shall be limited to the rate, volume, acreage, time and other limits of the existing water right; and
 
(b) The local watermaster shall be given written, advance notice of intent to proceed;
 
(c) Measuring and reporting requirements may be a condition of use required by the Director.
(13) Use or nonuse of water under the terms of an approved option or agreement shall not be considered by the Department in a determination of abandonment of a perfected and developed water right under ORS 540.610(1).
 
Stat. Auth.: ORS 536.720 - ORS 536.780
 
Stats. Implemented: ORS 536.720 - ORS 536.780
 
Hist.: WRD 7-1990, f. & cert. ef. 6-25-90; WRD 8-1994, f. & cert. ef. 8-2-94; WRD 3-1995, f. & cert. ef. 6-14-95