A water right remains valid as long as it is not cancelled and beneficial use of the water continues without a lapse of five or more consecutive years. According to Oregon law, except for municipal rights and in certain other cases, if any portion of a water right is not used for five or more consecutive years, that portion of the right is presumed to have been forfeited and is subject to cancellation.
For example, if your water right is for irrigation of 40 acres and you irrigate only 20, the portion of land not irrigated for five consecutive years is subject to cancellation. Diverting less than the full amount of water allowed under your right to irrigate the full 40 acres will not result in forfeiture, if you are ready, willing and able to use the full amount. However, if you have reduced the capacity of your water delivery system, you may lose the right to any water not used beyond the capacity of your system.
Once a water right has been unused for five consecutive years or more, it is subject to cancellation even if the property owner begins to use the water again. Under the law, the right is presumed to be forfeited and reuse does not reinstate the right. This is true even if the current owner did not own the property when use was discontinued. Under certain conditions, however, such as extreme drought and federal set-aside programs, non-use may exceed five consecutive years without forfeiture of the right.
Cancellation of a forfeited water right is not automatic. Cancellation requires a legal proceeding to determine whether or not the period of non-use has occurred. If more than 15 years have passed since the period of non-use, the water right is not subject to cancellation. A legal proceeding is not necessary if the landowner voluntarily authorizes cancellation.
Administrative proceedings to determine the validity of a water right may be initiated by the Department. This usually happens when individuals with firsthand knowledge of non-use come forward and provide sworn affidavits asserting non-use.
Once a water right is cancelled, a landowner must apply for and obtain a new water right permit before using the water. A new application for a water right permit is subject to current laws and rules.