Oregon Water Law
Oregon is often thought of as a land of lush vegetation, mountain streams, and the heart of the Pacific temperate rain forest. Indeed, the coastal and western region of the state averages from 40 to 140 inches of rain a year, but this is only part of the reality of Oregon’s precipitation. The eastern, high-elevation grassland region is much drier, with only about 10 to 20 inches of annual rainfall. Averaging together these two disparate regions, Oregon’s total average rainfall is about 28 inches a year; roughly equal to Texas. Consequently, eastern Oregon accounts for 80% of all irrigation, yet is home to only 13% of the state’s farms. Looking at the overall picture, nearly 88% of Oregon’s daily water withdrawals are used for irrigation, mostly for the arid region east of the Cascade Mountains.
Historical and Constitutional Framework
Before 1909, Oregon had a dual water rights system, recognizing both riparian and appropriative rights. Gradually, the state moved towards preference of prior appropriation rights. This sequential shift in adherence to different water rights systems is sometimes called the “Oregon Doctrine,” to differentiate it from other western states that have never recognized riparian rights (Colorado), or continue to recognize riparian rights today (California). This means that riparian rights will only be valid if the owner put the water to beneficial use before passage of the 1909 water code. All water rights obtained subsequent to the 1909 code are subject to the “first in time, first in right” mantra of prior appropriation.
Structure of State Water Agencies
All Oregon water law is administered by the state Water Resources Department (WRD), which is divided into 5 divisions: Field Services, Technical Services, Water Rights and Adjudications, Administrative Services, and the Director’s Office. The WRD and its Director endeavor to “directly address Oregon’s water supply needs” and “to ensure the long-term sustainability of Oregon’s ecosystems, economy, and quality of life.” The framework for their management is the comprehensive water code, codified in chapters 536 through 558 of the Oregon Revised Statutes. Policy for the WRD is established by the Governor-appointed Water Resources Commission (WRC). The WRC consists of 7 members serving up to two terms of four years each. Five members of the Commission individually represent one of the state’s regional river basin management areas. The two remaining commissioners serve “at-large;” one from West of the Cascades, and the other from East of the Cascades. The WRC is responsible for conducting public hearings on water rights issues, but they may delegate such power to the Water Resource Department’s Director at behest of the commission members. In fact, any power, duty or function vested in the WRC can be delegated to the WRD Director, except for the commission’s rulemaking ability or the adoption or amendment of a basin program.
Surface Water Rights
Oregon statute states that “all water within the state from all sources of water supply belongs to the public.” All water may be appropriated for beneficial use, as long as such appropriation does not impair a previously vested water right. Surface and groundwater have historically been treated separately by Oregon law, but now are subject to the same general permit system, with a few minor differences. Use of surface water requires a permit from the WRD, although a temporary license can be obtained for specific purposes including firefighting ponds, stock ponds, road construction and maintenance, forest and range land management, trucking water for stock watering, and fish migration. Some of the temporary license uses overlap with permit exceptions. For example, no permit is required when water is used for firefighting, certain applications of “reclaimed” municipal water, trout and salmon projects, or incidental removal of water from a surface mine. For all water rights, “beneficial use is the basis, measure, and the limit of all rights to the use of water.” Statutorily declared beneficial uses include domestic use, municipal use, irrigation, power development, industrial, mining, recreation, fish and wildlife uses, and pollution abatement. This list is not definitive, however, and case law often expands upon uses that are deemed beneficial. For example, Benz v. Water Res. Comm’n declared that flushing fields with surface water to remove boron residue left by groundwater was a beneficial use.
Additionally, Oregon does recognize instream water rights, defining it as “a water right held in trust by the Water Resources Department for the benefit of the people of the State of Oregon to maintain water instream for public use.” Only three state agencies may request instream flow rights from the WRD: the Department of Fish and Wildlife, the Department of Environmental Quality, and the Department of Parks and Recreation. An agency will request instream flow rights when doing so is necessary to achieve its goals, for example the maintenance of wildlife and fish habitat, water quality, or recreational uses. However, state agency requested instream rights are subordinated in priority to certain uses, such as multipurpose storage, municipal uses, and hydroelectric projects. Any person can also convert existing water rights to instream flows through purchase, lease, or gift, without loss of the original priority date. Since 1988 the ruling in Diack v. City of Portland has required that minimum flow requirements are maintained for wild and scenic rivers. The flows are necessary to protect recreation, fish, and wildlife, the statutorily decreed “highest and best” use of water within scenic waterways. Recently, in 2001, the legislature authorized “split season” leasing, allowing for a right to be used consumptively for part of the year and leased instream for the rest of the year.
Groundwater rights also depend upon a permit issued by the Oregon Water Resources Department. Narrower than its definition under surface water rights, “[b]eneficial use without waste, within the capacity of available sources, [is] the basis, measure and extent of the right to appropriate ground water.” Usage of groundwater requires a permit, but a water right permit is not necessary to simply initiate well drilling. Exceptions to the groundwater permit requirement include stockwatering, domestic use up to 15,000 gallons per day, lawn watering up to half an acre, small industrial or commercial uses up to 5,000 gallons per day, and land application on certain conditions.
The Oregon legislature has established special requirements when an aquifer has been included within a designated critical groundwater area. The Water Resources Commission has the ability to declare a critical groundwater area if, among other criteria, they find that the aquifer level has declined excessively, if there is interference between wells in the area, or if the available groundwater is about to be overdrawn. A map of declared critical groundwater areas is available at: http://www.wrd.state.or.us/OWRD/GW/gw_critical_allocations.shtml. Additionally, any appropriation that endeavors to use water outside of its basin of origin, or inter-basin transfer, is considered of significant impact and requires consent from the Legislative Assembly. Due to groundwater overdraft concerns, 1995 saw the implementation of an aquifer storage and recovery process, allowing for water users to use existing rights to store water in aquifers for withdrawal during peak demand season.
The WRD’s stated policy is to exercise conjunctive management when such management protects water resources, existing water rights, and the public interest. The WRD uses a “bright-line” test to determine whether it will conjunctively manage groundwater and surface water. First, the WRD will determine whether the surface water and groundwater are hydraulically connected. If so, the WRD will presume that the statutory standard of “substantial interference” is met when at least one of four listed conditions (dealing with the well’s rate of appropriation and distance from the surface water source) is present. Conjunctive management will involve control of groundwater appropriations by the WRD, so as to mitigate interference with surface rights. For example, the WRD can review an existing groundwater appropriation to determine if it substantially interferes with a surface water right.
Surface mining operations that result in the incidental extraction of water do not require a WRD issued water permit, unless the water is put to some sort of beneficial use.
Permit and Adjudication Process
The permit process depends upon completion of the Water Resource Department’s application form, available at http://www1.wrd.state.or.us/pdfs/surfacewaterapp.pdf. (surface water) and http://www1.wrd.state.or.us/pdfs/groundwaterapp.pdf (groundwater). The WRD will review each application for completeness, and may return it to the applicant if the submission needs more information or is defective. Since 2001, the WRD has been required to explain the criteria and procedures for all permit decisions, and provide a written explanation for each individual permit that forms part of the record of decision. In keeping with the system of prior appropriation, the WRD will give each application a priority date based upon its date of filing, as long as the application is complete. Notice of completed permit requests are sent out in the weekly notice published by the WRD and all comments on permit requests must be completed within 30 days. According to administrative rule provisions, prior to granting a permit the Water Resources Department must undergo two separate reviews. Initially, the WRD performs a technical review to check for certain specified requirements. If such statutory provisions are satisfied, then a broader review of the public interest is necessary.
After these reviews are conducted, WRD will issue a proposed final order, which can be challenged by any interested person, not just those with water rights, as is common in many other prior appropriation states. If the protested permit results in a hearing, (at the discretion of the WRD Director) then the contested case must follow the Oregon Administrative Procedures Act (APA), and will result in the Commission making a determination about the permit. Even after all administrative and judicial review has been concluded, an issued permit does not create a perfected and vested water right. A right must be perfected by applying the water to beneficial use within the time period described in the permit, generally not to exceed five years, or as extended for “good cause.” The water use must be surveyed by a water right examiner, recording the point of diversion, amount of water being used, and a map and description of the land to which the water is being applied. Since 1997, the water right surveyor standards have been relaxed for small reservoir owners, only requiring proof of water use and a map that meets Water Resources Commission standards. Following a survey, it will be reviewed (and occasionally field-checked) by the WRC. Upon satisfactory analysis of the survey, the WRD will issue a water rights certificate representing the vested, perfected water right, with a priority date of when the original permit application was filed.
Abandonment and Forfeiture
In Oregon, water rights may be lost through common law abandonment, if a water user ceases beneficial use with intent to abandon. Without intent to abandon, however, a water right (or part thereof) can be lost through non-use. Failure to beneficially use water for a successive five-year period will result in a rebuttable presumption of forfeiture. In order to overcome the presumption and retain the water right, the holder must show one of more of the following special circumstances: prevented from use by economic hardship, withdrawal of the land from use under federal program, unavailability or surplus of water, nonuse while a transfer application is pending, nonuse due to substitution of reclaimed water, or use of excess water for a beneficial use, as long as the user is ready, willing and able to use the full amount. Additional possibilities for rebuttal can be found in Or. Rev. Stat. § 540.610(2)(a)-(n).
Such forfeiture is not automatic, and the Water Resources Department must initiate cancellation proceedings according to specific statutory procedures in order to effectively terminate a right. The WRD initiates cancellation proceedings based upon its own determination or upon evidence submitted by any person. However, the water right holder can rebut the presumption of forfeiture through one of several statutorily listed criteria, such as if the period of non-use occurred more than 15 years before the cancellation proceedings began.
Recent case law has clarified several aspects of forfeiture in Oregon. In 1998, the Oregon Court of Appeals held that a water right will not be forfeited when a user uses water for a designated purpose, from the designated source, but from an unauthorized point of diversion. The same court ruled in 2004 that the Or. Rev. Stat. § 540.610 forfeiture provision does extend to water rights obtained for use of water from incidental mine dewatering.
Transfers and Exchanges
All water rights (surface and groundwater) are appurtenant to the land, and thus automatically transfer to the new landowner upon sale of the land, unless the rights are reserved by the seller. A permit does not automatically transfer to a third party non-landowner, however, and is dependant upon filing an assignment with the WRD. Other changes to a water right, including alterations in amount or type of use, point of diversion, or place of use require express approval by the WRD. Any requested change will be given public notice, through publication in a local newspaper by the WRD, and any person may file a protest with the department. Such requests will only be approved if they do not cause injury to an existing water right. If the change meets WRD approval, then the older right will be completely terminated and will be replaced by the terms of the newly created right, yet will retain the original priority date. To cope with drought, recent changes in the Oregon statutes have facilitated temporary transfers, and transfers between surface and groundwater rights to supplement supplies during dry periods.
Standing and Judicial Review
Judicial review of a final Water Resources Commission determination is available in either the Court of Appeals or the Circuit Court. However, an appeals court opinion held that such review is precluded if the challenger failed to first raise the issue with the WRD through protest or a hearing request. This ruling narrows what is found in the Oregon Administrative Procedures Act (APA), which allows for one to “see[k] judicial review as a person adversely affected or aggrieved by the agency order.” Under the APA, only a “final order” can be challenged, defined as any “final agency action expressed in writing.”
The Public Interest
Oregon’s water resources policy states that “exploitation of water resources of this state for single-purpose uses is to be discouraged when other feasible uses are in the general public interest.” This mandates an assessment of the public interest. As the future of water resources in Oregon will inevitably become more strained, exemplified by competing interests and insufficient supply in the Klamath River Basin, the public interest requirement may have increasing relevance.
Throughout the permitting process, the Water Resources Department is required to conduct a review of the “public interest.” Unlike other states with similar provisions, Oregon statutorily defines the public interest criteria to be weighed by the WRD. Specifically, the WRD must consider conserving the highest use of the water for all purposes, the maximum economic development of the waters involved, the amount of water available for appropriation, the prevention of wasteful use, and the means necessary to protect vested rights. While such language does provide a general framework for assessment of the public interest, many of the terms are vague and can be construed broadly or narrowly at the discretion of the Water Resources Committee. In Diack v. City of Portland, the Oregon statutory descriptions of public interest concerns were deemed to be “inexact terms.” If inexact terms are present, then “it is the agency’s task to interpret ambiguous statutory terms in a way that effectuates the underlying statutory policy.” Importantly, the court held that a mere “regurgitation of the statutory language, without analysis” is insufficient to meet requirements for a public interest assessment. Accordingly, since this ruling in 1988, the WRD must adequately explain its application of the public interest criteria by pointing directly to factual evidence surrounding the permit, and what conclusions it draws from them.
The public interest review of water rights applications has two prongs. First, an application will benefit from a rebuttable presumption that the proposed use preserves the public interest if several conditions are met. The use must be allowed in the applicable basin program or be statutorily preferred, water must be available, other water rights must not be injured, and the use must comply with the rules of the Water Resources Commission. Second, the presumption shall be rebutted, and the permit denied, if a preponderance of the evidence demonstrates that the proposed use will not preserve the public interest. Through consultation with federal and other state agencies, the WRD must consider several factors before making this determination: use efficiency and waste avoidance; threatened, endangered, or sensitive species; water quality; fish and wildlife; recreation; economic development; and local land use regulations.
Oregon has thus created a higher level of accountability about consideration of the public interest than is present in many other western states. If the WRD fails to explain its assessment of the public interest criteria, then one can easily venture a complaint on these grounds. However, an analysis of recent groundwater certificates and permits from Oregon does not show any mention of the public interest.