Use It or Lose It: Water Rights and Water Issues in Oregon
Mark Twain once said while out West, “Whiskey’s for drinking, water’s for fighting.” In organic agriculture, much attention is paid to the importance of soil and crop varieties, but not so much to the third leg of the stool – water. Drought, environmental concerns, growing urban populations, and demands of more senior water users threaten to upend this stool. The Klamath water crisis underscored how water we take for granted can suddenly evaporate under the threat of conflicting uses. While the abundance or scarcity of water varies throughout the state, all Oregon water users live by the same set of rules.
Most states west of the Mississippi follow the doctrine of “prior appropriation.” In contrast to the riparian rights of use that grant water rights according the landowner’s proximity to water bodies and flowing streams, the doctrine of prior appropriation allocates water according to which landowner diverts water first. In times of scarcity, the first person to obtain a water right to a water source is the last to be shut off.
In 1909, all surface water in the state was declared to belong to the public. In 1955, all groundwater was declared public. Ever since, a private right to use public waters must be obtained from the state’s Water Resources Department to use water from any ground or surface water source, unless a statutory exemption applies. A right to use water, once perfected into “certificated” water right, is a valuable type of property right that attaches to the land or becomes “appurtenant” where it was established, and runs with the land upon subsequent transfers of property.
This water certificate must be exercised for beneficial use, and must not be wasted. In Oregon, failure to use water on all appurtenant lands for a period of five continuous years in any fifteen-year period can result in a forfeiture of your entire water right.
In prior appropriation states, water is allocated according to first come, first served. In Oregon where the state determines the source is over allocated, no new applications are permitted. This means that in areas of low water availability, new water users have to obtain water from senior users through transfer or sale. In Oregon there are six critical ground water areas of the state, where no new permits are being issued. There are also eleven ground water limited areas, including the North Willamette Valley and much of the Columbia River plateau, where new water rights are restricted to a few designated uses.
All water in Oregon must be put to “beneficial use.” The water laws of the state clarify that, “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in the state.” (Oregon Rev. Statutes § 540.610). In addition, not just any use of water qualifies. Passive water use, for example, will not qualify as the beneficial use necessary to create and maintain a water right. Only the artificial application of water constitutes irrigation, and naturally occurring sub-irrigation does not qualify as a “beneficial use.” Staats v. Newman, 164 Or.App. 18 (1999). Further, beneficial use implies that water is used without waste.
There are three steps to obtaining a water right in Oregon. First you must apply for a water right of use. Applications for new water rights of use are made to the Oregon Water Resources Department. If the Department finds that water is available and that the additional use is in the public interest, then they may issue a permit.
Second, you must develop your water right of use and construct your water diversion, delivery, and application system. A water permit sets a time by which well construction must be completed and the time by which water must be put to beneficial use. Other conditions may also be placed on the permit, such as the use of fish screens or the need to install monitoring equipment and report water use. Time extensions are available if the permit holder has shown diligence, and there is good cause for not meeting the terms of the permit in a timely manner.
Third, within a year of completion of the water system and applying the water beneficially, the permittee must submit a map and a water-use report prepared by a Certified Water Rights Examiner that illustrates the extent that the permittee “perfected” the permitted water use. (The Water Resources Department maintains a list of Certified Water Rights Examiners in the state. Call (503) 986-0900 or your local water master for CWRE’s in your area). If the Department determines that the permit conditions have been met, a water right certificate will be issued. The “certificated” water right 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.
A water right certificate will not guarantee water delivery. The prior-appropriation doctrine authorizes diversions of water only to the extent that water is available. The amount of water available depends on both the water supply and the needs of other senior water rights. The priority of water users is determined by the water use date.
Many farmers believe they have “vested” water rights, because their farm has used water since before the Oregon water code was adopted. However, even “vested” rights can be cancelled for lack of due diligence before they are adjudicated by a court and then certificated.
If a water permit is unavailable, a water user may be able to obtain a limited license to divert and use water for short-term or fixed duration. Limited licenses are junior to all other uses and subject to revocation. Irrigation uses are generally not allowed under a limited license, except in cases of severe drought.
There are several uses of water that are exempt from permitting. For surface water resources, animals can drink directly from the surface source without a permit as long as the water is not diverted from its natural course. In certain conditions an off-stream watering tank or trough can be used to water animal stock. Surface water may also be used to control fire, protect fish, and manage land and forest if water use is not the primary intended activity. Natural surface springs can also be used without a permit if the spring does not flow off the property.
For groundwater resources, there is also a domestic use exception. In addition to an exception for stock watering, domestic well water users can irrigate up to one-half acre without having a water permit. Commercial well users can use up to 5,000 gallons per day without a permit. Exempt uses are allowed only if water is available and used for a beneficial purpose without waste.
A water right certificate remains valid as long as it is not forfeited for non-use for a period of five or more consecutive years in any fifteen year period. Any portion of an acreage described on the certificate that is not used for five years in any fifteen-year period can be forfeited in a cancellation proceeding, and will revert to the stream and the next junior appropriator. For example, if you have a certificated water right to irrigate forty acres and you have only irrigated ten of those acres for five or more years, the other thirty acres of water right are subject to forfeiture and cancellation.
Forfeiture is not automatic. The Water Resources Department may initiate forfeiture proceedings based on the sworn testimony of two individuals with firsthand knowledge. Any person can submit evidence of non-use to the department. A water user need not be notified of alleged non-use until forfeiture proceedings begin. If more than twenty years have passed since the five year period of non-use, then the water right is not subject to cancellation.
Who wants your water rights? Seventy five percent of the water taken from state rivers goes to agriculture. On many streams throughout the state, by the end of summer, there is only enough water to supply users with rights established in the late 1800’s. Junior users who compete for scarce water can better secure their own water by policing the water use of more senior users. Fish also compete for scarce water, and many environmental groups are dedicated to returning more water to the rivers for in-stream purposes. Groups like Water Watch of Oregon secure more running water in the river by policing the water use or non-use by irrigators.
Preventing cancellation requires factual proof that water is beneficially used at least one year in every five. Forfeiture is a fact-based inquiry in a legal proceeding. Once a certificate holder receives notice that his water right is being contested for cancellation, a user has 60 days to file a protest to the cancellation that can allege any of thirteen statutory basis to rebut forfeiture. If the cancellation is protested, then the Department will conduct a hearing prior to cancellation. The water user has the burden of proof on his assertions.
Once a water right is unused for five or more consecutive years it is subject to forfeiture and cancellation even if the property owner begins to use the water again. Reuse does not reinstate the water right. This is true even if the current owner did not own the property when the use was discontinued.
One method of restarting the clock on forfeiture is to transfer water rights to a new point of appropriation or for a new use, such as in-stream uses. Recent court rulings and the attorney general opinion support the position that the fifteen year clock starts over when the Department grants a transfer for a water right. However, according to Michael Mattick, the water master for Lane county, the Department now requires definitive proof of continuous beneficial use before granting a transfer.
To prove water use, the Department provides an “Evidence of Use Affidavit” on their web site http://www.wrd.state.or.us/publication/forms/index.shtml. The form provides general guidelines on the important information to keep on record to defend your water right. First, know where the water was applied and for what authorized purposes. Second, know the capacity of your system. Using less than your permitted right will not result in forfeiture if you remain ready, willing, and able to use the full amount. If your system capacity is less than your water right, you are not ready, will and able, and your water right could be cancelled to the extent your system lack capacity. Third, have one or more of the following forms of documentation: 1) dedicated power usage records or receipts; 2) dated aerial photographs or other photographs; 3) a current crop management plan; 4) copies of receipts from sales of irrigated crops or for expenses relating to the use of water (i.e. seed purchases); and 5) eye witness corroborations.
Water Master Michael Mattick explained that the Department only cancels one or two water rights per year, and that most challenges to water rights come from parties who have some other dispute. He also cautions that environmental challenges to water rights to promote more water in-stream may have the opposite effect by encouraging water rights holders to use more water in order to avoid forfeiture and cancellation.
A water right declares how much water may be used over how many acres. This is usually measured in cubic feet per second (rate) and acre feet of water (duty). For example as to duty, an irrigator with two acre feet of water would be able to put three inches of water down eight separate times over their total approved acreage. You cannot use more than allowed, and you can not “spread” or enlarge your water use.
However, there are a number of ways to change the acres you irrigate, and even increase the amount of acres under irrigation. First, you can apply to transfer water from land no longer irrigated to land that you want to irrigate. Temporary transfers are granted up to five years. You must submit a map that meets the departments requirements. The land transferred from must remain dry, and the Department must approve the transfer. Applications for a permanent transfer must include a map prepared by a Certified Water Rights Examiner. Any interested party can challenge a transfer request on the grounds that the water is subject to forfeiture or that the transfer would result in injury to other users. Transfers retain the priority date of the original water right.
Second, you can enlarge your acreage irrigated through water conservation. The 1987 Instream Water Rights Act encourages conservation of water by allowing users to “spread” 75% of the conserved water to additional acres. The other 25% of the conserved water must be dedicated back to the public. The result is less water overall in the permit, but an increase in the acres irrigated and a benefit to the public. This process has been little used in Oregon.
Determine if you have a water right. All legally established water rights are on record in the Salem office of the Water Resources Department. These records are also maintained in the local watermaster’s offices. You can also look of the Department’s web site at www.wrd.state.or.us. You need a legal description of the property or a current county assessor’s tax lot map of the property, including township, range, and section. The web site contains a searchable database that will tell you the status of your water right, and whether it is certificated. If you are purchasing a property, due diligence might include contacting the neighbors to see if the water right went unused for any consecutive five-year period over the last fifteen years.
Remember, water rights are property rights, and they can be sold independently of the land. If you have water rights that are unused, and not likely to be used in the next few years, you might consider leasing or selling your unused water rights by use of a temporary or permanent transfer. Other users in the same aquifer may wish to purchase those water rights. Additionally, there may be environmental interests that will purchase those rights to transfer them to in-stream uses for fish habitat. Finally, you can always voluntarily cancel your water rights to make them available for the next junior user or dedicate them for in-stream purposes, and potentially qualify for additional tax benefits.
In any instance, like other valuable property rights, it makes sense to know the law and obtain good counsel when applying for a water right, contesting someone else’s water right, defending your water right, or transferring water rights. With a little diligence you can assure that your farm will have the right to continue to use water in the future.
You can find out more about water law generally by visiting the website of Schroeder Law Offices, P.C.: www.water-law.com.
An Oregon native, born and raised in rural Oregon, Laura A. Schroeder is an AV rated attorney in private practice since 1987. Schroeder Law Offices, P.C. serves clients on water issues including those related to land use, real property transactions, municipal law and agricultural business development.