Oregon Water Right Cancellation

WATER RIGHT CANCELLATIONS (August, 1999)

Submitted by Elizabeth Howard
as edited by Laura A. Schroeder

Introduction

Submitted to and published in Western Water Law & Policy Reporter, Argent Communications Group, P.O. Box 1425, Foresthill, CA 95631

Originating with the significant influx of environmental legislation in the 1970s, pressure to improve the environmental integrity of land and water in the Western states has steadily increased. Oregon’s 1997 Coastal Salmon Restoration Initiative (OCSRI) reflects one of the most recent trends in environmental restoration. It is this document which directed Oregon’s Department of Water Resources (OWRD) to augment in-stream flows for salmon-bearing streams.

In response to this direction, OWRD has encouraged watermasters and other OWRD staff to cancel water rights no longer in use through either a voluntary process or forfeiture proceeding. Consequently, use and scrutiny of Oregon’s cancellation statutes and regulations has increased in recent years. Oregon enacted basic water cancellation statutes in 1955; however, later amendments and rule-making have led to confusing and sometimes inconsistent cancellation guidelines. Significant case law interpreting these statutes is virtually non-existent, so courts have had little opportunity to help decipher Oregon’s incongruent law on canceling water rights.

It is for these reasons developments in water right cancellation law should greatly interest water and natural resource law attorneys. The following developments in Oregon water right cancellation law are among the most recent.

Oregon Water Right Cancellation Law

Under Oregon water law, water users may voluntarily cancel their water right or OWRD may cancel water rights after five or more consecutive years of nonuse. Below are issues currently being addressed in these types of cancellation proceedings.

Interested Irrigation Districts: Interested Parties?

The record owner of a developed and perfected water right may cancel a right after certifying under oath that she has abandoned and wishes to cancel her water right. Or. Rev. Stat. § 540.621; Or. Admin. R. 690-17-100(1). Although voluntary cancellations may have little effect on other water right users, voluntary cancellation of water rights appurtenant to land within an irrigation district significantly harms the district.

In recent months, nearly two dozen of the seven thousand members of Grants Pass Irrigation District (GPID) in Oregon submitted voluntary affidavits of cancellation for water rights appurtenant to their land. These cancellations, if granted, would interfere with GPID’s water delivery obligations by decreasing the quantity of water available within the district. Despite this significant harm, under current Oregon law OWRD takes the position that it is not required to notify or allow GPID to participate when a district member initiates voluntary cancellation.

As a result, GPID and other Oregon irrigation districts have proposed regulatory amendments to the Oregon Water Resource Commission (OWRC) that would require OWRD to treat irrigation districts an “interested party.” As proposed,”interested party” status would allow districts to transfer a water right to a different place of use within one year of a member’s decision to initiate voluntary cancellation. Although OWRC has not adopted these amendments, it plans to seriously consider the issue at its August 26-27, 1999 meeting.

Watermasters: Proponents of Water Right Cancellation

Watermasters often have the best opportunity to obtain evidence of nonuse needed to cancel water rights. Therefore, it is no surprise that OWRD often bases its cancellations on watermaster affidavits. Watermasters can submit evidence of forfeiture to OWRD through two processes.

First, when a watermaster has reason to believe circumstances exist which prevent a landowner/occupant from exercising her water right according to the terms and conditions of the certificate, the watermaster must submit an affidavit stating that to the best of his knowledge, there is no physical way to apply the water to a beneficial use. After receiving the watermaster’s affidavit, OWRD must notify the record land owner(s) and occupant(s) affected by it that the watermaster filed an affidavit alleging nonuse. Water right owners must modify their water use in response to the notices to prevent forfeiture. When watermaster affidavits have been filed and notice given for five consecutive years without response, OWRD may cancel the water right. Or. Rev. Stat. §§ 540.631, 540.660.

Although Oregon law specifically outlines this as the method for watermasters submission of evidence of nonuse, it is rarely used. Instead, watermasters often submit their evidence in the form of a department personnel affidavit. This is the second method by which watermasters can submit evidence needed to cancel a water right. Or. Rev. Stat. § 540.631, Or. Admin. R. 690-17-400(3). Department personnel affidavits must include “a statement that the affiant knows withcertainty that no water from the allowed source has been used for the authorized use on the land. . .within a period of five or more successive years. . . .” Or. Admin. R. 690-17-400(2)(g). OWRD personnel must support their affidavits with annual data of nonuse for each year of alleged nonuse. Or. Admin. R. 690-17-400(3).

In contrast to the process requiring five watermaster affidavits and notice, receipt of the department personnel affidavits arguably provide OWRD with jurisdiction to initiate cancellation immediately. In B&G Resources v. Oregon Water Resources Department, CC 97-15, OWRD treated an affidavit appearing to be a watermaster affidavit as a department personnel affidavit. Accordingly, whether the jurisdictional prerequisites were met prior to initiating cancellation proceedings in B&G Resourcesis a question now before the Oregon Court of Appeals in A105579.

Another issue involving watermaster affidavits and the cancellation of water rights is how OWRD should treat a watermaster affidavit submitted after the watermaster retires from OWRD. In Hinton v. Oregon Water Resources Department, CC 39, the watermaster’s affidavit proposed as the jurisdictional basis to cancel Hintons’ water rights did not meet the standards for a department personnel affidavit because the watermaster retired before submitting his affidavit and the affidavit lacked the required supporting annual data. Or. Admin. R. 690-17-400(3). As a result, under current law OWRD could arguably only treat the affidavit as a non-departmental or individual affidavit. Importantly, individual affidavits must be corroborated by a second affiant’s allegations before OWRD can use it to cancel water rights. Or. Admin. R. 690-17-400(2). In Hinton, however, OWRD proposed cancellation of their water rights without a second individual affidavit, an action currently being protested by the Hintons.

Conclusion

As Oregon and other Western states continue to deal with environmental issues, pressures to cancel water rights are bound to intensify. Water and natural resource law attorneys must be prepared to be on the forefront of the resulting expansion and modification of water law.

References Cited:

B & G Resources v. Oregon Water Resources Department, Partial Cancellation 97-15

Hinton v. Oregon Water Resources Department, Contested Case 39, 1999

Oregon Administrative Rules 690-17-005 et seq.

Oregon Coastal Salmon Restoration Initiative 1997: Water Resources Department Oregon Coastal Salmon Restoration Initiative Workplans

Oregon Revised Statutes §§ 540.610 et seq.