Considerations in Protesting a Transfer Application
There are many things to consider, from both a practical and legal standpoint, before you begin protesting a transfer application for water rights that may be adverse to your interests. The following briefly describes some of the situations that may provide a legal basis for your protest. Schroeder Law Offices, P.C. offers a free initial consultation regarding any water related legal issues you may be facing. Please call us to make and appointment to discuss the details of your particular situation.
Avenues by which to challenge the transfer:
1. The Application is Incomplete or Deficient
a) The application does not properly identify necessary elements of the existing water right and proposed transfer. ORS 540.520(2)
b) The affidavit of non-use unsatisfactory because affiant did not have ownership for past 15 years or more years. ORS 540.610.
2. Notices were not given as required by statute
a) Notice must be published at least once a week for a three week period and include the date on which the last notice by publication will occur. ORS 540.520(5).
b) For a transfer involving only a change in place of use or for a change in the point of diversion of less than one-fourth mile, the OWRD must include notice of such applications in the weekly notice published by the department. ORS § 540.520(5).
3. Proposed Order Includes Reopener Conditions
a) OWRD must make certain factual and legal determinations according to the statute and cannot “put them off” to a later time with a reopener condition.
4. Lack of Perfection: The current appropriator failed to perfect the water right.
a) The construction was not completed within the time set fourth in the permit. ORS 537.230, 410.
b) The application of the water to beneficial use not completed within the time set fourth in the permit
c) There was a lack of diligence.
5. Abandonment: The current water right holder has abandoned the water right.
a) Chosen and conscious neglect to develop demonstrates intent to abandon. ORS 540.631.
b) Permanent, impermeable structures built over all or part of the place of use including buildings, roads, and ditches.
6. Forfeiture: The current owner forfeited the water right.
a) Lack of continuous use: No beneficial application on all or part of the place of use in any 5 year period looking back 20 years. ORS 540.610.
b) Permanent, impermeable structures built over all or part of the place of use including buildings, roads, and ditches.
7. Historical Use/Injury: Only the amount of water historically used is available for a transfer.
a) The proposed use exceeds the rate of historically diverted.
b) Water users below the diversion point of the applicant had a right to rely on the applicant’s historical use and pattern of use (rotation) in developing their own use and would be injured by the change.
c) Only the proven consumptive use should be transferred in order to avoid injury.
8. New Application: The proposed transfer should be considered a new application.
a) Since part or all of the water use was never perfected, or was abandoned or forfeited, the application is, to the extent of failure, a new application that must meet public interest criteria of a new application and given a priority date equal to the date of the transfer application.
9. Use is Not Beneficial: The proposed use is not a beneficial use of the water.
a) There is already sufficient water supply providing for the requested use so that additional supplies would constitute waste
b) There is no evidence in the existing record that the use as applied for would be beneficial.
10. Interfere with Existing Rights: The proposed transfer would injure or interfere with the rights of other users, either senior or junior users.
a) A transfer may not injure other water users. ORS § 540.530(1).
b) OAR 690-380-0100(3) requires the Commission to find an ‘injury to an existing water right’ where “a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.”
11. No Evidence of Ownership or Rights to Delivery
a) Applicant has no proof that he has ownership, control or access to the existing or proposed point of diversion (POD) or place of use. ORS 537.140.
b) Applicant has no evidence that he has an agreement with District, Ditch Company, or Bureau of Reclamation to obtain delivery. ORS 537.140(E).
12. Applicant Does Not “own” the Water Right
a) No title instrument was filed with the application
b) Title search of appurtenant place of use evidences ownership of someone other than applicant
c) Applicant did not retain ownership of appurtenant water rights on sale of real property
d) Applicant did not properly document ownership and continue to use severed water rights
13. Violates Existing Legal Agreement
a) Delivery contract in place (Reclamation, Irrigation District)
b) Proposed use is outside the boundaries of the irrigation district, outside the described contract area, outside the reservation.
c) Rotation agreement
d) Compact
e) Reservation
f) Treaty
14. Violates Existing Water Right Adjudication/Decree
15. Violations of State Statutes/Rules
a) SB1010 Plan. SB1010 Plan, passed in 1993, set the goal of reducing water pollution from agricultural sources and improving watershed health by implementing watershed plans that identify problems and solutions in watersheds.
16. Violations of Federal Act/Statutes or Code of Federal Regulations
a) Endangered Species Act
b) Act establishing Reclamation Project
c) Act establishing Reservation or Colony
d) Clean Water Act
For guidelines on writing a protest, see Four Steps to Writing a Water Transfer Protest.
