Get an Oregon Water Right: From Application to Certificate in Oregon

By Cortney Duke

Applicants obtain water rights through Oregon Water Resources Department (OWRD) in a process dictated by statute and rule. The process is detailed and can be lengthy for many applicants.  There are three general phases to obtaining water rights:

1. Water Right Application
2. Water Right Permit
3. Water Right Certificate

Phase One: Water Right Application

A water right application must be submitted to Oregon Water Resources Department in the proper form and with the necessary attachments, including a survey map showing the requested place of use and other forms, including a Land Use Form completed by the local government confirming the use is compatible with the local planning laws.  OWRD then reviews the completed application under various standards including injury to other users, public interest, water availability and hydrological connection.  The administrative process unfolds in a series of steps as follows.

          Completeness Determination

Upon receiving a new water right application OWRD must evaluate its completeness within 15 days.  OWRD will evaluate whether the application contains all of the information required under OAR 690-310-0040 and determine whether the proposed use is prohibited by statute or applicable basin plan.  The application must also contain the appropriate fee before the completeness determination can begin.  If OWRD determines the application is not complete it will return the application and any fees to the applicant.  The applicant will likely lose the priority date obtained with the original date of filing.

          Initial Review

If OWRD determines the water right application is complete it has 30 days to complete an initial review and issue a “Preliminary Analysis” of the water use request. As part of the initial review OWRD will determine if:

1. Water is available pursuant to rule during the time requested;
2. The proposed use is restricted or limited by rule, statue or the applicable basin plan; and
3. Other issues may preclude approval of or restrict the proposed use.

Upon completing the initial review Oregon Water Resources Department will notify the applicant of its Preliminary Analysis. The Preliminary Analysis will state whether the Department is recommending approval or denial of the application and what conditions, if any, will attach to the water right permit if issued. The Preliminary Analysis will include the terms of the water use if allowed and declare the priority date of the proposed water use. The priority date will be the date the application was determined complete by the Department.

          Applicant Review

Within 14 days from the date OWRD mails the Preliminary Analysis to the applicant, the applicant may contact OWRD to either request it to withdraw the water right application or put the application on administrative hold if the Preliminary Analysis is unfavorable.

If the applicant requests Oregon Water Resources Department to withdraw the application it will return the application fees less $50.00. Withdrawing the application will also forfeit the established priority date.

Applicants often request an administrative hold if the applicant believes that supplying additional information to OWRD can change or modify its unfavorable findings.  While the water right application is on administrative hold its place in line is also held and its priority date is preserved.

If the applicant does not contact Oregon Water Resources Department within the 14 allotted days, it will continue to process the application according to the Preliminary Analysis.

          Public Notice

If the water right application is not withdrawn or put on hold by the applicant, Oregon Water Resources Department will give public notice of the application in the weekly notice it publishes. OWRD must give notice within 7 days of the expiration of the applicant’s 14 day review period. The notice acts as a request for any comments on the water right application from other interested persons.

          Public Comment

After publishing notice, a 30 day public comment period begins. During the public comment period any interested party may submit comments OWRD on the application ask for additional information on the application and request copies of the proposed final order (PFO) when it is issued.

          Proposed Final Order

At the close to the public comment period, OWRD has 60 days to consider the public comments made, if any, and issue a PFO stating the water right application is approved, denied, or approved with conditions. A PFO proposing approval of an application includes a draft permit.

          Public Notice

Within 7 days of the issuance of the PFO, the Department again gives public notice of the PFO in its weekly notice.

?          Protest Period

The PFO’s public notice commences a 45 day protest period. During the protest period, any interested person who has standing, including the applicant, may protest the Department’s findings and determinations.

Protests may cause additional conditions to be placed on the permit or subject the application to a contested case hearing in front of an Administrative Law Judge. A contested case is a trial like process where legal and factual issues are heard before an administrative law judge or hearing’s officer who is employed through the Employment Division within the Hearings Officer Panel.

          Final Order

Upon expiration of the protest period, OWRD has 60 days to take final action on the PFO.  If the Department received protests, the Director determines whether to issue a final order or schedule a contested case.  Assuming no protests were filed and Oregon Water Resources Department recommended approval of the application in the Preliminary Analysis and the PFO, the Department will likely issue a final order approving the application.

If the final order approves the application, OWRD will issue a permit. A permit specifies the details of the authorized use and any terms and conditions to which the use is subject.

Certain judicial review rights may exist throughout the application phase.

Phase Two: Water Right Permit

          Permit

The water right permit entitles the holder to develop beneficial water use under the terms of the approved application.  The priority date of the permit will be the date OWRD received a complete application.

          Proving Up the Use

Absent a request for an extension or a special condition or term within the permit, an appropriator has five years to “prove up” or “perfect” the beneficial use approved in the water right permit. During the five year period, the permit holder must develop their system and put the water to use according to the terms and conditions stated in the permit.

          Extension of Time

It is not uncommon that a permit holder is unable to make full beneficial use within the time limits set by the permit terms and conditions. If the time restraints are too limiting the permit holder may apply to OWRD for an extension of time to complete beneficial use.  An extension is not automatic. The Department may grant additional time when the applicant’s reasons for being unable to complete timely beneficial use are consistent with the statutes which are built upon the legal premises of “due diligence” and “good cause.”

          Permit Amendment

If during the perfection period (before the proving up period outlined in the permit has expired), the user determines the conditions, terms and allowed use provided in the permit are not conducive to his actual needs, he may apply for a permit amendment. If approved, a permit amendment will allow the water user to amend the conditions and terms of his permit to match the actual use he requires as may be allowed by the Department pursuant to statute and rule. A water right permit amendment application is typically preceded by a request for extension of time as the permit holder usually does not realize a need for changes until close to the end of the proving up period or even during the final proof process itself.

          Claim of Beneficial Use

After completing development, and prior to the expiration of time for proving up the permit, the user must complete and submit a Claim of Beneficial Use (“COBU”) to OWRD.  This is also called “final proof”, “perfection”, or “proving up”. A Certified Water Rights Examiner who is independent but specially licensed by the Department must complete the COBU and include details of the developed use and includes a map depicting the place of use.

Phase Three: Water Right Certificate

          Certificate

After the permit is “proved up” the Department issues a water right certificate according to the COBU and final proof map.  There are no statutory deadlines for when the Department should actually issue the certificate so it is wise to consider using the expedited fee process to insure that a certificate is issued sometime within the next year. While waiting for the water right certificate to be issued after a COBU is on file, the permit holder must continue to use water as stated in the terms and conditions of the permit.

          Continued Use

Once a certificate has been issued, the holder must use water at least once every five years, or it will be subject toforfeiture or abandonment under Oregon law. ORS 540.610.

          Water Right

A water right certificate issued which has not been contested or cancelled is conclusive evidence of the priority and extent of appropriation therein described in any proceeding in any court or tribunal of the state. ORS 537.270.  A water right certificate is a property right to the holder and is appurtenant to the land described in the certificate.