Taking Care of Your Water Rights: Permits, Extensions & Certificates Oregon Association of Water Utilities August 2013 Lisa Jaramillo Water Right Services Division OWRD

“All the surface and ground water of the state…” Public Water Oregon’s water resources are managed by the Oregon Water Resources Department.

Water Rights in Oregon: A System of Allocating & Using Water “Public water” 1909 Water Code Water rights system Photo courtesy of Oregon State Library

Oregon’s Water Laws First water code enacted in 1909 Based on doctrine of “prior appropriation” –The first person to obtain a water right is the last to be shut off in times of low water availability. Beneficial use without waste –Water for personal or public good.

Oregon’s Water Laws “Priority date” –Establishes a water right holder’s place in line when water becomes scarce.

Oregon’s Water Laws “Regulation” based on priority date –Junior water rights are regulated to meet the entitlement of senior water rights. “First in time, first in right…”

Source of water Ground water or surface water Type of use The “beneficial use” of water or appropriation Where water is captured or drawn Place of use Where water is applied A Water Right Consists Of: Point of diversion Quantity of water Rate, duty and season of use

Must be Used Terms and conditions –Limited to rate, duty, period of use and conditions of water right. May not go unused for five consecutive years –Subject to forfeiture and cancellation. –Some exceptions to forfeiture, as outlined in ORS (2).

Appurtenancy Certificated water rights attached to the land –If land is sold, the water right stays with the land… not with the previous owner.

Exempt Uses of Surface Water Livestock watering On- or off-stream Emergency fire-fighting Land management practices Soil conservation and water quality Rainwater collection Artificial, impervious surface Do not require a water right

Exempt Uses of Ground Water Single and Group Domestic Household, washing, etc. 15,000 gallons per day Lawn and Garden Up to ½ acre Commercial and Industrial uses 5,000 gallons per day Livestock watering Down-hole heat exchange Do not require a water right

The Water Right System “Proving Up” Application Permit Certificate Non-Use Change in Use Transfers Cancellation When a completed application is received, the priority date is assigned. Then the Department processes the application using a combination of basin rules, water availability reports and public interest review. If approved, the Department issues a permit. Now, the water user must begin applying the water to beneficial use. When their system is complete they must hire an examiner to prepare a report of beneficial use. A water right holder may change their point of diversion, point of appropriation, place of use or type of use by a formal transfer. With some exceptions (such as those for a municipality), if the water right is not used for more than five consecutive years, it may be considered forfeited and could be cancelled. “Priority Date”

Application for Water Use Permit Application submitted –“Priority Date” assigned to the application. –Application is processed by the Department using a combination of: Basin rules; Water availability reports; and Public interest review.

Availability of Surface Water for New Appropriations

The Application Review Application Permit When a completed application is received, the priority date is assigned. “Priority Date” The Department processes the application using a combination of basin rules, water availability reports and public interest review. Initial Review Proposed Final Order Final Order

Water Use Permit Permit issued (if allowable), specifying: –Source allowed; –Type of use allowed; –Maximum rate & duty allowed; –Period of use allowed; –Priority date; –Timeline (date) to complete construction and full application of water to beneficial use Generally 5 years (20 years for a municipal permit); and –Other conditions of the permit.

Conditions of the Permit Conditions for Municipal/Quasi-Municipal permits may include: –Timeline (date) for completion of construction and full application of water to beneficial use; –Installation/maintenance of water meter and/or fish screens; –Annual well static water level measurements; –Annual water use reporting to OWRD; and/or –Submittal of a Water Management and Conservation Plan (WMCP).

Once a Permit is Issued… Permit Amendment Permit Certificate Permit Extension of Time “Proving Up” The water user must apply the water to beneficial use, consistent with permit conditions. When their system is complete (including any permit amendment) they must hire an examiner to prepare a report of beneficial use. A permit holder may amend the point of diversion, point of appropriation or place of use under a permit through a formal permit amendment. If more time beyond the dates specified in the permit is needed to complete construction, accomplish full beneficial use of water and/or comply with conditions, the permit holder may request an extension of time for the permit.

“Proving Up” on a Permit Must demonstrate (or “prove up” on) beneficial use of water under the permit Beneficial water use under the permit must be: –Consistent with the terms and conditions of the permit; and –Accomplished within the authorized timeline (date) specified in the permit.

“Proving Up” on Rate for Municipal or Quasi-Municipal Permits Minimum 4 hour diversion point demonstration time –Can be a period of not less than 4 hours during a maximum period of 8 hours. –All water diverted during demonstration period must be beneficially used (not wasted). –Diverted water does not need to be used during the rate demonstration period.

Partial Perfection by Municipalities May “prove up” on 25% or more (at a time) of the maximum rate allowed under a permit Future “partial” claims must show “proof” on at least 25% of the original rate allowed by the permit.

Permit Extension of Time A Permit Extension can allow more time (beyond the permit timeline) in which to: –Complete construction of the water diversion and/or water delivery system; and/or –Accomplish beneficial use of water to the fullest extent of the permit. (i.e., if only 5.0 cfs out of the permitted 10.0 cfs has been diverted and beneficially used within the authorized timeline in the permit)

Permit Extension of Time …Can also allow more time (beyond the permit timeline) in which to: –Comply with permit conditions. More time allows a condition to be satisfied within valid, authorized timelines under the permit. Exception: Failure to install fish screens prior to diverting water cannot be cured. This situation would likely result in denial of a Permit Extension request.

Permit Extension of Time A Permit Extension can be allowed if: –Reasonable diligence and good faith of the permit holder in developing and “perfecting” the water use is demonstrated; and –Good cause for the additional time to “prove up” on the use of water is shown.

Permit Extension of Time Final Orders approving Muni/Quasi-Muni Permit Extensions may include conditions to: –Require submittal of a WMCP within 3 years –Establish “Development Limitations” Diversion of water beyond specified maximum rate can only be authorized through a request in (and OWRD approval of) a WMCP. –Provide fishery resource protection to maintain the persistence of listed fish species Applicable to the undeveloped portion of the permit.

Permit Amendment A permit can be modified through submittal of a Permit Amendment Application to: –Change the location of a point of diversion or a point of appropriation; –Add a point of diversion or a point of appropriation; and/or –Change the place of use. NOTE: The type or character of use cannot be changed through a Permit Amendment.

Permit Amendment A Permit Amendment can be allowed if: –The permit has valid completion timelines (dates) that have not expired; –The proposed change does not result in injury to an existing water right; and –For a change in place of use, the proposed “to” lands are: Owned or controlled by the permit holder of record; and Contiguous to the lands authorized under the permit.

Claim of Beneficial Use Once water use is “perfected” under a permit… A Claim of Beneficial Use (CBU) and survey map are submitted to OWRD –The CBU must be prepared by a Certified Water Right Examiner. OWRD evaluates the CBU and survey map Issuance of a water right certificate is based on results of the CBU evaluation

After a Certificate is Issued… Certificate Non-Use Change in Use Transfers Cancellation A water right holder may change their point of diversion, point of appropriation, place of use or type of use by a formal transfer. With some exceptions (such as those for a municipality), if the water right is not used for more than five consecutive years, it may be considered forfeited and cancelled. Exception to forfeiture for non-use: A presumption of forfeiture can be rebutted for a water right, acquired by a city or town, that is issued for all reasonable and usual municipal purposes [ORS (2)(a)].

Water Right Transfer A water right certificate can be modified through submittal of a Transfer Application to: –Change the location of a point of diversion or point of appropriation; –Add a point of diversion or point of appropriation; –Change the place of use; and/or –Change the type or character of use.

Water Right Transfer A Water Right Transfer can be allowed if: –The water right is valid and not subject to forfeiture; –The water user is ready, willing and able to use the full amount of water allowed under the water right; –The proposed change would not result in enlargement of the water right; and –The proposed change would not result in injury to another existing water right.

Ground Water Registrations (also known as a “GR”) GR claims filed with OWRD –Claims document beneficial use of ground water accomplished prior to August 3, Claim filing period: –August 3, 1955 through August 3, 1958.

Ground Water Registrations Certificates of Registration were provided to the claimants and are on file at OWRD At some point in the future… –GR claims will be adjudicated and the rights will be determined.

Ground Water Registrations When acquiring property in your service boundary… –Be aware of the potential existence of GRs on the land. –GRs can be a valuable asset in your water right inventory. If you acquire land with a GR… –The GR should be “Assigned” in the name of the water supplier. Once a GR is “Assigned,” the water supplier can modify the GR

Ground Water Registration Modification A GR can be modified through submittal of a Ground Water Registration Modification Application to: –Change the location of a point of appropriation; –Add a point of appropriation; –Change the place of use; and/or –Change the type or character of use.

Ground Water Registration Modification A Ground Water Registration Modification can be allowed if the proposed modification would: –Not enlarge the ground water registration; –Not injure another existing water right; and –Not result in a state Scenic Waterway not receiving previously available water… During periods in which streamflows are less than quantities needed for the free-flowing character of the waters for recreation, fish and wildlife.

Assignment / Ownership Update For permits, permit amendments, transfers and ground water registrations: –An “Assignment” form is used to change the ownership of (or interest in) a water use record. For certificated water rights: –an “Ownership Update” form is used to update the contact information for the right.

Questions ? Lisa Jaramillo, Water Management & Conservation OWRD Water Right Services Division Phone: General OWRD Phone: Website: