Oregon Water Rights Explained: Priority, Permits, Transfers and Forfeiture

Every irrigation ditch, municipal well and fish-flow agreement in Oregon sits inside one legal system. It is old, it is strict about dates, and it does not care how close your land is to the river. If you farm in the Umatilla Basin, buy rural property in Morrow County or follow water politics anywhere east of the Cascades, the vocabulary below will come up again and again.

The starting point: water belongs to the public

The Oregon Water Resources Department (OWRD) puts the rule plainly in its Water Rights in Oregon handbook: under Oregon law, all water belongs to the public. Cities, irrigators, businesses and other users generally need a permit or license from OWRD to use water from any source, whether it is underground or in lakes and streams. A landowner with water flowing past, through or under the property does not automatically get to use it.

Two bodies run the system. The Water Resources Commission is a seven-member citizen board that sets water policy. Members are appointed by the Governor, confirmed by the Senate and serve four-year terms; five represent regional river basin areas and two are at-large members, one from each side of the Cascades. OWRD is the agency that administers surface water and groundwater law day to day, through a director and field staff that include the watermasters.

Prior appropriation: first in time, first in right

Oregon follows the doctrine of prior appropriation, which the state adopted into statute on February 24, 1909. The handbook's summary: the first person to obtain a water right on a stream is the last to be shut off when flows drop. In a shortage, the holder with the oldest priority date can demand the full amount in the right, regardless of junior users' needs. Any surplus goes to the next most senior right, and so on down the line.

The priority date is usually the date the permit application was filed. That is why people in irrigation country talk about "1905 water" or "1970 water." The date, not the size of the farm or the crop, decides who keeps diverting in August.

Oregon generally does not rank one type of use above another. If two conflicting rights share the same priority date, domestic and livestock use come first. When the Governor declares a drought, the Commission can adopt rules giving temporary preference to human consumption and stock watering regardless of priority.

Watermasters enforce all this on the ground. OWRD notes that shortages occur in most years, and that as summer flows drop, watermasters regulate junior users so seniors get their water. On some streams, by late summer, only rights established in the 1800s are still being served.

What came before 1909

Water used before the 1909 code and used continuously since may be a "vested" right. Those claims are confirmed only through a court adjudication, in which OWRD gathers evidence and a circuit court issues a decree. A 1987 law required people claiming pre-1909 surface water rights in unadjudicated areas to file registration statements by December 31, 1992.

From application to certificate

Most new rights follow three steps.

1. Permit. The applicant files with OWRD, including maps, a legal description and land use information. OWRD reviews water availability, basin rules and public interest factors, issues a Proposed Final Order, and gives other water users and the public a chance to protest. Contested protests can lead to a hearing.
2. Development. The permit sets time limits, usually five years, to build the system and put water to use. Extensions are possible on a showing of diligence.
3. Proof. A certified water right examiner surveys the actual use and files a claim of beneficial use. If the use matches the permit, OWRD issues a certificate. The certificate covers only the amount actually used beneficially, up to the permit limit.

A certificate states a maximum rate, usually in cubic feet per second or gallons per minute, and often an annual volume in acre-feet. It does not guarantee that the water will be there. In OWRD's words, a right authorizes diversion only to the extent water is available after senior rights, including instream rights, are met.

Term	What it means in practice
Priority date	Usually the application date; decides order of shut-off in a shortage
Permit	Authorization to build and begin using water
Certificate	The "perfected" right after proof of beneficial use
Appurtenancy	The right is tied to the described land and normally passes with it
1 cfs	448.8 gallons per minute, or about 1.98 acre-feet per day
1 acre-foot	325,851 gallons, enough to cover an acre one foot deep

Instream rights

Since 1987, the state departments of Fish and Wildlife, Environmental Quality, and Parks and Recreation can apply for instream water rights to protect fish, water quality or recreation. These rights carry priority dates and are regulated like any other. They cannot touch a more senior right. Existing holders can also lease water instream for up to five years at a time, renewable, or transfer it permanently to instream use. Leased and transferred water keeps its original priority date. Utah is now leaning on a similar idea, voluntary split-season leases of farm water, to refill the Great Salt Lake; our guide to what the shrinking Great Salt Lake means for Oregon compares the two.

Transfers: changing where, how or from where

A right is limited to its certificated place of use, point of diversion and type of use. Changing any of those requires an OWRD transfer.

• Permanent transfers generally need a map from a certified water right examiner. OWRD must find the change will not enlarge the right or injure other rights, and the public can protest.
• Temporary transfers of place of use can last up to five years and are commonly used for crop rotation.
• District transfers let irrigation districts move rights within district boundaries, either permanently or for a single season.
• Drought transfers and other emergency tools become available in counties under a Governor's drought declaration, with expedited review and reduced fees.

There is also a conserved water program. A user who installs more efficient equipment can apply to use part of the saved water on new land, lease or sell it, or dedicate it instream. At least 25 percent of the saved water must go back to the stream.

"Use it or lose it": forfeiture and cancellation

A right stays valid only while it is used. Under ORS 540.610, failing to use all or part of a right for five successive years creates a rebuttable presumption of forfeiture. The handbook gives the classic example: a right for 40 acres where only 20 have been irrigated for five straight years puts the unirrigated portion at risk.

Some points that often get lost:

• Using less than the full rate does not cause forfeiture if the holder is ready, willing and able to use the full amount and has a system that can carry it.
• Municipal rights and several other categories have statutory exceptions.
• Once five consecutive years of non-use have passed, restarting use does not cure the problem, unless the non-use ended more than 15 years ago.
• Cancellation is not automatic. It requires a legal proceeding, often started when someone files sworn affidavits of non-use.
• Years covered by a state drought declaration under ORS 536 do not count toward the five years, provided the holder had a working system and was ready to use the full right.

Groundwater runs on its own statute

Groundwater rights follow the same priority principles but sit under the Ground Water Act of 1955. People who were using groundwater before then could register those uses; OWRD has issued certificates of registration for them.

Several groundwater uses are exempt from permits, though the water still has to be used beneficially and wells must meet construction standards:

• stock watering;
• lawn or noncommercial garden up to one-half acre;
• single or group domestic use up to 15,000 gallons per day;
• a single industrial or commercial use up to 5,000 gallons per day.

When an aquifer is overdrawn, the Commission can designate a critical groundwater area under ORS 537.730. Unlike most basin restrictions, a critical area order can limit existing uses as well as new ones, and can set preferences regardless of priority. OWRD now lists 22 groundwater administrative areas statewide, with different levels of restriction.

Three of the best-known critical areas are in Morrow and Umatilla counties. The basalt and shallow gravel aquifers of the Ordnance Critical Groundwater Area were closed to further appropriation by an order dated April 2, 1976. The Butter Creek basalt aquifer was closed by an order dated August 18, 1986. Stage Gulch is the third. In Butter Creek and Stage Gulch, OWRD sends each water right holder an allocation order every August, and request forms go out each June.

Basin programs

The Commission manages Oregon through 18 administrative basins and has adopted basin programs for all but the Klamath, according to OWRD. A basin program classifies which new uses may be considered on which streams and aquifers. It usually restricts only new appropriations, not existing rights.

The Umatilla Basin Program (OAR 690-507) shows how specific these rules get. It bars out-of-basin and out-of-state appropriations of Umatilla Basin water. It makes surface water rights initiated after September 28, 1987, subordinate to earlier permits for artificial groundwater recharge. It requires conservation measures in new consumptive permits. For Butter Creek, the Commission withdrew the creek and tributaries from new appropriation from June 1 through October 31 each year, an action first taken on December 2, 1985, with exceptions such as domestic and livestock use and released stored water.

Checking a right before you buy or build

OWRD keeps water right records in Salem and in local watermaster offices. To look up whether land has a right, you will need a legal description or the county assessor's tax lot map. Irrigation district land is handled differently, because individual rights are managed by the district; the district office is the place to start. The state's online record systems, from WRIS to the well log database, are explained in our guide to researching Oregon water issues. For complex applications OWRD offers pre-application conferences, and many landowners hire a certified water right examiner or a water rights consultant for transfers and proof surveys.

The short version: the date on the paper matters more than the location of the land, the right only stays alive while it is used, and almost every change has to go through OWRD first.