You just purchased property with a pond, or a reservoir. Within the documents provided by the prior owner, you did not find a “typical” stored water right certificate or permit to store water. But you did find a water right of use that allowed storage water to be used for irrigation. Now, you fear the prior owner did not apply for a permit to store water with the Oregon Water Resources Department (“OWRD”). You do not like the current location of the pond or reservoir. You worry you cannot change anything about the pond or reservoir due to the missing water right of use or water right certificate.
This may not be the case, but to be sure, you must research stored water rights in Oregon.
Applications and Use
OWRD may allocate water for “beneficial use.” To receive an allocation, a person must apply to the OWRD. A person can apply for a right of use to store water but needs a secondary right to “use” the stored water. In other words, OWRD requires two permits, one to store and one to use. For example, water use permits only apply to uses for irrigation, nursey, or recreation, not storage.
In the early 1990s, the State allowed owners of reservoirs built prior to 1995 to apply for a reservoir to be “exempt” from OWRD’s “typical” water right application process for storage. If the owner followed the proper steps, the reservoir would be exempt but would not necessarily receive a standard “certificate” from OWRD. In other words, the owner wouldn’t be subject to penalties for storing water in the reservoir even though OWRD didn’t issue a water right certificate. If a person did not qualify for or complete these steps, they would need to apply for a “typical” stored water use permit.
Transfer Applications for Stored Water
In your research, you find out that you have an exempt reservoir. You are relieved to find out that you can legally store water on your property. However, you are still unhappy with the location of the reservoir.
Due to a recent Oregon Court of Appeals ruling, you will be able to change the location of your reservoir with a transfer application submitted and approved by OWRD. Since 2018, OWRD argued it did not have the authority to transfer, or relocate, any storage water right of use under state law. In Bridge Creek Ranch, LLC v. Oregon Water Resources Department, the Oregon Court of Appeals did not agree with OWRD’s interpretation. The Court determined that a primary right to store water and a secondary right to use the stored water are “inextricably linked”. Therefore, OWRD must accept transfer (change) applications for stored water uses that were issued certificates.
This clarification could allow you to hopefully transfer the location of your reservoir to a more convenient part of your property and allow you to begin perfecting your water rights.
