Taking Care of Your Water Rights: Permits, Extensions & Certificates

1. Taking Care of YourWater Rights: Permits, Extensions & Certificates Oregon Association of Water Utilities April 2014 Lisa Jaramillo Water Right Services Division OWRD

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

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

4. 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.

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

6. 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…”

7. A Water Right Consists Of: • Point of diversion • 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 • Quantity of water Rate, duty and season of use

8. 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 540.610(2).

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

10. Exempt Uses of Surface WaterORS 537.141 • Livestock watering Closed loop system; livestock fenced away from stream • Emergency fire-fighting • Land management practices Soil conservation and water quality • Rainwater collection Artificial, impervious surface Do not require a water right

11. Exempt Uses of Ground WaterORS 537.545 • 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

12. The Water Right System Application 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. “Priority Date” “Proving Up” 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. Permit With some exceptions (such as those for a municipal use), if the water right is not used for more than five consecutive years, it may be considered forfeited and could be cancelled. Certificate Non-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. Change in Use Cancellation Transfers

13. 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.

14. Availability of Surface Water forNew Appropriations

15. The Application Review Application 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 Permit

16. 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.

17. 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).

18. Once a Permit is Issued… Permit 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. A permit holder may amend the point of diversion, point of appropriation or place of use under a permit through a formal permit amendment. Permit Amendment Permit Extension of Time 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. “Proving Up” Certificate

19. “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.

20. “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.

21. 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.

22. 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)

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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 • Determines maximum beneficial use of water

29. Water Right Certificate • OWRD issues the Water Right Certificate • Based on findings of the CBU evaluation. • Water Right becomes appurtenant to the land • Water Right must be used at least once every five years

30. After a Certificate is Issued… Certificate With some exceptions (such as those for a municipal use), if the water right is not used for more than five consecutive years, it may be considered forfeited and cancelled. A water right holder may change their point of diversion, point of appropriation, place of use or type of use by a formal transfer. Non-Use Change in Use Cancellation Transfers Exception to forfeiture for non-use:A presumption of forfeiture can be rebutted for a water right… that is issued for all reasonable and usual municipal purposes[ORS 540.610(2)(a)].

31. 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.

32. 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.

33. 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, 1955. • Claim filing period: • August 3, 1955 through August 3, 1958.

34. 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.

35. 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

36. 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.

37. 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.

38. 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.

39. Break Time

40. Water Management and Conservation PlansA basic framework for preparinga WMCP consistent withOAR Chapter 690, Division 86

41. Elements of a WMCP

42. Water Supplier Description • Sets the stage for the WMCP; and • Provides current information about: • the water supplier; • its water sources; and • its water distribution system.

43. Water Supplier Description • A WMCP must describe the supplier’s: • Water sources & distribution system; • Exchange agreements, contracts and/or interconnections; • Current service area & population; • Characteristics of water customers; • Current water use;

44. Water Supplier Description • Must also describe the supplier’s: • Inventory of water rights; • Adequacy & reliability of water sources; • An assessment of any environmental issues pertaining to the supplier’s water sources; and • Quantification of the system’s non-revenue water (water loss).

45. Water Supplier Description

46. Water Conservation Element • A description of the supplier’s past, current and future conservation measures. • Also includes: • A progress report on conservation measures scheduled for implementation in previous WMCP; and • A description of the supplier’s water use measurement and reporting program that complies with OAR Chapter 690, Division 85 standards.

47. Water Conservation Element • All water suppliers must implement within five years: • An annual water audit; • A fully metered system; • A meter testing & maintenance program; • A rate structure, based in part, on the amount of water metered at connections; • A leak detection program (if water losses exceed 10%); and • A public education program to encourage efficient water use.

48. Water Conservation Element • OAR 690-086-0150(5) if a supplier proposes to expand or initiate water under an extended permit with identified resource issues… • Must implement a system-wide leak repair or line replacement program to reduce water losses to no more than 15% (or demonstrate currently at no more than 15%).

49. Water Conservation Element • Under OAR 690-086-0150(6), further conservation measures must be evaluated and implemented, if feasible: • If the supplier proposes to expand or initiate water under an extended permit with identified resource issues; -OR- • If the supplier serves more than 7,500 people.

50. Water Conservation Element • Further conservation measures: • Leak repair program or line replacement; • Technical and financial assistance programs; • Supplier financed retrofit / replacement; • Rate structures that encourage conservation; and • Water reuse, recycling and non-potable water opportunities.