2007 Oregon Code - Chapter 539 :: Chapter 539 - Determination of Water Rights Initiated Before February 24 - 1909 - Determination of Water Rights of Federally Recognized Indian Tribes
Chapter 539
Determination of Water Rights Initiated
Before
February 24, 1909; Determination of Water Rights
of Federally
Recognized Indian Tribes
2007 EDITION
DETERMINATION OF WATER RIGHTS
WATER LAWS
WATER RIGHTS BEFORE 1909
539.005 Purpose
of chapter; rules
539.010 Protection
of water rights vested or initiated prior to February 24, 1909
539.015 Certification
of statements of claimants; oaths
539.021 Determination
by Water Resources Director of rights of claimants; transfer of action to
director
539.030 Notice
of investigation of stream
539.040 Notice
of hearing by director
539.070 Hearing
by director; adjournments
539.081 Fees;
exemption; disposition
539.090 Notice
of right to inspect evidence, and of place of court hearing
539.100 Contest
of claims submitted to director; notice by contestant; service on contestee
539.110 Hearing
of contest; notice of; procedure
539.120 Examination
by director of stream and diversions in contest; record; map
539.130 Findings
of fact and determination of director; certification of proceedings; filing in
court; fixing time for hearing by court; notice; force of directors
determination
539.140 Water
right certificates
539.150 Court
proceedings to review determination of director
539.160 Transmittal
of copy of decree to department; instructions to watermasters
539.170 Division
of water pending hearing
539.180 Bond
or irrevocable letter of credit to stay operation of directors determination;
notice to watermaster
539.190 Rehearing
by circuit court
539.200 Conclusiveness
of determinations as to water rights
539.210 Duty
of claimants to appear and submit proof; nonappearance as forfeiture;
intervention in proceedings
539.220 Procedure
when rights to same stream have been determined in different proceedings
539.230 Notice
of need to file registration statement; publication requirements; additional
methods of providing notice
539.240 Claim
to undetermined right to appropriate surface water; registration statement;
contents; effect of failure to file; recognizing changes to right; rules
WATER RIGHTS OF FEDERALLY RECOGNIZED INDIAN
TRIBES
539.300 Legislative
findings
539.310 Negotiation
for water rights
539.320 Agreement;
submission to court
539.330 Notice
to persons affected by agreement
539.340 Court
decree; effective date of agreement; remand
539.350 Procedures
after remand of agreement
WATER RIGHTS BEFORE 1909
539.005
Purpose of chapter; rules.
(1) The Legislative Assembly declares that it is the purpose of this chapter to
set forth the procedures for carrying out a general stream adjudication in
(2) In accordance with the applicable
provisions of ORS chapter 183, the Water Resources Director shall adopt rules
necessary to carry out the provisions of this chapter. [1989 c.691 §§2,3]
539.010
Protection of water rights vested or initiated prior to February 24, 1909. (1) Actual application of water to
beneficial use prior to February 24, 1909, by or under authority of any
riparian proprietor or the predecessors in interest of the riparian proprietor,
shall be deemed to create in the riparian proprietor a vested right to the
extent of the actual application to beneficial use; provided, such use has not
been abandoned for a continuous period of two years.
(2) Where any riparian proprietor, or any
person under authority of any riparian proprietor or the predecessor in
interest of the riparian proprietor, was, on February 24, 1909, engaged in good
faith in the construction of works for the application of water to a beneficial
use, the right to take and use such water shall be deemed vested in the
riparian proprietor; provided, that the works were completed and the water
devoted to a beneficial use within a reasonable time after February 24, 1909.
The Water Resources Director, in the manner provided in subsection (5) of this
section, may determine the time within which the water shall be devoted to a
beneficial use. The right to water shall be limited to the quantity actually
applied to a beneficial use within the time so fixed by the director.
(3) Nothing contained in the Water Rights
Act (as defined in ORS 537.010) shall affect relative priorities to the use of
water among parties to any decree of the courts rendered in causes determined
or pending prior to February 24, 1909.
(4) The right of any person to take and
use water shall not be impaired or affected by any provisions of the Water
Rights Act (as defined in ORS 537.010) where appropriations were initiated
prior to February 24, 1909, and such appropriators, their heirs, successors or
assigns did, in good faith and in compliance with the laws then existing,
commence the construction of works for the application of the water so
appropriated to a beneficial use, and thereafter prosecuted such work
diligently and continuously to completion. However, all such rights shall be
adjudicated in the manner provided in this chapter.
(5) The director shall, for good cause
shown upon the application of any appropriator or user of water under an
appropriation of water made prior to February 24, 1909, or in the cases
mentioned in subsections (2) and (4) of this section, where actual construction
work was commenced prior to that time or within the time provided in law then
existing, prescribe the time within which the full amount of the water
appropriated shall be applied to a beneficial use. In determining said time the
director shall grant a reasonable time after the construction of the works or
canal or ditch used for the diversion of the water, and in doing so, the
director shall take into consideration the cost of the appropriation and
application of the water to a beneficial purpose, the good faith of the
appropriator, the market for water or power to be supplied, the present demands
therefor, and the income or use that may be required to provide fair and
reasonable returns upon the investment. For good cause shown the director may
extend the time.
(6) Where appropriations of water
attempted before February 24, 1909, were undertaken in good faith, and the work
of construction or improvement thereunder was in good faith commenced and
diligently prosecuted, such appropriations shall not be set aside or voided in
proceedings under this chapter because of any irregularity or insufficiency of
the notice by law, or in the manner of posting, recording or publication
thereof.
(7) In any proceeding to adjudicate water
rights under this chapter, the Water Resources Department may adjudicate
federal reserved rights for the water necessary to fulfill the primary purpose
of the reservation or any federal water right not acquired under ORS chapter
537 or ORS 540.510 to 540.530.
(8) All rights granted or declared by the
Water Rights Act (as defined in ORS 537.010) shall be adjudicated and
determined in the manner and by the tribunals provided therein. The Water
Rights Act shall not be held to bestow upon any person any riparian rights
where no such rights existed prior to February 24, 1909. [Amended by 1989 c.691
§6; 1993 c.157 §1]
539.015
Certification of statements of claimants; oaths. Each claimant or owner who files a statement
and proof of claim form or a registration statement shall be required to
certify to the statements of the claimant or owner under oath. The Water
Resources Director or the authorized assistant of the director may administer
such oaths, which shall be done without charge, as also shall be the furnishing
of blank forms for the statement. [1989 c.691 §4]
539.020 [Repealed by 1987 c.541 §1 (539.021 enacted
in lieu of 539.020)]
539.021
Determination by Water Resources Director of rights of claimants; transfer of
action to director. (1) The
Water Resources Director upon the motion of the director or, in the discretion
of the director, upon receipt of a petition from one or more appropriators of
surface water from any natural watercourse in this state shall make a
determination of the relative rights of the various claimants to the waters of
that watercourse.
(2) If an action is brought in the circuit
court for determination of rights to the use of water, the case may, in the
discretion of the court, be transferred to the director for determination as
provided in this chapter. [1987 c.541 §2 (enacted in lieu of 539.020)]
539.030
Notice of investigation of stream. The Water Resources Director shall prepare a notice, setting forth the
date when the director or the assistant of the director will begin such
investigation as may be necessary for a proper determination of the relative
rights of the various claimants to the use of the waters of the stream. The
notice shall be published in two issues of one or more newspapers having
general circulation in the counties in which the stream is situated, the last
publication of the notice to be at least 10 days prior to the date set in the
notice for the beginning of the investigation by the director or the assistant
of the director. [Amended by 1955 c.669 §1; 1979 c.53 §1; 1987 c.541 §8]
539.040
Notice of hearing by director.
(1) As soon as practicable after the examination and measurements are
completed, as described in ORS 539.120, the Water Resources Director shall
prepare a notice setting forth a place and time certain when the director or
the authorized assistant of the director shall begin taking testimony as to the
rights of the various claimants to the use of the waters of the stream or its
tributaries. The notice shall be published in two issues of one or more
newspapers having general circulation in the counties in which the stream is
situated, the last publication of the notice to be at least 30 days prior to
the beginning of taking testimony by the director or the authorized assistant
of the director.
(2) The director shall also send by
registered mail or by certified mail with return receipt to each claimant or
owner who filed with the director a registration statement as provided in ORS
539.240 and to the Attorney General of the United States or the designated
representative of the Attorney General of the United States, on behalf of the
United States and its agencies and as trustee for the Indian tribes, a notice
similar to that provided in subsection (1) of this section setting forth the
date when the director or the authorized assistant of the director will take
testimony as to the rights to the use of the water of the stream. The notice
must be mailed at least 30 days prior to the date set therein for taking
testimony.
(3)(a) For purposes of the
(b) In the already adjudicated areas of
the
539.050 [Amended by 1955 c.669 §3; repealed by 1987
c.541 §10]
539.060 [Repealed by 1987 c.541 §10]
539.070
Hearing by director; adjournments. Upon the date named in the notice for taking testimony, the Water
Resources Director or the authorized assistant of the director shall begin
taking testimony and shall continue until completed. But the director may
adjourn the taking of testimony from time to time and from place to place, to
suit the convenience of those interested.
539.080 [Amended by 1971 c.621 §37; 1975 c.607 §40;
1979 c.67 §3; 1981 c.627 §2; 1983 c.256 §2; repealed by 1987 c.541 §6 (539.081
enacted in lieu of 539.080)]
539.081
Fees; exemption; disposition.
(1) At the time the owner or registrant submits a registration statement under
ORS 539.240 or, if a registration statement is not filed, when a statement and
proof of claim is filed pursuant to notice by the Water Resources Director
under ORS 539.030, the owner or registrant shall pay a fee as follows:
(a) If for irrigation use, $2 for each
acre of irrigated lands up to 100 acres and $1 for each acre in excess of 100
acres. The minimum fee for any owner or registrant for irrigation use shall be
$30.
(b) If for power use, $2 for each
theoretical horsepower up to 100 horsepower, 50 cents for each horsepower in
excess of 100 up to 500 horsepower, 35 cents for each horsepower in excess of
500 horsepower up to 1,000 horsepower and 25 cents for each horsepower in
excess of 1,000 horsepower, as set forth in the proof. The minimum fee for any
owner or registrant for power use shall be $200.
(c) If for mining or any other use, $200
for the first second-foot or fraction of the first second-foot and $50 for each
additional second-foot.
(2) The fees under subsection (1) of this
section shall not apply to any federally recognized Indian tribe, or to the
(3) If the registration statement shows
that the water right was initiated by making application for a permit under the
provisions of ORS chapter 537, the owner or registrant shall be given credit
for the money paid as examination and recording fees. A credit under this
subsection shall be allowed only if the application under ORS chapter 537 was
for a permit to appropriate water to be applied to the same parcel of land or
for the same use as set forth in the registration statement.
(4) All fees paid under this section shall
be deposited into the General Fund of the State Treasury and credited to an
account of the Water Resources Department. The fees shall be used to pay for
the expenses of the department to:
(a) Register claims to undetermined vested
rights or federal reserved rights under ORS 539.230 and 539.240; and
(b) Determine claims filed or registered
under ORS 539.230 and 539.240.
(5) No registration statement or statement
and proof of claim shall be accepted for filing unless the registration
statement or claim is accompanied by the fee in the amount set forth in this
section. If the federal government is determined to be immune from the payment
of such fees, the director may elect to accept a federal claim for filing
without the accompanying fees. [1987 c.541 §7 (enacted in lieu of 539.080);
1989 c.691 §8; 1993 c.157 §3; 1993 c.535 §1]
539.090
Notice of right to inspect evidence, and of place of court hearing. Upon the completion of the taking of
testimony by the Water Resources Director, the director shall at once give
notice by registered mail or by certified mail with return receipt to the
various claimants and to any party who has notified the director that the party
wishes to contest the claims of others, that all of the evidence will be open
to inspection of the various claimants or owners. The notice shall specify the
times when and the places where the evidence will be open to inspection, and
the director shall keep the evidence open for inspection at the specified times
and places. The earliest time for inspection shall be at least 10 days after
mailing the notice; and, in the aggregate, the hours during which the director
is to keep the evidence open to inspection shall at least equal 80 hours,
counting only the hours between 8 a.m. and 5 p.m. during any day of the week
except Sunday. The director shall also state in the notice the county in which
the determination will be heard by the circuit court; provided, that the cause
shall be heard in the county in which the stream or some part thereof is
situated. [Amended by 1955 c.191 §1; 1989 c.691 §9; 1991 c.249 §46]
539.100
Contest of claims submitted to director; notice by contestant; service on contestee. Any person owning any irrigation works, or
claiming any interest in the stream involved in the determination shall be a
party to, and bound by, the adjudication. Any party who desires to contest any
of the rights of the persons who have submitted their evidence to the Water
Resources Director as provided in ORS 539.021 to 539.090 shall, within 15 days
after the expiration of the period fixed in the notice for public inspection,
or within such extension of the period, not exceeding 20 days, as the director
may allow, notify the director in writing, stating with reasonable certainty
the grounds of the proposed contest, which statement shall be verified by the
affidavit of the contestant, the agent or attorney of the contestant. A party
not claiming an undetermined vested right under this chapter or not contesting
the claim of another need not participate further in the proceeding, nor be
served with further notices or documents regarding the adjudication. Upon the
filing of a statement of contest, service thereof shall be made by the
contestant upon the contestee by mailing a copy by registered mail or by
certified mail, return receipt requested, addressed to the contestee or to the
authorized agent or attorney of the contestee at the post-office address of the
contestee as stated in the statement and proof of claim of the contestee. Proof
of service shall be made and filed with the Water Resources Department by the
contestant as soon as possible after serving the copy of statement of contest. [Amended
by 1989 c.691 §10; 1991 c.102 §5; 1991 c.249 §47]
539.110
Hearing of contest; notice of; procedure. The Water Resources Director shall fix the time and a convenient place
for hearing the contest, and shall notify the contestant and the person whose
rights are contested to appear before the director or the authorized assistant
of the director at the designated time and place. The date of hearing shall not
be less than 30 nor more than 60 days from the date the notice is served on the
parties. The notice may be served personally or by registered or certified
mail, return receipt requested, addressed to the parties at their post-office
addresses as stated in the statement and proof of claimant. The director may
adjourn the hearing from time to time upon reasonable notice to all the parties
interested; may issue subpoenas and compel the attendance of witnesses to
testify, which subpoenas shall be served in the same manner as subpoenas issued
out of the circuit court; may compel the witnesses so subpoenaed to testify and
give evidence in the matter; and may order the taking of depositions and issue
commissions therefor in the same manner as depositions are taken in the circuit
court. The witnesses shall receive fees as provided in ORS 44.415 (2), the
costs to be taxed in the same manner as are costs in suits in equity. The
evidence in the proceedings shall be confined to the subjects enumerated in the
notice of contest. The burden of establishing the claim shall be upon the
claimant whose claim is contested. The evidence may be taken by a duly
appointed reporter. [Amended by 1989 c.980 §14d; 1991 c.249 §48]
539.120
Examination by director of stream and diversions in contest; record; map. The Water Resources Director, or a qualified
assistant, shall proceed at the time specified in the notice to the parties on
the stream given as provided in ORS 539.030, to make an examination of the
stream and the works diverting water therefrom used in connection with water
rights subject to this chapter, for which a registration statement has been
filed as provided in ORS 539.240. The examination shall include the measurement
of the discharge of the stream and of the capacity of the various diversion and
distribution works, and an examination and approximate measurement of the lands
irrigated from the various diversion and distribution works. The director shall
take such other steps and gather such other data and information as may be
essential to the proper understanding of the relative rights of the parties
interested. The observations and measurements shall be made a matter of record
in the Water Resources Department. The department shall make or have made a map
or plat on a scale of not less than one inch to the mile, showing with
substantial accuracy the course of the stream, the location of each diversion
point and each ditch, canal, pipeline or other means of conveying the water to
the place of use, and the location of lands irrigated, or in connection with
which the water is otherwise used, within each legal subdivision. [Amended by
1955 c.669 §4; 1989 c.691 §11; 1991 c.102 §6]
539.130
Findings of fact and determination of director; certification of proceedings;
filing in court; fixing time for hearing by court; notice; force of directors
determination. (1) As soon
as practicable after the compilation of the data the Water Resources Director
shall make and cause to be entered of record in the Water Resources Department
findings of fact and an order of determination determining and establishing the
several rights to the waters of the stream. The original evidence gathered by
the director, and certified copies of the observations and measurements and
maps of record, in connection with the determination, as provided for by ORS
539.120, together with a copy of the order of determination and findings of
fact of the director as they appear of record in the Water Resources
Department, shall be certified to by the director and filed with the clerk of
the circuit court wherein the determination is to be heard. A certified copy of
the order of determination and findings shall be filed with the county clerk of
every other county in which the stream or any portion of a tributary is
situated.
(2) Upon the filing of the evidence and
order with the court the director shall procure an order from the court, or any
judge thereof, fixing the time at which the determination shall be heard in the
court, which hearing shall be at least 40 days subsequent to the date of the
order. The clerk of the court shall, upon the making of the order, forthwith forward
a certified copy to the department by registered mail or by certified mail with
return receipt.
(3) The department shall immediately upon
receipt thereof notify by registered mail or by certified mail with return
receipt each claimant or owner who has appeared in the proceeding of the time
and place for hearing. Service of the notice shall be deemed complete upon
depositing it in the post office as registered or certified mail, addressed to
the claimant or owner at the post-office address of the claimant or owner, as
set forth in the proof of the claimant or owner theretofore filed in the
proceeding. Proof of service shall be made and filed with the circuit court by
the department as soon as possible after mailing the notices.
(4) The determination of the department
shall be in full force and effect from the date of its entry in the records of
the department, unless and until its operation shall be stayed by a stay bond
as provided by ORS 539.180. [Amended by 1991 c.102 §7; 1991 c.249 §49]
539.140
Water right certificates.
Upon the final determination of the rights to the waters of any stream, the
Water Resources Department shall issue to each person represented in the
determination a certificate setting forth the name and post-office address of
the owner of the right; the priority of the date, extent and purpose of the
right, and if the water is for irrigation purposes, a description of the legal
subdivisions of land to which the water is appurtenant. The original
certificate shall be mailed to the owner and a record of the certificate
maintained in the Water Resources Department. [Amended by 1971 c.621 §38; 1975
c.607 §41; 1979 c.67 §4; 1991 c.102 §8]
539.150
Court proceedings to review determination of director. (1) From and after the filing of the
evidence and order of determination in the circuit court, the proceedings shall
be like those in an action not triable by right to a jury, except that any
proceedings, including the entry of a judgment, may be had in vacation with the
same force and effect as in term time. At any time prior to the hearing
provided for in ORS 539.130, any party or parties jointly interested may file
exceptions in writing to the findings and order of determination, or any part
thereof, which exceptions shall state with reasonable certainty the grounds and
shall specify the particular paragraphs or parts of the findings and order
excepted to.
(2) A copy of the exceptions, verified by
the exceptor or certified to by the attorney for the exceptor, shall be served
upon each claimant who was an adverse party to any contest wherein the exceptor
was a party in the proceedings, prior to the hearing. Service shall be made by
the exceptor or the attorney for the exceptor upon each such adverse party in
person, or upon the attorney if the adverse party has appeared by attorney, or
upon the agent of the adverse party. If the adverse party is a nonresident of
the county or state, the service may be made by mailing a copy to that party by
registered mail or by certified mail with return receipt, addressed to the
place of residence of that party, as set forth in the proof filed in the
proceedings.
(3) If no exceptions are filed the court
shall, on the day set for the hearing, enter a judgment affirming the
determination of the Water Resources Director. If exceptions are filed, upon
the day set for the hearing the court shall fix a time, not less than 30 days
thereafter, unless for good cause shown the time be extended by the court, when
a hearing will be had upon the exceptions. All parties may be heard upon the
consideration of the exceptions, and the director may appear on behalf of the
state, either in person or by the Attorney General. The court may, if
necessary, remand the case for further testimony, to be taken by the director
or by a referee appointed by the court for that purpose. Upon completion of the
testimony and its report to the director, the director may be required to make
a further determination.
(4) After final hearing the court shall
enter a judgment affirming or modifying the order of the director as the court
considers proper, and may assess such costs as it may consider just except that
a judgment for costs may not be rendered against the
539.160
Transmittal of copy of decree to department; instructions to watermasters. The clerk of the circuit court, upon the
entry of any decree by the circuit court or judge thereof, as provided by ORS
539.150, shall transmit a certified copy of the decree to the Water Resources
Department where a record of the decree shall be maintained. The Water
Resources Director shall issue to the watermasters instructions in compliance
with the decree, and in execution thereof. [Amended by 1991 c.102 §9]
539.170
Division of water pending hearing. While the hearing of the order of the Water Resources Director is
pending in the circuit court, and until a certified copy of the judgment, order
or decree of the court is transmitted to the director, the division of water
from the stream involved in the appeal shall be made in accordance with the
order of the director.
539.180
Bond or irrevocable letter of credit to stay operation of directors
determination; notice to watermaster. At any time after the determination of the Water Resources Director
has been entered of record, the operation thereof may be stayed in whole or in
part by any party by filing a bond or an irrevocable letter of credit issued by
an insured institution as defined in ORS 706.008 in the circuit court wherein
the determination is pending, in such amount as the judge may prescribe,
conditioned that the party will pay all damages that may accrue by reason of
the determination not being enforced. Upon the filing and approval of the bond
or letter of credit, the clerk of the circuit court shall transmit to the Water
Resources Department a certified copy of the bond or letter of credit, which
shall be recorded in the department records, and the department shall give
notice thereof to the watermaster of the proper district. [Amended by 1991
c.102 §10; 1991 c.331 §79; 1997 c.631 §486]
539.190
Rehearing by circuit court.
Within six months from the date of the decree of the circuit court determining
the rights upon any stream, or if appealed, within six months from the date of
the decree of the circuit court on the decision of the Supreme Court, the Water
Resources Director or any party interested may apply to the circuit court for a
rehearing upon grounds to be stated in the application. If in the discretion of
the court the application states good grounds for the rehearing, the circuit
court or judge shall make an order fixing a time and place when the application
shall be heard. The clerk of the circuit court shall, at the expense of the
petitioner, forthwith mail written notice of the application to the director
and to every party interested, and state in the notice the time and place when
the application will be heard. [Amended by 1981 c.178 §15]
539.200
Conclusiveness of determinations as to water rights. The determinations of the Water Resources
Director, as confirmed or modified as provided by this chapter in proceedings,
shall be conclusive as to all prior rights and the rights of all existing
claimants upon the stream or other body of water lawfully embraced in the
determination.
539.210
Duty of claimants to appear and submit proof; nonappearance as forfeiture; intervention
in proceedings. Whenever
proceedings are instituted for determination of rights to the use of any water,
it shall be the duty of all claimants interested therein to appear and submit
proof of their respective claims, at the time and in the manner required by
law. Any claimant who fails to appear in the proceedings and submit proof of
the claims of the claimant shall be barred and estopped from subsequently
asserting any rights theretofore acquired upon the stream or other body of
water embraced in the proceedings, and shall be held to have forfeited all
rights to the use of the water theretofore claimed by the claimant. Any person
interested in the water of any stream upon whom no service of notice has been
had of the pendency of proceedings for determination of the rights to the use
of water of the stream, and who has had no actual knowledge or notice of the
pendency of the proceedings may, at any time prior to the expiration of one
year after entry of the determination of the Water Resources Director, file a
petition to intervene in the proceedings. The petition shall contain, among
other things, all matters required by this chapter of claimants who have been
duly served with notice of the proceedings, and also a statement that the
intervenor had no actual knowledge or notice of the pendency of the
proceedings. Upon the filing of the petition in intervention, the petitioner
shall be allowed to intervene upon such terms as may be equitable and
thereafter shall have all rights vouchsafed by this chapter to claimants who
have been duly served.
539.220
Procedure when rights to same stream have been determined in different
proceedings. Whenever the
rights to the waters of any stream have been determined as provided in this
chapter and it appears by the records of such determination that it had not
been at one and the same proceeding, then the Water Resources Director may open
to public inspection all proofs or evidence of rights to the water, and the
findings of the director in relation thereto, in the manner provided in ORS
539.090. Any person who then desires to contest the claims or rights of other
persons, as set forth in the proofs or established by the director, shall
proceed in the manner provided for in ORS 539.100 and 539.110; provided, that
contests may not be entered into and shall not be maintained except between
claimants who were not parties to the same adjudication proceedings in the
original hearings.
539.230
Notice of need to file registration statement; publication requirements;
additional methods of providing notice. (1) In order to preserve information relating to claims to
undetermined vested rights as described in ORS 539.010 and federal reserved
rights, the Water Resources Director shall prepare a general notice stating the
need for any person, corporation or governmental agency claiming an
undetermined vested right, federal reserved right or a right derived from such
rights to file a registration statement as required under ORS 539.240. The
notice shall outline the process for obtaining a blank registration statement
and shall describe the rights that may be claimed under this chapter.
(2) The notice required under subsection
(1) of this section shall be published at least two times in one or more
newspapers having general circulation in each county in which streams with
potentially vested rights or reserved rights that have not been adjudicated
under this chapter are located.
(3) In addition to the notice described
under subsection (2) of this section, in any rural county in which there is not
a newspaper having general circulation, the director shall use additional
methods of providing notice of the requirement to file a registration statement.
These methods may include but need not be limited to holding public meetings,
inserting announcements in trade or organization newsletters, public service
announcements on local radio stations and informing the county extension agent
of the requirement. [1987 c.541 §4; 1989 c.691 §13; 1991 c.67 §154]
539.240
Claim to undetermined right to appropriate surface water; registration
statement; contents; effect of failure to file; recognizing changes to right;
rules. (1) Any person,
corporation or governmental agency claiming an undetermined vested right,
federal reserved right or right derived from such rights to appropriate surface
water under ORS 539.010 shall file in the office of the Water Resources
Department, on or before December 31, 1992, a registration statement of the
claim.
(2) Upon request, the Water Resources
Director shall make available a blank registration statement required under
subsection (1) of this section. The claimant shall complete the registration
statement by providing the information necessary for determination of the
claimed vested or reserved right. The registration statement shall include at
least the following:
(a) The name and mailing address of the
claimant.
(b) The claimed beneficial use of the
water and the amount used.
(c) The stream from which the water is
diverted.
(d) A map from a survey prepared by a
water right examiner certified under ORS 537.798 showing:
(A) The location of the point of diversion
in reference to an established corner of the United States Public Lands Survey
or, if within a platted and recorded subdivision, from an established lot
corner of the subdivision.
(B) The location of the place of use by
quarter-quarter section of the United States Public Lands Survey. If the use is
for irrigation, the number of acres irrigated within each quarter-quarter
section.
(e) The time of commencement of the
claimed use of water.
(f) The times of beginning and completion
of any division and distribution works used to appropriate the claimed use of
water and the water carrying capacity of such works, if known.
(g) The location of the place of use by
quarter-quarter section of the United States Public Lands Survey. If the use is
for irrigation, the number of acres irrigated within each quarter-quarter
section during the first year of use and during each subsequent year until the
full amount of claimed use was accomplished.
(h) The period of the year during which
the claimed use of water is usually made.
(3) The failure of any person, corporation
or governmental agency to file a registration statement for an undetermined
vested right or federal reserved right shall create a rebuttable presumption
that the claim has been abandoned.
(4) For good cause shown, any person who
fails to file a registration statement within the period set forth in
subsection (1) of this section may file within one year after December 31,
1992, a petition with the director requesting that the person be given an
opportunity to rebut the presumption that the person has abandoned the claim. Upon
the filing of such a petition, the director may schedule a hearing to take
testimony and evidence on the date the water was applied to beneficial use or
the director may accept sworn statements in writing in support of such
petition. The director shall not deny a petition without first holding a
contested case hearing. If it appears after hearing or from such sworn
statements that the person has a use of water that would be subject to
registration under this chapter, the director shall issue an order authorizing
the person to file a registration statement as described under subsection (1)
of this section. A person who files a petition under this subsection shall
submit with the petition a fee, the amount of which shall be one and one-half
times the amount the person would have submitted under ORS 539.081 with a
timely registration statement.
(5) The director shall accept for filing
all registration statements described in subsections (1) and (4) of this
section made in proper form when the statements are accompanied by the fees
prescribed in ORS 539.081. The director shall indorse the date of receipt on
each registration statement.
(6) The director shall examine each
registration statement to insure that the statement is complete and in proper
form. If the director determines the information required under subsection (2)
of this section is complete and in proper form, the director shall:
(a) Enter the indorsed statement in the
record of the department;
(b) Mail a copy of the indorsed statement
to the person filing the registration statement; and
(c) Include the person or the properly
designated assignee of the person in any further proceeding to adjudicate the
water rights represented by the indorsed registration statement.
(7) Upon entry of the indorsed statement
in the departments records, the registrant is entitled to continue to
appropriate the surface water and apply it to beneficial use to the extent and
in the manner disclosed in the recorded registration statement. However, the
registrant shall not be entitled to the benefits of an existing water right of
record under ORS 540.045.
(8) No registration statement recorded
under this section shall be construed as a final determination of any matter
stated therein, nor shall the act of indorsement by the director constitute a
determination of the validity of the matters contained in the registration
statement. The right of the registrant to appropriate surface water under a
recorded registration statement is subject to determination under ORS 539.010
to 539.240, and is not final or conclusive until so determined. A right to
appropriate surface water under a recorded registration statement has a
tentative priority from the date claimed in the indorsed registration
statement.
(9) Any indorsed registration statement
may be assigned, subject to the conditions in the registration statement, but
no such assignment will be binding, except upon the parties to the assignment,
unless filed with the department.
(10) Notwithstanding the filing deadline
prescribed under subsection (1) of this section, and the late filing period
allowed under subsection (4) of this section, if any person submitted, before
December 31, 1994, a registration statement or other similar documentation
claiming a right to appropriate surface water under ORS 539.010, the director
shall examine the material submitted to determine if the documents filed would
substantially comply with the requirements of subsection (2) of this section.
If the director determines that the documents substantially comply with the
surface water registration filing requirements of subsection (2) of this
section, the director may accept the registration. If the director determines
that the documents filed under this subsection are incomplete or if additional
information is required to comply with subsection (2) of this section, or fees
required under ORS 539.081 have not been submitted, the director shall notify
the claimant of the deficiency, setting a date certain for submittal of the
information or fees. The time for submittal of additional information or fees
shall be not less than 30 days nor more than 180 days after the director
notifies the claimant of the deficiency. If the additional information or fees
are not submitted on or before the date certain, the registration statement
shall be considered void and shall be returned to the claimant.
(11) The director shall adopt by rule a
process and standards for recognizing changes in the place of use, type of use
or point of diversion of water uses registered pursuant to this section. [1987
c.541 §5; 1989 c.691 §14; 1993 c.157 §4; 1995 c.365 §7; 1999 c.860 §1]
WATER RIGHTS
OF FEDERALLY RECOGNIZED INDIAN TRIBES
539.300
Legislative findings. The
Legislative Assembly of the State of
539.310
Negotiation for water rights.
(1) The Water Resources Director may negotiate with representatives of any
federally recognized Indian tribe that may have a federal reserved water right
claim in Oregon and representatives of the federal government as trustee for
the federally recognized Indian tribe to define the scope and attributes of
rights to water claimed by the federally recognized Indian tribe to satisfy
tribal rights under treaty between the United States and the tribes of Oregon.
All negotiations in which the director participates under this section shall be
open to the public.
(2) During negotiations conducted under
subsection (1) of this section, the director shall:
(a) Provide public notice of the
negotiations;
(b) Allow for public input through the
director; and
(c) Provide regular reports on the
progress of the negotiations to interested members of the public. [1987 c.81 §3;
1993 c.67 §2]
539.320
Agreement; submission to court.
When the Water Resources Director and the representatives of any federally
recognized Indian tribe that may have a federal reserved water right claim in
539.330
Notice to persons affected by agreement. (1) Upon filing of the agreement with the appropriate court under ORS
539.320, the Water Resources Director shall notify owners of water right
certificates or permits that may be affected by the agreement:
(a) That the agreement has been filed with
the court; and
(b) Of the time and manner specified by
the court for filing an exception to the agreement.
(2) Unless notice by registered mail is
required by the court, the notice required under subsection (1) of this section
may be given by:
(a) Publication; or
(b) Any other method the director
considers necessary. [1987 c.81 §5]
539.340
Court decree; effective date of agreement; remand. (1) An agreement negotiated under ORS
539.310 to 539.330 shall not be effective unless and until incorporated in a
final court decree, after the court has provided an opportunity for an owner of
a water right certificate or permit that may be affected by the agreement or
for a claimant in an adjudication that may be affected by the agreement to
submit an exception to the agreement.
(2) If the court does not sustain an
exception, the court shall issue a final decree incorporating the agreement as
submitted without alteration.
(3) If the court sustains an exception to
the agreement, the court shall remand the agreement to the Water Resources
Director for further negotiation according to the provisions of ORS 539.300 to
539.350, if desired by the parties to the agreement. [1987 c.81 §6; 1997 c.708 §1]
539.350
Procedures after remand of agreement. Within 180 days after the court remands the agreement under ORS
539.340, the Water Resources Director shall file with the court:
(1) An amended agreement complying with
ORS 539.320, which shall be subject to the procedure specified by ORS 539.330;
(2) A motion to dismiss the proceedings,
which shall be granted by the court; or
(3) A stipulated motion for a continuance
for a period not to exceed 180 days, within which period the parties shall
submit to the court an amended agreement, a motion to dismiss or a motion for
further continuance. [1987 c.81 §7]
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