2007 ORS 537.230¹
Time allowed for construction of irrigation or other work
  • extension
  • survey
  • map
  • requirements for supplemental water right

(1) Except for a holder of a permit for municipal use, the holder of a water right permit shall prosecute the construction of any proposed irrigation or other work with reasonable diligence and complete the construction within a reasonable time, as fixed in the permit by the Water Resources Department, not to exceed five years from the date of approval.

(2) The holder of a permit for municipal use shall commence and complete the construction of any proposed works within 20 years from the date on which a permit for municipal use is issued under ORS 537.211 (Issuance of permit if application approved). The construction must proceed with reasonable diligence and be completed within the time specified in the permit, not to exceed 20 years. However, the department may order and allow an extension of time to complete construction or to perfect a water right beyond the time specified in the permit under the following conditions:

(a) The holder shows good cause. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (Protection of water rights vested or initiated prior to February 24, 1909) (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right;

(b) The extension of time is conditioned to provide that the holder may divert water beyond the maximum rate diverted for beneficial use before the extension only upon approval by the department of a water management and conservation plan; and

(c) For the first extension issued after June 29, 2005, for a permit for municipal use issued before November 2, 1998, the department finds that the undeveloped portion of the permit is conditioned to maintain, in the portions of waterways affected by water use under the permit, the persistence of fish species listed as sensitive, threatened or endangered under state or federal law. The department shall base its finding on existing data and upon the advice of the State Department of Fish and Wildlife. An existing fish protection agreement between the permit holder and a state or federal agency that includes conditions to maintain the persistence of any listed fish species in the affected portion of the waterway is conclusive for purposes of the finding.

(3) Except as provided in ORS 537.240 (Federal permit) and 537.248 (Requirement to include in reservoir permit date for beginning and completing construction and for perfecting water right) and subsection (2) of this section, the Water Resources Department, for good cause shown, shall order and allow an extension of time, including an extension beyond the five-year limit established in subsection (1) of this section within which irrigation or other works shall be completed or the right perfected. In determining the extension, the department shall give due weight to the considerations described under ORS 539.010 (Protection of water rights vested or initiated prior to February 24, 1909) (5) and to whether other governmental requirements relating to the project have significantly delayed completion of construction or perfection of the right.

(4) Except as provided in subsection (5) of this section and ORS 537.409 (Alternate permit application process for qualifying reservoirs), upon completion of beneficial use as required under this section, the permittee shall hire a water right examiner certified under ORS 537.798 (Examination for certification of surveyors, engineers and geologists) to survey the appropriation. Within one year after application of water to a beneficial use or the beneficial use date allowed in the permit, the permittee shall submit a map of the survey as required by the Water Resources Department, which shall accompany the request for a water right certificate submitted to the department under ORS 537.250 (Water right certificate). If any property described in the permit is not included in the request for a water right certificate, the permittee shall state the identity of the record owner of that property.

(5) The Water Resources Director may waive the requirement under subsection (4) of this section that a permittee hire a water right examiner certified under ORS 537.798 (Examination for certification of surveyors, engineers and geologists) if:

(a) The permit is a supplemental water right that shares the same distribution system and same place of use as the primary water right; and

(b) The department determines that there is sufficient information in the records of the department to determine proof of beneficial use.

(6) Notwithstanding ORS 537.410 (Failure to commence or complete work, or to properly apply water, as grounds for cancellation of permit), for purposes of obtaining a water right certificate under ORS 537.250 (Water right certificate) for a supplemental water right, the permittee shall have a facility capable of handling the full rate and duty of water requested from the supplemental source and be otherwise ready, willing and able to use the amount of water requested, up to the amount of water approved in the water right permit. To obtain a certificate for a supplemental water right, the permittee is not required to have actually used water from the supplemental source if:

(a) Water was available from the source of the primary water right and the primary water right was used pursuant to the terms of the primary water right; or

(b) The nonuse of water from the supplemental source occurred during a period of time within which the exercise of the supplemental water right permit was not necessary due to climatic conditions. [Amended by 1985 c.617 §1; 1985 c.673 §201; 1987 c.542 §4; 1995 c.367 §2; 1995 c.416 §35; 1995 c.473 §5; 1997 c.446 §4; 1997 c.502 §1; 1997 c.557 §1; 1999 c.453 §1; 1999 c.665 §2; 2005 c.410 §1]

Note: Section 5, chapter 410, Oregon Laws 2005, provides:

Sec. 5. (1) The amendments to ORS 537.230 (Time allowed for construction of irrigation or other work) and 537.630 (Time allowed for construction work under permit) by sections 1 and 2 of this 2005 Act relating to the time to commence and complete construction apply to permits issued by the Water Resources Department on or after the effective date of this 2005 Act [June 29, 2005].

(2) The amendments to ORS 537.230 (Time allowed for construction of irrigation or other work) and 537.630 (Time allowed for construction work under permit) by sections 1 and 2 of this 2005 Act apply to requests for extensions of time to complete construction or to perfect a water right made before, on or after the effective date of this 2005 Act, whether or not construction has commenced under a permit prior to the request.

(3) All final orders by the department that resulted in the issuance of a water right permit, the issuance of a water right certificate or the approval of an extension of time to complete construction or to perfect a water right for a municipal use that were issued before the effective date of this 2005 Act are not subject to challenge in an administrative or judicial proceeding with respect to the requirement to commence and complete construction within a specified period of time. [2005 c.410 §5]

Atty. Gen. Opinions

Storage rights to store wa­ter for later beneficial use are not subordinate to later priority direct use rights unless made so by ex­plic­it condi­tions imposed on storage right, (1989) Vol 46, p 290

Chapter 537

Notes of Decisions

Water control district, in applying for wa­ter appropria­tion permit for hydroelectric project, was exempt from licensing pro­vi­sions of ORS 543.010 (Definitions for ORS 543.010 to 543.610) to 543.620 and needed only to comply with require­ments of this Chapter. Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 688 P2d 92 (1984), Sup Ct review denied

Atty. Gen. Opinions

Reserva­tion to state of "all coal and other minerals" in deed of land by state as reserva­tion of geothermal resources, (1980) Vol 41, p 298

Law Review Cita­tions

11 EL 387 (1981); 16 EL 583, 592 (1986); 28 WLR 285 (1992)

1 Legislative Counsel Committee, CHAPTER 537—Appropriation of Water Generally, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­537.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 537, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­537ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.