ORS 540.510
Appurtenancy of water to premises

  • restrictions on change of use, place of use or point of diversion
  • application for transfer of primary and supplemental water rights
  • right to use conserved water

(1)

Intentionally left blank —Ed.

(a)

Except as provided in subsections (2) to (8) of this section, all water used in this state for any purpose shall remain appurtenant to the premises upon which it is used and no change in use or place of use of any water for any purpose may be made without compliance with the provisions of ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion). However, the holder of any water use subject to transfer may, upon compliance with the provisions of ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion), change the use and place of use, the point of diversion or the use of the water without losing priority of the right. A district may change the place of use in the manner provided in ORS 540.572 (Application of certificated water elsewhere within district) to 540.580 (Permanent transfer of place of use of water within district) in lieu of the method provided in ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion). When an application for change of the use or place of use for a primary water right is submitted in accordance with this section, the applicant also shall indicate whether the land described in the application has an appurtenant supplemental water right or permit. If the applicant also intends to transfer the supplemental water right or permit, the applicant also shall include the information required under ORS 540.520 (Application for change of use, place of use or point of diversion) (2) for the supplemental water right or permit. If the applicant does not include the supplemental water right or permit in the transfer application, the Water Resources Department shall notify the applicant that the supplemental water right or permit will be canceled before the department issues the order approving the transfer of the primary water right, unless within 30 days the applicant modifies the application to include the supplemental water right or permit or withdraws the application. The department may approve the transfer of the supplemental water right or permit in accordance with the provisions of ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion). The department shall not approve the transfer of a supplemental water right or permit if the transfer would result in enlargement of the original water right or injury to an existing water right. If the department approves the transfer of the primary water right but does not approve the transfer of the supplemental water right or permit, the department shall notify the applicant of the department’s intent to cancel that portion of the supplemental water right or permit described in the transfer application before the department issues the primary water right transfer order, unless the applicant withdraws the transfer application within 90 days.

(b)

A holder of a water right certificate that authorizes the storage of water may change the type of use identified in the water right certificate, as described in paragraph (a) of this subsection, without losing priority of the right.

(2)

Subject to the limitations in ORS 537.490 (Use of conserved water), any right to the use of conserved water allocated by the Water Resources Commission under ORS 537.470 (Allocation of conserved water by commission) may be severed from the land and transferred or sold after notice to the commission as required under ORS 537.490 (Use of conserved water).

(3)

Intentionally left blank —Ed.

(a)

Any water used under a permit or certificate issued to a municipality, or under rights conferred by ORS 538.410 (Confirmation of water rights acquired prior to February 24, 1909, for municipal supply) to 538.450 (Pendleton), or under the registration system set forth in ORS 537.132 (Exemption from permit requirement for use of reclaimed water), may be applied to beneficial use on lands to which the right is not appurtenant if:

(A)

The water is applied to lands which are acquired by annexation or through merger, consolidation or formation of a water authority, so long as the rate and use of water allowed in the original certificate is not exceeded;

(B)

The use continues to be for municipal purposes and would not interfere with or impair prior vested water rights; or

(C)

The use is authorized under a permit granted under ORS 468B.050 (Water quality permit) or 468B.053 (Alternatives to obtaining water quality permit) and for which a reclaimed water registration form has been filed under ORS 537.132 (Exemption from permit requirement for use of reclaimed water).

(b)

As used in this subsection, “municipality” means a city, a port formed under ORS 777.005 (Definitions for ORS 777.005 to 777.725 and 777.915 to 777.953) to 777.725 (Borrowing money to pay bonus), 777.915 (Definitions for ORS 777.915 to 777.953) to 777.953 (Annexation) and 778.010 (District known as Port of Portland), a domestic water supply district formed under ORS chapter 264, a water supplier as defined in ORS 448.115 (Definitions for ORS 448.115 to 448.285) or a water authority formed under ORS chapter 450.

(4)

Pursuant to the provisions of ORS 540.570 (Temporary transfers within districts) or 540.585 (Temporary transfers within Deschutes River Basin), any water used under a permit or certificate issued to a district may be applied to beneficial use on lands within the district to which the right is not appurtenant.

(5)

The relocation of a point of diversion as necessary to follow the movements of a naturally changing stream channel does not constitute a change in point of diversion for purposes of ORS 540.520 (Application for change of use, place of use or point of diversion) if:

(a)

The diversion point stays within 500 feet of the point of diversion on record with the Water Resources Department;

(b)

The change does not move the diversion point upstream or downstream beyond the diversion point of another appropriator; and

(c)

The diversion is provided with a proper fish screen, if requested by the State Department of Fish and Wildlife.

(6)

In the event that government action results in or creates a reasonable expectation of a change in the surface level of a surface water source that impairs or threatens to impair access to a point of diversion authorized by a water right permit, certificate or decree, the owner of the water right may change the point of diversion or add an additional point of diversion in accordance with the provisions of this section in lieu of complying with the requirements of ORS 540.520 (Application for change of use, place of use or point of diversion) and 540.530 (Order authorizing change of use, place of use or point of diversion). Before changing the point of diversion, the water right owner shall provide written notice of the proposed change to the Water Resources Department. Within 15 days after receipt of such notice, the department shall provide notice by publication in the department’s public notice of water right applications. Within 60 days after the department receives notice from the owner, the Water Resources Director, by order, shall approve the change unless the director finds the changes will result in injury to other existing water rights. All other terms and conditions of the water right shall remain in effect.

(7)

The sale or lease of the right to the use of conserved water under ORS 537.490 (Use of conserved water) does not constitute a change of use or a change in the place of use of water for purposes of ORS 540.520 (Application for change of use, place of use or point of diversion).

(8)

Ground water applied to an exempt use as set forth in ORS 537.141 (Uses of water not requiring water right application, permit or certificate) or 537.545 (Exempt uses) may be subsequently applied to land for irrigation purposes under ORS 537.141 (Uses of water not requiring water right application, permit or certificate) (1)(i) or 537.545 (Exempt uses) (1)(g) without application for a change in use or place of use under this section. [Amended by 1987 c.264 §11; 1989 c.7 §1; 1989 c.707 §3; 1991 c.370 §5; 1991 c.957 §7; 1993 c.577 §36; 1993 c.641 §9; 1995 c.168 §1; 1995 c.274 §2; 1995 c.359 §2; 1997 c.244 §4; 1997 c.286 §10; 1999 c.335 §2; 2003 c.705 §8; 2021 c.633 §1]

Source: Section 540.510 — Appurtenancy of water to premises; restrictions on change of use, place of use or point of diversion; application for transfer of primary and supplemental water rights; right to use conserved water, https://www.­oregonlegislature.­gov/bills_laws/ors/ors540.­html.

Notes of Decisions

Irrigation district in whose name water right certificate is issued is holder of water use subject to transfer and may seek change of diversion point under certificate. Fort Vannoy Irrigation District v. Water Resources Commission, 214 Or App 88, 162 P3d 1066 (2007), aff’d 345 Or 56, 188 P3d 277 (2008)

“Water use subject to transfer” refers to legal right established by water right certificate. Fort Vannoy Irrigation District v. Water Resources Commission, 345 Or 56, 188 P3d 277 (2008)

540.010
Water districts
540.020
Watermasters
540.030
Water Resources Director
540.045
Watermaster duties
540.050
Appearance of district attorney
540.060
Arrest by watermaster
540.075
Office and equipment for watermaster
540.080
Assistant watermasters
540.100
Division of water among users
540.120
Lien for wages and expense
540.130
Advance payment
540.135
Disposition of funds collected under ORS 540.100 to 540.130 and 540.220
540.140
Insufficiency of water
540.145
Distribution of water
540.150
Rotation in water use
540.155
Periodic review and report regarding department program for Deschutes Basin ground water study area
540.210
Distribution from ditch or reservoir
540.220
Payment of assistant watermaster
540.230
Distribution of waste or seepage water
540.240
Lien for wages and expense
540.250
Lien, notice of intent to claim
540.260
Lien for wages and expense
540.270
Distribution from irrigation districts and improvement companies
540.310
Ditches and canals
540.320
Noncompliance with requirements
540.330
Reservoirs
540.340
Reservoir and diversion dam
540.355
Inspection, evaluation and assessment of hydraulic structures
540.410
Delivery of reservoir water
540.420
Jointly owned ditches
540.430
Nonpayment by ditch co-owner
540.435
Installation of totalizing measuring device
540.440
Owner to clear weeds from ditch right of way
540.443
Definitions for ORS 540.443 to 540.491
540.446
Dams not subject to ORS 540.443 to 540.491
540.449
Construction plan approval
540.452
Removal plan approval
540.455
Dam inspections and analysis
540.458
Notice for owner corrective action to address safety issues
540.461
Plan and time frame for corrective action
540.464
Examinations, inspections and reports by specialists
540.467
Owner action to address maintenance issues
540.470
Contested case hearings
540.473
Application for injunction
540.476
Action to declare dam public nuisance
540.479
Dam owner responsibilities
540.482
Emergency action plan for dam with high hazard rating
540.485
Actual or potential dam failure
540.488
Water Resources Commission duties and powers
540.491
Dam owner or operator liability
540.505
Definitions
540.510
Appurtenancy of water to premises
540.520
Application for change of use, place of use or point of diversion
540.523
Temporary transfer of water right or permit
540.524
Substitution of supplemental water right from ground water source for primary water right from surface water source
540.525
Installation of fish screening or by-pass device as prerequisite for transfer of point of diversion
540.530
Order authorizing change of use, place of use or point of diversion
540.531
Transfer of surface water point of diversion to ground water
540.532
Request for change in point of diversion to reflect historical use
540.533
Application for exchange of water
540.535
Notice of application for exchange
540.537
Order allowing exchange
540.539
Exchange subject to beneficial use requirements
540.541
Delivery and use of water under exchange
540.543
Regulation of headgates when water provided by exchange
540.545
Transfer of water rights following county acquisition of land
540.560
Order changing description of land to which water right is appurtenant
540.570
Temporary transfers within districts
540.572
Application of certificated water elsewhere within district
540.574
Petition for approval of transfer
540.576
Notice of petition
540.578
Filing of protest
540.580
Permanent transfer of place of use of water within district
540.585
Temporary transfers within Deschutes River Basin
540.587
Report on implementation of temporary transfer provisions
540.589
Ratification of prior transfer of water rights to irrigation district
540.610
Use as measure of water right
540.612
Exemption from forfeiture
540.621
Cancellation of abandoned water right upon request of owner
540.631
Cancellation of forfeited water right
540.641
Protest of cancellation
540.650
Issuance of new water right certificate for water rights not canceled
540.660
Affidavit of watermaster that circumstances prevent use of water right in accordance with terms of certificate
540.670
Effect of cancellation of primary water right on supplemental right
540.710
Interference with headgate, or use of water denied by watermaster or other authority
540.720
Unauthorized use or waste of water
540.730
Obstruction interfering with access to or use of works
540.740
Injunctive relief against action of watermaster
540.750
Injunction suits
540.990
Criminal penalties
540.995
Civil penalties
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