2017 ORS 540.610¹
Use as measure of water right
  • forfeiture for nonuse
  • confirmation of rights of municipalities

(1) Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state. Whenever the owner of a perfected and developed water right ceases or fails to use all or part of the water appropriated for a period of five successive years, the failure to use shall establish a rebuttable presumption of forfeiture of all or part of the water right.

(2) Upon a showing of failure to use beneficially for five successive years, the appropriator has the burden of rebutting the presumption of forfeiture by showing one or more of the following:

(a) The water right is for use of water, or rights of use, acquired by cities and towns in this state, by appropriation or by purchase, for all reasonable and usual municipal purposes.

(b) A finding of forfeiture would impair the rights of such cities and towns to the use of water, whether acquired by appropriation or purchase, or heretofore recognized by act of the legislature, or which may hereafter be acquired.

(c) The use of water, or rights of use, are appurtenant to property obtained by the Department of Veterans’ Affairs under ORS 407.135 (Authority of department) or 407.145 (Purchase and control of property) for three years after the expiration of the period of redemption provided for in ORS 18.964 (Time for redemption) while the land is held by the Department of Veterans’ Affairs, even if during such time the water is not used for a period of more than five successive years.

(d) The use of water, or rights of use, under a water right, if the owner of the property to which the right is appurtenant is unable to use the water due to economic hardship as defined by rule by the Water Resources Commission.

(e) The period of nonuse occurred during a period of time within which land was withdrawn from use in accordance with the Act of Congress of May 28, 1956, chapter 327 (7 U.S.C. 1801-1814; 1821-1824; 1831-1837), or the Federal Conservation Reserve Program, Act of Congress of December 23, 1985, chapter 198 (16 U.S.C. 3831-3836, 3841-3845). If necessary, in a cancellation proceeding under this section, the water right holder rebutting the presumption under this paragraph shall provide documentation that the water right holder’s land was withdrawn from use under a federal reserve program.

(f) The end of the alleged period of nonuse occurred more than 15 years before the date upon which evidence of nonuse was submitted to the commission or the commission initiated cancellation proceedings under ORS 540.631 (Cancellation of forfeited water right), whichever occurs first.

(g) The owner of the property to which the water right was appurtenant is unable to use the water because the use of water under the right is discontinued under an order of the commission under ORS 537.775 (Wasteful or defective wells).

(h) The nonuse occurred during a period of time within which the water right holder was using reclaimed water in lieu of using water under an existing water right.

(i) The nonuse occurred during a period of time within which the water right holder was reusing water through land application as authorized by ORS 537.141 (Uses of water not requiring water right application, permit or certificate) (1)(i) or 537.545 (Exempt uses) (1)(g) in lieu of using water under an existing water right.

(j) The owner or occupant of the property to which the water right is appurtenant was unable to make full beneficial use of the water because water was not available. A water right holder rebutting the presumption under this paragraph shall provide evidence that the water right holder was ready, willing and able to use the water had it been available.

(k) The holder of a water right is prohibited by law from using the water. If the prohibition is subject to remedial action that would allow the use of the water, the water right holder shall provide evidence that the water right holder is conducting the remedial action with reasonable diligence.

(L) The nonuse occurred during a period of time within which the exercise of all or part of the water right was not necessary due to climatic conditions, so long as the water right holder had a facility capable of handling the full allowed rate and duty, and was otherwise ready, willing and able to use the entire amount of water allowed under the water right.

(m) The nonuse occurred during a period of time within which the water was included in a transfer application pending before the Water Resources Department.

(n) The nonuse of a supplemental water right occurred during a period of time when the primary water right used in conjunction with that supplemental water right was leased as an in-stream water right pursuant to ORS 537.348 (Purchase, lease or gift of water right for conversion to in-stream water right).

(3) Notwithstanding subsection (1) of this section, if the owner of a perfected and developed water right uses less water to accomplish the beneficial use allowed by the right, the right is not subject to forfeiture so long as:

(a) The user has a facility capable of handling the entire rate and duty authorized under the right; and

(b) The user is otherwise ready, willing and able to make full use of the right.

(4) The right of all cities and towns in this state to acquire rights to the use of the water of natural streams and lakes, not otherwise appropriated, and subject to existing rights, for all reasonable and usual municipal purposes, and for such future reasonable and usual municipal purposes as may reasonably be anticipated by reason of growth of population, or to secure sufficient water supply in cases of emergency, is expressly confirmed.

(5) After a water right is forfeited under subsection (1) of this section, the water that was the subject of use shall revert to the public and become again the subject of appropriation in the manner provided by law, subject to existing priorities. [Amended by 1985 c.689 §5; 1987 c.339 §4; 1989 c.699 §1; 1989 c.833 §61a; 1991 c.370 §6; 1995 c.356 §2; 1995 c.366 §1; 1997 c.42 §5; 1997 c.244 §5; 1997 c.283 §1; 1999 c.335 §3; 1999 c.804 §§3,4; 2005 c.222 §1; 2005 c.542 §70; 2005 c.625 §70]

Notes of Decisions

Water certificate holder who used wa­ter only to wet some of her land to assist with plowing did not “irrigate” her land and this was not sufficient “beneficial use” to prevent forfeiture of wa­ter right for nonuse. Hennings v. Water Resources Dept., 50 Or App 121, 622 P2d 333 (1981)

Where wa­ter rights certificate authorized use of 40 cubic feet of wa­ter per sec­ond for power genera­tion purposes, but for more than five consecutive years flow in creek at mill’s diversion point was only 22 cubic feet per sec­ond, there was evidence to support finding of Director of Water Resources Depart­ment that there had been forfeiture of 15.6 cubic feet per sec­ond. Crandall v. Water Resources Depart­ment, 290 Or 771, 626 P2d 877 (1981)

Proof that during period of five successive years an average of only 22 cubic feet per sec­ond of wa­ter was available for use by flour mill having capacity of 24.4 cubic feet per sec­ond was not proof that mill never used 24.4 cubic feet per sec­ond, so there was no proof that five year period of nonuse necessary for cancella­tion of wa­ter right under this sec­tion had run. Crandall v. Water Resources Dept., 290 Or 771, 626 P2d 877 (1981)

Under this sec­tion, proponents of cancella­tion of wa­ter rights have burden to prove by reliable and substantial evidence that holder of wa­ter right failed to use appropriated wa­ter for period of five successive years. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)

This sec­tion is a forfeiture statute and no intent to abandon wa­ter right is re­quired. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)

Where wa­ter is drawn from designated source, in designated amount and for beneficial use, unauthorized change in point of diversion does not constitute failure to use wa­ter. Russell-Smith v. Water Resources Dept., 152 Or App 88, 952 P2d 104 (1998), Sup Ct review denied

Require­ment for continuity of beneficial use applies for periods preceding perfec­tion of wa­ter right. Hale v. Water Resources Dept., 184 Or App 36, 55 P3d 497 (2002)

Use of wa­ter on land other than land specified in wa­ter right certificate constitutes nonuse for purpose of forfeiture. Hannigan v. Hinton, 195 Or App 345, 97 P3d 1256 (2004)

Law Review Cita­tions

28 EL 919, 1137 (1998); 36 EL 1383 (2006)

Chapter 540

Law Review Cita­tions

11 EL 390 (1981)

1 Legislative Counsel Committee, CHAPTER 540—Distribution of Water; Watermasters; Change in Use; Transfer or Forfeiture of Water Rights, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors540.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 540, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano540.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.