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| Home > Statutes > Usa Oregon |
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USA Statutes : oregon
Title : TITLE 44 FORESTRY AND FOREST PRODUCTS
Chapter : Chapter 539 Determination of Water Rights Initiated Before February 24, 1909; Determination of Water Rights of Federally Rec
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(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 Oregon.
(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](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] 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](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)] 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] (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 Klamath Basin adjudication, the Water
Resources Department will provide notice, substantially like that
specified in subsection (2) of this section, to claimants or owners who
desire to claim a water right under this chapter, or to contest the
claims of others, and have so notified the director. The notice shall be
accompanied by a blank form on which the claimant or owner shall present
in writing all of the particulars necessary for determination of the
right of the claimant or owner to contest the claims of others or to the
use of the waters of a stream to which the claimant or owner lays claim.
That form shall require substantially the same information required in a
registration statement, as provided in ORS 539.240 (2), except that the
map need not be prepared by a certified water rights examiner, as
required by ORS 539.240 (2)(d).
(b) In the already adjudicated areas of the Klamath Basin, the
notice provided to holders of permitted or certificated surface water
rights acquired under ORS chapter 537 will specify that they may contest
the statement and proof of claims of others made under this chapter, but
only in the unadjudicated areas of the Klamath Basin. [Amended by 1955
c.669 §2; 1987 c.541 §9; 1989 c.691 §7; 1991 c.249 §45; 1993 c.157 §2]
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.
(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 United States acting
as trustee for such a tribe, claiming, under ORS 539.010, an undetermined
vested right to the use of surface water for any nonconsumptive and
nondiverted in-stream use to satisfy tribal hunting, fishing or gathering
rights.
(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]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]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] 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]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](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] 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] (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 United States. An appeal may be
taken to the Court of Appeals from the judgment in the same manner and
with the same effect as in other cases in equity, except that notice of
appeal must be served and filed within 60 days from the entry of the
judgment. [Amended by 1979 c.284 §165; 1989 c.691 §12; 1991 c.249 §50]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] 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.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] 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] 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.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.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.(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](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 department’s
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 The Legislative Assembly of the State
of Oregon finds it is desirable to provide a procedure for conducting
negotiations to determine the water rights of any federally recognized
Indian tribe that may have a federal reserved water right claim in
Oregon. [1987 c.81 §2; 1993 c.67 §1] (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] When the Water Resources
Director and the representatives of any federally recognized Indian tribe
that may have a federal reserved water right claim in Oregon and the
federal government have completed an agreement, the Water Resources
Director shall submit an original copy of the agreement to the
appropriate court. The copy shall be signed by the Water Resources
Director on behalf of the State of Oregon and by authorized
representatives of the Indian tribe and the federal government as trustee
for the Indian tribe. [1987 c.81 §4; 1993 c.67 §3] (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] (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] 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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