ORS Chapter 539 - Oregon Statutes

Chapter 539 — Determinationof Water Rights Initiated Before February 24, 1909; Determination of Water Rightsof Federally Recognized Indian Tribes

 

2009 EDITION

 

DETERMINATIONOF WATER RIGHTS

 

WATERLAWS

 

WATERRIGHTS BEFORE 1909

 

539.005     Purposeof chapter; rules

 

539.010     Protectionof water rights vested or initiated prior to February 24, 1909

 

539.015     Certificationof statements of claimants; oaths

 

539.021     Determinationby Water Resources Director of rights of claimants; transfer of action todirector

 

539.030     Noticeof investigation of stream

 

539.040     Noticeof hearing by director

 

539.070     Hearingby director; adjournments

 

539.081     Fees;exemption; disposition

 

539.090     Noticeof right to inspect evidence, and of place of court hearing

 

539.100     Contestof claims submitted to director; notice by contestant; service on contestee

 

539.110     Hearingof contest; notice of; procedure

 

539.120     Examinationby director of stream and diversions in contest; record; map

 

539.130     Findingsof fact and determination of director; certification of proceedings; filing incourt; fixing time for hearing by court; notice; force of director’sdetermination

 

539.140     Waterright certificates

 

539.150     Courtproceedings to review determination of director

 

539.160     Transmittalof copy of decree to department; instructions to watermasters

 

539.170     Divisionof water pending hearing

 

539.180     Bondor irrevocable letter of credit to stay operation of director’s determination;notice to watermaster

 

539.190     Rehearingby circuit court

 

539.200     Conclusivenessof determinations as to water rights

 

539.210     Dutyof claimants to appear and submit proof; nonappearance as forfeiture;intervention in proceedings

 

539.220     Procedurewhen rights to same stream have been determined in different proceedings

 

539.230     Noticeof need to file registration statement; publication requirements; additionalmethods of providing notice

 

539.240     Claimto undetermined right to appropriate surface water; registration statement;contents; effect of failure to file; recognizing changes to right; rules

 

WATERRIGHTS OF FEDERALLY RECOGNIZED INDIAN TRIBES

 

539.300     Legislativefindings

 

539.310     Negotiationfor water rights

 

539.320     Agreement;submission to court

 

539.330     Noticeto persons affected by agreement

 

539.340     Courtdecree; effective date of agreement; remand

 

539.350     Proceduresafter remand of agreement

 

WATERRIGHTS BEFORE 1909

 

      539.005Purpose of chapter; rules. (1) The Legislative Assembly declares that it isthe purpose of this chapter to set forth the procedures for carrying out ageneral stream adjudication in Oregon.

      (2)In accordance with the applicable provisions of ORS chapter 183, the WaterResources Director shall adopt rules necessary to carry out the provisions ofthis chapter. [1989 c.691 §§2,3]

 

      539.010Protection of water rights vested or initiated prior to February 24, 1909. (1) Actualapplication of water to beneficial use prior to February 24, 1909, by or underauthority of any riparian proprietor or the predecessors in interest of theriparian proprietor, shall be deemed to create in the riparian proprietor avested 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 riparianproprietor or the predecessor in interest of the riparian proprietor, was, onFebruary 24, 1909, engaged in good faith in the construction of works for theapplication of water to a beneficial use, the right to take and use such watershall be deemed vested in the riparian proprietor; provided, that the workswere completed and the water devoted to a beneficial use within a reasonabletime after February 24, 1909. The Water Resources Director, in the manner providedin subsection (5) of this section, may determine the time within which thewater shall be devoted to a beneficial use. The right to water shall be limitedto the quantity actually applied to a beneficial use within the time so fixedby the director.

      (3)Nothing contained in the Water Rights Act (as defined in ORS 537.010) shallaffect relative priorities to the use of water among parties to any decree ofthe 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 affectedby any provisions of the Water Rights Act (as defined in ORS 537.010) whereappropriations were initiated prior to February 24, 1909, and suchappropriators, their heirs, successors or assigns did, in good faith and incompliance with the laws then existing, commence the construction of works forthe application of the water so appropriated to a beneficial use, andthereafter 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 anyappropriator or user of water under an appropriation of water made prior toFebruary 24, 1909, or in the cases mentioned in subsections (2) and (4) of thissection, where actual construction work was commenced prior to that time orwithin the time provided in law then existing, prescribe the time within whichthe 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 theconstruction of the works or canal or ditch used for the diversion of thewater, and in doing so, the director shall take into consideration the cost ofthe appropriation and application of the water to a beneficial purpose, thegood 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 toprovide fair and reasonable returns upon the investment. For good cause shownthe director may extend the time.

      (6)Where appropriations of water attempted before February 24, 1909, wereundertaken in good faith, and the work of construction or improvementthereunder was in good faith commenced and diligently prosecuted, suchappropriations shall not be set aside or voided in proceedings under thischapter because of any irregularity or insufficiency of the notice by law, orin the manner of posting, recording or publication thereof.

      (7)In any proceeding to adjudicate water rights under this chapter, the WaterResources Department may adjudicate federal reserved rights for the waternecessary to fulfill the primary purpose of the reservation or any federalwater 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 ORS537.010) shall be adjudicated and determined in the manner and by the tribunalsprovided therein. The Water Rights Act shall not be held to bestow upon anyperson any riparian rights where no such rights existed prior to February 24,1909. [Amended by 1989 c.691 §6; 1993 c.157 §1]

 

      539.015Certification of statements of claimants; oaths. Each claimantor owner who files a statement and proof of claim form or a registrationstatement shall be required to certify to the statements of the claimant orowner under oath. The Water Resources Director or the authorized assistant ofthe director may administer such oaths, which shall be done without charge, asalso shall be the furnishing of blank forms for the statement. [1989 c.691 §4]

 

      539.020 [Repealed by1987 c.541 §1 (539.021 enacted in lieu of 539.020)]

 

      539.021Determination by Water Resources Director of rights of claimants; transfer ofaction to director.(1) The Water Resources Director upon the motion of the director or, in thediscretion of the director, upon receipt of a petition from one or moreappropriators of surface water from any natural watercourse in this state shallmake a determination of the relative rights of the various claimants to thewaters of that watercourse.

      (2)If an action is brought in the circuit court for determination of rights to theuse of water, the case may, in the discretion of the court, be transferred tothe director for determination as provided in this chapter. [1987 c.541 §2(enacted in lieu of 539.020)]

 

      539.030Notice of investigation of stream. The Water Resources Director shallprepare a notice, setting forth the date when the director or the assistant ofthe director will begin such investigation as may be necessary for a properdetermination of the relative rights of the various claimants to the use of thewaters of the stream. The notice shall be published in two issues of one ormore newspapers having general circulation in the counties in which the streamis situated, the last publication of the notice to be at least 10 days prior tothe date set in the notice for the beginning of the investigation by thedirector or the assistant of the director. [Amended by 1955 c.669 §1; 1979 c.53§1; 1987 c.541 §8]

 

      539.040Notice of hearing by director. (1) As soon as practicable after theexamination and measurements are completed, as described in ORS 539.120, theWater Resources Director shall prepare a notice setting forth a place and timecertain when the director or the authorized assistant of the director shallbegin taking testimony as to the rights of the various claimants to the use ofthe waters of the stream or its tributaries. The notice shall be published intwo issues of one or more newspapers having general circulation in the countiesin which the stream is situated, the last publication of the notice to be atleast 30 days prior to the beginning of taking testimony by the director or theauthorized assistant of the director.

      (2)The director shall also send by registered mail or by certified mail withreturn receipt to each claimant or owner who filed with the director aregistration statement as provided in ORS 539.240 and to the Attorney Generalof the United States or the designated representative of the Attorney Generalof the United States, on behalf of the United States and its agencies and astrustee 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 authorizedassistant of the director will take testimony as to the rights to the use ofthe water of the stream. The notice must be mailed at least 30 days prior tothe date set therein for taking testimony.

      (3)(a)For purposes of the Klamath Basin adjudication, the Water Resources Departmentwill provide notice, substantially like that specified in subsection (2) ofthis section, to claimants or owners who desire to claim a water right underthis chapter, or to contest the claims of others, and have so notified thedirector. The notice shall be accompanied by a blank form on which the claimantor owner shall present in writing all of the particulars necessary fordetermination of the right of the claimant or owner to contest the claims ofothers or to the use of the waters of a stream to which the claimant or ownerlays claim. That form shall require substantially the same information requiredin a registration statement, as provided in ORS 539.240 (2), except that themap need not be prepared by a certified water rights examiner, as required byORS 539.240 (2)(d).

      (b)In the already adjudicated areas of the Klamath Basin, the notice provided toholders of permitted or certificated surface water rights acquired under ORSchapter 537 will specify that they may contest the statement and proof ofclaims of others made under this chapter, but only in the unadjudicated areasof 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]

      539.050 [Amended by1955 c.669 §3; repealed by 1987 c.541 §10]

      539.060 [Repealed by1987 c.541 §10]

 

      539.070Hearing by director; adjournments. Upon the date named in the notice fortaking testimony, the Water Resources Director or the authorized assistant ofthe director shall begin taking testimony and shall continue until completed.But the director may adjourn the taking of testimony from time to time and fromplace to place, to suit the convenience of those interested.

      539.080 [Amended by1971 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)]

 

      539.081Fees; exemption; disposition. (1) At the time the owner or registrantsubmits a registration statement under ORS 539.240 or, if a registrationstatement is not filed, when a statement and proof of claim is filed pursuantto notice by the Water Resources Director under ORS 539.030, the owner orregistrant 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 orregistrant for irrigation use shall be $30.

      (b)If for power use, $2 for each theoretical horsepower up to 100 horsepower, 50cents for each horsepower in excess of 100 up to 500 horsepower, 35 cents foreach horsepower in excess of 500 horsepower up to 1,000 horsepower and 25 centsfor 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 ofthe first second-foot and $50 for each additional second-foot.

      (2)The fees under subsection (1) of this section shall not apply to any federallyrecognized Indian tribe, or to the United States acting as trustee for such atribe, claiming, under ORS 539.010, an undetermined vested right to the use ofsurface water for any nonconsumptive and nondiverted in-stream use to satisfytribal hunting, fishing or gathering rights.

      (3)If the registration statement shows that the water right was initiated bymaking application for a permit under the provisions of ORS chapter 537, theowner or registrant shall be given credit for the money paid as examination andrecording fees. A credit under this subsection shall be allowed only if theapplication under ORS chapter 537 was for a permit to appropriate water to beapplied to the same parcel of land or for the same use as set forth in theregistration statement.

      (4)All fees paid under this section shall be deposited into the General Fund ofthe State Treasury and credited to an account of the Water ResourcesDepartment. The fees shall be used to pay for the expenses of the departmentto:

      (a)Register claims to undetermined vested rights or federal reserved rights underORS 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 forfiling unless the registration statement or claim is accompanied by the fee inthe amount set forth in this section. If the federal government is determinedto be immune from the payment of such fees, the director may elect to accept afederal claim for filing without the accompanying fees. [1987 c.541 §7 (enactedin lieu of 539.080); 1989 c.691 §8; 1993 c.157 §3; 1993 c.535 §1]

 

      539.090Notice of right to inspect evidence, and of place of court hearing. Upon thecompletion of the taking of testimony by the Water Resources Director, thedirector shall at once give notice by registered mail or by certified mail withreturn receipt to the various claimants and to any party who has notified thedirector that the party wishes to contest the claims of others, that all of theevidence will be open to inspection of the various claimants or owners. Thenotice shall specify the times when and the places where the evidence will beopen to inspection, and the director shall keep the evidence open forinspection at the specified times and places. The earliest time for inspectionshall be at least 10 days after mailing the notice; and, in the aggregate, thehours during which the director is to keep the evidence open to inspectionshall at least equal 80 hours, counting only the hours between 8 a.m. and 5p.m. during any day of the week except Sunday. The director shall also state inthe notice the county in which the determination will be heard by the circuitcourt; provided, that the cause shall be heard in the county in which thestream or some part thereof is situated. [Amended by 1955 c.191 §1; 1989 c.691 §9;1991 c.249 §46]

 

      539.100Contest of claims submitted to director; notice by contestant; service oncontestee.Any person owning any irrigation works, or claiming any interest in the streaminvolved in the determination shall be a party to, and bound by, theadjudication. Any party who desires to contest any of the rights of the personswho have submitted their evidence to the Water Resources Director as providedin ORS 539.021 to 539.090 shall, within 15 days after the expiration of theperiod fixed in the notice for public inspection, or within such extension ofthe period, not exceeding 20 days, as the director may allow, notify thedirector in writing, stating with reasonable certainty the grounds of theproposed contest, which statement shall be verified by the affidavit of thecontestant, the agent or attorney of the contestant. A party not claiming anundetermined vested right under this chapter or not contesting the claim ofanother need not participate further in the proceeding, nor be served withfurther notices or documents regarding the adjudication. Upon the filing of astatement of contest, service thereof shall be made by the contestant upon thecontestee by mailing a copy by registered mail or by certified mail, returnreceipt requested, addressed to the contestee or to the authorized agent orattorney of the contestee at the post-office address of the contestee as statedin the statement and proof of claim of the contestee. Proof of service shall bemade and filed with the Water Resources Department by the contestant as soon aspossible after serving the copy of statement of contest. [Amended by 1989 c.691§10; 1991 c.102 §5; 1991 c.249 §47]

 

      539.110Hearing of contest; notice of; procedure. The Water Resources Directorshall fix the time and a convenient place for hearing the contest, and shallnotify the contestant and the person whose rights are contested to appearbefore the director or the authorized assistant of the director at thedesignated time and place. The date of hearing shall not be less than 30 normore than 60 days from the date the notice is served on the parties. The noticemay be served personally or by registered or certified mail, return receiptrequested, addressed to the parties at their post-office addresses as stated inthe statement and proof of claimant. The director may adjourn the hearing fromtime to time upon reasonable notice to all the parties interested; may issuesubpoenas and compel the attendance of witnesses to testify, which subpoenasshall be served in the same manner as subpoenas issued out of the circuitcourt; may compel the witnesses so subpoenaed to testify and give evidence inthe matter; and may order the taking of depositions and issue commissionstherefor in the same manner as depositions are taken in the circuit court. Thewitnesses shall receive fees as provided in ORS 44.415 (2), the costs to betaxed in the same manner as are costs in suits in equity. The evidence in theproceedings shall be confined to the subjects enumerated in the notice ofcontest. The burden of establishing the claim shall be upon the claimant whoseclaim is contested. The evidence may be taken by a duly appointed reporter. [Amendedby 1989 c.980 §14d; 1991 c.249 §48]

 

      539.120Examination by director of stream and diversions in contest; record; map. The WaterResources Director, or a qualified assistant, shall proceed at the time specifiedin the notice to the parties on the stream given as provided in ORS 539.030, tomake an examination of the stream and the works diverting water therefrom usedin connection with water rights subject to this chapter, for which aregistration statement has been filed as provided in ORS 539.240. Theexamination shall include the measurement of the discharge of the stream and ofthe capacity of the various diversion and distribution works, and anexamination and approximate measurement of the lands irrigated from the variousdiversion and distribution works. The director shall take such other steps andgather such other data and information as may be essential to the properunderstanding of the relative rights of the parties interested. The observationsand measurements shall be made a matter of record in the Water ResourcesDepartment. The department shall make or have made a map or plat on a scale ofnot less than one inch to the mile, showing with substantial accuracy thecourse 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, andthe location of lands irrigated, or in connection with which the water isotherwise used, within each legal subdivision. [Amended by 1955 c.669 §4; 1989c.691 §11; 1991 c.102 §6]

 

      539.130Findings of fact and determination of director; certification of proceedings;filing in court; fixing time for hearing by court; notice; force of director’sdetermination.(1) As soon as practicable after the compilation of the data the WaterResources Director shall make and cause to be entered of record in the WaterResources Department findings of fact and an order of determination determiningand establishing the several rights to the waters of the stream. The originalevidence gathered by the director, and certified copies of the observations andmeasurements and maps of record, in connection with the determination, asprovided for by ORS 539.120, together with a copy of the order of determinationand findings of fact of the director as they appear of record in the WaterResources Department, shall be certified to by the director and filed with theclerk of the circuit court wherein the determination is to be heard. Acertified copy of the order of determination and findings shall be filed withthe county clerk of every other county in which the stream or any portion of atributary is situated.

      (2)Upon the filing of the evidence and order with the court the director shallprocure an order from the court, or any judge thereof, fixing the time at whichthe determination shall be heard in the court, which hearing shall be at least40 days subsequent to the date of the order. The clerk of the court shall, uponthe making of the order, forthwith forward a certified copy to the departmentby registered mail or by certified mail with return receipt.

      (3)The department shall immediately upon receipt thereof notify by registered mailor by certified mail with return receipt each claimant or owner who has appearedin the proceeding of the time and place for hearing. Service of the noticeshall be deemed complete upon depositing it in the post office as registered orcertified mail, addressed to the claimant or owner at the post-office addressof the claimant or owner, as set forth in the proof of the claimant or ownertheretofore filed in the proceeding. Proof of service shall be made and filedwith the circuit court by the department as soon as possible after mailing thenotices.

      (4)The determination of the department shall be in full force and effect from thedate of its entry in the records of the department, unless and until itsoperation shall be stayed by a stay bond as provided by ORS 539.180. [Amendedby 1991 c.102 §7; 1991 c.249 §49]

 

      539.140Water right certificates. Upon the final determination of the rights to thewaters of any stream, the Water Resources Department shall issue to each personrepresented in the determination a certificate setting forth the name andpost-office address of the owner of the right; the priority of the date, extentand purpose of the right, and if the water is for irrigation purposes, adescription of the legal subdivisions of land to which the water isappurtenant. The original certificate shall be mailed to the owner and a recordof the certificate maintained in the Water Resources Department. [Amended by1971 c.621 §38; 1975 c.607 §41; 1979 c.67 §4; 1991 c.102 §8]

 

      539.150Court proceedings to review determination of director. (1) From andafter the filing of the evidence and order of determination in the circuitcourt, the proceedings shall be like those in an action not triable by right toa jury, except that any proceedings, including the entry of a judgment, may behad in vacation with the same force and effect as in term time. At any timeprior to the hearing provided for in ORS 539.130, any party or parties jointlyinterested may file exceptions in writing to the findings and order ofdetermination, or any part thereof, which exceptions shall state with reasonablecertainty the grounds and shall specify the particular paragraphs or parts ofthe findings and order excepted to.

      (2)A copy of the exceptions, verified by the exceptor or certified to by theattorney for the exceptor, shall be served upon each claimant who was anadverse party to any contest wherein the exceptor was a party in theproceedings, prior to the hearing. Service shall be made by the exceptor or theattorney for the exceptor upon each such adverse party in person, or upon theattorney if the adverse party has appeared by attorney, or upon the agent ofthe adverse party. If the adverse party is a nonresident of the county orstate, the service may be made by mailing a copy to that party by registeredmail or by certified mail with return receipt, addressed to the place ofresidence 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 atime, not less than 30 days thereafter, unless for good cause shown the time beextended by the court, when a hearing will be had upon the exceptions. Allparties may be heard upon the consideration of the exceptions, and the directormay 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 takenby the director or by a referee appointed by the court for that purpose. Uponcompletion of the testimony and its report to the director, the director may berequired to make a further determination.

      (4)After final hearing the court shall enter a judgment affirming or modifying theorder of the director as the court considers proper, and may assess such costsas it may consider just except that a judgment for costs may not be renderedagainst the United States. An appeal may be taken to the Court of Appeals fromthe judgment in the same manner and with the same effect as in other cases inequity, except that notice of appeal must be served and filed within 60 daysfrom the entry of the judgment. [Amended by 1979 c.284 §165; 1989 c.691 §12;1991 c.249 §50]

 

      539.160Transmittal of copy of decree to department; instructions to watermasters. The clerk ofthe circuit court, upon the entry of any decree by the circuit court or judgethereof, as provided by ORS 539.150, shall transmit a certified copy of thedecree to the Water Resources Department where a record of the decree shall bemaintained. The Water Resources Director shall issue to the watermastersinstructions in compliance with the decree, and in execution thereof. [Amendedby 1991 c.102 §9]

 

      539.170Division of water pending hearing.