Chapter 539 — Determination
of Water Rights Initiated Before February 24, 1909; Determination of Water
Rights of Federally Recognized Indian Tribes
2011 EDITION
DETERMINATION OF WATER RIGHTS
WATER LAWS
WATER RIGHTS BEFORE 1909
539.005 Purpose
of chapter; rules
539.010 Protection
of water rights vested or initiated prior to February 24, 1909
539.015 Certification
of statements of claimants; oaths
539.021 Determination
by Water Resources Director of rights of claimants; transfer of action to
director
539.030 Notice
of investigation of stream
539.040 Notice
of hearing by director
539.070 Hearing
by director; adjournments
539.081 Fees;
exemption; disposition
539.090 Notice
of right to inspect evidence, and of place of court hearing
539.100 Contest
of claims submitted to director; notice by contestant; service on contestee
539.110 Hearing
of contest; notice of; procedure
539.120 Examination
by director of stream and diversions in contest; record; map
539.130 Findings
of fact and determination of director; certification of proceedings; filing in
court; fixing time for hearing by court; notice; force of director’s
determination
539.140 Water
right certificates
539.150 Court
proceedings to review determination of director
539.160 Transmittal
of copy of decree to department; instructions to watermasters
539.170 Division
of water pending hearing
539.180 Bond
or irrevocable letter of credit to stay operation of director’s determination;
notice to watermaster
539.190 Rehearing
by circuit court
539.200 Conclusiveness
of determinations as to water rights
539.210 Duty
of claimants to appear and submit proof; nonappearance as forfeiture;
intervention in proceedings
539.220 Procedure
when rights to same stream have been determined in different proceedings
539.230 Notice
of need to file registration statement; publication requirements; additional
methods of providing notice
539.240 Claim
to undetermined right to appropriate surface water; registration statement;
contents; effect of failure to file; recognizing changes to right; rules
WATER RIGHTS OF FEDERALLY RECOGNIZED
INDIAN TRIBES
539.300 Legislative
findings
539.310 Negotiation
for water rights
539.320 Agreement;
submission to court
539.330 Notice
to persons affected by agreement
539.340 Court
decree; effective date of agreement; remand
539.350 Procedures
after remand of agreement
WATER RIGHTS BEFORE 1909
539.005 Purpose of chapter; rules.
(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]
539.010 Protection of water rights vested
or initiated prior to February 24, 1909. (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]
539.015 Certification of statements of
claimants; oaths. 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]
539.020
[Repealed by 1987 c.541 §1 (539.021 enacted in lieu of 539.020)]
539.021 Determination by Water Resources
Director of rights of claimants; transfer of action to director.
(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)]
539.030 Notice of investigation of stream.
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]
539.040 Notice of hearing by director.
(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]
539.050
[Amended by 1955 c.669 §3; repealed by 1987 c.541 §10]
539.060
[Repealed by 1987 c.541 §10]
539.070 Hearing by director; adjournments.
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.
539.080
[Amended by 1971 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)]
539.081 Fees; exemption; disposition.
(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]
539.090 Notice of right to inspect
evidence, and of place of court hearing. 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]
539.100 Contest of claims submitted to
director; notice by contestant; service on contestee.
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]
539.110 Hearing of contest; notice of;
procedure. 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]
539.120 Examination by director of stream
and diversions in contest; record; map. 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]
539.130 Findings of fact and determination
of director; certification of proceedings; filing in court; fixing time for
hearing by court; notice; force of director’s determination.
(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]
539.140 Water right certificates.
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]
539.150 Court proceedings to review determination
of director. (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]
539.160 Transmittal of copy of decree to
department; instructions to watermasters. 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]
539.170 Division of water pending hearing.
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.
539.180 Bond or irrevocable letter of
credit to stay operation of director’s determination; notice to watermaster.
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]
539.190 Rehearing by circuit court.
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]
539.200 Conclusiveness of determinations
as to water rights. 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.
539.210 Duty of claimants to appear and
submit proof; nonappearance as forfeiture; intervention in proceedings.
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.
539.220 Procedure when rights to same
stream have been determined in different proceedings.
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.
539.230 Notice of need to file
registration statement; publication requirements; additional methods of
providing notice. (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]
539.240 Claim to undetermined right to
appropriate surface water; registration statement; contents; effect of failure
to file; recognizing changes to right; rules. (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
539.300 Legislative findings.
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]
539.310 Negotiation for water rights.
(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]
539.320 Agreement; submission to court.
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]
539.330 Notice to persons affected by
agreement. (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]
539.340 Court decree; effective date of
agreement; remand. (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]
539.350 Procedures after remand of
agreement. 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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