OAR 690-017-0800
Grounds for and Manner of Rebutting a Presumption of Forfeiture
(1)
Any record owner or occupant rebutting a presumption of forfeiture for nonuse of water under ORS 540.610 (Use as measure of water right)(2), as provided in these rules, shall provide evidence that rebuts the presumption of forfeiture.(2)
A presumption of forfeiture may be rebutted by showing one or more of the following:(a)
The water right is for reasonable and usual municipal use of water;(b)
A finding of forfeiture would impair the rights of cities and towns to the use of water, whether acquired by appropriation or purchase, or previously recognized by legislative act, or which may be acquired in the future;(c)
The owner of the property was unable to use the water due to economic hardship as defined in section (3) of this rule;(d)
The period of nonuse occurred during a period of time within which land was withdrawn from use under the Federal Soil Bank Program or the Federal Conservation Reserve Program;(e)
The end of the alleged period of nonuse occurred more than 15 years before the date upon which evidence of nonuse was submitted or cancellation proceedings were initiated under ORS 540.631 (Cancellation of forfeited water right), whichever occurs first; and(f)
The owner of the property to which the water right is appurtenant is unable to use the water because the use of water under the right is discontinued by an order of the Commission under ORS 537.775 (Wasteful or defective wells) (wasteful or defective wells).(3)
An economic hardship exists only during the following periods of time:(a)
During a bankruptcy action initiated by or for the record owner or principal farm operator;(b)
During a foreclosure of real or personal property of the record owner or principal farm operator. The foreclosure of personal property must directly affect the ability to use the water in question;(c)
During the redemption periods as provided in ORS 23.530 to 23.600;(d)
Three calendar years following the expiration of redemptions as provided in ORS 23.530 to 23.600; or, three years from the date of recording of a deed in lieu of foreclosure tendered by the record owner or principal farm operator in payment of debt owed; and(e)
The time during which judicial actions limit or prohibit the record owner’s or principal farm operator’s use of the water in question;(f)
The time during which a natural disaster would limit or prohibit the record owner’s or principal farm operator’s use of the water in question.(4)
Documentation supporting rebuttal based on enrollment in a federal program, bankruptcy, foreclosure or foreclosure redemption, natural disaster, or the 15-year statute of limitations on cancellation as provided for in ORS 540.610 (Use as measure of water right)(2) may include, but is not limited to, the following items:(a)
The enrollment contract or agreement between the record owner, occupant, or principal farm operator and the appropriate federal jurisdiction;(b)
Affidavits by knowledgeable parties such as employees administering the federal programs;(c)
Court pleadings, filings or other legal documentation of bankruptcy or foreclosure;(d)
Documents from financial, mortgage, lending or title institutions; and(e)
Sworn statements by a watermaster, soil scientist, or insurance claim adjuster.
Source:
Rule 690-017-0800 — Grounds for and Manner of Rebutting a Presumption of Forfeiture, https://secure.sos.state.or.us/oard/view.action?ruleNumber=690-017-0800.