Appropriation of Water Generally

ORS 537.400
Reservoir permits


(1)

All applications for reservoir permits shall be subject to the provisions of ORS 537.130 (Permit to appropriate water required), 537.140 (Application for permit), 537.142 (Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program) and 537.145 (Notice of filing of application to appropriate water for hydroelectric purposes) to 537.240 (Federal permit), except that an enumeration of any lands proposed to be irrigated under the Water Rights Act shall not be required in the primary permit. But the party proposing to apply to a beneficial use the water stored in any such reservoir shall file an application for permit, to be known as the secondary permit, in compliance with the provisions of ORS 537.130 (Permit to appropriate water required), 537.140 (Application for permit), 537.142 (Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program) and 537.145 (Notice of filing of application to appropriate water for hydroelectric purposes) to 537.240 (Federal permit). The application shall refer to the reservoir for a supply of water and shall show by documentary evidence that an agreement has been entered into with the owners of the reservoir for a sufficient interest in the reservoir to impound enough water for the purposes set forth in the application, that the applicant has provided notice of the application to the operator of the reservoir and, if applicable, that an agreement has been entered into with the entity delivering the stored water. When beneficial use has been completed and perfected under the secondary permit, the Water Resources Department shall take the proof of the water user under the permit. The final certificate of appropriation shall refer to both the ditch described in the secondary permit and the reservoir described in the primary permit.

(2)

Whenever application is made for permit to store water in a reservoir or pond for any beneficial use which does not contemplate future diversion of the stored water except by livestock drinking from stock water ponds, the extent of utilization thereof may be included in the reservoir permit and no secondary permit shall be required. However, in cases where water from a stream is required to maintain a reservoir or pond by replacing evaporation and seepage losses, or is required to maintain suitable fresh water conditions for the proposed use and to prevent stagnation, the applicant for permit to store water in such reservoir or pond shall also file an application for permit to appropriate the waters of the stream.

(3)

An application submitted to construct a reservoir storing less than 9.2 acre-feet of water or with a dam less than 10 feet in height need not be accompanied by a map prepared by a water right examiner certified under ORS 537.798 (Water right examiner certificate) as required by ORS 537.140 (Application for permit) (4). The map submitted with the application shall comply with standards established by the Water Resources Commission. The survey required under ORS 537.230 (Time allowed for construction of irrigation or other work) shall be prepared by a water right examiner certified under ORS 537.798 (Water right examiner certificate) and shall be submitted to the department before the department issues the water right certificate.

(4)

If a dam is subject to approval under ORS 540.449 (Construction plan approval), the department may issue a final order approving an application on the basis of preliminary examination of the site, plans and specifications, features and other supporting information if the approval includes a condition requiring department approval of final documentation for the site, plans and specifications, features and other supporting information under ORS 540.449 (Construction plan approval) before the permit is issued.

(5)

Notwithstanding the provisions of ORS 537.211 (Issuance of permit if application approved) (2), the department may approve an application for a reservoir permit for a dam that is subject to construction plan approval under ORS 540.449 (Construction plan approval) and issue a permit, subject to the condition that before the reservoir may be filled, the permittee shall submit to the department evidence that the permittee owns, or has written authorization or an easement permitting access to, all lands to be inundated by the reservoir. [Formerly 537.300; and then 537.345; 1993 c.557 §3; 1993 c.595 §9; 1995 c.365 §6; 2005 c.37 §3; 2019 c.390 §23]
Note: The amendments to 537.400 (Reservoir permits) by section 23, chapter 390, Oregon Laws 2019, become operative July 1, 2020. See section 28, chapter 390, Oregon Laws 2019. The text that is operative until July 1, 2020, is set forth for the user’s convenience.
537.400 (Reservoir permits). (1) All applications for reservoir permits shall be subject to the provisions of ORS 537.130 (Permit to appropriate water required), 537.140 (Application for permit), 537.142 (Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program) and 537.145 (Notice of filing of application to appropriate water for hydroelectric purposes) to 537.240 (Federal permit), except that an enumeration of any lands proposed to be irrigated under the Water Rights Act shall not be required in the primary permit. But the party proposing to apply to a beneficial use the water stored in any such reservoir shall file an application for permit, to be known as the secondary permit, in compliance with the provisions of ORS 537.130 (Permit to appropriate water required), 537.140 (Application for permit), 537.142 (Water right permit or certificate not required for egg incubation project under salmon and trout enhancement program) and 537.145 (Notice of filing of application to appropriate water for hydroelectric purposes) to 537.240 (Federal permit). The application shall refer to the reservoir for a supply of water and shall show by documentary evidence that an agreement has been entered into with the owners of the reservoir for a sufficient interest in the reservoir to impound enough water for the purposes set forth in the application, that the applicant has provided notice of the application to the operator of the reservoir and, if applicable, that an agreement has been entered into with the entity delivering the stored water. When beneficial use has been completed and perfected under the secondary permit, the Water Resources Department shall take the proof of the water user under the permit. The final certificate of appropriation shall refer to both the ditch described in the secondary permit and the reservoir described in the primary permit.

(2)

Whenever application is made for permit to store water in a reservoir or pond for any beneficial use which does not contemplate future diversion of the stored water except by livestock drinking from stock water ponds, the extent of utilization thereof may be included in the reservoir permit and no secondary permit shall be required. However, in cases where water from a stream is required to maintain a reservoir or pond by replacing evaporation and seepage losses, or is required to maintain suitable fresh water conditions for the proposed use and to prevent stagnation, the applicant for permit to store water in such reservoir or pond shall also file an application for permit to appropriate the waters of the stream.

(3)

An application submitted to construct a reservoir storing less than 9.2 acre-feet of water or with a dam less than 10 feet in height need not be accompanied by a map prepared by a water right examiner certified under ORS 537.798 (Water right examiner certificate) as required by ORS 537.140 (Application for permit) (4). The map submitted with the application shall comply with standards established by the Water Resources Commission. The survey required under ORS 537.230 (Time allowed for construction of irrigation or other work) shall be prepared by a water right examiner certified under ORS 537.798 (Water right examiner certificate) and shall be submitted to the department before the department issues the water right certificate.

(4)

If a dam safety review is required under ORS 540.350, the department may issue a final order approving an application on the basis of preliminary plans, specifications and supporting information if the approval includes a condition requiring the commission’s approval of final plans, specifications and supporting information under ORS 540.350 before the permit is issued.

(5)

Notwithstanding the provisions of ORS 537.211 (Issuance of permit if application approved) (2), the department may approve an application for a reservoir permit for which a dam safety review is required under ORS 540.350 and issue a permit, subject to the condition that before the reservoir may be filled, the permittee shall submit to the department evidence that the permittee owns, or has written authorization or an easement permitting access to, all lands to be inundated by the reservoir.

(formerly 537.300, then 537.345)

See also annotations under ORS 537.300 in permanent edition.

Atty. Gen. Opinions

Release of water from Howard Prairie Reservoir to City of Ashland, (1977) Vol 38, p 956

Chapter 537

Notes of Decisions

Water control district, in applying for water appropriation permit for hydroelectric project, was exempt from licensing provisions of ORS 543.010 to 543.620 and needed only to comply with requirements of this chapter. Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 688 P2d 92 (1984), Sup Ct review denied

Atty. Gen. Opinions

Reservation to state of "all coal and other minerals" in deed of land by state as reservation of geothermal resources, (1980) Vol 41, p 298

Law Review Citations

11 EL 387 (1981); 16 EL 583, 592 (1986); 28 WLR 285 (1992)


Source

Last accessed
Jun. 26, 2021