taking care of your water rights: permits, extensions & certificates

Taking Care of YourWater Rights:

Permits, Extensions & Certificates

Oregon Association of Water Utilities

April 2014

Lisa JaramilloWater Right Services Division

OWRD

“All the surface and ground water of the state…”

Public Water

Oregon’s water resources are managed by the Oregon Water Resources Department.

Water Rights in Oregon: A System of Allocating & Using Water

• “Public water”

• 1909 Water Code

• Water rights system

Photo courtesy of Oregon State Library

Oregon’s Water Laws

• First water code enacted in 1909

• Based on doctrine of “prior appropriation”– The first person to obtain a water right is the

last to be shut off in times of low water availability.

• Beneficial use without waste– Water for personal or public good.


• “Priority date” – Establishes a water

right holder’s place in line when water becomes scarce.


• “Regulation” based on priority date– Junior water rights are regulated to meet the

entitlement of senior water rights.

“First in time, first in right…”

• Source of waterGround water or surface water

• Type of useThe “beneficial use” of water

or appropriationWhere water is captured or drawn

• Place of useWhere water is applied

A Water Right Consists Of:

• Point of diversion

• Quantity of waterRate, duty and season of use

Must be Used

• Terms and conditions– Limited to rate, duty, period

of use and conditions of water right.

• May not go unused for five consecutive years– Subject to forfeiture and

cancellation.– Some exceptions to

forfeiture, as outlined in ORS 540.610(2).

Appurtenancy

• Certificated water rights attached to the land– If land is sold, the

water right stays with the land… not with the previous owner.

Exempt Uses of Surface WaterORS 537.141

• Livestock wateringClosed loop system; livestock fenced away from stream

• Emergency fire-fighting

• Land management practices

Soil conservation and water quality

• Rainwater collectionArtificial, impervious surface

Do not require a water right

Exempt Uses of Ground WaterORS 537.545

• Single and Group Domestic

Household, washing, etc.15,000 gallons per day

• Lawn and GardenUp to ½ acre

• Commercial and Industrial uses

5,000 gallons per day

• Livestock watering

• Down-hole heat exchange

Do not require a water right

The Water Right System

“Proving Up”

Application

Permit

Certificate

Non-UseChange in Use

Transfers Cancellation

When a completed application is received, the priority date is assigned. Then the Department processes the application using a combination of basin rules, water availability reports and public interest review.

If approved, the Department issues a permit. Now, the water user must begin applying the water to beneficial use. When their system is complete they must hire an examiner to prepare a report of beneficial use.

A water right holder may change their point of diversion, point of appropriation, place of use or type of use by a formal transfer.

With some exceptions (such as those for a municipal use), if the water right is not used for more than five consecutive years, it may be considered forfeited and could be cancelled.

“Priority Date”

Application for Water Use Permit

• Application submitted

– “Priority Date” assigned to the application.

– Application is processed by the Department using a combination of:

• Basin rules;

• Water availability reports; and

• Public interest review.

Availability of Surface Water forNew Appropriations

The Application Review

Application

Permit

When a completed application is received, the priority date is assigned.

“Priority Date”The Department processes the application using a combination of basin rules, water availability reports and public interest review.

Initial Review

Proposed Final Order

Final Order

Water Use Permit

• Permit issued (if allowable), specifying:– Source allowed;

– Type of use allowed;

– Maximum rate & duty allowed;

– Period of use allowed;

– Priority date;

– Timeline (date) to complete construction and full application of water to beneficial use

• Generally 5 years (20 years for a municipal permit); and

– Other conditions of the permit.

Conditions of the Permit

• Conditions for Municipal/Quasi-Municipal permits may include:

– Timeline (date) for completion of construction and full application of water to beneficial use;

– Installation/maintenance of water meter and/or fish screens;

– Annual well static water level measurements;

– Annual water use reporting to OWRD; and/or

– Submittal of a Water Management and Conservation Plan (WMCP).

Once a Permit is Issued…

Permit Amendment

Permit

Certificate

Permit Extension of Time

“Proving Up”The water user must apply the water to beneficial use, consistent with permit conditions. When their system is complete (including any permit amendment) they must hire an examiner to prepare a report of beneficial use.

A permit holder may amend the point of diversion, point of appropriation or place of use under a permit through a formal permit amendment.

If more time beyond the dates specified in the permit is needed to complete construction, accomplish full beneficial use of water and/or comply with conditions, the permit holder may request an extension of time for the permit.

“Proving Up” on a Permit

• Must demonstrate (or “prove up” on) beneficial use of water under the permit

• Beneficial water use under the permit must be:

– Consistent with the terms and conditions of the permit; and

– Accomplished within the authorized timeline (date) specified in the permit.

“Proving Up” on Rate for Municipal or Quasi-Municipal Permits

• Minimum 4 hour diversion point demonstration time– Can be a period of not less

than 4 hours during a maximum period of 8 hours.

– All water diverted during demonstration period must be beneficially used (not wasted).

– Diverted water does not need to be used during the rate demonstration period.

Partial Perfection by Municipalities

• May “prove up” on 25% or more (at a time) of the maximum rate allowed under a permit

• Future “partial” claims must show “proof” on at least 25% of the original rate allowed by the permit.


• A Permit Extension can allow more time (beyond the permit timeline) in which to:

– Complete construction of the water diversion and/or water delivery system; and/or

– Accomplish beneficial use of water to the fullest extent of the permit.

• (i.e., if only 5.0 cfs out of the permitted 10.0 cfs has been diverted and beneficially used within the authorized timeline in the permit)


• …Can also allow more time (beyond the permit timeline) in which to:

– Comply with permit conditions.

• More time allows a condition to be satisfied within valid, authorized timelines under the permit.

Exception:

Failure to install fish screens prior to diverting water cannot be cured. This situation would likely result in denial of a Permit Extension request.


• A Permit Extension can be allowed if:

– Reasonable diligence and good faith of the permit holder in developing and “perfecting” the water use is demonstrated; and

– Good cause for the additional time to “prove up” on the use of water is shown.


• Final Orders approving Muni/Quasi-Muni Permit Extensions may include conditions to:

– Require submittal of a WMCP within 3 years

– Establish “Development Limitations”• Diversion of water beyond specified maximum rate

can only be authorized through a request in (and OWRD approval of) a WMCP.

– Provide fishery resource protection to maintain the persistence of listed fish species

• Applicable to the undeveloped portion of the permit.

Permit Amendment

• A permit can be modified through submittal of a Permit Amendment Application to:

– Change the location of a point of diversion or a point of appropriation;

– Add a point of diversion or a point of appropriation; and/or

– Change the place of use.

NOTE: The type or character of use cannot be changed through a Permit Amendment.

Permit Amendment

• A Permit Amendment can be allowed if:

– The permit has valid completion timelines (dates) that have not expired;

– The proposed change does not result in injury to an existing water right; and

– For a change in place of use, the proposed “to” lands are:

• Owned or controlled by the permit holder of record; and

• Contiguous to the lands authorized under the permit.

Claim of Beneficial Use

Once water use is “perfected” under a permit…

• A Claim of Beneficial Use (CBU) and survey map are submitted to OWRD– The CBU must be prepared by a Certified Water

Right Examiner.

• OWRD evaluates the CBU and survey map

• Determines maximum beneficial use of water

Water Right Certificate

• OWRD issues the Water Right Certificate

– Based on findings of the CBU evaluation.

• Water Right becomes appurtenant to the land

• Water Right must be used at least once every five years

After a Certificate is Issued…

Certificate

Non-UseChange in Use

Transfers Cancellation

A water right holder may change their point of diversion, point of appropriation, place of use or type of use by a formal transfer.

With some exceptions (such as those for a municipal use), if the water right is not used for more than five consecutive years, it may be considered forfeited and cancelled.

Exception to forfeiture for non-use: A presumption of forfeiture can be rebutted for a water right… that is issued for all reasonable and usual municipal purposes [ORS 540.610(2)(a)].

Water Right Transfer

• A water right certificate can be modified through submittal of a Transfer Application to:

– Change the location of a point of diversion or point of appropriation;

– Add a point of diversion or point of appropriation;

– Change the place of use; and/or

– Change the type or character of use.

Water Right Transfer

• A Water Right Transfer can be allowed if:

– The water right is valid and not subject to forfeiture;

– The water user is ready, willing and able to use the full amount of water allowed under the water right;

– The proposed change would not result in enlargement of the water right; and

– The proposed change would not result in injury to another existing water right.

Ground Water Registrations(also known as a “GR”)

• GR claims filed with OWRD– Claims document beneficial use of ground

water accomplished prior to August 3, 1955.

• Claim filing period: – August 3, 1955 through August 3, 1958.

Ground Water Registrations

• Certificates of Registration were provided to the claimants and are on file at OWRD

• At some point in the future…– GR claims will be adjudicated and the rights

will be determined.

Ground Water Registrations

• When acquiring property in your service boundary…– Be aware of the potential existence of GRs

on the land. – GRs can be a valuable asset in your water

right inventory.

• If you acquire land with a GR…– The GR should be “Assigned” in the name of

the water supplier.

• Once a GR is “Assigned,” the water supplier can modify the GR

Ground Water Registration Modification

• A GR can be modified through submittal of a Ground Water Registration Modification Application to:

– Change the location of a point of appropriation;

– Add a point of appropriation;

– Change the place of use; and/or

– Change the type or character of use.

Ground Water Registration Modification

• A Ground Water Registration Modification can be allowed if the proposed modification would:

– Not enlarge the ground water registration;

– Not injure another existing water right; and

– Not result in a state Scenic Waterway not receiving previously available water…

• During periods in which streamflows are less than quantities needed for the free-flowing character of the waters for recreation, fish and wildlife.

Assignment / Ownership Update

• For permits, permit amendments, transfers and ground water registrations:

– An “Assignment” form is used to change the ownership of (or interest in) a water use record.

• For certificated water rights:

– an “Ownership Update” form is used to update the contact information for the right.

Break Time

Water Management and Conservation Plans

A basic framework for preparinga WMCP consistent with

OAR Chapter 690, Division 86

Elements of a WMCP

Water Supplier Description

• Sets the stage for the WMCP; and

• Provides current information about:– the water supplier;– its water sources; and– its water distribution system.


• A WMCP must describe the supplier’s:

– Water sources & distribution system;

– Exchange agreements, contracts and/or interconnections;

– Current service area & population;

– Characteristics of water customers;

– Current water use;


• Must also describe the supplier’s:

– Inventory of water rights;

– Adequacy & reliability of water sources;

– An assessment of any environmental issues pertaining to the supplier’s water sources; and

– Quantification of the system’s non-revenue water (water loss).

Water Conservation Element

• A description of the supplier’s past, current and future conservation measures.

• Also includes:– A progress report on conservation measures

scheduled for implementation in previous WMCP; and

– A description of the supplier’s water use measurement and reporting program that complies with OAR Chapter 690, Division 85 standards.


• All water suppliers must implement within five years:– An annual water audit;– A fully metered system;– A meter testing & maintenance program;– A rate structure, based in part, on the

amount of water metered at connections;– A leak detection program (if water losses

exceed 10%); and– A public education program to encourage

efficient water use.


• OAR 690-086-0150(5)

if a supplier proposes to expand or initiate water under an extended permit with identified resource issues…

–Must implement a system-wide leak repair or line replacement program to reduce water losses to no more than 15% (or demonstrate currently at no more than 15%).


• Under OAR 690-086-0150(6), further conservation measures must be evaluated and implemented, if feasible:

– If the supplier proposes to expand or initiate water under an extended permit with identified resource issues;

-OR-

– If the supplier serves more than 7,500 people.


• Further conservation measures:– Leak repair program or line replacement;

– Technical and financial assistance programs;

– Supplier financed retrofit / replacement;

– Rate structures that encourage conservation; and

– Water reuse, recycling and non-potable water opportunities.

Water Curtailment Element

• Description of water curtailment activities in the event of a water supply shortage or other water supply emergency.


• Must include:– A description of past supply deficiencies;

– At least three stages of alert;

– A list of “triggers” for each stage; and

– A list of actions within each stage to curtail water use.


• Examples of “triggers” for each stage:

– Supply: well or reservoir level

– Demand: reaches critical level for period of time

– Capacity: use exceeds percentage of capacity

– Drought declared by Governor

Water Supply Element

• Allows a water provider to:

– Assess projected demands for water;

– Evaluate options for meeting those demands; and

– Provide rationale for selected water supply alternative to meet future needs.


• Delineate current and future service areas

– Consistent with land use laws

– Relationship to other boundaries• Neighboring municipal boundaries• Unincorporated portions of a county• Other legal boundaries


• The delineation must also include:

– An assessment of population projections• Municipal planning

• County planning

• PSU projections

– Anticipated industrial or economic development• Consistent with relevant acknowledged

comprehensive land use plans and urban service agreements or other relevant growth projections

Water Supply Development

• Water demand forecast– 10-year and 20-year projections (required)– May include longer time period (if desired)– Several methods available

• Also consider:– System redundancy and backup water

supply needs; and– Demands resulting from wholesale water

delivery contracts or supply agreements.


• Assess water needs

– Compare current water source capacity and projected demand (20 years)

– Outline supply deficiencies or reliability issues


• If, in order to meet 20-year demands, the supplier will need to:

– Begin diverting water under an existing permit;

– Increase diversion of water under an existing permit (up to the allowed rate); or

– Acquire new water rights …

• Then, you’ll need to analyze alternative sources to meet those needs.


• The analysis of alternative water sources must analyze alternative sources to meet needs:

– Water savings resulting from implementation of conservation measures under OAR 690-086-0150;

– Interconnection(s) with other supply agencies; and

– Any other conservation measure that would provide water at a comparable cost


• If existing permit(s) are selected for meeting future needs, the WMCP must quantify for each permit:

– The maximum instantaneous rate of water to be diverted; and

– The maximum monthly volume of water to be diverted.


• Also, if existing permit(s) are selected for meeting future needs, the WMCP must provide:

– A description of the supplier’s mitigation actions (if any) to comply with legal requirements.

• Endangered Species Act• Clean Water Act• Safe Drinking Water Act• Permit Extension conditions to protect fish


• Further…If the selected permit for meeting future demands is an extended permit, the WMCP must also identify:

– Whether a “Development Limitations” condition has been imposed upon the extended permit; and

– Whether access to quantities of water beyond those “Development Limitations” will be needed in the next 20 years (i.e., access to “Greenlight Water”).


• To request access to “Greenlight Water” under an extended permit, the WMCP must document:

– A development schedule for any lower-cost conservation measures, if any;

– Justification that the extended permit is the most feasible and appropriate water supply alternative; and

– The supplier is complying with mitigation requirements, if any, associated with further development of the extended permit.

Submittal of WMCP to OWRD

• At least 30 days prior to submitting the WMCP to OWRD, the supplier…

– must provide notice to all affected local governments and make it available for review; and

– include a request for comments relating to consistency with the local government’s comprehensive land use plan.

• If any comments received, must provide a copy to OWRD.

Submittal of WMCP to OWRD

• Include the required fee for submittal of a WMCP:

– $900 for municipal water suppliers serving a population of 1,000 or fewer; or

– $1,800 for municipal water suppliers serving a population more than 1,000.

Fees effective as of July 1, 2013See: ORS 536.050(1)(u)

Water Use Efficiency Standardsin the State of Oregon

Water Use Efficiency Standards

• OAR Chapter 690, Division 086 (WMCPs)– Reduce non-revenue water to 15%, and in

certain circumstances to 10%.

• OAR Chapter 690, Divisions 400 & 410– OWRD has authority to enforce against, and

to prevent, wasteful uses of water.

• OAR 690-400-0010(6)– In Oregon, “waste” is defined as:

“…the continued use of more water than is needed to satisfy the specific beneficial uses for which a right was granted.”

Oregon Success Stories- - City of Gresham - of Gresham -

Advanced Metering Infrastructure (AMI) technology

•Replaced all small residential and commercial meters (1-inch & smaller)

– Approximately 16,000 AMI meters installed over a 7-month period in 2011.

•Began replacing large meters (industrial & commercial) in 2012.

– Have installed 535 AMI meters to date.– Within 15 meters of being complete.

Oregon Success Stories- City of Corvallis -

Leak Detection Surveys

•2003/2004 survey:– 80 miles of pipeline / 53 leaks.– Leak repairs saved the City an

estimated 30.5 MG of water each year and $43,000.

•2009 survey:– 129 miles of pipeline / 44 leaks.

Process Modifications - water treatment plant

•Saves an estimated 8 MG gallons of water per year.

Oregon Success Stories- City of Bend -

Metered Service Connections•Prior to 1998, 51% of Bend’s 12,300+ service connections were unmetered.

•Bend is now a fully metered system (since December 2004).

– Recently upgraded to AMI technology.

•All fire hydrant use within Bend’s service area requires metering.

– Better tracking of non-fire-related hydrant water use.

Oregon Success Stories- City of Hillsboro -

Annual Water Audit Irregularities

•Water audits between 2002 and 2008 showed an average system gain of 10% (or -10% loss)

•Began troubleshooting to determine cause of system gain.

•Eventually traced to 12 sonic master meters.– Over 10 years old; and– Could not be calibrated.

•Replaced with magnetic meters.– Now in range of 3% loss.

Oregon Success Stories- City of Columbia City -

Reduction of Leaks•In early 2002, Columbia City’s water losses had reached 35%.•By 2010, the City had reduced its water losses down to 10% through:

– Water audits performed on a monthly basis;– Leak detection practices; and– Giving high priority to repair of those leaks.

Reduction of System Pressure•Also recently received funding to undertake a new project to control system pressure.

Oregon Success Stories- Eugene Water & Electric Board -

Toilet Rebate Program•About 1,600 inefficient toilets were replaced between 1995 and 2008 •Saves an estimated 34 MG of water per year

Sustainable Landscape Program Workshop•EWEB assisted Lane County Extension Service with development of program•Promotes efficient landscape irrigation•In 2012, residents within EWEB’s service area reduced outdoor water use by 205,000 gallons

Oregon Success Stories- Medford Water Commission -

Public Education on Landscaping•Launched a website to promote efficient water use for landscaping.

www.medford.watersmartgardening.com

Landscape Ordinance•Revised city landscape ordinance to insert water efficiency provisions for multi-family residential, commercial and industrial.

–City Council approved in June 2013–Went into effect December 2013

Links and Resources

• OWRD Website:

www.oregon.gov/OWRD.pages.index.aspx

• Oregon Water Law:

www.oregon.gov/owrd/Pages/law/index.aspx

• Municipal Water Management: www.oregon.gov/owrd/pages/mgmt_muni_wmcp.aspx

• OWRD Conservation Share-House webpage: WMCP Guidebook & Water Right Inventory Table www.oregon.gov/owrd/Pages/Conservation_Sharehouse.aspx

Questions ?

• Lisa Jaramillo, Water Management & Conservation

OWRD Water Right Services Division

Phone: 503-986-0880E-Mail: [email protected]

• General OWRD Phone: 503-986-0900Website: www.wrd.state.or.us

taking care of your water rights: permits, extensions & certificates

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