Ask the Expert: Water Rights

by Mike Posada, P.L.S., C.W.R.E.

As the regulatory climate for water rights gets hotter, do you know what’s going on with your municipality’s water rights? Oftentimes, municipalities assume that the water rights they have always used are perfected and they are surprised to learn that their long-established water rights are still in permit status. The Oregon Water Resources Department (OWRD) has increased its efforts to identify and monitor the status of more of these older permits that have not moved through the process of perfection, and the OWRD is requiring municipalities to take action to “prove up” on these water rights.

In previous years, municipalities were able to obtain an extension of time relatively easily in order to complete the perfection process. Now, extensions of time normally entail several requirements, including Water Management and Conservation Plans (WMCPs). Unlike other water users, municipalities have more flexibility in the permit process, but both producing WMCPs and applying for permit extensions of time can be expensive undertakings.

There are several proactive steps that municipalities can pursue in order to perfect their water rights to certificate status and avoid the risk of a water right cancellation. AP is assisting clients in this process by providing a “water rights health checkup” for municipalities seeking to understand their water rights issues. One of these communities is Union, Oregon, a city in the Grande Ronde Valley with a population of approximately 2,000 people. Union was pumping 1,250 gallons per minute (gpm) from its Well No. 3, but the City’s water right permit for that well allowed for pumping 2,500 gpm. Because the City was pumping only half of its water allowance, the City had to take action.

AP helped the City submit an application for an extension of time for the remaining water under that right. The application requires extensive projections for future demands and documentation of system needs, as the OWRD extends water rights permits only to a justifiable point in the future. The water right extension was successful and, by putting in the time today to complete the extension application, the City gained more time in the future to perfect the water right.

In the meantime, the City worked with AP to file a Claim of Beneficial Use to incrementally perfect the 1,250 gpm of the water right that the community currently uses. By submitting a Claim of Beneficial Use, a municipality hopes to receive a certificate for a water right that can never be revoked. The City of Union is attempting to certify a portion of its water right under today’s known rules and regulations. The City can then file a separate Claim of Beneficial Use in the future either to partially perfect or totally perfect the full water right.

Please contact Mike Posada or Brad Baird at (541) 963-8309 to discuss your municipality’s water rights situation.