Chapter 540

 

      Chapter 540

 

LAW REVIEW CITATIONS: 11 EL 390 (1981)

 

      540.045

 

NOTES OF DECISIONS

 

      Watermaster’s determination of permit limits constitutes final agency action by Water Resources Department. Teel Irrigation District v. Water Resources Dept., 323 Or 663, 919 P2d 1172 (1996)

 

      540.310

 

NOTES OF DECISIONS

 

      A person can be required to construct a headgate at his diversion point. Vandehey v. Wheeler, 13 Or App 25, 507 P2d 831 (1973), Sup Ct review denied

 

      A person’s “diversion point” is the location set forth in his respective water certificates and the point may be changed only by compliance with ORS 540.520, the statutory procedure for change. Vandehey v. Wheeler, 13 Or App 25, 507 P2d 831 (1973), Sup Ct review denied

 

      540.320

 

NOTES OF DECISIONS

 

      A person can be required to construct a headgate at his diversion point. Vandehey v. Wheeler, 13 Or App 25, 507 P2d 831 (1973), Sup Ct review denied

 

      540.350

 

ATTY. GEN. OPINIONS: Delegation of “engineering work” by a Water Resources Director, (1976) Vol 37, p 1484

 

      540.505

 

LAW REVIEW CITATIONS: 36 EL 1383 (2006)

 

      540.510 to 540.550

 

NOTES OF DECISIONS

 

      These sections provide that water right owner shall not change point of diversion unless he files application and complies with statutory procedures. Huff v. Bretz, 285 Or 507, 592 P2d 204 (1979)

 

ATTY. GEN. OPINIONS: Right of downstream owners of appropriative water rights to continuation of the flow, (1973) Vol 36, p 318; application of water outside irrigation season or for use not authorized by permit, (1977) Vol 38, p 1045

 

      540.510

 

NOTES OF DECISIONS

 

      Irrigation district in whose name water right certificate is issued is holder of water use subject to transfer and may seek change of diversion point under certificate. Fort Vannoy Irrigation District v. Water Resources Commission, 214 Or App 88, 162 P3d 1066 (2007), aff’d 345 Or 56, 188 P3d 277 (2008)

 

      “Water use subject to transfer” refers to legal right established by water right certificate. Fort Vannoy Irrigation District v. Water Resources Commission, 345 Or 56, 188 P3d 277 (2008)

 

      540.520

 

NOTES OF DECISIONS

 

      “Point of diversion” means place designated by permittee in application for water rights and in certificate. Vandehey v. Wheeler, 13 Or App 25, 507 P2d 831 (1973), Sup Ct review denied

 

      540.530

 

ATTY. GEN. OPINIONS: Storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

 

      540.610

 

NOTES OF DECISIONS

 

      Water certificate holder who used water only to wet some of her land to assist with plowing did not “irrigate” her land and this was not sufficient “beneficial use” to prevent forfeiture of water right for nonuse. Hennings v. Water Resources Dept., 50 Or App 121, 622 P2d 333 (1981)

 

      Where water rights certificate authorized use of 40 cubic feet of water per second for power generation purposes, but for more than five consecutive years flow in creek at mill’s diversion point was only 22 cubic feet per second, there was evidence to support finding of Director of Water Resources Department that there had been forfeiture of 15.6 cubic feet per second. Crandall v. Water Resources Department, 290 Or 771, 626 P2d 877 (1981)

 

      Proof that during period of five successive years an average of only 22 cubic feet per second of water was available for use by flour mill having capacity of 24.4 cubic feet per second was not proof that mill never used 24.4 cubic feet per second, so there was no proof that five year period of nonuse necessary for cancellation of water right under this section had run. Crandall v. Water Resources Dept., 290 Or 771, 626 P2d 877 (1981)

 

      Under this section, proponents of cancellation of water rights have burden to prove by reliable and substantial evidence that holder of water right failed to use appropriated water for period of five successive years. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)

 

      This section is a forfeiture statute and no intent to abandon water right is required. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)

 

      Where water is drawn from designated source, in designated amount and for beneficial use, unauthorized change in point of diversion does not constitute failure to use water. Russell-Smith v. Water Resources Dept., 152 Or App 88, 952 P2d 104 (1998), Sup Ct review denied

 

      Requirement for continuity of beneficial use applies for periods preceding perfection of water right. Hale v. Water Resources Dept., 184 Or App 36, 55 P3d 497 (2002)

 

      Use of water on land other than land specified in water right certificate constitutes nonuse for purpose of forfeiture. Hannigan v. Hinton, 195 Or App 345, 97 P3d 1256 (2004)

 

LAW REVIEW CITATIONS: 28 EL 919, 1137 (1998); 36 EL 1383 (2006)

 

      540.621

 

LAW REVIEW CITATIONS: 36 EL 1383 (2006)

 

      540.631

 

NOTES OF DECISIONS

 

      Issuance of water right certificate for transferred water right and passage of 15-year period terminates ability to cancel new certificate based on abandonment of water right prior to transfer. Kerivan v. Water Resources Commission, 188 Or App 491, 72 P3d 659 (2003), Sup Ct review denied

 

      540.720

 

LAW REVIEW CITATIONS: 27 EL 151 (1997)

 

      540.740

 

NOTES OF DECISIONS

 

      Because this section provides adequate state remedy for protection of right to use water, trial court erred in awarding attorney fees for 42 U.S.C. 1983 claims under 42 U.S.C. 1988. Saylor v. Water Resources Dept., 100 Or App 745, 788 P2d 494 (1990), Sup Ct review denied