By Michael Higgins
In Oregon, all water within the state from all natural sources of water supply belongs to the public (ORS 537.110). However, a water right permit from the Oregon Water Resources Department (OWRD) is required if you plan to build a pond or reservoir on your property to store water regardless of size with a few exceptions. One exception is harvesting rainwater from an artificial impervious surface (e.g. building roof), this would be considered “exempt use” under ORS 537.141. The other exception includes owners who have registered their ponds or small reservoirs by January 31, 1997 that have been constructed prior to 1995.
Additionally, a “bulge in the system” is a pond that will be used as an in-system storage facility during the irrigation season to manage and handle water allotted by an irrigation district or water that is allowed under an existing water right for irrigation or agricultural uses. If the waters held in the pond are used on a rotational basis during the irrigation season under an existing right, a water storage permit is not required. Although, this would not include storing or holding water outside the irrigation season. Nevertheless, where storage for future use is needed, a permit is required. The sole purpose of storing water is considered a primary permit and does not allow you to use the water without a secondary permit.
The primary water right permit under Oregon’s water code is outlined by four fundamental provisions: 1) Beneficial purpose without waste – surface or groundwater may be legally diverted for use only if it is used for beneficial purpose without waste; 2) Priority – is the water right priority date determines who gets water in a time of shortage (e.g. senior user); 3) Appurtenance – the water right is attached to the land described in the right; and 4) Must be used – Once your system is established, a water right must be used as provided in the right at least once every five years, with some exceptions. In general, all applications for reservoir permits are subject to provisions set forth in ORS 537.400.
The water source is typically surface water from a natural drainage course or stream. If allowed by an existing groundwater right, groundwater may be stored in a reservoir prior to beneficial use. However, the OWRD may require a separate reservoir application if such reservoirs interact with surface water.
The OWRD has two reservoir permit application processes: 1) Standard Water Right Permit and Safety Review for Dams, and 2) Alternate review process for smaller reservoirs. OWRD Aqua Book (2018) stated as follows:
Standard Water Right Permit and Safety Review for Dams
Reservoirs with a dam 10 feet or greater in height and that store 9.2 acre-feet or more must be designed by and constructed under the supervision of a registered professional engineer. Design, construction, and operation of dams for these reservoirs must comply with the dam safety regulations in Oregon Administrative Rules (OAR) 690-020-0000 through 690-020-0500. The engineered drawings and specifications must be approved by the Department prior to construction of such dam.
Alternate review process for smaller reservoirs
An alternative permit application process is available to persons interested in building small reservoirs storing less than 9.2 acre-feet of water or in reservoirs with dams less than 10 feet in height. The process involves review of the project by the watermaster and the Oregon Department of Fish and Wildlife prior to application, which allows an expedited review (less than six months). For certain reservoirs or ponds filed under this process, those that store less than 9.2 acre-feet and do not have a secondary permit to use the stored water, a CWRE survey is not required to receive a water right certificate. Instead, permittees may submit information on the dimensions, capacity, and location of such reservoirs to the Department.
Note – The Alternate Reservoir Process does not allow the storage of groundwater (or water from a well); to do so it is necessary to apply under the Groundwater Permit process.
After you have constructed your pond and made beneficial use without waste, a secondary permit may be required if you plan to appropriate or use the stored water for all out-of-reservoir uses with few exceptions.
OWRD water right application forms and documents website: https://www.oregon.gov/OWRD/programs/WaterRights/Forms/Pages/default.aspx
If you would like more information about ponds, irrigation, water rights, or Certified Water Right Examiner (CWRE) services, contact HGX or write a comment to this post below.