NON-USE
POLICY
Adopted by Swalley Irrigation
District Board of Directors March 19, 2008
GENERAL POLICY STATEMENT
State law (see attached references) provides that when
lands within the district boundaries are no longer irrigated
or susceptible to irrigation, the district may remove
and apply the certificated water right to other irrigable
lands within the district. A district transfer under
these circumstances can occur only pursuant to a well-defined
system of laws and rules providing due process. The
intent of state law and this policy is to protect the
district’s water rights, thereby maintaining adequate
flows for conveyance and delivery, and to protect the
financial integrity of the district.
All water rights must be put to beneficial use on all
lands to which they are appurtenant at least once every
5-year period. ORS 540.610. Whenever all or part of
a water right is not used for a period of five successive
years, the law establishes a “rebuttable presumption
of forfeiture of all or part of the water right.”
ORS 540.610(1). However, ORS 540.612 provides an exemption
from forfeiture when a district petitions to transfer
a water right otherwise subject to forfeiture to other
irrigable lands in the district prior to the end of
the fifth year of non-use. The process for “involuntary”
district transfers under these circumstances is outlined
at ORS 540.572-.578.
It is the intent of the district to work with its users
to maintain the validity of the water rights appurtenant
to each landowner’s property. In that regard,
the district will notify the landowner when it appears
that beneficial use has not been made and advise the
landowner of potential means by which to protect the
right from forfeiture. The primary focus of the district
is to protect and maintain the right on the current
property, but if that cannot be accomplished, the district
will work with the landowner to pursue other options.
When all options fail, then the district will use the
available process to move the water right to other irrigable
lands in the district.
DISTRICT REVIEW PROCESS
GIS Record
The district maintains a Geographic Information System
(GIS) showing the location and the amount of acres of
the district’s state certificated water right
as it applies to each property within the district.
The district will provide a copy of this GIS map to
any landowner making a request for a map of the landowner’s
specific property. (A nominal cost fee may be charged.)
To maintain a record of use relative to the mapped acreage,
the district utilizes flyovers conducted by the Natural
Resources Conservation Service.
Field Review
In addition, district field staff reviews properties
each year during the irrigation season to determine
if full use of the water right is being maintained as
required by law. The district then provides notice to
landowners where there appears to be less than full
beneficial use. All reviews will be documented by December
31 of each year. In the first month of the following
year, landowners will be notified of any observed deficiencies
in use.
Notice Procedure
Included with the above notice, the district will outline
options available to landowners to protect the water
rights appurtenant to their property. By providing notice
in January, it is expected that the irrigator will take
corrective measures prior to the next-following irrigation
season.
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MEASURES FOR RELIEF
If for any reason the landowner is unable to make full
beneficial use of the water right appurtenant to the
landowner’s property, the landowner may consider
the following methods of avoiding potential forfeiture
and involuntary district transfer:
1) Transfer to other irrigable lands
At any time, a landowner may request that the district
transfer an appurtenant water right from the landowner’s
property to other irrigable lands within the district.
However, as a precondition to transfer, state law requires
that full use of the water right must have occurred
within the previous 5-year period. Likewise, per district
transfer policy adopted pursuant to state law, certain
district requirements must also be met, including but
not limited to full payment of all district assessments
and reimbursement for the cost of transfer, including
the costs of any required mapping to support the transfer
application. Upon completing the transfer, the new landowner
of the property to which the transferred water right
is then appurtenant will be liable for the assessment.
When transferring water rights, the landowner may (i)
identify the lands to which the right will be transferred,
or (ii) utilize the district’s list of landowners
who have identified a need for additional water. In
either event, the parties may set their own financial
terms for the transfer and costs involved.
The landowner may also convey by quitclaim deed whatever
interest the landowner has in the water right to the
district at current identified cost. The district will
then attempt to place that water right on other lands
within the district as need becomes available and the
new user must reimburse the district purchase cost.
Upon quitclaim validation, the assessment payment is
no longer required of the landowner quitclaiming his
or her interest in the water right.
2) Temporary instream lease
The district works in coordination with the Deschutes
River Conservancy (DRC) to lease water rights instream
which would otherwise go unused in any given year.
Subject to district approval, the lease must be consummated
prior to March 1 of the given year. The lease must not
impair the district’s ability to serve the lands
on the portion of the delivery system where the water
would be removed for instream use. The district will
not unreasonably withhold its approval but will consider
injury to other water users in its analysis. Leases
may be from 1 to 5 years in length and require both
district and DRC approval.
Current assessments must be paid in full prior to lease
approval. The district also has an administrative fee
for the first year of the lease to cover mapping costs
related to the leasing process. DRC sets the terms as
to how much DRC will pay the landowner for the leased
water and for coverage of administrative fees.
While the water is leased instream, it is considered
to be “beneficially used.” The lease process
protects against potential forfeiture for non-use.
3) Other Options
The district will consider other options proposed by
the current landowner that comply with
state law and district policy.
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FOURTH
YEAR OF NON-USE
Following the fourth year of non-use,
the district will initiate the state process for involuntary
district transfer.
Notice
All landowners with a documented 4 consecutive years
of non-use shall receive a notice from the district
clearly reciting (a) OAR 690-385-5000 through -5800,
(b) options available to the user to protect the water
right from forfeiture, and (c) the district’s
right to petition the Oregon Water Resources Department
(OWRD) to transfer the water right if it is not put
to full beneficial use within the 5th year or is not
otherwise protected from forfeiture. The district will
forward a copy of the notice to any security interest
holder of record (mortgagor or other party identified
on the deed filed with the county). The district shall
also provide a copy of the notice to OWRD.
Documentation
As available, the district may provide any of the following
documentation of non-use upon request of the user, including:
dated aerial photos from Bend Mapping or the NRCS, district
photos, district GIS information, affidavit(s) from
field staff, affidavit(s) by the state watermaster,
and affidavit(s) from neighbors.
Correction
If during the fifth consecutive year’s irrigation
season the landowner does not take action to protect
the water right from forfeiture by:
1) filing a transfer application prior to September
1st of the 5th year;
2) conveying any interest in the water right to the
district by quitclaim deed prior to September 1st of
the 5th year;
3) leasing the water instream prior to March 1st of
the 5th year;
4) or protecting the water right by some other means,
as approved by the district, prior to September 1st
of the 5th year;
then the district will send notice to the landowner
and any security interest holder of record, by September
15th of the 5th year of non-use, that the district intends
to petition OWRD to transfer the water right to other
lands within the district. The notice will be mailed
to the landowner’s last-known address, with a
return receipt requested, and will otherwise meet all
requirements of ORS 540.572(4).
The landowner must submit written objections to the
district’s notice, if at all, within 30 days after
the notice is mailed. If the district does not receive
written objections within 30 days of mailing the notice,
the District may petition OWRD to transfer the water
right.
If, on the other hand, the landowner timely submits
written objections, the district manager will first
attempt to resolve the matter. If the district manager’s
attempts prove unfruitful, the district will hold a
hearing at its October or November board meeting of
that year to determine whether to proceed with the petition.
At that hearing the landowner may offer reasons that
the district should not petition OWRD to transfer the
water right, including any evidence that would rebut
the presumption of forfeiture for nonuse pursuant to
ORS 540.610(2). Following such hearing, the district
may, in its discretion, petition OWRD to transfer the
subject water right.
If the district chooses to petition OWRD to transfer
the subject water right, the district will send a copy
of the petition with a map of the property to the landowner.
The landowner may appeal to the Water Resources Commission
within 60 days following such notice, and may request
a hearing before the Commission to refute the presumption
of forfeiture. ORS 540.578.
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LAWS
APPLICABLE TO PETITION FOR NON-USE
OREGON REVISED STATUTES
540.610 Use as measure of water right; presumption of
forfeiture of right for nonuse; basis for rebutting
presumption; confirmation of rights of municipalities.
(1) Beneficial use shall be the basis, the measure and
the limit of all rights to the use of water in this
state. Whenever the owner of a perfected and developed
water right ceases or fails to use all or part of the
water appropriated for a period of five successive years,
the failure to use shall establish a rebuttable presumption
of forfeiture of all or part of the water right.
[540.610 (2)(a) through (n) define bases for rebutting
the presumption of forfeiture for non-use.]
540.612 Exemption from forfeiture for right subject
to petition filed under ORS 540.574. If a district,
as defined in ORS 540.505, petitions for a transfer
as provided in ORS 540.574 no later than the end of
the calendar year of the fifth year of nonuse under
ORS 540.610 (1), the forfeiture provisions of ORS 540.610
shall not apply to the lands from which the water right
is sought to be transferred pending approval of the
district’s petition. The time required for the
processing of the petition, including any time required
for hearings, appeals and completion of an authorized
change, shall not be included when computing a five-year
period of nonuse under the provisions of ORS 540.610
(1). [1991 c.957 §11]
540.572 Application of certificated water to other irrigable
land within district; notice of intent to transfer
540.574 Petition for approval of transfer
540.576 Notice of petition; protest; user rights
540.578 Filing of protest; hearing on proposed transfer
OREGON ADMINISTRATIVE RULES
690-385-5000 District Permanent Transfer Criteria
690-385-5100 Notice of Nonuse of Water Right and Intent
to Transfer Pursuant to ORS 540.572
690-385-5200 District Permanent Transfer of Water Right
for Nonuse Applications
690-385-5300 District Permanent Transfer of Water Right
for Nonuse Application Map-Requirements
690-385-5400 Notice of Filing District Permanent Transfer
of Water Right for Nonuse Application
690-385-5500 District Permanent Transfer of Water Right
for Nonuse Application Notice and Review
690-385-5600 District Permanent Transfer of Water Right
for Nonuse Approval and Final Orders
690-385-5680 Original Right Terminated by Final Order
690-385-5700 Protests and Requests for Hearings
690-385-5800 Hearings
690-385-5900 Time Period to Process Permanent Transfer
Application Exempt from Forfeiture
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