Category Archives: Water Right

Important Oregon Court of Appeals Decision Affecting Municipal Water Right Permit Extensions

Yesterday, the Oregon Court of Appeals issued its decision in WaterWatch of Oregon, Inc. v. Water Resources Department, et al., which affects water right permit extensions for municipal uses under ORS 537.230(2).  WaterWatch challenged the Department’s procedure for issuing extensions to municipal water right permit holders.  Under current law, a municipal permit holder must complete construction and make full beneficial use of water within 20 years in accordance with the terms of the permit.  If construction cannot be completed within this deadline, the municipality may seek an extension to complete the construction.  The extension then allows the municipality to begin using the yet “undeveloped” portion of the permit. The extension statute requires that the Department take into consideration the effect on certain protected fish species caused by the municipality’s use of this as yet undeveloped portion of its permit.

The issue before the court of appeals was how to determine the size of the undeveloped portion of the water right permit.  The Department argued that the undeveloped portion was the difference between the permitted amount and the amount actually used by the municipality at the time the last extension was requested (in this case December 2007).  WaterWatch argued that the undeveloped portion of the permit should be measured as of the expiration date of the previous extension period (in this case October 1999).  After a thorough examination of the facts and statutory history, the court concluded that “[a]lthough this is a close case, based on a contextual reading of the statute and the legislative history, we conclude that petitioner [WaterWatch] has the better view.”

For further information, a copy of the decision can be found here.