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<br />f <br />. <br />1 <br /> <br />e <br /> <br />e <br /> <br />e <br /> <br />."'.,~"." <br />'8," . ~ <br />~~~~~~~!~~~,PR~~~vVv~ \.. ' ..~ /vV"~VdVVvV~~~~~;J~~,~~~~I~v <br /> <br />",,1' <br /> <br />DRAFT State by State Descriptions of Instream Flow Protedion DRAFT <br />State: Oret!OD <br /> <br />General Water Rights System - - - - _ <br /> <br />. <br /> <br />Like other water-rich states in the Northwest. Oregon was one of the last western states to adopt the modern <br />doctrine of prior appropriation. Large amounts of rainfall didn't necessitate a quick transition from riparianism <br />and holding on to riparian law made sense from the standpoint of continuing to meet the expectations of early <br />riparian water users. <br />. Prior appropriation was not recognized until 1880. The 1880 Oregon Supreme Court decision, Lewis v. <br />McClure, 8 OR. 273 (1880) established that riparian rights in Oregon were subject to prior valid <br />appropriations on the public domain. <br />. Prior appropriation effectively took complete hold of Oregon's water law in 1909. In Hough v. Porter, the <br />court held that federal land patents granted after 1877 carried no riparian rights - because the 1877 Desert <br />Land Act established a prior appropriation system. The overall effed of the Hough decision was to <br />preserve riparian rights on the minority of lands granted to the state and public before 1877. <br />. Only riparian rights for domestic use and stock waterlog remained unaffected by the decision. (Kaufinan <br />1992) <br />Oregon's prior appropriation system <br />. Most water rights are issued by permit. rather than by decree. <br />. Except for pre-1909 riparian rights, which bave been adjudicated in court to provide priority dates. <br />. Permits are issued in Oregon, provided that use is for a beneficial purpose without waste (domestic use and <br />livestock watering having preference over all other uses) and water is continually used (water right is <br />subject to forfeiture after five years of non-use) (Water Resources Division. "Water Rights in Oregon") <br />Localized Management (plays major role in Oregon's ISF program) <br />. Permissible uses are determined locally through water use classifications. <br />. Local basin authorities determine classifications. <br />. The Oregon Water Resources Commission has developed basin programs in 18 out of20 of the state's <br />major basins. (Water Resources Division, "Water Rights in Oregon") <br />Conservation program (also plays major role in Oregon's ISF program) <br />. Oregon passed a law in 1987 that allows a water user to submit a water conservation proposal to the <br />Oregon Water Resources Commission. If the proposal is approved and the conservation measures are <br />implemented, the law authorizes the water user to keep 75% of the saved water for additional use, sale, or <br />lease. Gillilan and Brown 1997 .162) <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />-- - ~ ~- --- - - -~ --- -----~-~ <br />. Instream Flow Legal Re~ognition _ _ <br /> <br />. <br /> <br />Oregon's laws on ISF rights are extensive and protective. Statutorily, ISF water rights can be obtained in four <br />major ways: <br />. Conversion of prior minimum stream flows to instream rights <br />. In 1955, the Oregon legislature established an administrative process to establish minimum flows [OR <br />Rev. Stat. 536.310(7)] <br />. Between 1955 and 1988, 547 minimum flows were established under this program. <br />. Minimum perennial stream flows were established as administrative rules rather than water rights. <br />Like water rights, the flows have priority dates and are subject to the same variations in water <br />availability as other appropriations. <br />. Among other things, 1983 legislation directed the departments ofFish and Wildlife and <br />Environmental Quality to submit a list of up to 75 of their highest priority streams with <br />applications for minimum stream flows. (Mattick 1993) <br />. Important 1987 legislation, responsible for the creation of the Instream Water Rights statute, directs <br />the Water Rights Commission to convert existing minimum streamflows to instream water rights <br />[O.R.S. !i537 .346). This process still goes on today. (Kaufinan 1992) <br />. Application by the Department ofFish & Wildlife, Department of Environmental Quality, or the Parks and <br />Recreation Department for rights <br />. The 1987 Instream Water Rights statute most importantly established Oregon's current ISF program <br />and a means b which eneies are able to a 1 for new ISF ri ts. <br /> <br /> <br />Oregon <br /> <br />DRAFT <br /> <br />1 <br />