ORS 540.610: Use as measure of water right; forfeiture for nonuse; 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 holder 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, or for a period of five years that is calculated in whole or in part as described in subsection (4) of this section, the failure to use shall establish a rebuttable presumption of forfeiture of all or part of the water right. (2) Upon a showing of failure to use beneficially for five successive years, or for a period of five years that is calculated in whole or in part as described in subsection (4) of this section, the appropriator has the burden of rebutting the presumption of forfeiture by showing one or more of the following: (a) The water right is for use of water, or rights of use, acquired by cities and towns in this state, by appropriation or by purchase, for all reasonable and usual municipal purposes. (b) A finding of forfeiture would impair the rights of such cities and towns to the use of water, whether acquired by appropriation or purchase, or heretofore recognized by act of the legislature, or which may hereafter be acquired. (c) The use of water, or rights of use, are appurtenant to property obtained by the Department of Veterans’ Affairs under ORS 407.135 or 407.145 for three years after the expiration of the period of redemption provided for in ORS 18.964 while the land is held by the Department of Veterans’ Affairs, even if during such time the water is not used for a period of more than five successive years. (d) The use of water, or rights of use, under a water right, if the owner of the property to which the right is appurtenant is unable to use the water due to economic hardship as defined by rule by the Water Resources Commission. (e) The period of nonuse occurred during a period of time within which land was withdrawn from use in accordance with the Federal Conservation Reserve Program, Act of Congress of December 23, 1985, chapter 198 (16 U.S.C. 3831-3836, 3841-3845). If necessary, in a cancellation proceeding under this section, the water right holder rebutting the presumption under this paragraph shall provide documentation that the water right holder’s land was withdrawn from use under a federal reserve program. (f) The end of the alleged period of nonuse occurred more than 15 years before the date upon which evidence of nonuse was submitted to the commission or the commission initiated cancellation proceedings under ORS 540.631, whichever occurs first. (g) The owner of the property to which the water right was appurtenant is unable to use the water because the use of water under the right is discontinued under an order of the commission under ORS 537.775. (h) The nonuse occurred during a period of time within which the water right holder was using reclaimed water in lieu of using water under an existing water right. (i) The nonuse occurred during a period of time within which the water right holder was reusing water through land application as authorized by ORS 537.141 (1)(i) or 537.545 (1)(g) in lieu of using water under an existing water right. (j) The owner or occupant of the property to which the water right is appurtenant was unable to make full beneficial use of the water because water was not available. A water right holder rebutting the presumption under this paragraph shall provide evidence that the water right holder was ready, willing and able to use the water had it been available. (k) The holder of a water right is prohibited by law from using the water. If the prohibition is subject to remedial action that would allow the use of the water, the water right holder shall provide evidence that the water right holder is conducting the remedial action with reasonable diligence. (L) The nonuse occurred during a period of time within which the exercise of all or part of the water right was not necessary due to climatic conditions, so long as the water right holder had a facility capable of handling the full allowed rate and duty, and was otherwise ready, willing and able to use the entire amount of water allowed under the water right. (m) The nonuse occurred during a period of time within which the water was included in a transfer application pending before the Water Resources Department. (n) The nonuse of a supplemental water right occurred during a period of time when the primary water right used in conjunction with that supplemental water right was leased as an in-stream water right pursuant to ORS 537.348. (3) Notwithstanding subsection (1) of this section, if the holder of a perfected and developed water right uses less water to accomplish the beneficial use allowed by the right, the right is not subject to forfeiture so long as: (a) The holder has a facility capable of handling the entire rate and duty authorized under the right; and (b) The holder is otherwise ready, willing and able to make full use of the right. (4)(a) As used in this subsection, “drought year” means a calendar year in which the Governor declares, pursuant to ORS 536.740, that a severe, continuing drought exists, or is likely to exist, within a county. (b) A drought year does not count as a year for purposes of forfeiture under this section for a holder of a perfected and developed water right within the county for which the drought year was declared, if the holder has a facility capable of handling the entire rate and duty authorized under the water right and is otherwise ready, willing and able to make full use of the water right. (c) A year, during which nonuse occurs, that precedes or follows a drought year counts as a year for purposes of forfeiture under this section for a holder of a perfected and developed water right within the county for which the drought year was declared. (d) This subsection may not have any effect on consideration of an application under ORS 540.520. (5) The right of all cities and towns in this state to acquire rights to the use of the water of natural streams and lakes, not otherwise appropriated, and subject to existing rights, for all reasonable and usual municipal purposes, and for such future reasonable and usual municipal purposes as may reasonably be anticipated by reason of growth of population, or to secure sufficient water supply in cases of emergency, is expressly confirmed. (6) After a water right is forfeited under subsection (1) of this section, the water that was the subject of use shall revert to the public and become again the subject of appropriation in the manner provided by law, subject to existing priorities. [Amended by 1985 c.689 §5; 1987 c.339 §4; 1989 c.699 §1; 1989 c.833 §61a; 1991 c.370 §6; 1995 c.356 §2; 1995 c.366 §1; 1997 c.42 §5; 1997 c.244 §5; 1997 c.283 §1; 1999 c.335 §3; 1999 c.804 §§3,4; 2005 c.222 §1; 2005 c.542 §70; 2005 c.625 §70; 2023 c.185 §1]