1. (1) The Department shall initiate proceedings to cancel a perfected water right, as provided in ORS 540.631 and these rules, whenever it appears to the satisfaction of the Director that a right has been forfeited as provided in ORS 540.610 and is not likely to be exempt under ORS 540.610(3)-(4) or ORS 540.612, or would not likely be rebutted under ORS 540.610(2). A decision to initiate cancellation proceedings may be based on evidence submitted to the Department from persons other than the Department or based on evidence available to the Department.

2. (2) Where the evidence submitted to the Department is in the form of affidavits, notarized affidavits from two individuals shall be required. An affidavit shall contain the following:

   1. (a) Name, address, email address, if available, and telephone number of affiant;
   2. (b) Certificate number (or page number) of the certificate in question as recorded in the State Record of Water Right Certificates, name of the person to whom the certificate was issued, and priority date of the certificate;
   3. (c) Township, range, quarter-quarter section and number of acres to which the certificate in question is appurtenant;
   4. (d) The use for which the water right was issued;
   5. (e) The source of water to be used as provided in the certificate;
   6. (f) A statement of the affiant's knowledge of the lands described in the certificate in question, and an explanation of how the affiant gained this knowledge;
   7. (g) A statement that the affiant knows with certainty that no water from the allowed source has been used for the authorized use on the lands, or a portion of the lands, the portion being accurately described, under the provisions of the water right within a period of five or more successive years, and the beginning and ending years of the period of nonuse. Where possible, beginning and ending months should also be given;
   8. (h) A statement that the affiant believes the allegation of nonuse will not be rebutted under any of the grounds for rebuttal set out in ORS 540.610;
   9. (i) A copy of a map or aerial imagery with sufficient information to enable the Department to determine the location of the portion of the water right asserted to have been forfeited;
   10. (j) The affiant's agreement to testify in a hearing before the Water Resources Department if necessary; and
   11. (k) Proof that the affidavit(s) have been served upon the legal owner of the lands to which the water right is appurtenant and to the occupant of such lands.
3. (3) Based on the best information available to the Department, if the subject water right is within the boundaries of a district or federal reclamation project, the Department shall provide notice, as applicable, to the district and the United States Bureau of Reclamation at least 90 days prior to initiating a cancellation proceeding.
4. (4) Where the Department initiates cancellation proceedings based on evidence available to the Department, the Department shall include, in its notice of proposed cancellation, the information described in sections (2)(b) - (e) and findings of fact on the matters described in sections (2)(f) - (h). The notice of proposed cancellation shall be supported by stream or canal gaging records, water or electric meter readings, static level measurements, system capacity calculations, a summary of field investigations, photos, aerial imagery, maps, evapotranspiration data, or other relevant evidence covering each year of the period of alleged nonuse.

5. (5) Within 180 days of receiving the affidavits under section (2) of this rule, the Department shall either:

   1. (a) Initiate proceedings to cancel a water right under ORS 540.631, or
   2. (b) Notify the affiants, the record owner of the affected lands, and the occupant of the affected lands, if other than the owner, that the Department is closing the matter because the Department is not satisfied that a right has been forfeited as specified in section 1 of this rule.

6. (6) The Department shall notify the record owner of the land to which a perfected water right is appurtenant that it intends to cancel all or a portion of the water right. The occupant of affected lands, if other than the owner, shall also be notified. If the subject water right is within the boundaries of a district or federal reclamation project, the Department shall, as applicable, mail a copy of the cancellation notice to the district and the United States Bureau of Reclamation. Notice shall be sent to the record owner of the land or occupant by certified mail, return receipt requested. The notice to the record owner shall be addressed to the owner at the owner's last address or record in the office of the county assessor of the county in which the lands are located. The notice shall contain the following:

   1. (a) A description of the water right and the land to which the water right is appurtenant;
   2. (b) A statement that the information before the Director creates a rebuttable presumption of forfeiture;
   3. (c) A statement that the record owner or the occupant has a period of 60 days from the date of the mailing of the notice within which to protest the proposed cancellation either by asserting that the water right has been used, or by making rebuttal in the manner and on the grounds provided in OAR 690-017-0600 and 690-017-0800;
   4. (d) Notice that if the record owner intends to rebut the presumption of forfeiture or establish an exemption from forfeiture under ORS 540.610(3)-(4) or ORS 540.612, the protest shall include a statement of the grounds for rebuttal or exemption relied upon, and shall be accompanied by appropriate supporting documentation; and
   5. (e) A statement that, following receipt of a protest against the proposed cancellation and determination that the presumption of forfeiture has not been rebutted or an exemption from forfeiture has not been established, a contested case hearing will be scheduled.

Statutory/Other Authority

ORS 536.025 & ORS 536.027

Statutes/Other Implemented

ORS 540.610 - 540.670

History

WRD 3-2026, amend filed 03/20/2026, effective 04/01/2026
WRD 7-2004, f. & cert. ef. 11-5-04
WRD 17-1990, f. & cert. ef. 9-27-90
WRD 12-1988, f. & cert. ef. 8-10-88