ORS Chapter 538
Chapter 538 — Withdrawalof Certain Waters From Appropriation; Special Municipal and County Water Rights
2009 EDITION
SPECIALPROVISIONS
WATERLAWS
DIVERSIONBY MORROW COUNTY
538.010 Watersdiverted from Ditch Creek; rights of use and appropriation; certificate; timelimitation
538.020 Acquisitionof property necessary for storage and diversion
WITHDRAWALSFROM APPROPRIATION
538.110 TumaloCreek, Deschutes County; diversion prohibited; excepted uses; existing rights
538.120 SilverCreek, Marion County, and Brushes Creek, Curry County, and tributaries;diversion prohibited
538.125 Certainappropriations vested notwithstanding ORS 538.120
538.130 Condemnationof lands for park; vested and riparian rights not affected
538.140 DiamondLake and tributaries; diversion, interruption or appropriation of watersprohibited; excepted uses
538.150 HackettCreek, Clackamas County, and tributaries; appropriation, condemnation anddiversion prohibited; protection of fish
538.160 HackettCreek; vested rights not affected; condemnation of land for park not prevented
538.170 JohnsonCreek in Multnomah and Clackamas Counties; limitations on appropriation ordiversion
538.180 JohnsonCreek; existing rights; condemnation of land for park
538.190 Lakeof the Woods and tributaries, Klamath County; diversion, interruption orappropriation of waters prohibited; excepted uses
538.200 Streamsforming waterfalls near Columbia River Highway; withdrawal from appropriationor condemnation; diversion or interruption prohibited
538.210 Condemnationof lands for park not prevented; vested and riparian rights not affected;condemnation of lands or appropriation of waters for fish culture not prevented
538.220 Watersof Mill and Barr Creeks, Jackson County, withdrawn; exceptions
538.230 Vestedwater rights not affected; condemnation for park not prevented
538.251 Tributariesof Columbia River; limitations on appropriation or diversion
538.260 Existingrights not affected; appropriation and use for certain purposes permitted
538.270 RogueRiver; withdrawal from appropriation; excepted water uses; tributaries
538.280 McNultyCreek; withdrawal from appropriation; exceptions
538.290 McNultyCreek; existing rights not affected
538.300 MiltonCreek and tributaries; withdrawal from appropriation; exception; existingrights
MUNICIPALWATER SUPPLY
538.410 Confirmationof water rights acquired prior to February 24, 1909, for municipal supply;rejection of applications injurious to municipal supply; statements of supply
538.420 Portland’sright to waters of Bull Run and Little Sandy Rivers; vested rights notimpaired; applicability of law
538.430 Medfordand Eagle Point Irrigation District; right to waters of Big Butte Creek;generation, sale and distribution of electric energy by irrigation district
538.440 Bend;right to waters of Tumalo Creek
538.450 Pendleton;right to waters of Umatilla River; notice of intent; agreement with tribes
DIVERSIONBY MORROW COUNTY
538.010Waters diverted from Ditch Creek; rights of use and appropriation; certificate;time limitation.(1) The waters of Ditch Creek which were diverted to and became a part of thewaters of Willow Creek, under the provisions of chapter 324, Oregon Laws 1939,are subject to the same rights of use and appropriation as the original watersof Willow Creek.
(2)The right of the county court of Morrow County to divert and store the watersof Ditch Creek, acquired under the certificate issued by the Water ResourcesDirector licensing such diversion and storage, shall date from the time theapplication to divert and store such waters was filed. The waters shall be usedfor the purposes, in the manner and under the conditions set forth in thecertificate, for such time as the use is for the public interest. If the watersare not used under the license for a five-year period, the license shallexpire.
538.020Acquisition of property necessary for storage and diversion. The countycourt of Morrow County may, for the purposes set forth in chapter 324, OregonLaws 1939, acquire, in the name of the county and for the use of the public, bypurchase, eminent domain proceedings, lease, grant, gift, bequest, devise orany other legal means, real and personal property, rights of way, easements andother property rights or privileges necessary to effect the storage anddiversion of the waters referred to in that Act, and maintain and care for suchproperty and rights in the manner provided by statute for the care andmaintenance of other county property.
WITHDRAWALSFROM APPROPRIATION
538.110Tumalo Creek, Deschutes County; diversion prohibited; excepted uses; existingrights.For the purpose of maintaining and perpetuating the recreational and scenicresources of Oregon, the waters of that portion of Tumalo Creek, in DeschutesCounty, situated above a point one-half mile above the intake of the ColumbiaSouthern Canal in section 2, township 18 south, range 10 east, WillametteMeridian, in Deschutes County, shall not be diverted for any purposeswhatsoever, except for municipal, domestic and stock uses. Nothing in thissection shall be construed to impair any vested rights existing as of June 4,1929, in the creek or its tributaries. This section shall not apply to thewaters of the south fork of Tumalo Creek. [Amended by 1959 c.223 §1]
538.120Silver Creek, Marion County, and Brushes Creek, Curry County, and tributaries;diversion prohibited.The waters of the north and south forks of Silver Creek and of all tributariesthereof above the confluence of the north and south forks of Silver Creek, allin Marion County, also Brushes Creek and all its tributaries in township 33south, range 14 west, Willamette Meridian, in Curry County, are withdrawn fromappropriation or condemnation, and shall not be diverted or interrupted for anypurpose whatsoever, except for use in state parks and except as set forth inORS 538.130 and section 2 of chapter 480, Oregon Laws 1965. [Amended by 1965c.480 §1]
538.125Certain appropriations vested notwithstanding ORS 538.120. Allappropriations made under the provisions of section 2, chapter 480, Oregon Laws1965, shall become vested when completed as provided by ORS 537.250. Any personhaving obtained a vested water right prior to April 19, 1967, under theprovisions of section 2, chapter 480, Oregon Laws 1965, may apply to the WaterResources Commission for an increase of vested water rights, as provided by ORSchapter 537. [1967 c.169 §1; 1985 c.673 §78]
538.130Condemnation of lands for park; vested and riparian rights not affected. ORS 538.120shall not prevent the condemnation for public park purposes of any landsthrough which any of the streams flow, nor affect vested rights or the rightsof riparian proprietors of such lands in or to the water of the creeks orstreams.
538.140Diamond Lake and tributaries; diversion, interruption or appropriation ofwaters prohibited; excepted uses. In order to maintain, increase andperpetuate game fish and game fish propagation within Oregon, the waters or useof the waters of Diamond Lake and its tributaries situated in Douglas Countyshall not be diverted, interrupted or appropriated for any purpose whatsoever,except for domestic use on contiguous and surrounding land or other water usesnecessary to maintain, increase and perpetuate game fish and game fish propagationin Diamond Lake and its tributaries. [Amended by 1999 c.252 §1]
538.150Hackett Creek, Clackamas County, and tributaries; appropriation, condemnationand diversion prohibited; protection of fish. The waters of Hackett Creek, atributary of the Sandy River located in Clackamas County, and of thetributaries of Hackett Creek, are withdrawn from appropriation or condemnationand shall not be diverted or interrupted for any purpose whatsoever, except forprotecting fish life therein by the State Fish and Wildlife Commission.
538.160Hackett Creek; vested rights not affected; condemnation of land for park notprevented.ORS 538.150 shall not affect vested water rights or prevent condemnation forpublic park purposes of lands through which Hackett Creek or its tributariesflow.
538.170Johnson Creek in Multnomah and Clackamas Counties; limitations on appropriationor diversion.(1) Except as provided in subsection (2) of this section, the waters of JohnsonCreek, a tributary of the Willamette River and located in Multnomah andClackamas Counties and all tributaries thereof, except flows of Crystal SpringsCreek and its tributaries in excess of 10 cubic feet per second measured at themouth of Crystal Springs Creek:
(a)Are withdrawn from appropriation or condemnation; and
(b)Shall not be diverted or interrupted for any purpose whatsoever, except for thepurpose of protecting fish life therein by the State Department of Fish andWildlife or for the purpose of developing hydroelectric power not to exceed 25theoretical horsepower if such hydroelectric development does not diminishperennial streamflow required for the maintenance of fish life.
(2)The tributaries withdrawn from appropriation and condemnation, but not the mainchannel, of Johnson Creek are open to appropriation and storage from December 1to June 1 of each year. Water stored during this period may be used at anytime. [Amended by 1953 c.221 §2; 1965 c.249 §1; 1973 c.50 §1; 1979 c.360 §1]
538.180Johnson Creek; existing rights; condemnation of land for park. ORS 538.170shall not affect rights to the use of Johnson Creek recognized or acquiredpursuant to section 2, chapter 273, Oregon Laws 1935; nor shall anythingcontained in ORS 538.170 prevent condemnation for public park purposes of landsthrough which Johnson Creek flows.
538.190Lake of the Woods and tributaries, Klamath County; diversion, interruption orappropriation of waters prohibited; excepted uses. In order tomaintain, increase and perpetuate game fish and game fish propagation withinOregon, the waters or use of the waters of Lake of the Woods and itstributaries, situated in Klamath County, not already appropriated, shall not bediverted, interrupted or appropriated for any purpose whatsoever, except fordomestic use on contiguous and surrounding land.
538.200Streams forming waterfalls near Columbia River Highway; withdrawal fromappropriation or condemnation; diversion or interruption prohibited. The followingstreams and waters thereof forming waterfalls or cascades in view of, or near,the Columbia River Highway, from Sandy River to Hood River, the first 17 ofwhich are in Multnomah County and the remainder of which are in Hood RiverCounty, are withdrawn from appropriation or condemnation, and shall not bediverted or interrupted for any purpose whatsoever, except as mentioned in ORS538.210:
(1)Latourell Creek–forming Latourell Falls.
(2)An unnamed stream whose waterfall is approximately at the southwest quarter ofthe southwest quarter of the northwest quarter of section 28, township 1 north,range 5 east, at the northern edge of Tax Lot 27/28. The fall is on the southside of the old Columbia River Highway 0.7 mile west of the highway bridge atYoung Creek.
(3)An unnamed stream whose waterfall is approximately at the southeast quarter ofthe southwest quarter of the northwest quarter of section 28, township 1 north,range 5 east, at the northern intersection of Tax Lot 27/26. The falls are onthe south side of the old Columbia River Highway 0.6 mile west of the highwaybridge at Young Creek.
(4)An unnamed stream whose waterfall is approximately at the northeast quarter ofthe northeast quarter of the northwest quarter of section 28, township 1 north,range 5 east, Tax Lot 3. The falls are on the south side of the old ColumbiaRiver Highway 0.1 mile west of the highway bridge at Young Creek.
(5)Young Creek–forming Shepperd Dell Falls.
(6)Bridal Veil Creek–forming Bridal Veil Falls.
(7)Coopey Falls Creek.
(8)Mist Falls Creek.
(9)Wahkeena Creek–forming Wahkeena Falls, formerly known as Gordon Falls.
(10)Multnomah Creek–forming Multnomah Falls.
(11)Oneonta Creek–forming Oneonta Falls and Gorge.
(12)Horse Tail Creek–forming Horse Tail Falls.
(13)Tumalt Creek.
(14)McCord Creek, formerly known as Kelly Creek–forming Elowah Falls.
(15)Moffatt Creek–forming Wahe Falls.
(16)Tanner Creek–forming Wahclella Falls.
(17)Eagle Creek–forming Metlako Falls.
(18)Ruckle Creek, formerly known as Deadman’s Creek.
(19)Herman Creek.
(20)Grays Creek.
(21)Gorton Creek–forming Gorton Creek Falls.
(22)Harphan Creek.
(23)Summit Creek–forming Camp Benson Falls.
(24)Lindsey Creek–forming Lindsey Falls.
(25)Spring Creek, also known as Wonder Creek–forming Lancaster Falls.
(26)Warren Creek.
(27)Cabin Creek.
(28)Starvation Creek–forming Starvation Falls.
(29)Viento Creek.
(30)Perham Creek.
(31)Phelps Creek, except those creeks which are tributary to Phelps Creek and whicharise in the north one-half of section 5, township 2 north, range 10 east ofthe Willamette Meridian, subject to prior rights. [Amended by 1953 c.48 §2;1985 c.261 §1]
538.210Condemnation of lands for park not prevented; vested and riparian rights notaffected; condemnation of lands or appropriation of waters for fish culture notprevented.ORS 538.200 shall not prevent the condemnation for public park purposes of anylands through which any of the streams flow; nor affect vested rights or therights of riparian proprietors of such lands in or to the waters of the creeksor streams; nor prevent the condemnation of any lands through which any of thestreams flow, for the purpose of establishing, maintaining and operatingthereon salmon fish culture work, nor prevent the State Fish and WildlifeCommission from appropriating any waters for fish culture work; nor prevent theappropriation, for irrigation purposes, of waters between the Union PacificRailroad tracks and the Columbia River that flow from any of the streams otherthan Herman Creek; provided, that no waters shall be taken from above the fallsin the streams mentioned in ORS 538.200. [Amended by 1978 s.s. c.2 §1]
538.220Waters of Mill and Barr Creeks, Jackson County, withdrawn; exceptions. (1) The watersdescribed as follows are withdrawn from appropriation or condemnation, andshall not be diverted or interrupted for any purpose whatsoever, except fordomestic purposes and protecting fish life therein by the State Fish andWildlife Commission:
(a)The waters of Mill Creek, in Jackson County, beginning in section 22, township31 south, range 4 east, Willamette Meridian, running thence southwesterlythrough township 31 south, range 3 east, Willamette Meridian, and township 32south, range 3 east, Willamette Meridian, to a junction with the Rogue River insection 32, township 32 south, range 3 east, Willamette Meridian, together withthe tributaries of said Mill Creek; and
(b)Barr Creek, in Jackson County, beginning in section 1, township 32 south, range3 east, Willamette Meridian, and in section 6 and section 7, township 32 south,range 4 east, Willamette Meridian, running thence in a general southwesterlydirection through township 32 south, range 3 east, Willamette Meridian, to ajunction with the Rogue River in section 32, township 3 east, WillametteMeridian, together with the tributaries of said Barr Creek.
(2)Subsection (1) of this section shall not prevent the appropriation of thewaters of Mill Creek, in Jackson County, for the development of hydroelectricpower not to exceed one megawatt if:
(a)The hydroelectric project is located on Mill Creek at a point at least twomiles above the confluence of Mill Creek and the Rogue River;
(b)All water appropriated from the stream is returned to the stream at a point atleast one-half mile above the confluence of Mill Creek and the Rogue River; and
(c)The facility will be constructed and operated in compliance withrecommendations by the State Department of Fish and Wildlife concerning fishconservation, including streamflow requirements based upon biological criteria.[Amended by 1959 c.104 §1; 1983 c.650 §1]
538.230Vested water rights not affected; condemnation for park not prevented. ORS 538.220shall not affect vested water rights or prevent condemnation for public parkpurposes of lands through which Mill and Barr Creeks or their tributaries flow.
538.240 [Repealed by1963 c.95 §1]
538.250 [Repealed by1953 c.222 §3]
538.251Tributaries of Columbia River; limitations on appropriation or diversion. Except asotherwise provided in this section, the following waters, all being tributariesof the Columbia River, are withdrawn from appropriation and shall not bediverted or interrupted for any purpose, except for protecting fish lifetherein by the State Fish and Wildlife Commission:
(1)Clatskanie River and its tributaries, except Fall Creek in Columbia County, forpurposes of hydroelectric generation if the facility is constructed andoperated in compliance with recommendations by the State Department of Fish andWildlife concerning fish conservation, including streamflow requirements basedupon biological criteria.
(2)Klaskanine River and its tributaries in Clatsop County except an unnamedtributary of the South Fork Klaskanine River in Clatsop County, on which thereis located an existing fish culture project, for purposes of hydroelectricgeneration if the facility is less than 100 horsepower and the electricitygenerated is for use in conjunction with the existing fish culture project.
(3)Lewis and Clark River in Clatsop County.
(4)Sandy River and its tributaries in Multnomah and Clackamas Counties, except:
(a)Beaver Creek and its tributaries.
(b)Buck Creek and its tributaries.
(c)The tributary of the Sandy River in Multnomah County which empties into theSandy River near the north quarter corner, section 10, township 1 south, range4 east, Willamette Meridian, and its tributaries, and is locally known as BigCreek.
(d)All tributaries, but not the main channel, of the Sandy River are open forappropriation and storage from December 1 to June 1 of each year. Water storedduring this period may be used at any time.
(e)Trout Creek in Multnomah County and its tributaries.
(5)Scappoose Creek in Columbia County.
(6)Tillasqua Creek in Clatsop County. [1953 c.222 §2; 1961 c.366 §1; 1971 c.139 §1;1983 c.807 §4; 1987 c.392 §1]
538.260Existing rights not affected; appropriation and use for certain purposespermitted.ORS 538.251 shall not affect any existing rights to appropriate or use water,or any renewals or extensions thereof, or prevent appropriation and use of suchwater for domestic, stock, municipal, fish culture, aesthetic, recreational, orpublic park purposes. [Amended by 1971 c.139 §2]
538.270Rogue River; withdrawal from appropriation; excepted water uses; tributaries. Subject to waterrights existing on May 26, 1967, the waters flowing in the main channel of theRogue River from its intersection with the south line of section 27, township33 south, range 1 east of the Willamette Meridian in Jackson County, to itsconfluence with the Pacific Ocean, are withdrawn from appropriation; exceptthat this section shall not prevent the appropriation and use of such watersfor domestic, stock, irrigation, municipal, fish, wildlife, recreation and roadmaintenance purposes, nor prevent the appropriation, diversion and use of thewaters of any stream tributary to the river. [Amended by 1959 c.205 §1; 1967c.310 §1; 1989 c.291 §1]
538.280McNulty Creek; withdrawal from appropriation; exceptions. The waters ofMcNulty Creek, a tributary of Scappoose Bay, in Columbia County, are withdrawnfrom appropriation except for storage during the period beginning November 1and ending on March 31 of each year in reservoirs not constructed in thechannel of McNulty Creek below a line one mile west of the range line betweenranges 1 and 2 west, Willamette Meridian. [Amended by 1955 c.82 §1]
538.290McNulty Creek; existing rights not affected. ORS 538.280 shall not affect anyexisting rights to the waters of McNulty Creek that have been acquired or arein the process of being acquired under the water laws of this state. [Amendedby 1955 c.82 §2]
538.300Milton Creek and tributaries; withdrawal from appropriation; exception;existing rights.The unappropriated