Water rights in oregon

I went and looked at a property recently that had a small stream running through it.  It also had some elevation change to it.  The place looked pretty dry.  It was near salem oregon so the summers there are probably longer and hotter than portland.  I said to the realtor this looks perfect.  I can build some swales and a pond higher up on the property and let it spill over into the seasonal creek.  She laughed and said no you can't do that.  Oregon owns all the rainfall.  It's illegal to build a pond and collect it without a permit.  I said ok how hard is getting a permit.  She said it's quite difficult.  The only way around it seems to be to build hard structures ( buildings, paved surfaces, etc) and collect rainwater off of that.  This seems crazy to me that the gov't owns the rainfall.  Is anyone else in oregon aware of workarounds for this?  I couldn't find any rules on say growing cattails, rice, water chestnuts, etc in the stream or what the rules are on letting livestock drink from the stream.  If the answer is no to all these things then the land is worthless.  Without water there's pretty much nothing I can do besides grow drought tolerant trees and dry farm them.  That's pretty risky.  

Many locations have rules like this, controlling what can be done to existing water on the property. You would think the coast of Oregon would have plenty of water, but it also has plenty of population and more rules.

The people downstream of you might expect/depend on that water flowing to them as well, so even a temporary diversion to fill a small pond could be reported. Could you get away with diverting a small portion of the water flow towards a swale or pond? Perhaps, but even if you could establish water features and then get the same water flow to leave your property as before, if county offices see an updated Google map showing new water features they could come investigate and you'd be busted.

Depending on rainfall in that area, you could build some buildings and route the rain runoff into a pond or swale, just check with that county to see what's allowed and talk to them about it rather than a realtor.

Depending on the amount of annual rainfall, I would focus on increasing the recharge rate of the aquifer.

If you can't do earthworks, do swales on contour where applicable, minimising the visible aspect at ground-level and from above.

Don't try to build terraces, simply place "access roads" on contour where it's too steep to swale, and then term any changes you make as "drainage."

I wonder what would happen in the case of depressions on the property suddenly starting to retain water due to, say, animal grazing and gleying? Or what would happen if water infiltration was increased to the point that a new spring was created on the property?

I second the suggestion that you speak to someone at the department of making you sad rather than the realtor whose job it is to make a sale. Only with adequate information can we make informed decisions.

-CK

@Chris interesting ideas on the access roads and drainage aspect.  Yeah I'll talk to someone at the department of making me sad and see what I find out.  The online documentation seems contradictory at best.  

Chris Holcombe wrote:I went and looked at a property recently that had a small stream running through it.  It also had some elevation change to it.  The place looked pretty dry.  It was near salem oregon so the summers there are probably longer and hotter than portland.  I said to the realtor this looks perfect.  I can build some swales and a pond higher up on the property and let it spill over into the seasonal creek.  She laughed and said no you can't do that.  Oregon owns all the rainfall.  It's illegal to build a pond and collect it without a permit.  I said ok how hard is getting a permit.  She said it's quite difficult.  The only way around it seems to be to build hard structures ( buildings, paved surfaces, etc) and collect rainwater off of that.  This seems crazy to me that the gov't owns the rainfall.  Is anyone else in oregon aware of workarounds for this?  I couldn't find any rules on say growing cattails, rice, water chestnuts, etc in the stream or what the rules are on letting livestock drink from the stream.  If the answer is no to all these things then the land is worthless.  Without water there's pretty much nothing I can do besides grow drought tolerant trees and dry farm them.  That's pretty risky.  

Not exactly.  Oregon doesn't claim to own the rain, just running bodies of water (creeks, rivers, etc.) and certain "wetlands".

It's illegal in Oregon to "divert" running bodies of water without a permit. So you can't dam up that seasonal creek and cause it to flow into a storage pond, etc...without a permit.
Depending on the creek, and what you want to do with it, getting a permit can be easy or impossible.  

However, it's perfectly legal to create swales, etc. that cause rainwater to flow into a pond and have the excess from the pond flow into the creek.  Plus you can capture an unlimited amount of rain using tarps and/or hard surfaces and storing it in barrels/tanks/etc.

For what it's worth, Portland has a significant "heat island" effect, it's probably much hotter than open land around Salem.  My mom lives out near Molalla and one of my brothers lives in Portland.  It get's hotter at my brothers house than it does at my mom's.

Wow thanks Peter! So it’s not as bad as I thought. Those all sound like excellent ideas.

(Molalla always has the best Craigslists finds for me...)...

Echoing Peter... we're just outside of Portland in Beavercreek, dealing with the same issues.

So yes ... you can "hold on" to all sorts of water, so long as it isn't flowing.  The question of diversion is also quite seasonal ... when it rains, there is more than enough water so you can apply to divert water during the winter - you just have to stop diverting water in February (or something).  Oddly enough, you need one permit to collect the water, and then you need another permit to use that water for irrigation.  But we've got hugels going in, plans for some "silt traps", and we need to look into a weird (potential) loophole that may allow one to dig a hole in the stream to create a pond without a dam.

Remember, all the impervious sources of water collection really add up...  I think my barn alone has the potential to collect 46,000 gallons a year (with ~50" per year).  Collect from the house(s), carports, etc and I'm trying to figure out how to store 200k gallons!  Your annual rainfall around Salem will vary significantly with slope, altitude, etc.  One weirdness is that if you collect water from an impervious surface (aka roof), it cannot touch the soil without  it reverting to the State.  So ponds need a barrier ... my read is that bentonite doesn't count and EPDM or similar is necessary.

Another interesting twist ... you can tap into any stream or aquifer to water livestock.  No questions asked.  I'm working with my Soil & Water district on a project to place a mini-well and solar pump to lift water up to my small herd of cattle.  Elsewhere I'm seriously thinking about duck ponds (yes, ducks are livestock).  Ducks need lots of water...should it flow onto my plants, well that's just a beneficial externality!

And yeah ... you'll notice that industrial users are allowed, without permit, to use up to 10,000 gallons a day.  But I want to drip irrigate 150 gallons a day?  No can do!

Moving past water rights, Chris mentions some clever language and suggests paying attention to the aquifer.  This is good idea... but take a look at the soil survey.  We've got soil that holds 13" of water in the top 3'.  Other places are really sandy and the water just drains away.   We looked at one property that had almost no storage capacity in the soil - just in the plants.

Its logical to have some management of running water.
Otherwise the people upstream will just take it all as it suits them.
I guess water for stock is never going to amount to much, but trying to keep water to use with ducks may push tour luck as we say here.
I catch water off each of my roofs, its common in Australia and I store about 300,000L in tanks

My rainfall is about 400mm per annum

Water is a precious resource and it does need to be managed.  No argument there.

For me the issue is that the rules are often non-sensical, especially from a small ag point of view.  If its is legal for me to have ducks, which just happen to generate wastewater, then this is a legal solution to a regulatory system that would otherwise prevent me from using the same volume of water.  So its a massaging of the rules.

Of course, legal is not ethical.  We still need to be good stewards of all resources.

Ducks also allow me to stack systems.

I lived in Oregon until a year ago. It is my understanding that rainwater is in fact owned. A man near where I was living went to jail for it.

However, as others have said, water does need to be managed. My advice from my experiences there and in Washington is to talk to the county, which others have also suggested. Oftentimes if you can meet face to face and explain yourself you will be better off. I know people who have had an easier time getting permits once they explained to the officials that they needed water features to irrigate their land, and that they needed to irrigate their land in order to grow forage for pollinators. Pollinator decline is a big problem here, and they were issued the permit.

If you look at duckponics, you will see you can have your cake and eat it too. Duckponics ensures your duck water is clean and not wasted

It may not be plausible on a large scale, but you could likely get away with any pond done by hand, or that has less than a 2m dam wall. If you are particularly worried, you could fill in a pond like depression with woody debris and call it a rain garden. It would go unnoticed by satellites and serve most of the ecological/hydrological functions of a pond besides fish/duck rearing. Put ducks or fish uphill and make it the overflow/drainage and you have a humus pit. If you do get authorities asking questions, anyone with any knowledge of watersheds in the NW would understand this to be very positive to more sustained, consistent water flow downstream/hill. In CA a similarly absurd law about the state owning rainfall has been intentionally unenforced by Gov. Brown where its not causing harm, and reversing it for small scale roof catchments is on the ballot. Changing water rights laws like these seems like a cause worth getting politically active for in permaculture circles. In hiking the PCT, I saw livestock causing grievous harm to riparian areas on headwater streams throughout Southern CA into the Sierras, all for $1.68/acre for grazing rights, while by the letter of the law, people in the desert are disallowed from catching their own roof water. It makes a man want to just scream "Serenity Now!"

Ben Zumeta wrote:It may not be plausible on a large scale, but you could likely get away with any pond done by hand, or that has less than a 2m dam wall.

I'm not sure about that.  The regs are pretty clear - and my property once had such a dam that was ripped open and no one has suggested I could close up that dam.  The grapevine suggests increased use of satellite technology by the state, but each water district behaves differently and has different enforcement priorities.

That said, berms, swales and such are fine so long as you aren't "capturing" flowing water.  The main concern seems to be allowing unregulated irrigation of any sort, as that would open up the state to claims of unfairness.  "Irrigation" seems to be defined as "taking water from a concentrated source and applying it to plants" (my words).  I read between the lines and figure that directing non-flowing water directly to plants without a reservoir isn't actionable so long as the water can leave your property.  I have to second Ben's statements about watershed health, but I'm more of a ask-permission than ask-forgiveness person and since Water Resources is a division of the Department of Making You Sad such concerns of watershed health are often not relevant.  I need to do a lot of persuading of a different division of the DMYS so I'm trying to be a good boy - your results may vary!

(and more hair pulling -- the Department of Forestry encourages land owners to create woodland ponds.  They have an asterisk in there about "check with your Water Master" or some such.  Water Master just laughs and says no.)

And since it hasn't been posted yet ... Oregon's Water Rights Guide

Oh, I was not suggesting damming a stream. That’s almost always problematic ecologically and I understand that the goal of regulating stream impediments is primarily to protect anadromous fish (salmon). I meant a key point dam, or one of the many other ways to tap into a clay layer and capture groundwater that stops and runs parallel to that layer. All the same, don’t risk your land based on someone on the internet saying it’s ok!

Salem was an incredibly backwards part of western Oregon when I went to college there, and absurd parking requirements blocked a professors’ permaculture subdivision/community project. The city also disallowed sorority houses with individual rooms because by their interpretation of the law they would technically be brothels.

I suggest looking at this thread on getting potable water with forested terraces.
https://permies.com/t/32725/Sepp-Spring-Terrace#257092

Well darn it Ben, we were talking past eachother!  Sorry for assuming.

Yes, my ex-dam was right in a stream (of sorts) and that's a big no-no.  I'll agree that a pond-like thing that isn't fed by a stream is a LOT less likely to draw attention.  Technically, you're still collecting the state's water, but if you just let it soak into the ground and don't do anything with it (e.g. you are just "borrowing" the state's water and returning it slowly) then I'm not sure they'd care. It would probably depend a lot on the individual inspector.

I moved to Oregon in 2015 and called the Water Master of my area to verify these same questions. She said I can collect all the rain water I want without restrictions. To collect water out of a stream,river or lake etc, you need water rights and absolutely can not dam it up or divert it without permits and they will never give a permit for it.  The only exception to this rule is if the stream starts on your property and ends on your property. Then you own it, because the whole thing is on your property. So it must appear out of the ground from a spring or something and not travel across your property line. If it crosses the line off of your property at any point you cant touch it without permits. The purpose here is really to protect property owners. If there is a nice stream flowing through your property do you want some guy damming it up or multiple people sucking water out before it gets to your place? NO. Of course not.That would dry the stream up, or it be a small dribble of water by the time it got to you.