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Parties Affected by a Water Right Permit Amendment Have a Right to Appeal

September 7, 2010

The Oregon Court of Appeals recently decided that anyone affected by a final order issued by the Oregon Water Resources Department amending a water right permit has the right to appeal the final order in the circuit courts.  In Pete’s Mountain Homeowners Association v. Oregon Water Resources Department, a homeowners association and several individual property owners in the Pete’s Mountain area in Clackamas County appealed the Department’s final order approving the Pete’s Mountain Water Company’s application to significantly expand its authorized place of use.  Many of the members of the homeowners association and individual homeowners who appealed have groundwater rights and were concerned the expansion would interfere with those rights.         

In its analysis, the court compared the water right permit amendment process to the permit application process.  The procedure for permit applications provides an opportunity for people who challenge a final order to submit protests to the Department.  Upon receipt of a protest, the Department is authorized to hold a contested case hearing.  Any person who supports the final order may request standing to participate in the contested case proceeding.  In contrast, the permit amendment process, which is the process a water right holder must follow to change the point of diversion, point of appropriation, or place of use of their water right, does not provide the same procedural opportunities.  There is no opportunity to submit protests or requests for standing, nor is there a hearing.  The Department refers to such cases as “other than a contested case.” 

In other than a contested case, “any party affected” by the final order may appeal the order.  In this case, the water company argued that the homeowners were not a “party” and therefore could not appeal because they had not filed a protest, a request for standing, or a petition to intervene.  The court, using canons of statutory construction, determined that because the permit amendment process does not provide an opportunity to follow those procedural steps, the homeowners only needed to be “affected” by the final order to appeal it.  As the court explained, if they were to decide otherwise, parties “could be faced with the prospect of being unable to obtain judicial review of department orders that adversely affect their property rights.” 

This decision could complicate the process for water right holders seeking permit amendments because more final orders may be appealed to the courts.  On the other hand, this decision also arms property owners, and others whose interests are affected by final orders amending water right permits, with a tool to help protect their interests.

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