Willamette Water Co. v. WaterWatch of Oregon

ORS 537.230(1) provides that, “[e]xcept for a holder of a permit for municipal use, the holder of water right permit shall prosecute the construction of any work with reasonable diligence and complete the construction within a reasonable time, not to exceed five years from the date of approval.”

Willamette Water Co., (Company), sought judicial review of a Water Resources Commission, (Commission), final order that "denied the Company's application for a permit to divert 34.0 cubic feet per sound (cfs) of water from the McKenzie River for a quasi-municipal use." Company assigned error to the Commission's interpretation of both the relevant administrative rules and the asserted statutory provision, and also contended that its factual findings were "not supported by substantial evidence." On appeal, Company argued that although that the statute required the work to be within a 5 year period, ORS 537.230(1) allows for the work to begin within the 5 year period, and is not necessarily required to finish within the 5 year period. In response, the Commission argued that the projected use, as described in the application, was not consistent with ORS 537.170(8) and without full compliance of ORS 537.170(8), the application had to be rejected. ORS 537.230(1) provides that, “[e]xcept for a holder of a permit for municipal use, the holder of water right permit shall prosecute the construction of any work with reasonable diligence and complete the construction within a reasonable time, not to exceed five years from the date of approval.” The Court of Appeals held that the Commission did not err in denying Company's permit application because ORS 537.230(1) explicitly requires such projects be completed within the five-year period. Affirmed.