Bridge Creek Ranch v. Water Resources Dept.

A permit for storage, in and of itself, does not constitute or include the right to use stored water; it is the secondary permit that applies the water to beneficial use. Cookinham v. Lewis, 58 Or 484, 492, reh’g denied, 58 Or 495 (1911); see also Nevada Ditch Co. v. Bennett, 30 Or 59, 89 (1896). The holder of the storage certificate and the holder of the certificate for use of the water together create the appropriation and the beneficial use. See also Nevada Ditch Co., 30 Or at 98.

Relator had a right to store water under two storage rights certificates, but their "point of diversion" (POD) transfer application was denied. Oregon Water Resources Department (OWRD) appealed a judgment directing them to consider Relator's application, arguing that they only process POD transfer applications for water rights when applicants have a "water use subject to transfer," which in their view, did not include Relator. Relator contended their storage of water was a beneficial water use subject to transfer. A permit for storage, in and of itself, does not constitute or include the right to use stored water; it is the secondary permit that applies the water to beneficial use. Cookinham v. Lewis, 58 Or 484, 492, reh’g denied, 58 Or 495 (1911); see also Nevada Ditch Co. v. Bennett, 30 Or 59, 89 (1896). The holder of the storage certificate and the holder of the certificate for use of the water together create the appropriation and the beneficial use. See also Nevada Ditch Co., 30 Or at 98. The Court concluded that while the beneficial use of storing water is established through a secondary permit, Relator's certificate represented a water use subject to transfer in the sense contemplated by ORS 540.510 because, together with Relator's other storage rights certificate, it referred to the beneficial use of water subject to transfer. Affirmed.