568 December 20, 2023 No. 663

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

BRIDGE CREEK RANCH, LLC,

Relator-Respondent,

v.

OREGON WATER RESOURCES DEPARTMENT 

and Doug Woodcock, 

Director of Oregon Water Resources Department,

Defendants-Appellants.

Marion County Circuit Court

22CV05598; A180610

Audrey J. Broyles, Judge.

Argued and submitted September 13, 2023.

Denise Fjordbeck, Assistant Attorney General, argued 

the cause and filed the brief for appellants. Also on the briefs 

were Ellen Rosenblum, Attorney General, and Benjamin 

Gutman, Solicitor General.

Sara Kobak argued the cause and filed the brief for 

respondent. Also on the brief were Elizabeth E. Howard, 

and Schwabe Williamson & Wyatt PC.

Steven L. Shropshire and Jordan Ramis PC filed brief 

amicus curiae for Oregon Farm Bureau Federation and 

Oregon Association of Nurseries.

Olivier Jamin and Davis Wright Tremaine LLP filed 

the brief amicus curiae for Oregon Water Utility Counsel, 

League of Oregon Cities, and Special Districts Association 

of Oregon.

Andrew R. Missel and Brian Posewitz filed the brief 

amicus curiae for WaterWatch of Oregon.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kistler, Senior Judge.

TOOKEY, P. J.

Affirmed.
Cite as 329 Or App 568 (2023) 569
570 Bridge Creek Ranch v. Water Resources Dept.

TOOKEY, P. J.

The Oregon Water Resources Department (the 

OWRD) and its director (defendants) appeal from a judgment in this mandamus action under ORS 34.105 to 34.250 

directing the OWRD to consider an application by relator 

Bridge Creek Ranch, LLC (relator) for a change in the “point 

of diversion” (POD) of water from a creek that serves as a 

source of water for relator’s reservoir.1

 We have jurisdiction 

of the appeal pursuant to ORS 34.240.2

 We affirm the trial 

court’s judgment directing the OWRD to consider relator’s 

application for a change in the POD, although based on 

slightly different reasoning from that of the trial court.

The parties have stipulated to the relevant factual 

background: Relator owns the Painted Hills Reservoir, an 

“off-channel” reservoir,3

 and agricultural lands in Wheeler 

County, Oregon, irrigated with water stored in the reservoir. The water is diverted to fill the reservoir from Bear 

Creek and Bridge Creek on Bureau of Land Management 

(BLM) land.

Relator’s right to store water is pursuant to two 

water storage right certificates granting relator the right 

“to store and use” the authorized volumes of water as irrigation storage water, Certificate 68551 and Certificate 68553. 

The certificates state that they are restricted to that “beneficial use” at the reservoir location.4

 Relator also holds 

Certificate 68552, a secondary water certificate granting it 

the right to divert and apply water both from the reservoir 

1 See OAR 690-385-0100(11) (Jan 2007) (defining “point of diversion” as “the 

place at which surface water is diverted from a surface water source as specified 

in the water right”).

2 ORS 34.240 provides:

“From the judgment of the circuit court or Oregon Tax Court, or judge 

thereof, refusing to allow a mandamus, or directing a peremptory mandamus, an appeal may be taken in like manner and with like effect as in an 

action.”

3 An “off-channel” reservoir is one that exists “outside a natural waterway,” 

unlike an “on-channel” reservoir created by a dam or other impoundment within 

the waterway. OAR 690-300-0010(31) (Feb 2012).

4 The certificates state that “[t]he right to store and use the water for the 

above purpose is restricted to beneficial use at the place of use described” as the 

reservoir location.
Cite as 329 Or App 568 (2023) 571

and from Bear Creek to irrigate specific lands described as 

authorized places of use in the secondary certificate.

In 2016, relator began working with the OWRD and 

the BLM to improve the reservoir and to store an additional 

500 acre-feet of water for the purpose of supporting fish life. 

Relator received grants and obtained new reservoir permits 

and also obtained a separate secondary permit to release 

that amount of stored water for that purpose.

Through negotiations, relator and the BLM agreed 

that relator could have a temporary nonrenewable right-ofway over federal land, which expires in December 2024, to 

move the existing Bridge Creek POD from its current placement on federal land to a new downstream location on relator’s own property.

In December 2021, relator submitted a permanent 

water transfer application to the OWRD under ORS 540.510 

to change the Bridge Creek POD for its storage water right 

under Certificate 68553 and its permitted storage water 

right. The OWRD accepted and processed the POD transfer application for the permitted storage right under ORS 

537.211(4) (addressing change of the point of diversion by 

holder of a water right permit) but declined to process the 

POD transfer application for the certificated storage water 

right under Certificate 68553 without a loss of the priority 

of the water right, stating that, under ORS 540.510(1), the 

OWRD does not have the “authority to make POD changes 

to R-rights for storage” established by water certificates.

Relator filed the instant petition for a peremptory 

or alternative writ, seeking to compel the OWRD to consider 

its application for a change in the POD. Relator also sought 

a declaration clarifying the OWRD’s authority under ORS 

540.510(1)(a) to allow changes in a POD and place of use in 

a certificated water storage right under Certificate 68553 

without loss of the existing priority of the right. On the parties’ cross-motions for summary judgment, the trial court 

granted relator’s motion, denied defendants’ motion, and 

issued the peremptory writ. In granting relator’s motion for 

summary judgment and denying defendants’ motion, the 

trial court agreed with relator’s construction of the statutes:
572 Bridge Creek Ranch v. Water Resources Dept.

“The court finds that storage of water for different purposes 

qualifies as ‘water use.’ As such, the right to store water 

under a water certificate is a right to ‘water use established 

by * ** a water certificate’ under ORS 540.505(4)(b). The 

court also finds that OWRD has the authority to allow 

transfers of point of diversion and point of use for certificated storage water rights under ORS 540.530.”

The peremptory writ of mandamus ordered the 

OWRD to begin processing relator’s application for a transfer of the POD on Certificate 68553 within seven days of 

receiving a new and complete application. The OWRD has 

tendered a certificate showing compliance with the writ, in 

that it has begun to process relator’s application.

Defendants appeal.5

 On appeal, defendants do not 

ask us to stay the peremptory writ; they state that the OWRD 

will process relator’s application in the ordinary course of 

business. The parties agree, however, that this matter is not 

moot, because, although the trial court’s judgment determined that the OWRD had authority to process relator’s 

application, it did not direct that the application be granted. 

Should the OWRD issue an order denying the application, it 

is anticipated that relator will request a contested case hearing. Should the OWRD issue an order granting the application, it is anticipated that parties not currently involved in 

this litigation will file protests and request a contested case 

hearing, placing the OWRD’s authority to allow a transfer 

of the POD for a certificated storage right directly at issue. 

We agree with the parties that, for the reasons cited, the 

matter is not moot, and we therefore undertake a review of 

the petition.

In reviewing the trial court’s judgment, we consider first the standard for issuance of a writ of mandamus 

under ORS 34.110. A writ of mandamus may issue to an 

agency “to compel the performance of an act which the law 

specially enjoins.” ORS 34.110. The legal right to compel the 

performance of the legal duty “must be plain and complete.” 

5 WaterWatch of Oregon has filed an amicus brief is support of defendants’ 

appeal. The Oregon Water Utility Council, the League of Oregon Cities, the 

Special Districts Association, the Oregon Farm Bureau Federation, and the 

Oregon Association of Nurseries have filed amicus briefs in support of relator’s 

response. 
Cite as 329 Or App 568 (2023) 573

State ex rel Engweiler v. Felton, 350 Or 592, 628, 260 P3d 

448 (2011) (quoting Florey v. Coleman, 114 Or 1, 2, 234 P 

286 (1925)). See also United States of America v. Cohn, 201 

Or 680, 684, 272 P2d 982 (1954) (“[N]o petitioner is entitled to the remedy of mandamus unless he has a clear legal 

right to the performance of the particular duty sought to be 

enforced and unless there is a plain legal duty on the part 

of the defendant to perform the act.”). Where, as here, the 

trial court’s judgment as to the OWRD’s authority depends 

on the construction of statutes, we review the judgment for 

errors of law. See State ex rel Schrodt v. Jackson County, 262 

Or App 437, 443, 324 P3d 615 (2014) (reviewing for legal 

error trial court determination that mandamus procedure 

was applicable).

The parties agree that the mandamus petition presented only a question of the statutory construction of the 

water appropriation and water right transfer statutes, ORS 

chapter 537; ORS 540.505 to 540.530, and whether those 

statutes authorized the OWRD to consider an application to 

allow the holder of a certificated water storage right to make 

POD changes. The position of the OWRD is that, under ORS 

540.510 and other relevant statutes, the OWRD is empowered to entertain an application to transfer the POD for a 

water right only from an applicant who holds a “water use 

subject to transfer,” and that relator does not hold such a 

water use. In the view of the OWRD, as defined in ORS 

540.505,6

 and based on statutory context, a certificated 

water storage right is not a “water use subject to transfer.” 

The OWRD postulates that a certificate for the storage of 

water allows only appropriation and impoundment of water 

for a subsequent use and is not in and of itself a “beneficial 

use” or a water right that is established by a “water use.”

In relator’s view, the trial court correctly concluded 

that the storage of water pursuant to Certificate 68553 is, in 

and of itself, a water use that is subject to transfer, because 

the issuance of the certificate depends on a showing of beneficial use. Further, relator notes that the particular certificate 

that it holds states that the water storage is a beneficial use.

6 ORS 540.505(4)(b) defines “water use subject to transfer” as a “water use 

established by *** [a] water right certificate.” 
574 Bridge Creek Ranch v. Water Resources Dept.

We address the statutory construction issue raised 

on appeal pursuant to the methodology set forth in State 

v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009), and PGE 

v. Bureau of Labor and Industries, 317 Or 606, 610, 859 

P2d 1143 (1993), beginning with the texts of the relevant 

statutes.

“All water within the state from all sources of water 

supply belongs to the public.” ORS 537.110. ORS 537.120 

provides:

“Subject to existing rights, and except as otherwise provided in ORS chapter 538, all waters within the state may 

be appropriated for beneficial use, as provided in the Water 

Rights Act and not otherwise; but nothing contained in the 

Water Rights Act shall be so construed as to take away or 

impair the vested right of any person to any water or to the 

use of any water.”

“Beneficial use” is “the basis, the measure and the limit 

of all rights to use of water in this state.” ORS 540.610(1); 

Alexander v. Central Ore. Irrig. Dist., 19 Or App 452, 457, 528 

P2d 582 (1974) (“[A]ctual application of water to a beneficial 

use is the basis for recognized rights” under Oregon’s water 

law.); see ORS 537.120 (water may be appropriated for a beneficial use and not otherwise); ORS 537.250(3) (“Rights to 

the use of water acquired under the provisions of the Water 

Rights Act, as set forth in a certificate issued under this section, shall continue in the owner thereof so long as the water 

shall be applied to a beneficial use under and in accordance 

with the terms of the certificate.”). See also OAR 690-300-

0010(5) (defining “beneficial use” as “the reasonably efficient 

use of water without waste for a purpose consistent with the 

laws, rules and the best interests of the people of the state”).

The acquisition of a water right in Oregon occurs in 

two phases. In the first phase, a person must seek a permit 

for a water right. By application for a permit, the person 

applies for authorization to develop the source and begin 

making beneficial use of water. ORS 537.130 provides:

“[A]ny person intending to acquire the right to the beneficial use of any of the surface waters of this state shall, 

before beginning construction, enlargement or extension of 

any ditch, canal or other distributing or controlling works, 
Cite as 329 Or App 568 (2023) 575

or performing any work in connection with the construction, or proposed appropriation, make an application to 

the Water Resources Department for a permit to make the 

appropriation.”

An application for a permit to appropriate water for 

a beneficial use is made pursuant to ORS 537.140:

“(1)(a) Each application for a permit to appropriate 

water shall be made to the Water Resources Department 

on a form prescribed by the department and shall set forth:

“*****

“(C) The nature and amount of the proposed use;

“*****

“(d) If for construction of a reservoir, the application 

shall give the height of dam, the capacity of the reservoir, 

and the uses to be made of the impounded waters.”

If the OWRD determines that the water is available for 

the requested beneficial use, the OWRD may issue a permit. The permit begins the time during which the applicant 

must “perfect” the water right, i.e., must develop the beneficial use authorized by the permit so as to acquire a certificate. A permit may be amended to change the conditions of 

the permit or the point of diversion. ORS 537.211(4), (5). A 

water right that is permitted is treated under the statutes as 

personal property and is subject to cancellation if not properly developed or used. ORS 537.260.

In the second phase, the permittee applies for 

a water right certificate to appropriate water, which is 

issued only after the beneficial use identified in the permit 

is fully developed. A certificate to appropriate water may 

be acquired and maintained only by “perfecting” and continuing an appropriation of water for beneficial use. ORS 

537.250 provides:

“(1) After the Water Resources Department has 

received a request for issuance of a water right certificate 

accompanied by the survey required under ORS 537.230 

that shows, to the satisfaction of the department, that an 

appropriation has been perfected in accordance with the 

provisions of the Water Rights Act, except as provided in 

subsection (4) of this section, the department shall issue 
576 Bridge Creek Ranch v. Water Resources Dept.

to the applicant a certificate of the same character as that 

described in ORS 539.140. The certificate shall be recorded 

and transmitted to the applicant as provided in that 

section.

“* * * * *

“(3) Rights to the use of water acquired under the provisions of the Water Rights Act, as set forth in a certificate issued under this section, shall continue in the owner 

thereof so long as the water shall be applied to a beneficial 

use under and in accordance with the terms of the certificate, subject only to loss:

“(a) By nonuse as specified and provided in ORS 

540.610; or

“(b) As provided in ORS 537.297.”

A certificated water right is “vested,” meaning that 

it is treated as an interest in real property. Green v. Wheeler, 

254 Or 424, 430, 458 P2d 938 (1969), cert den, 397 US 990 

(1970) (explaining that the appropriative right vests with the 

issuance of certificate). A certificated water right can only 

be lost upon a showing of one of the circumstances described 

in ORS 537.250(3)(a) or (b).

The acquisition of the right to store water is subject 

to the same provisions as any other water right. See 46 Op 

Atty Gen 290, 292-93 (1989) (“Since 1909, rights to appropriate water for storage have been acquired under the same 

scheme as any other water right.”). ORS 537.4007

 separately 

7 ORS 537.400 provides, in relevant part:

“(1) All applications for reservoir permits shall be subject to the provisions of ORS 537.130, 537.140, 537.142 and 537.145 to 537.240, except that an 

enumeration of any lands proposed to be irrigated under the Water Rights 

Act shall not be required in the primary permit. But the party proposing to 

apply to a beneficial use the water stored in any such reservoir shall file an 

application for permit, to be known as the secondary permit, in compliance 

with the provisions of ORS 537.130, 537.140, 537.142 and 537.145 to 537.240. 

The application [for the secondary permit] shall refer to the reservoir for 

a supply of water and shall show by documentary evidence that an agreement has been entered into with the owners of the reservoir for a sufficient 

interest in the reservoir to impound enough water for the purposes set forth 

in the application, that the applicant has provided notice of the application 

to the operator of the reservoir and, if applicable, that an agreement has 

been entered into with the entity delivering the stored water. When beneficial use has been completed and perfected under the secondary permit, the 

Water Resources Department shall take the proof of the water user under 
Cite as 329 Or App 568 (2023) 577

addresses applications for reservoir permits, which are also 

subject to the same provisions that govern other water right 

permit applications. An applicant for a permit to store water 

obtains a “primary water right,” which is defined as “the 

water right designated by the Water Resources Commission 

as the principal water supply for the authorized use, or if no 

designation has been made, the water right designated by 

the applicant as the principal water supply for the authorized use.” ORS 540.505(2). A secondary permit must then be 

sought for use of the water from the reservoir. ORS 537.400.8

The final certificate of appropriation issues only after the 

beneficial use has been completed and perfected under the 

secondary permit.

Thus, as OWRD states in its briefing to us,

“[t]he primary water right to store water is *** inextricably linked to the secondary permit to put the water to 

beneficial use, with the reservoir right supplying the supply of water to be put to beneficial use under the secondary 

permit. This is different from most permits to appropriate 

water, which do not require a secondary permit to allow 

beneficial use.

the permit. The final certificate of appropriation shall refer to both the ditch 

described in the secondary permit and the reservoir described in the primary 

permit.

“(2) Whenever application is made for permit to store water in a reservoir 

or pond for any beneficial use which does not contemplate future diversion of 

the stored water except by livestock drinking from stock water ponds, the 

extent of utilization thereof may be included in the reservoir permit and no 

secondary permit shall be required. However, in cases where water from a 

stream is required to maintain a reservoir or pond by replacing evaporation 

and seepage losses, or is required to maintain suitable fresh water conditions 

for the proposed use and to prevent stagnation, the applicant for permit to 

store water in such reservoir or pond shall also file an application for permit 

to appropriate the waters of the stream.”

8 There are two circumstances in which a secondary permit is not required: 

If the permit is sought “to store water in a reservoir or pond for any beneficial use 

which does not contemplate future diversion of the stored water,” such as for use 

as a scenic attraction, only a storage water permit is necessary. ORS 537.400(2). 

Additionally, small reservoirs established before January 1, 1995, are presumed 

to constitute a “beneficial use.” ORS 537.405(1) (“Reservoirs in existence on or 

before January 1, 1995, that store less than 9.2 acre feet of water or with a dam 

or impoundment structure less than 10 feet in height, are found to be a beneficial 

use of the water resources of this state.”). But apart from those exceptions, the 

diversion of water from storage must be pursuant to a separate application and 

permit known as a “secondary permit.” 
578 Bridge Creek Ranch v. Water Resources Dept.

“The permit allows the person intending to store 

water to construct the necessary works but is not itself a 

perfected water right. A water right is perfected when the 

water is put to beneficial use, such as irrigation, as evidenced by a ‘final proof survey.’ OWRD then issues a water 

right certificate. ORS 537.250.”

Here, the water is to be diverted from storage in the 

reservoir for irrigation use. Thus, ORS 537.400(1) requires a 

secondary permit for use of the water. The secondary permit 

is also a prerequisite to the issuance of a certificate for the 

reservoir:

“All applications for reservoir permits shall be subject to 

the provisions of ORS 537.130, 537.140, 537.142 and 537.145 

to 537.240, except that an enumeration of any lands proposed to be irrigated under the Water Rights Act shall not 

be required in the primary permit. But the party proposing 

to apply to a beneficial use the water stored in any such reservoir shall file an application for permit, to be known as 

the secondary permit, in compliance with the provisions of 

ORS 537.130, 537.140, 537.142 and 537.145 to 537.240. The 

application shall refer to the reservoir for a supply of water 

and shall show by documentary evidence that an agreement has been entered into with the owners of the reservoir 

for a sufficient interest in the reservoir to impound enough 

water for the purposes set forth in the application, that the 

applicant has provided notice of the application to the operator of the reservoir and, if applicable, that an agreement 

has been entered into with the entity delivering the stored 

water. When beneficial use has been completed and perfected under the secondary permit, the Water Resources 

Department shall take the proof of the water user under 

the permit. The final certificate of appropriation shall refer 

to both the ditch described in the secondary permit and the 

reservoir described in the primary permit.”

(Emphases added.) Relator’s predecessor happens to have 

been the applicant for the secondary permit. The OWRD 

issued to relator’s predecessor reservoir permit R-9896, 

authorizing “the construction of Mitchell Ranch Reservoir 

Enlargement and storage of water from Bear Creek and 

Bridge Creek,” to be appropriated under a permit with a 

priority date of October 17, 1983, which is not at issue in 

this case. The OWRD subsequently issued two certificates 
Cite as 329 Or App 568 (2023) 579

to relator’s predecessor for the storage of the water, confirming “the right to store the waters” of Bridge Creek and Bear 

Creek, recorded as Certificates numbered 68551 and 68553. 

The OWRD also issued a separate certificate to relator’s 

predecessor confirming the right to use the water for irrigation, recorded as Certificate number 68552.

Thus, three certificates were issued to relator’s predecessor for the reservoir—two for water storage under the 

primary permit and one for use of the stored water under 

the secondary permit.

To change any element of a certificate, such as a 

POD or type of use, the certificate holder must apply to the 

OWRD under ORS 540.510(1). That statute provides that 

“the holder of a water use subject to transfer may, upon compliance with the provisions of ORS 540.520 and 540.530, 

change the use and place of use, the point of diversion or 

the use of the water without losing priority of the right.” 

ORS 540.510(1)(a) (emphasis added); see ORS 540.520; OAR 

690-380-3000 (Oct 6, 2006) (describing application requirements).9

 An application submitted under ORS 540.510 “shall 

be approved if [the OWRD] determines,” among other things, 

that “[t]he water right affected by the proposed transfer is a 

water use subject to transfer as defined in ORS 540.505(4) 

and OAR 690-380-0100(14).” OAR 690-380-5000(1) (Oct 6, 

2006);10 see id. (describing conditions for approval); ORS 

540.530 (same).

9 We refer to the rules that were in effect when the application was filed.

10 OAR 690-380-5000 (Oct 6, 2006) provides:

“(1) A transfer application shall be approved if the Department determines that:

“(a) The water right affected by the proposed transfer is a water use subject to transfer as defined in ORS 540.505(4) and OAR 690-380-0100(14) and, 

for a right described under 690-380-0100(14)(d), the proof of completion has 

been approved under 690-380-6040;

“(b) The portion of the water right to be transferred is not cancelled pursuant to ORS 540.610;

“(c) The proposed transfer would not result in enlargement as defined in 

OAR 690-380-0100(2);

“(d) Except as provided in OAR 690-380-5030, the proposed transfer 

would not result in injury as defined in 690-380-0100(3); and

“(e) Any other requirements for water right transfers are met.”
580 Bridge Creek Ranch v. Water Resources Dept.

Here, as noted, relator submitted an application to 

transfer the POD for Certificate 68553, which the OWRD 

had issued to relator’s predecessor for storage at the reservoir. And as noted, here, in response to relator’s application to change a POD under ORS 540.510, the OWRD 

returned the application without processing it, stating, 

“The Department does not have the authority to make POD 

changes to R-rights for storage.” The rationale provided by 

the OWRD was that the water storage certificate was not a 

water use subject to transfer.

The peremptory writ issued by the trial court directs 

the OWRD to process relator’s application. The nub of the 

dispute on appeal turns on whether relator has the right to 

request (and OWRD has authority to process) a change in 

the POD for Certificate 68553 under ORS 540.510(1), which 

defines the process for seeking to change a water right certificate without losing priority of the right.11 ORS 540.510(1)

(a) provides in relevant part:

“(a) Except as provided in subsections (2) to (8) of this 

section, all water used in this state for any purpose shall 

remain appurtenant to the premises upon which it is used 

and no change in use or place of use of any water for any 

purpose may be made without compliance with the provisions of ORS 540.520 and 540.530. However, the holder of 

any water use subject to transfer may, upon compliance with 

the provisions of ORS 540.520 and 540.530, change the use 

and place of use, the point of diversion or the use of the water 

without losing priority of the right.”

(Emphases added.) The holder of a “water use subject to 

transfer” may change “the use and place of use, the point of 

diversion or the use of the water” without a loss of priority. 

ORS 540.510(1)(a).

Defendants point further to ORS 540.505(4), which 

defines “water use subject to transfer,” as used in ORS 

540.510(1):

11 The parties do not address, and we therefore do not consider, the issue of 

OWRD’s “authority” to consider the application, as distinct from OWRD’s rejection of the application on its merits based on OWRD’s understanding that the 

relevant statutes do not permit that type of change.
Cite as 329 Or App 568 (2023) 581

“‘Water use subject to transfer’ means a water use established by:

“(a) An adjudication under ORS chapter 539 as evidenced by a court decree;

“(b) A water right certificate;

“(c) A water use permit for which a request for issuance 

of a water right certificate under ORS 537.250 has been 

received and approved by the Water Resources Commission 

under ORS 537.250; or

“(d) A transfer application for which an order approving the change has been issued under ORS 540.530 and for 

which proper proof of completion of the change has been 

filed with the Water Resources Commission.”

(Emphasis added.) Defendants argue that storage is not a 

use of water and that, therefore, taken together, the above 

provisions demonstrate that holders of water storage certificates do not, without a loss of priority, have the ability to 

seek to transfer the place of use of storage or POD of water 

and, further, that the OWRD does not have authority to consider requests for such changes.

Relator responds that, as set forth in ORS 540.505(4)

(b), it holds a water use subject to transfer, because Certificate 

68553 is a water right certificate. Defendants reply that 

although Certificate 68553 is a water right certificate, it 

does not constitute a water use subject to transfer, because, 

under ORS 540.505(4), a “water use” is a reference to an 

actual beneficial use of the water, and storage, with limited exceptions, does not constitute a beneficial use.See ORS 

540.610(1) (all water rights in Oregon are based on beneficial 

use of water); Teel Irrigation Dist. v. Water Resources Dept., 

323 Or 663, 667, 919 P3d 1172 (1996) (“The water right is 

perfected when the water actually is put fully to a beneficial 

use.”).12

12 The legislature has declared “certain important uses, including irrigation,” to be beneficial. Hennings v. Water Res. Dept., 50 Or App 121, 125, 622 P2d 

333 (1981) (citing ORS 536.300). Pursuant to OAR 690-300-0010(5), “beneficial 

use” means “the reasonably efficient use of water without waste for a purpose 

consistent with the laws, rules and the best interests of the people of the state.” 

For example, for the purposes of statewide water policy, the OWRD defines “beneficial use” as “an instream public use or a use of water for the benefit of an 

appropriator for a purpose consistent with the laws and the economic and general 
582 Bridge Creek Ranch v. Water Resources Dept.

The question whether water storage is, in and of 

itself, a “use” of water was addressed many years ago by the 

Supreme Court in Cookinham v. Lewis, 58 Or 484, 491-92, 

114 P 88, reh’g denied, 58 Or 495, 115 P 342 (1911). There, 

the court had before it a decision by the Oregon “Board of 

Control” rejecting an application for a reservoir permit for 

the purpose of reclamation of public desert land. In considering the statutory predecessor of ORS 537.400 in Oregon’s 

Water Code, the court stated that the type of use that supports the issuance of a permit for water storage is not a “use 

of water.” The court explained the distinction between a permit for storage and one for the use of the stored water:

“The primary reservoir permit, provided for by [the Oregon 

Water Code, Or Laws 1909 Section 58)], contemplates a 

storage of the water in some locality where it can be utilized for irrigation. The secondary permit contemplates 

that users of the water shall acquire a permanent ownership by agreement with the owner for a specified quantity 

of the stored water for the needs of and use upon his land, 

and when reclamation is contemplated the water becomes 

appurtenant to his land. The Water Code makes a distinction between a permit for diversion of water and one to construct a reservoir and store surplus water. The latter does 

not include the right to divert and use such stored water, 

which must be the subject of the secondary permit.”

58 Or at 491-92 (emphasis added). A permit for storage, in 

and of itself, the court held, does not constitute or include 

the right to use stored water; it is the secondary permit 

that applies the water to beneficial use. Id. at 492; see also

welfare of the people of the state” that “includes, but is not limited to, domestic, 

fish life, industrial, irrigation, mining, municipal, pollution abatement, power 

development, recreation, stockwater and wildlife uses.” OAR 690-400-0010; see 

also, e.g., ORS 537.142(2) (“The use of water for a salmon and trout enhancement 

project *** is a beneficial use[.]”); ORS 537.334(1) (“Public uses are beneficial 

uses.”); see also ORS 536.300(1) (“The Water Resources Commission shall proceed as rapidly as possible to study: Existing water resources of this state; means 

and methods of conserving and augmenting such water resources; existing and 

contemplated needs and uses of water for domestic, municipal, irrigation, power 

development, industrial, mining, recreation, wildlife, and fish life uses and for 

pollution abatement, all of which are declared to be beneficial uses, and all other 

related subjects, including drainage, reclamation, floodplains and reservoir 

sites.”). See also Fort Vannoy Irrigation Dist. v. Water Resources Commission, 345 

Or 56, 78, 188 P3d 277 (2008) (commenting that both ORS 540.520(8) and ORS 

540.523(3) treat “beneficial use” and “water use [established by a water right 

certificate]” as distinct). 
Cite as 329 Or App 568 (2023) 583

Nevada Ditch Co v. Bennett, 30 Or 59, 89, 45 P 472 (1896) 

(“An appropriation proper is not made until there has been 

an actual application of the water claimed, to some beneficial purpose, or some useful industry. All rights acquired 

prior to this time, at whatsoever step in the process, amount 

simply to a claim of an appropriation[.]”); 25 Op Atty Gen 

206 (1951) (“Storage in and of itself is not a use. Storage 

must be for a future purpose.”).

Relying on Cookinham, defendants contend that, 

although there may be reservoir permits and certificates 

that establish both a right to store and to use water, see ORS 

537.400(2) (describing storage that does not “contemplate 

future diversion of the stored water”), as a general rule, a 

certificate for water storage does not itself constitute “water 

use,” as that term is used in ORS 540.510. Because, in defendants’ view, storage is not a “use,” nor is it, in defendants’ 

view, a “beneficial use;” thus, in defendant’s view, it cannot 

be subject to a right to transfer.

We agree with defendants that a use subject to 

transfer must be a beneficial use and that, with limited 

exceptions, a beneficial use of stored water is established 

not through the primary permit for storage but through the 

secondary permit.

We nonetheless conclude that relator’s Certificate 

68553 represents a water use subject to transfer under ORS 

540.510. That is because whether Certificate 68553 represents a water use subject to transfer must be viewed in 

the context of Certificate 68552, which, as required by ORS 

540.400(1), was a prerequisite to the issuance of Certificate 

68553 and which authorizes the use of water. As provided 

in ORS 537.400, a certificate for storage is issued only when 

beneficial use has been completed and perfected under the 

secondary permit. And, as OWRD acknowledges, the two 

are “inextricably linked.” “The final certificate of appropriation shall refer to both the ditch described in the secondary 

permit and the reservoir described in the primary permit.” 

ORS 537.400. 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 (addressing the relationship between 
584 Bridge Creek Ranch v. Water Resources Dept.

the appropriator of water and the persons who put the 

water to beneficial use and observing, “in whatever capacity 

the parties to the appropriation may be considered,” both 

were necessary to appropriate the water). In Fort Vannoy 

Irrigation v. Water Resources Comm., 345 Or 56, 78, 188 P3d 

277 (2008), the court said that the “terms and conditions” 

of the certificate will dictate the use of the water. The use 

permitted by Certificate 68553 can only be determined with 

reference to Certificate 68552, which, conversely, depends 

on Certificate 68553. Together, the two certificates refer to a 

beneficial use of the water and, hence, to a water use subject 

to transfer.

Defendants note that ORS 540.510(1)(b) provides 

that the holder of a water right certificate authorizing storage may change “the type of use” identified in the certificate 

without losing priority:

“A holder of a water right certificate that authorizes the 

storage of water may change the type of use identified in the 

water right certificate, as described in subsection (1)(a) of 

this section, without losing priority of the right.”

(Emphases added.) Defendants contend that ORS 540.510(1)(b) 

demonstrates a legislative intention to limit the change that 

can be made by the holder of a water right certificate for 

storage to “type of use,” excluding the other types of changes 

listed in ORS 540.510(1)(a), including the POD. In defendants’ view, understanding a “water use subject to transfer” 

to be capable of including a water right for storage would 

render ORS 540.510(1)(b) superfluous, because the change 

in “type of use” that it explicitly allows would already be 

encompassed within ORS 540.510(1)(a).

Although the OWRD’s construction is a plausible 

one, we reject it for several reasons. First, ORS 540.510(1)(b) 

does not state that the holder of a water storage certificate 

may change only the type of use. Additionally, a change to the 

“type of use” permitted by ORS 540.510(1)(b), is not explicitly among the changes listed in ORS 540.510(1)(a). Thus, 

textually, it is possible to understand ORS 540.510(1)(b) 

to supplement the changes permitted in ORS 540.510(1)(a) 

rather than to limit the rights of a holder of a water storage 

certificate, as defendants contend. Under that construction, 
Cite as 329 Or App 568 (2023) 585

ORS 540.510(1)(b) is not duplicative of ORS 540.510(1)(a) or 

superfluous.

But beyond the text, the legislative history of ORS 

540.510(1)(b) leads us to conclude that ORS 540.510(1)(b) 

does not have strong bearing on the legislature’s intention 

with respect to ORS 540.510(1)(a). The Supreme Court discussed the history of ORS 540.510 in Fort Vannoy Irrigation, 

345 Or at 74-78. The court explained that a provision for the 

change of the use, place of use, and point of diversion has 

been a part of the Water Code since 1927. Id. at 75. The court 

explained that, in 1991, the statute was amended to make 

the right of transfer available only to the “owner of any certificated water right.” Id. (citing Or Laws 1991, ch 957, § 7(1)) 

(emphasis added). Then, in 1995, the legislature amended 

ORS 540.510(1)(a) by deleting the phrase “owner of any certificated water right” and substituting the phrase “holder of 

any water use subject to transfer.” Fort Vannoy Irrigation, 

345 Or at 75; Or Laws 1995, ch 274, § 2. The legislature 

also enacted a four-part definition of the phrase “water use 

subject to transfer,” codified at ORS 540.505. Fort Vannoy 

Irrigation, 345 Or at 76; Or Laws 1995, ch 274, § 1. The parties agree that the amendments were intended to expand

the availability of changes beyond only the owner of a certificated water right, and that water storage certificates 

were not expressly addressed. See Fort Vannoy Irrigation., 

345 Or at 75-77 (“[T]he legislature abandoned the exclusive 

focus on certificated water rights in the 1991 version of ORS 

540.510(1) by deleting the phrase ‘owner of any certificated 

water right,’ substituting the phrase ‘holder of any water use 

subject to transfer,’ and enacting a four-part definition of the 

phrase ‘water use subject to transfer’ that extended beyond 

certificated water rights.” The effect of the amendments was 

to extend the transfer provision to “inchoate water rights”—

water rights that are not yet “vested,” because a certificate 

has not yet been issued.).

The 1995 amendments made no specific mention 

of water storage rights or certificates. But the amendments 

led the OWRD to reevaluate the extent to which water storage certificates could be changed without a loss in priority. 

In 2018, the Oregon Department of Justice (DOJ) advised 
586 Bridge Creek Ranch v. Water Resources Dept.

the OWRD that the storage of water is not a “use subject to 

transfer,” as defined in ORS 540.505(4)(b), because it is not a 

“use” of water. Thus, the DOJ advised the OWRD that water 

storage is not a use that is eligible to be changed without a 

loss of priority under ORS 540.510(1), and that the holder of 

a water storage certificate could not make changes without 

a loss of priority.

Then, in 2021, the Legislative Assembly enacted 

ORS 540.510(1)(b), directly in response to DOJ’s opinion 

and OWRD’s change in policy, to make explicit the right 

of a water storage certificate holder to change the “type of 

use,” the most commonly requested change. Or Laws 2021, 

ch 633, § 1. Defendants contend that that amendment supports their conclusion that a water storage certificate holder 

can change only the type of use without a loss of priority.

Of course, we recognize that various subsections 

of a statute should be construed together. See Wetherell 

v. Douglas County, 342 Or 666, 678, 160 P3d 614 (2007) 

(explaining that the court should not look at one subsection 

of a statute in a vacuum but should construe “each part 

together with the other parts in an attempt to produce a 

harmonious whole”). But, as the Supreme Court has said, 

with the exception of statutory amendments that materially 

change the text of an earlier statute, either explicitly or by 

implication, State v. Ofodrinwa, 353 Or 507, 529-30, 300 P3d 

154 (2013), a later legislature’s understanding of the meaning of a previously enacted statute does not have bearing 

on what that earlier statute means. See DeFazio v. WPPSS, 

296 Or 550, 561, 679 P2d 1316 (1984) (explaining that “[t]

he views legislators have of existing law may shed light on 

a new enactment, but it is of no weight in interpreting a 

law enacted by their predecessors”). The legislature did not 

amend subsection (1)(a) when it enacted subsection (1)(b) in 

2021, and there is no necessary implication or indication in 

the legislative history that the intention in the adoption of 

subsection (1)(b) was to alter the meaning of subsection (1)(a). 

We conclude that the enactment of subsection (1)(b) cannot 

be viewed as expressing an intention to modify subsection 

(1)(a). Thus, the legislature’s view that, in light of the DOJ’s 

2018 construction of ORS 540.510(1)(a), it was necessary to 
Cite as 329 Or App 568 (2023) 587

enact ORS 540.510(1)(b) to explicitly authorize changes in 

the type of use of a water reservoir certificate does not weigh 

in our construction of ORS 540.510(1)(a).

We conclude that, although, as the court held in 

Cookinham, with certain exceptions not applicable here, the 

storage of water in and of itself is not a “use” of water, when 

considered in the context of the secondary permit, it can represent a water use subject to transfer. When the storage of 

water under Certificate 68553 is considered, as it must be, 

in the context of the use of water under Certificate 68552, 

we agree with the trial court that relator’s Certificate 68553 

establishes a “water use subject to transfer” in the sense contemplated by ORS 540.510. We therefore conclude that the 

trial court correctly determined that relator’s application for 

a change in POD should be considered by the OWRD.

Affirmed.