"An appropriation of water flowing on the public domain".

[Assembler]

The following is likely the restricted use of water say with a ”Dredging or other type of sluicing” use:

An appropriation of water flowing on the public domain consists in the capture, impounding, or diversion of it from its natural course or channel and its actual application to some beneficial use private or personal to the appropriator, to the entire exclusion (or exclusion to the extent of the water appropriated) of all other persons. To constitute a valid appropriation, there must be an intent to apply the water to some beneficial use existing at the time or contemplated in the future, a diversion from the natural channel by means of a ditch or canal, or some other open physical act of taking possession of the water, and an actual application of it within a reasonable time to some useful or beneficial purpose.

From Black’s Law Dictionary 4th ed. Page 131.
This one does not think that a "Location Survey" alone will 'Trump / Over rule' a "Appropriation of water flowing on the public domain". What do you think?
Thanks.

 

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[winners58]

http://www.oregon.gov/owrd/PUBS/docs/aquabook.pdf

 

[Jason in Enid]

The definition shows it has zero bearing on dredging. A dredger is not impounding or diverting was and not taking water for personal use. This is talking about a person pumping or diverting a public stream to use for their own lake or crops, or business use. It's about taking it away so no other person has access to it (without paying the govt for it)

 

[Assembler]

The definition shows it has zero bearing on dredging. A dredger is not impounding or diverting was and not taking water for personal use. This is talking about a person pumping or diverting a public stream to use for their own lake or crops, or business use. It's about taking it away so no other person has access to it (without paying the govt for it)

Just posting this as maybe the 'Core issue' is the "Beneficial use private or personal" just don't know. The taking it away is a more clear issue for sure.
Thank you everyone for your inputs as this is the real reason this one posted this topic.

 

[Assembler]

Up to two years to use water.

Oregon Code goes back to 1899, L. p. 179, section 20:

Abandonment of appropriation: Nonuser of ditch for two years: Reversion of water to public: Abandonment as question of fact. The right to appropriate water hereby granted may be lost by abandonment......

 

[Assembler]

Appropriation

Controls / permits have been used for dredging for a very long time now. What is the difference between "Appropriation, Abandonment of appropriation and non appropriation"?

 

[Assembler]

If there is "Proof of no effect of water flow on the Public domain" is there no "Appropriation" taking 'Place'?
Does the "Appropriation' have to take place for over two years time frame?

 

[Assembler]

Beneficial use is the bases in "Oregon".

The following will shed some light on the topic:

Water rights in the western states; the law of prior appropriation of water as applied alone in some jurisdictions, and as, in others, confined to the public domain, with the common law of riparian rights for waters upon private lands. Federal, California and Oregon statutes in full, with digest of statutes of Alaska, Arizona, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Philippine Islands, South Dakota, Texas, Utah, Washington and Wyoming
https://archive.org/details/cu31924018781561

Uses.
Beneficial use is the basis, the measure, and the limit of all rights to the use of water in Oregon. Or. Rev. Stat. § 540.610(1). [See generally supra Treatise § 12.02(c(2)4
Domestic, munisable, jurisdiction,- power development, industrial, mining, recreation,fish and wildlife uses, and pollution abatement are all declared to be beneficial uses of water. Or. Rev. Stat. § 536.300.
https://osbsustainablefutures.files.wordpress.com/2014/03/the-oregon-system-of-water-rights.pdf

Brief History.
Prior to enactment of its water code in 1909, Oregon recognized both riparian and appropriative rights.
Overview.
Oregon’s current water law regime is based on the prior appropriation doctrine, but some
historical riparian rights are recognized as well.

 

[Assembler]

What is the "Code / Statue in your State"?
Is "Beneficial use" used in the "Code"?
Thanks

 

[Assembler]

"Public Domain"

The definition shows it has zero bearing on dredging. A dredger is not impounding or diverting was and not taking water for personal use. This is talking about a person pumping or diverting a public stream to use for their own lake or crops, or business use. It's about taking it away so no other person has access to it (without paying the govt for it)

The pump is "capturing water", the dam for a sluice can " Impounding, or diversion of it from its natural course or channel". The "Actual application to some beneficial use private or personal to the appropriator" is the "Intent".

This of course is taking "Place" 'Within' the "Public domain" (in 29 States) because of R.S. section 2395; 43 U.S.C. section 751 that clearly states:

The public lands of the United States shall be divided by lines intersecting true north and south at right angles to as to form townships 6 miles square........

Ask your self is there any "Lands" that have "Boundaries are to be determined by lines other than the normal subdivision of the public lands"?
Ask your self is there any "Lands" that are "Located on unsurveyed land or the configuration of the mineral deposit is such as to make conformation impracticable"?
Ask your self what "Lands" are 'Not within the' "Public domain" in 29 States?

 

[Assembler]

Important questions.

The pump is "capturing water", the dam for a sluice can " Impounding, or diversion of it from its natural course or channel". The "Actual application to some beneficial use private or personal to the appropriator" is the "Intent".

This of course is taking "Place" 'Within' the "Public domain" (in 29 States) because of R.S. section 2395; 43 U.S.C. section 751 that clearly states:

Ask your self is there any "Lands" that have "Boundaries are to be determined by lines other than the normal subdivision of the public lands"?
Ask your self is there any "Lands" that are "Located on unsurveyed land or the configuration of the mineral deposit is such as to make conformation impracticable"?
Ask your self what "Lands" are 'Not within the' "Public domain" in 29 States?

Forgot to ask are these "Lands" clearly marked on "Plats"? What is the reason the "Original survey of public lands does not ascertain boundaries; it creates them"?

 

[Assembler]

"Public domain" and "Public lands" .

Others may point out the differences between "Public domain" and "Public lands" please do so.
May have something to due with the following:

The term "public lands" has been applied broadly to this area (previously exercised the sovereignty) insofar as the lands have been subject to administration, survey, and transfer of title under the public-land laws of the United Staes, wherein the jurisdiction is now vested in the Director of the Bureau of Land Management, under the direction of the Secretary of the Interior.

Thanks for your input.

 

[Assembler]

Others may point out the differences between "Public domain" and "Public lands" please do so.
May have something to due with the following:

Thank for your input.

Does anyone know if the Secretary of the Interior made any statements about "An appropriation of water flowing on the public domain"?
Thanks for your input.

 

[Assembler]

Does anyone know if the Secretary of the Interior made any statements about "An appropriation of water flowing on the public domain"?
Thanks for your input.

Is the Secretary of the Interior going to address any part of this "An appropriation of water flowing on the public domain" anytime soon?

 

[Assembler]

APPROPRIATION- (WATER RIGHTS)- The right to take water from a natural stream or aquifer for beneficial use at a specified rate of flow, either for immediate use or to store for later use. Usually confirmed by a water court decree.

Interesting.

 

[benny]

http://www.oregon.gov/owrd/PUBS/docs/aquabook.pdf

Not sure I understand. Oregon owns the water, but private property owners own the riverbed to center of channel above navigable waterways? And since Oregon claims ownership of the water, how does one have "water rights"?
Just love this line "Once established, a water right must be used as provided in the right at least once every five years. With some exceptions established in law, after five consecutive years of non-use, the right is considered forfeited and is subject to cancellation." Since when can one lose a "right"? It seems legislatures don't know the difference between a right and permission.

 

[Assembler]

Not sure I understand. Oregon owns the water, but private property owners own the riverbed to center of channel above navigable waterways? And since Oregon claims ownership of the water, how does one have "water rights"?
Just love this line "Once established, a water right must be used as provided in the right at least once every five years. With some exceptions established in law, after five consecutive years of non-use, the right is considered forfeited and is subject to cancellation." Since when can one lose a "right"? It seems legislatures don't know the difference between a right and permission.

Keep in context the guide lays out the “Administration of Laws governing surface water and groundwater resources” as well as commission’s adopted policies and rules through Department programs.

The point you mention about "owners own the riverbed to center of channel above navigable waterways" comes from the following rule:

RULE OF THALWEG — (SURVEY)- In river boundaries, the rule which holds that where a navigable river separates two nations, the middle of the main channel is the boundary between them. The rule of thalweg has also been applied to other boundaries where the boundary is described as being the “middle (or center) of the main channel” of a navigable river.

 

[benny]

...The point you mention about "owners own the riverbed to center of channel above navigable waterways" comes from the following rule:

My understanding was that the state owned the water and bed of the stream if it were navigable. So, rule of thalweg wouldn't come into play until one got upstream of the point where the stream was not navigable, and that boundary was decided in court. Right?

By the way, I cannot believe that using a dredge or sluice could logically be considered to be capturing, impounding, or diverting. The water isn't leaving the waterway. Course, what I believe has nothing to do with what our grand legislatures or judges might think.

 

[benny]

By the way, I live in MC. Any chance of us getting together for coffee? PM me if you like.

 

[winners58]

Water in Oregon is appropriated "first in time first in line" the state does not own the water
and has to apply for use, including in-stream rights just like everyone else.
the State "manages" the application of water law so they manipulate whatever they want,

except for navigable rivers the land owner owns at least to the middle of the river in Oregon,
they still have to secure water rights, and the state controls things like fish, pollution, removal/fill and such...
(just to be clear "water" and "waters" have two different meanings)

the beds & "waters" of navigable rivers are held in trust and are subject to the jus publicum
ie. public rights to use all navigable waters capable of navigation for,
commerce, recreation, fishing, and other purposes.

see Oregon on page 670 here including case law;
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2235329