Oregon's Water Resources Threatened

       The old political adage that “no bad piece of legislation is ever dead” is certainly true in our state capitol. With your considerable help during the 2007 legislative session we were able to defeat efforts to require measurement of all water diversions as well as efforts to require domestic wells to be permitted and regulated. All domestic wells are currently exempt from registration and from most regulation. Unfortunately, “they’re back!”

       Legislation has been introduced in this 2009 session to require measurement of water use from virtually every surface source in Oregon, to permit and regulate virtually all exempt wells, and to elevate both the Oregon Department of Environmental Quality (ODEQ) and the Oregon Department of Fish and Wildlife (ODF&W) to virtual equal status with the Oregon Water Resources Department (OWRD). Another bill requires an annual fee to use the waters of the state. One more bill would eliminate virtually any activity around the sources of water for municipal drinking water. An additional bill establishes the right for third party lawsuits to require enforcement of all state environmental laws. It specifically includes ORS 468 that was required by the Oregon Department of Agriculture to be incorporated into every local water management plan in Oregon.

       Stopping these efforts will be even more of a challenge this year. Our Democrat colleagues, who generally support increased regulation and fees, now enjoy a super majority in both chambers. They are lead by a Governor whose proposed the Headwaters 2 Ocean (H20) Plan would create stringent new water regulations from the mountain tops to the ocean estuaries. Further, the Governor is advised by staff who advocate replacing current water law based on the doctrine of prior appropriation with an appointed commission to advise an agency like Washington’s “Department of Ecology” on the best use of the waters of the state. Chairs of the relevant environment and natural resources committees in both chambers are strong advocates of the Governor’s initiatives.

       In response, we reconvened our lobby water coalition early in the session to attempt to address and defuse these issues. Individuals hired to represent at least fourteen natural resources and financial interests are regularly attending our weekly caucuses. In addition, we have established a Senate Rural Caucus where members of both parties meet weekly to discuss issues that are important to Oregonians who live in the 80 percent of Oregon’s geographic area that is not the I-5 corridor between Salem and Portland.

       Senate Bill 962 may be the most onerous bill of them all. This measure establishes provisions for the dreaded third party lawsuit. It provides that “any person who is adversely affected by a violation of a state environmental law may bring an action for injunctive or other equitable relief to enforce a provision of, or prohibit a violation of, a state environmental law or any permit issued pursuant to a state environmental law.” Any person may sue any person or entity alleged to be in violation of any state environmental law or any permit issued pursuant to a state environmental law. The plaintiff who prevails in an action is entitled to recovery of reasonable attorney fees and costs while a defendant who prevails is not entitled to such recovery. The state Attorney General may intervene on behalf of any state agency charged with enforcing the state environmental law sought to be enforced in the suit.

       State environmental laws that are included relate to air quality; state and community forests; the Oregon Forest Practices Act; state recreation programs; hunting, angling, trapping, and wildlife protection measures; appropriation of waster; and water quality laws. This bill would establish the authority for any person to sue any entity for alleged violation of the local Water Quality Management Plans under ORS 468. Not only could anyone sue an agricultural producer, but the state Attorney General is authorized to join in the suit on behalf of the agency charged with enforcing the environmental law. The plaintiffs are entitled to recovery of all attorney fees and other costs while the defendant is not so entitled.

       Senate Bill 740 establishes a $100 annual fee to the holder of each water right set forth in a water right permit, water right certificate, or limited license. The funds developed would be used to support a variety of OWRD programs and activities. This statute, if passed, would be the first charge established specifically for the use of the waters of the state. It represents the first effort to support the OWRD with a tax on water.

       House Bill 3441 would require measurement and reporting by water users of all significant diversions in priority watersheds by January 1, 2012, and would require measurement of all significant diversions on or before January 1, 2015. The cost of installation and maintenance of measuring devices as well as the cost of reporting must be paid by the water user. A significant diversion is defined as any diversion now required to be measured, as well as all diversions greater than 5 csf or greater than 10 percent of the lowest monthly 50 percent exceedance flow that is greater than 0.25 csf.

       Senate Bill 482 authorizes city and county governments to create Drinking Water Protection Overlay Districts within drinking water source areas. These districts would be analogous to big game winter range overlays. They would apply to any watershed that contains a water source for a municipal water system. The local government would be authorized to apply restrictions on virtually any activity that has the potential to degrade water within a watershed designated as an Overlay District. The bill provides authority for the Environmental Quality commission to establish fees to develop and enforce the restrictions in the Overlay District. Finally, Section 5 requires all domestic groundwater systems to obtain a permit to use groundwater when more than one individual well is proposed within the boundary of a parcel to be develop ed. A dangerous precedent is established when the burden to prove that the new wells will not cause interference with existing wells is shifted from the state to the well owner. Establishing that proof of non-interference is well beyond the means of most individuals with the possible exception of the most affluent developers.

       Senate Bill 193 relates to water resource strategy. ORS 536.220 (1) (b) states “A proper utilization and control of the water resources of this state can be achieved through… policy… development… and control… all carried out by a single state agency”. That agency is designated the OWRD. As currently amended, Senate Bill 193 would substantially change the single agency policy. It would require the OWRD to create water resource policies that integrate OWRD, ODEQ, and ODF&W activities in regulating the beneficial use of the waters of the state. It would also integrate consultation with the Department of Forestry, Department of Agriculture, Department of Human Services, Economic and Commu nity Development, State Parks and Recreation Department and the Oregon Watershed Council. It is my concern that this bill may be further amended to create an agency similar to the Department of Ecology in the state of Washington. Should we have any doubt about how difficult that could be for natural resource users, we have only to ask those who represent agriculture and forestry in Washington.

       The OWRD receives a much higher percentage of their operating revenue from the general fund than ODF&W and ODEQ. The latter agencies are primarily funded by fees and charges. The result is that the very large reductions in General Fund resources that we are facing will restrict the OWRD budget much more than the budgets of ODEQ and ODF&W. This budget differential may provide proponents of a Department of Ecology an opportunity to create such an agency primarily under the control of ODEQ authority. In my opinion, the certain outcome would be a move toward greater regulation and away from beneficial use by water users.

       Senate Bill 194 would essentially codify the Oregon Water Resources Department Measurement Plan into Oregon law. Briefly, the Measurement Plan requires the OWRD to complete a cooperative effort with ODF&W to create “Priority Water Availability Basins” or “Priority WABs” based on potential fish restoration and potential flow restoration. In short, new water measurement would be required where increased measurement has the potential to improve instream flow, to protect or enhance instream water rights, to restore needed instream flows in 303d listed streams, where significant diversions are not measured, and where there are no stream gauges. If enacted into Oregon law, the provisions of this plan would require measurement of virtua lly every surface water diversion in the state. The plan establishes strict timelines when these measurements would be required to be implemented. The costs of purchasing, installing, and maintaining measuring devices would be paid by water users.

       These are only a few of the more salient proposed statutes designed to further regulate our natural resource users. Unfortunately, more than two hundred bills that will increase regulation on Oregonians have been winding there way through the legislative process. I am convinced that new and enhanced regulation will neither help our economy nor serve to reduce unemployment. Rather, in my opinion, they are a primary cause of the economic free fall and upward spiraling unemployment.

       Please remember, if we do not stand up for rural Oregon no one will!

Best regards,

Doug

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