Guest post by James Carver

I’ve worked for over thirty years in the field of water law in the office of the State Engineer and the Water Resources Department.  During those years I served as head of the Water Rights Division and later as Deputy State Engineer under Chris Wheeler.  I also presided over administrative hearings pertaining to water law for the State Engineer and his successor, the Director of the Water Resources Department.

Around the turn of the 19th century, Oregon saw a need for a system to document water use.  Recognizing that an orderly system for recording and prioritizing water rights would be necessary as water uses grew, the legislature, in 1909 adopted Oregon’s first comprehensive water code.  The code held priority and beneficial use as the standard for distributing water to growing agricultural and domestic needs.

Over the years, the Oregon legal system has fleshed out the scope of water rights and defined them as property rights akin to land.  The Oregon Supreme Court concluded that a perfected water right is a property right and an appurtenance to the real property on which it is used.  The legislature has also recognized new practices that satisfy beneficial use.  These include leaving water instream to ensure minimum stream flows exist to support various fish species.

Unfortunately, there is now a growing movement to distribute water based on a public benefit analysis without regard to priority.  Believers in this new distribution system argue that water rights holders have been given access to public water without a requirement for payment in return.  Therefore, they should be subject to losing the water if it is needs for the public good.  Since users never “owned” the water, it can be taken from them without compensation.  However, there are major drawbacks to such as system.

A water distribution system constantly subject to alterations based on nebulous concepts, such as the public good, will likely result in a great devaluation of land with water rights attached.  For example, lending institutions will become more hesitant to finance projects involving water because the water on which the project is based may disappear without compensation if the state decides the public good is better served by taking it.

The doctrine of prior appropriation is well established in Oregon and any departure from the current system may carry with it economic consequences that far outweigh possible benefits gained from applying more water to uses in the public good.

The final topic of discussion on the OWRC conference call addressed changing start card fees for constructing wells.

Start card fees, fees paid along with the notification of new well construction, partially fund the OWRD staff payroll. The fee is currently $125.00. OWRD is concerned that the fee is no longer sufficient to sustain the well inspection program and would like to establish a schedule to raise the fees moderately and frequently (as opposed to large increases every 5 or more years).

Once again, this topic generated a number of comments. The WaterWatch representative suggested that OWRD’s current cost recovery of roughly 30% through fees was not high enough and that a goal of nearly 100% recovery would be preferable. She called attention to increasing fees for issuing limited licenses and adding an additional fee for water right permit applicants who protest an OWRD order.

The Committee members expressed some agreement with the idea that OWRD should move towards a more comprehensive fee based structure with a goal of 50% cost recovery. Other attendees believed that water users would support increased fees because added revenue could allow OWRD to augment staff and work through application backlogs.

The next topic in the OWRD legislative concepts discussion is the creation of a water development fund.

OWRD discussed updating statutory language found in ORS 541.700-541.855 addressing financial aid to communities constructing water supply projects. OWRC members expressed some concern with this item because it involved project funding. Director Ward suggested that discussion of monitory issues could be postponed until the OWRC meeting taking place in Burns, OR on May 29 and 30 because there will be a more defined draft budget in place at that time.

There should be more lengthy discussions on this topic in the near future.

Good morning! The third part in my series of posts addresses some proposed changes to irrigation district transfer rules.

Currently, when an individual transfers the place of use of a water right any supplemental rights must be transferred with it or canceled. However, the statutes controlling irrigation districts do not explicitly allow for transfer of supplemental rights when primary rights are transferred. OWRD would like to update the irrigation district statutes, specifically ORS 540.570 and 540.580 to bring them in line with other transfer statutes.

The attendees had few substantive comments and generally agreed that a change in statutory language would be appropriate.

The second topic addressed during the OWRC teleconference was modifying language pertaining to statewide mitigation banks.

OWRD wants to modify statutory language to give itself explicit authority to create statewide mitigation banks. These mitigation banks can be used to offset effects of new water supply projects.

This proposed statutory change drew a few comments from attendees. A representative from WaterWatch expressed her organization’s concern that new statutory language must be precise so as to avoid creating loopholes that allow users to access water without adhering to the monthly rate limitations placed on the source permits. However, a representative from Special Districts Association of Oregon expressed a need for greater flexibility across regions so as to allow different water needs to come together.

The Oregon Water Resources Commission (“OWRC”) had its monthly conference call on Monday. In attendance were a majority of the OWRC members including: Ray Williams, Jay Rasmussen, Susie L. Smith, Dan Thorndike and Charles Barlow. Oregon Water Resources Department (“OWRD”) Director, Phil Ward, and a handful of his staff members were in attendance. Those attending the call at the OWRD offices in Salem included Kimberley Priestley (WaterWatch), Anita Winkler (Oregon Water Resources Congress), Katie Fast (Oregon Farm Bureau Federation) and Amanda Rich (Special Districts Association of Oregon).

The agenda covered legislative concepts that OWRD will be developing during the 2009 and 2011 sessions. I will post short summaries on each concept over the course of the next week. Today I’m going to talk about the first topic that OWRC addressed: instream leasing.

Currently instream leasing is not an option for a holder of a water right claim involved in an adjudication. A final decree must be issued before instream leases can occur. OWRD would like to open instream leasing to claims in an adjudication as soon as a final order is issued so water right holders can lease water and show beneficial use during seasons when the user does not need the water.

There wasn’t significant discussion on this topic. Tomorrow I’ll be talking about statewide mitigation banks.