Oregon follows the Prior Appropriation principle for water use. The guiding principle of the Prior Appropriation Doctrine is “first in time, first in right.” Thus, water users with earlier priority dates may have their water use rights satisfied before junior water users, or may even require junior users to cease diversions, if there is not enough water in the system to supply all uses.

However, Oregon Revised Statute (“ORS”) 536.750(1)(c) allows the Oregon Water Resources Commission to create a preference for human consumption and stock watering uses after a declaration that a severe, continuing drought exists. The creation of a water use preference allows the State to regulate water use in a way that gives priority to junior users for the identified purpose in the preference statute. Here, the State may allow water users to take water out of priority for human consumption and stock watering uses.

A constitutional problem arises when the State regulates water use on the basis of the preference. The United States and Oregon Constitutions provide that private property shall not be taken for public purpose without just compensation. ORS 536.750(1)(c) was enacted in 1989. Water use rights that were perfected prior to the statute being enacted became vested real property rights before ORS 536.750 was in place. Now, based upon the statute and agency regulations (Oregon Administrative Rule, “OAR,” Chapter 690, Division 22), the Oregon Water Resources Department may order a senior irrigation right shut off, while allowing a junior domestic or stock water use to continue. Such an order deprives the senior water user of their priority date, which is a key feature of their water right.

The Oregon Supreme Court outlined the standard for a “temporary taking” under the Oregon Constitution as follows: “We think that, in order to distinguish between a “taking,” on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a “temporary taking” under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 199 (1997). Such a denial of all economic value might be proved, in the case of a senior’s water use regulation, by a showing that the senior user’s water use would have remained unregulated had the State not exercised a preference for junior domestic and stock water uses instead, and that such regulation denied the senior water right holder all economic value of their water right during the period of regulation, such as an irrigation season where a portion of a crop was lost.

A drought has been declared in Klamath County, Oregon this year. In response, the Oregon Water Resources Commission (“OWRC”) enacted temporary rules in OAR Chapter 690, Division 20, creating a surface water preference for domestic and stock watering, regardless of priority. OWRC is now proposing to amend the Division 22 rules to extend the preference to groundwater as well. The proposed rules are available on the Oregon Water Resources Department website at: http://www.oregon.gov/owrd/Pages/law/Department_Rulemaking.aspx.

A second public hearing on the proposed Division 22 rules will he held September 18, 2014 in Klamath Falls. Written Comments must be received by the Oregon Water Resources Department by 5:00 PM on September 19, 2014. More information about the public hearing and comments is available on the website provided above.

Schroeder Law Offices drafts comments on behalf of its clients to proposed rules or other agency actions. Contact Schroeder Law Offices if you have questions about a government action that is affecting your water use.

Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that could affect you!

Earlier this month, the Oregon Water Resources Department announced in this press release that the Department would be submitting a second notice of proposed rulemaking, holding a second public hearing, and extending the comment period for proposed rules that grant preference for “human consumption” and “stockwatering” uses following the Governor’s declaration of a drought. The rules are solely directed at Klamath County, Oregon. After receiving comments from elected officials and concerned local governments stating that there was little notice or public involvement in crafting the proposed rule, the Department decided to hold the second round of comments and public hearings.

Besides making the temporary rule permanent, the rule is different from the original temporary rule in that it eliminates the differentiation between the regulation of surface water to include all water sources, including groundwater. How this proposed rule affects exempt well uses, including “domestic purposes” is unknown, and “domestic purposes” is clearly not included in the definition of “human consumption.”

In addition, granting preference for a particular use does not necessarily translate into a restriction to the access of the water supply. While the Department states that senior calls could “regulate off” a junior user, the preference for a human consumption and stockwatering uses does not speak to restricting access.

The department seems to be conflating the two different aspects between use and access. While shutting off a well or closing a diversion point may be the most efficient method of regulation, granting a preference for human consumption and stockwatering uses would still allow access, and require the department to use a more sophisticated regulation system other than just shutting off the supply: the uses would be regulated, not just the access to the supply. The City of Klamath Falls identified this distinction in its comments, noting its potential role as watermaster for all of its municipal subscribers to enforce the preference of uses as proposed, as municipal uses include industrial and landscape irrigation uses.

The comment period for the proposed rules will close at 5:00 PM on September 19, 2014, and the Commission is expected to take up the proposed rule during the week of September 22, 2014.

The next public hearing is scheduled at 6:00 pm on September 18, 2014 at the Oregon Institute of Technology Mt. Mazama Room, located at 3201 Campus Drive, Klamath Falls, OR.

On July 15, the California State Water Boards passed Resolution No. 2014-0038 to adopt urban water control regulations. These regulations are aimed at conservation for urban residents, providing fines for using water inconsistent with the conservation measures. Among the measures aimed at curbing water use, the Water Board has proposed restricting activities on individuals including:

(1) The application of potable water to outdoor landscapes in a manner that causes runoff such that water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures;

(2) The use of a hose that dispenses potable water to wash a motor vehicle, except where the hose is fitted with a shut-off nozzle or device attached to it that causes it to cease dispensing water immediately when not in use;

(3) The application of potable water to driveways and sidewalks; and

(4) The use of potable water in a fountain or other decorative water feature, except where the water is part of a recirculating system.

Performing any of the above activities subjects the offender to civil fines or criminal penalties (as a criminal infraction), punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs.

Additionally, urban water suppliers and public water suppliers are required to implement water restrictions on outdoor irrigation of ornamental landscapes or turf with potable water. Under the restrictions, ornamental landscaping and turf cannot be irrigated for no more than two days per week.

The regulations are planned to take effect on August 1, 2014 following review from the Office of Administrative Law, and the restrictions will be active for a period of 270 days (nine months), unless water availability conditions change.

As the drought in the Western US continues, communities can expect to see more of these types of water control regulations moving forward.

For more information, see the California Water Board’s Media Release.