Drought Compels Federal and State Action

Stating that “agriculture is the backbone to much of Oregon’s economy,” Senator Gordon Smith announced that he has introduced the Reclamation States Emergency Drought Relief Act. The bill would extend the authority of the U.S. Department of the Interior’s Bureau of Reclamation to provide emergency drought assistance up to the year 2010. Currently, the authority under the Emergency Drought Relief Act of 1991 is set to expire on September 30^th this year. Provisions under the current Act authorize the U.S. Secretary of the Interior to make loans to water users and take steps to mitigate losses and damages resulting from drought. In addition, the Secretary is authorized to store and convey non-Reclamation project water while utilizing Federal Reclamation facilities. The Secretary is further authorized to make available, by temporary contract, both project and non-project water for use outside and inside traditional project service areas.

Wyatt Rolfe authored this article with Laura Schroeder while a Law Clerk at Schroeder Law Offices, PC, during the spring of 2005. Although the drought didn’t materialize to the extent expected, the material remains timely.

Oregon has also responded to the current drought conditions. In Oregon, the State Drought Council and the State Drought Plan have been activated. As a result, on March 8^th, 2005, Governor Kulongoski issued an executive order declaring a state drought emergency in Baker and Klamath counties. On March 29^th, the State will consider further drought declaration requests for Morrow, Sherman, and Umatilla counties when the Drought Council meets later this month. The Council will also consider whether a statewide drought emergency declaration should be recommended to Governor Kulongoski.

Once the Governor has declared an area to be in drought, the Department of Water Resources is authorized to permit a number of activities to mitigate the effect of drought. These include the ability of the department to receive and approve 1) applications for emergency water use permits, 2) applications for temporary drought transfers, 3) applications to substitute supplemental ground water rights for a primary surface water right, and 4) exercise of drought agreements between owners of water rights. This article is intended to provide a brief overview of each process.

Emergency Water Use Permits

Once a declaration of drought has been issued for a county, the Water Resources Commission or the Water Resources Director may allow emergency water use by issuing emergency use permits. The emergency permit allows a person to use un-permitted water to replace water not available under their existing right due to drought. Through the terms of an emergency use permit, the Water Resources Commission or the Water Resources Director may allow temporary changes in use, place of use, or point diversions of water. In order to expedite issuance, a hearing is not required prior to issuance of the permit. General notice and waiting requirements required in transfer proceedings are also suspended.

An emergency water use permit applicant must submit sufficient information to demonstrate that:

1) Drought conditions have created an inability to obtain water under an existing right, and

2) The proposed water use is within a designated drought county.

Additionally, the applicant may be required to demonstrate that conservation and water use curtailment measures have been taken before use is made of an emergency use permit.

An application for emergency water use will be approved if it is found that the proposed use will not cause injury to existing water rights and will not impair or be detrimental to the public interest. Whether a proposed use is detrimental to the public interest requires a complex analysis. Factors considered include but are not limited to, the efficiency of the proposed use, avoidance of waste, the effect of the use upon threatened, endangered or sensitive species, the effect upon water quality, the need for water, and the short-term nature of the proposed emergency use.

Emergency Use Permit Limitations and Conditions

Emergency use of water is subject to prior water right permits, certificates, decreed rights, scenic waterway flows and minimum stream flows. In addition, the emergency permit cannot exceed the rate and volume of the underlying right. Seasonal limitations upon the underlying right remain intact. The Department may not grant emergency use permits which extend the irrigation season beyond historical use. In addition, the Director may impose other conditions which are found to be appropriate. These may include but are not limited to water use conservation, measurement, and water curtailment measures.

Due to the expedited process of granting emergency use permits, the Director will continue to consider all comments regarding an emergency use for the entire life of the permit. A permit may be revoked if use under the permit causes injury to an existing water right. However, revocation may be avoided if the injury can be mitigated to the satisfaction of the Department and the injured water right holder.

Duration of the Permit

The duration of use authorized under an emergency permit is not to exceed one year unless renewed. In addition, should the governor declare drought conditions to have ceased in a county, all emergency water use in that county will be terminated.

Emergency Water Use Permit Process

According to the Water Resources Department, Emergency Drought Permit Applications are processed as quickly as possible. Generally, it takes less than ten business days. Unlike non-drought applications, Land Use Information Forms and legal descriptions are not required to file. In rare circumstances, the Department may require a Land Use Information Form to be submitted prior to water use.

Emergency Drought Permit Applications require:

An application to appropriate surface water or groundwater or an application to store water. These applications may be found online at the Water Resource Department website address:

http://www.wrd.state.or.us/OWRD/WR/drought.shtml#Water_Rights_Application_Forms

An Application Supplement for Drought Emergency Water Use Permit (also available at the above web address).
A map of the proposed use that meets mandatory mapping requirements. The Water Resources Department cannot process an application without accurate information showing the source of water and the location of water use. Mandatory mapping requirements can be found in the application Guidebooks. In addition, specific requirements may be found online:For surface water mapping requirements, visit the Department’s Drought Watch web page or download a copy at:

http://www1.wrd.state.or.us/pdfs/drought/surface_water_drought_map_requirements.pdf

For groundwater mapping requirements, visit the Department’s Drought Watch web page or download a copy at:

http://www1.wrd.state.or.us/pdfs/drought/groundwater_drought_map_requirements.pdfdf

Form Q if your use is commercial or industrial, Form R if your use is Mining, or Form M if your use is Municipal or Quasi-Municipal, and
Fees: Emergency Drought Permit Applications require an examination fee of $200.00 plus a permit recording fee of $400.00 for the first cubic foot per second or fraction thereof, plus $100 for each additional cubic foot per second or fraction thereof. Fees are to be made payable to Oregon Water Resources Department

Temporary Drought Transfers

After the Governor has declared a severe, continuing drought exists, a water certificate holder who is unable to use water due to the effects of drought, may apply to the Director for a temporary change in use, place of use, or point of diversion under a different certificate held by the user. A temporary drought transfer need not comply with notice and waiting requirements usually associated with a change in use proceeding.

Total water use at the proposed new location may not exceed either the amount in the original right or the amount in the transferred right, whichever is smaller. In addition, the temporary transfer may not result in injury to an existing right. If injury does occur, the Director may revoke the transfer unless the injury can be mitigated to the satisfaction of the Director and injured parties. Also, the Director is authorized to impose any appropriate conditions including water use conservation, measurement and water curtailment measures.

A temporary drought transfer expiration date cannot exceed one year from the day it is granted or the term of the Governor’s declared drought, whichever is shorter. Transfer applications may be acquired on the Water Resources Department website at:

· Temporary Drought Transfer Application:

http://www1.wrd.state.or.us/pdfs/TransferApp-2003.pdf.

Temporary Substitution of Supplemental Ground Water Right For Surface Water Primary Right

Any person holding a primary water right originating from a surface water and a supplemental water right from a ground water source may apply to the Director to temporarily substitute the use of the supplemental right for the primary right. Applications must be for use in a designated drought area.

The Oregon Administrative Rules state that the notice and hearing requirements usually required for such a transfer are to be expedited under drought conditions. The application will be included in the weekly notice published by the Department and a hearing will be held if any protest is filed within 10 days of the notice.

A temporary substitution will be conditioned upon the Director’s ability to revoke the substitution order if injury to existing water rights is shown and cannot be mitigated to the satisfaction of the Director and the injured parties. The Director is also authorized to impose other appropriate conditions prior to approval.

Option or Agreement for Use of Existing Right

In order to plan for and mitigate the effects of severe, continuing drought, a local government, public corporation, or water right holder may enter into an option or agreement to use water under another existing water right. Options or agreements must be approved by the Director or Commission. Water used under the terms of an approved agreement may be used at locations, points of diversions, and for beneficial purposes other than those described in the water right. While the option or agreement may be created and approved at anytime, it can only be exercised in a drought area during a declared drought. Prior to exercising the option or agreement, the parties must notify the Water Resources Department and the local watermaster.

Option/Agreement Conditions

· The proposed option or agreement may not cause injury to other existing water rights.

· The option or agreement must not impair or be detrimental to the public interest.

· An approved option or agreement may be terminated or modified by the Director after notice and an opportunity to be heard.

· The Director may impose other appropriate conditions, including, but not limited to water use conservation, measurement and curtailment measures.

· Use of the water is limited by the rate, volume, acreage, time and other limits of the existing water right.

Application Process

Approval of an option or agreement between parties is not an expedited process. Upon receiving an application, the Director will provide notice in the regular weekly notice for a period of at least three weeks in a generally circulated newspaper in the area in which the water supply is permitted. Any person whose existing water right may be affected by the agreement or any person representing a public interest has 30 days from the first publication to file a protest. A hearing will follow any protest filed in a timely manner. If no protests are filed, the Director still may not take action on the proposed option or agreement for at least 20 days after the final publication of notice.

Applications must include the following information:

· The names of the parties to the option or agreement

· A copy of the water right permit, certificate or decree which will be affected by the option or agreement

· A copy of the proposed agreement

· A statement that the water is either intended for in-stream use, or a description of the land on which the water is currently used and a description of the land on which the water will be used under the agreement

· Evidence that the water to be used has been used over the past five years according to the terms and conditions of the owner’s water right

· Evidence that the water shall be used to supplement an existing water right under which water is not available