Oregon's water regulators are rapidly spending the $835,000 they
have available for litigation and may go nearly $1.3 million
over budget in the 2017-2019 biennium.
A request for more litigation funds was recently turned down by
Oregon lawmakers, which means the Oregon Water Resources
Department will probably ask the Legislature's Emergency Board
for money later this year.
If OWRD can't get additional litigation funds, the agency will
have to delay replacing employees who have left, though it has
yet to determine how many positions would remain unfilled, said
Racquel Rancier, the department's senior policy coordinator.
About $600,000 was spent on litigation within the first seven
months of the biennium, which was roughly two-thirds of the
money allocated for two full years of legal battles, Rancier
said March 15 during a meeting of the Oregon Water Resources
Commission, which oversees the agency.
Litigation costs have averaged about $86,000 a month, so funds
are expected to run out soon — particularly since several cases
may go to trial, increasing the expense, she said.
At the current rate, OWRD is projected to spend about $2.1
million on litigation in the current biennium.
The agency has a legislatively adopted budget of $98.6 million
for 2017-2019, down from $107.4 million for the previous
biennium.
Litigation over water has increased mostly due to more
regulatory calls cutting off water to junior irrigators in the
Klamath Basin, where an "adjudication" over the validity of
water rights was completed in 2013, Rancier said.
Since the lawsuits are generally initiated against OWRD, the
agency doesn't have control over the costs. The problem is also
growing worse: 25 new cases were filed against OWRD in
2015-2017, up from 13 new cases in 2013-2015 and 5 new cases in
2011-2013.
OWRD plans to continue discussing the issue with lawmakers to
convey what services the agency can't perform as a result of
delayed hiring, Rancier said.
The agency plays a key role in Oregon irrigation by
administering the state's water rights system, such as approving
wells, diversions, leases and transfers.
When the agency issues a water call, a junior irrigator can stay
enforcement of that regulation by filing a lawsuit, said Tom
Byler, OWRD's director.
OWRD can lift such an enforcement stay — as it did last year —
but the process can take several weeks, during which a senior
water user's rights are infringed, he said.
The ability to postpone water rights enforcement through
liigation has long been "on the books," but has only recently
been used this way, Byler said.
"It's troubling for us because it really undermines the prior
appropriations doctrine," he said, referring to the "first in
time, first in right" system of Western water law.
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