Oregon's water management plan

 By: Oregon State Senator Doug Whitsett, 11/28/06

The Governor’s Big Look Task Force is examining Oregon’s comprehensive water management plan. Their stated goal is to extend land use planning and regulation to the use of our State’s water. Specifically, the Task Force is directed to establish the carrying capacity of water resources as they apply to eleven of the fourteen Statewide Land Planning Goals.

To that end, Tamra Mabbott, Umatilla County Planning Director, is traveling the state promoting her recommendations. Her proposals, taken as a whole, represent the largest expansion of Oregon’s police powers since the 1973 passage of Senate Bill 100, the land use planning statute. Six of her specific policy proposals appear to oppose the interests of agriculture and the interests of many municipalities.

The first proposal would replace Oregon’s centuries old prior appropriations doctrine with regulations created and enforced by an appointed water use commission. The Commission would establish rules to conform water use to the myriad land use regulations. Existing water rights would be grandfathered in to allow pre-existing non-conforming uses. This proposal is troubling when we examine how the grandfathered rights of property owners were ultimately neither protected nor preserved by Oregon’s land use rules.

The second proposal would repeal most water uses exempt to regulation such as domestic wells, surface and groundwater livestock watering, and domestic ponds.

The third proposal would change the burden of proof from the state onto the water right applicant. Current water law assumes that an applied for use will be in the best public interest if it is a beneficial use, if water is available at the point of diversion, and if the use will not injure a holder of a priority water right. This proposal would require the applicant to prove that his use is in the best public interest just as he is required to do in the dysfunctional land use regulation system.

The fourth proposal would formally withdraw areas that are already over appropriated from any further water right permit applications. Currently laws allow for this withdrawal process by court order after significant public input. This proposal would allow the unelected commission to both define the over appropriated areas and to withdraw them from future use by their own decree.

The fifth proposal is to create a water user fee to support the costs of the proposed rule making, regulation, and enforcement activities.

Finally, she proposes to create an additional court system patterned after the Land Use Board of Appeals to adjudicate water use litigation.

The policy proposals identified do not appear aimed at providing greater coordination between water allocation and land use planning as claimed. Rather, each of these policy proposals is a replica of schemes that non-agricultural interests have advocated in Oregon for years.

Please understand that the foregoing proposals are only a few of the “progressive new era” schemes that water users will be facing in the next legislative session.

Additional ideas will require: mandatory water measurement, fish screens on all diversions over 30 csf, repeal of the state fish screen cost share program, and enhancement to Oregon’s instream water rights act.

Advocates of the wise use of natural resource are no longer in control of either legislative chamber or of the Governor’s office. Those with preservationist agendas now have the potential to vote each of these proposals into Oregon law. If we are to protect our private property water rights from uncompensated taking by the police powers of the state we must stay informed, participate, testify, and actively lobby all legislators. Our active participation is now a requirement for agricultural survival.