Oregon Integrated Water Resources Strategy

by Oregon Senator Doug Whitsett, District 28 4/16/10

http://www.leg.state.or.us/whitsett 

The creation of an Oregon Integrated Water Resource Strategy was authorized in HB 3369 enacted by the 2009 Legislature. The bill requires the Oregon Water Resources Department (OWRD) to design a strategy to meet Oregon’s in-stream and out-of -stream water  needs. Moreover, it essentially elevates both the Oregon Department of Environmental Quality (ODEQ) and the Oregon Department of Fish and Wildlife (ODF&W) to co-equal status with the OWRD in determining what constitutes the best public benefits for the uses of the waters of the state. It also requires consultation with, and provides the specific functions and roles to be played by, the departments of State Lands, Human Services, Agriculture, Forestry, Economic and Community development, Land Conservation and Development, State parks and Recreation and the Oregon Watershed Enhancement Board prior to making water allocation decisions. The strategy must include factors such as population growth, land use changes and water user actions that are necessary to address potential climate change.

I strongly opposed provisions of HB 3369 for a number of reasons.

First, it was unnecessary because existing state water law already address Oregon water strategy in detail. For instance, ORS 536.241 (2) notes that “it is the policy of the State of Oregon to ensure a water supply to meet the needs of existing and future beneficial uses of water to adequately manage the state’s water resources”. Further, ORS 536.310 states in part “proper utilization and control of the water resources of the state can be achieved only through a coordinated, integrated state water resources policy, through plans and programs for the development of such water resources.” The existing statutes provide for the management of Oregon’s water in a manner that equally protects all beneficial uses.

          Second, it serves to reverse the specific provisions of current Oregon water law that delegates the management of the waters of the state to the OWRD. That provision was prudently adopted by previous Legislators to insure that a single agency would have the responsibility to smoothly and efficiently manage the waters of the state. I believe that a strategy developed and implemented by OWRD, ODEQ, ODF&W and other state agencies as a “water use committee” will create water use gridlock of biblical proportions.

Third, the bill had several particularly troubling provisions that I believe   prevent any future Oregon funded water storage or conservation projects for irrigation.

It created the undefined terms “peak and ecological flows” as part of the loosely defined concept of “net environmental public benefits” as they must be applied to new state financed water storage and conservation projects. The legislation left it to the OWRD to define peak and ecological flows by rule. The committee established by OWRD to make that determination appears to be at best out of balance. While each committee member appears to be well qualified, each member appears to be either an academic or connected with an organization focused on protecting water in-stream for the primary benefit of fish and other aquatic species. Equally qualified individuals with agricultural backgrounds focused on sustainable water use for irrigation were not selected to participate. OWRD has confirmed that little if any public participation occurred in the selection of this panel.

Moreover the provisions of  “net environmental public benefit” includes elimination of non-point source pollutant transport. The clean Water Act does not provide the Environmental Protection Agency (EPA) authority to regulate non-point sources of nutrient transport such as agricultural irrigation return flows and storm water runoff. This requirement would give the ODEQ new and unfettered regulatory control over all non-point sources of water born nutrients and temperature. Another provision requires progress toward attainment of water quality standards. Virtually all Eastern and Southern Oregon streams and lakes are 303(d) listed for either temperature and or nutrients that allegedly exceed clean water standards. EPA has ignored the fact that most of these water bodies have exceeded those arbitrary standards for millennia. This provision would require the attainment of temperature and nutrient levels in 303(d) listed streams and lakes that exceed those natural background levels. 

Fourth, I was very concerned that once these undefined terms had been introduced into Oregon statute their use would be expanded into other aspects of Oregon water law. The approach that the OWRD appears to be taking in implementing those new statutory provisions is validating my concerns. Foremost is the current effort by OWRD to define peak and ecological flows and their apparent intent to expand their application to apply to the Integrated Water Resources Strategy. Although the application of that terminology is statutorily restricted to the “net environmental public benefits” analysis for future state funded water storage or conservation projects (HB 3369, Section 18), I have seen multiple examples of recent OWRD issue papers and memoranda that indicate the agency’s intent to include “peak and ecological flow” determinations and other provisions of “net environmental public benefit’ into the Integrated Water Resources Strategy. That inclusion is clearly not authorized by HB 3369. The bill makes no reference to “peak and ecological flows” in the provisions creating the Integrated Water Resources Strategy. In fact, those terms do not exist in current Oregon water law.

The extension of that terminology to existing Oregon water law would have significant negative effects on irrigated agriculture. The in -stream water right provisions of Oregon water law determine the minimum amount of water needed to be left in the stream to meet the identified in-stream requirements such as habitat for fish and other aquatic species. The concept of “peak and ecological flows” appears to conflict, if not contravene, those current provisions because they speak to maximum seasonal flows such as seasonal flooding. Further, HB 3369 appears to provide for the legal protection of the yet to be defined peak and ecological in-stream flows, regardless of whether the flows are the minimum amount necessary, and regardless of the relative priority dates of other water right claimants. Providing OWRD, ODEQ, ODF&W and other state agencies authority to force elimination of non-point source nutrient transport would effectively eliminate all flood irrigation. Requiring progress toward meeting impossible water quality standards would have the same result.

Incorporation of those concepts into Oregon water law through their inclusion in the Integrated Water Resources Strategy would almost certainly preclude any future water storage projects. Further, it would likely threaten the historical and current practices of storing winter runoff in reservoirs for seasonal summer use. Finally, it would likely threaten historical and current diversions of water for out of stream irrigation use.

The statutory language of HB 3369 clearly confines those “net environmental public benefit” requirements to eligibility for the grant and loan programs established by the bill. In my opinion, most existing agricultural water users will be unable to comply with these requirements if OWRD is successful in expanding the statutory intent of HB 3369 to include the provisions of “net environmental public benefits” into the new Integrated Water Resources Strategy.

The Integrated Water Resources Strategy management team is currently holding a series of open house meetings in eleven Oregon towns to obtain public input and public support for their intended program. That team is made up entirely of upper level agency leaders. The meetings will be facilitated to keep the subjects for discussion focused on the issues that these agency employees want you to discuss. Local Integrated Water Resources Strategy meetings will be held from four to seven p.m. at the Medford Library on May 11^th, again at from four to seven p.m. at OIT in Klamath Falls on May 12^th, and again at four to seven p.m. at the Redmond Fire and Rescue on May 13^th. Other meetings are scheduled April 22^nd in Bandon, April 28^th in Tillamook,  June 8^th in Salem and June 10^th in Eugene.

The “enrolled” version of  HB3369 is available on-line at Google by entering 2009 Oregon HB 3369. I encourage all Oregon water users to become familiar with the provisions of that bill. I believe that it is imperative that Oregon’s irrigators attend these meetings. They must be prepared to defend themselves against “yet another assault” on their right to use their vested irrigation water to farm.