DEVELOPING AND PROTECTING AGRICULTURAL WATER RIGHTS Presented by STEVEN L. SHROPSHIRE

Presentation Overview Oregon Water Law Overview Agricultural Water Rights Obtaining New Water Rights Transactional Due Diligence Working with the Water Resources Department

Oregon Water Law Overview

Agricultural Water Rights

Obtaining New Water Rights

Transactional Due Diligence

Working with the Water Resources Department

“… all water within the state from all sources of water supply belongs to the public…” ORS 537.110

Oregon Water Law Four Fundamental Principles

Four Principles 1. Priority—First in time, first in right 2. Beneficial Use 3. Appurtenance 4. Use It or Lose It

1. Priority—First in time, first in right

2. Beneficial Use

3. Appurtenance

4. Use It or Lose It

First Principle--Priority The right to use water is awarded to whomever was first to divert it from the natural course “ First in time, first in right”

The right to use water is awarded to whomever was first to divert it from the natural course

Second Principle: “Beneficial use is the basis, measure and limit of all rights to the use of water.” ORS 540.610(1)

“Beneficial use is the basis, measure and limit of all rights to the use of water.”

ORS 540.610(1)

Valid to Extent of Beneficial Purpose—No Waste

Third Principle Water right is appurtenant to the land where perfected

Water right is appurtenant to the land where perfected

Fourth Principle “Use It or Lose It” 2 Ways to Lose Water Rights Abandonment Forfeiture

“Use It or Lose It”

2 Ways to Lose

Water Rights

Abandonment

Forfeiture

Agricultural Water Rights

Types of Water Authorization Water right permit Water right certificate Decreed rights Registrations Limited licenses Exempt uses

Water right permit

Water right certificate

Decreed rights

Registrations

Limited licenses

Exempt uses

Exempt Groundwater Uses Domestic lawn and garden < ½ acre Domestic consumption of less than 15,000 gallons per day Commercial or industrial use of less than 5,000 gallons per day Stockwatering

Domestic lawn and garden < ½ acre

Domestic consumption of less than 15,000 gallons per day

Commercial or industrial use of less than 5,000 gallons per day

Stockwatering

Irrigation “ Artificial application of water to plants by controlled means to promote growth or nourishment” Examples: Watering of an Ag crop, commercial garden, tree farm, orchard, park, golf course, playing field, or vineyard Other uses such as alkali abatement may apply if necessary for promoting growth Irrigation season is typically from March 1 to October 31

“ Artificial application of water to plants by controlled means to promote growth or nourishment”

Examples:

Watering of an Ag crop, commercial garden, tree farm, orchard, park, golf course, playing field, or vineyard

Other uses such as alkali abatement may apply if necessary for promoting growth

Irrigation season is typically from March 1 to October 31

Nursery Operations Water for operation of a commercial nursery May include irrigation of: In-ground stock Containerized stock Greenhouse stock May also include: Temperature control Soil preparation Application of chemicals or fertilizers Other uses for construction, O&M of nursery facilities

Water for operation of a commercial nursery

May include irrigation of:

In-ground stock

Containerized stock

Greenhouse stock

May also include:

Temperature control

Soil preparation

Application of chemicals or fertilizers

Other uses for construction, O&M of nursery facilities

Nursery Operations (Cont.) Year-round irrigation of nursery stock 1/40 cfs (11.2 gpm) and 5.0 acre-feet per acre for containers and greenhouse 1/80 cfs (5.6 gpm) and 2.5 acre-feet per acre for in-ground 0.15 cfs (67.3 gpm) per acre for temperature control

Year-round irrigation of nursery stock

1/40 cfs (11.2 gpm) and 5.0 acre-feet per acre for containers and greenhouse

1/80 cfs (5.6 gpm) and 2.5 acre-feet per acre for in-ground

0.15 cfs (67.3 gpm) per acre for temperature control

Nursery Operations (Cont.) Nursery on top of Irrigation rights Primary Nursery and Primary Irrigation Nursery takes over where Irrigation leaves off Total use must not exceed Nursery rates

Nursery on top of Irrigation rights

Primary Nursery and Primary Irrigation

Nursery takes over where Irrigation leaves off

Total use must not exceed Nursery rates

Primary and Supplemental Rights Primary rights used first Supplemental used to make up deficiency Deficiency in rate Deficiency in supply Supplemental from different source

Primary rights used first

Supplemental used to make up deficiency

Deficiency in rate

Deficiency in supply

Supplemental from different source

Storage Rights Primary Right to Store Secondary Right to Use

Primary Right to Store

Secondary Right to Use

Off-Season Diversions and/or Storage Non-irrigation season, aka “shoulder season” water WRD “system bulge” policy Winter storage rights But peak flow analysis may limit availability

Non-irrigation season, aka “shoulder season” water

WRD “system bulge” policy

Winter storage rights

But peak flow analysis may limit availability

Obtaining New Water Rights

Getting More Water What if you don’t have water rights or you have some but not all you need? 1. The Department regulates on primarily a complaint based system so it could be a while before they find out you have a problem. 2. The longer you wait to begin fixing the problem, the harder it will be to get the water rights you need. 3. Self-report and make application to rectify the problem. 4. Ask the Department for help in identifying solutions. 5. It can be very complicated. Get help from WRD and/or hire a consultant to help you.

Obtaining A New Surface or Groundwater Permit Application/Permit Construction/Application Perfection/Final Proof

Application/Permit

Construction/Application

Perfection/Final Proof

Water availability … Is it over appropriated?

Is it over appropriated?

Water Availability Examples Surface Water Availability In most areas, summer use is no longer available. In most areas, winter storage for use later in the summer, is available. However, peak flow analysis by ODFW is now making even winter water difficult to obtain

Surface Water Availability

In most areas, summer use is no longer available.

In most areas, winter storage for use later in the summer, is available.

However, peak flow analysis by ODFW is now making even winter water difficult to obtain

Water Availability Map

Water Availability Examples Ground Water Availability A few areas are limited and no additional irrigation can be allowed. There is a growing number of areas where WRD can no longer find that additional ground water is available for new uses. (Willamette Valley) The biggest hurdle for a new GW application is whether or not there is the Potential for Substantial Interference (PSI) with a nearby surface water source. (look at SW issues)

Ground Water Availability

A few areas are limited and no additional irrigation can be allowed.

There is a growing number of areas where WRD can no longer find that additional ground water is available for new uses. (Willamette Valley)

The biggest hurdle for a new GW application is whether or not there is the Potential for Substantial Interference (PSI) with a nearby surface water source. (look at SW issues)

Groundwater Restrictions Hydraulic Connection to Surface Water Basin Classifications (Groundwater Limited) Withdrawals Critical Groundwater Areas Limited Groundwater Areas Groundwater Study Areas

Hydraulic Connection to Surface Water

Basin Classifications (Groundwater Limited)

Withdrawals

Critical Groundwater Areas

Limited Groundwater Areas

Groundwater Study Areas

Common Water Rights Application Issues Surface/Ground Water Interference (OAR 690-09, Div. 9) Well Construction Requirements Permit Conditions

Surface/Ground Water Interference (OAR 690-09, Div. 9)

Well Construction Requirements

Permit Conditions

Surface/Ground Water Interference Most common reason for denial of new GW applications: the dreaded “Potential for Substantial Interference (PSI)”

Most common reason for denial of new GW applications: the dreaded “Potential for Substantial Interference (PSI)”

Surface/Ground Water Interference (Cont.) Avoid well locations < ¼ mile from stream Other criteria Q not > 1% of natural stream flow Interference not >25% of Q If PSI determined, options include: Give up Settle for lower rate (i.e., less than criteria) Try to rebut finding of PSI

Avoid well locations < ¼ mile from stream

Other criteria

Q not > 1% of natural stream flow

Interference not >25% of Q

If PSI determined, options include:

Give up

Settle for lower rate (i.e., less than criteria)

Try to rebut finding of PSI

Well Construction Requirements Sometimes as special conditions in permit Noncompliance can invalidate permit Owner is responsible for informing driller Old wells may require repairs Well Construction Rules: OAR 690-210 to 690-225 Costs for repairs sometimes > new well

Sometimes as special conditions in permit

Noncompliance can invalidate permit

Owner is responsible for informing driller

Old wells may require repairs

Well Construction Rules: OAR 690-210 to 690-225

Costs for repairs sometimes > new well

Other Permit Conditions Other conditions may include: Installation of measuring device (SW, GW) Installation fish screens or bypass devices (SW) Water level monitoring and reporting (GW) Water use recording and reporting (SW, GW) Pumping test requirements (GW) Time limits to begin and complete construction and put water to beneficial use And so on Ultimately, permit holder is responsible

Other conditions may include:

Installation of measuring device (SW, GW)

Installation fish screens or bypass devices (SW)

Water level monitoring and reporting (GW)

Water use recording and reporting (SW, GW)

Pumping test requirements (GW)

Time limits to begin and complete construction and put water to beneficial use

And so on

Ultimately, permit holder is responsible

Public Interest Review Proposed use must not be to the detriment of the public interest

Proposed use must not be to the detriment of the public interest

Transfers Point of diversion (appropriation) Type of use Place of use Substitution of groundwater for surface water

Point of diversion (appropriation)

Type of use

Place of use

Substitution of groundwater for surface water

Transactional Due Diligence Issues

Reliability and Availability -- Latent Problems Outside influences affecting availability: Well deepening requirements Hydrologic connection between surface and ground water Endangered species and instream flow requirements Water quality requirements, including temperature Undeveloped municipal rights Litigation regarding the source Unadjudicated rights Wetlands permit requirements Cost of electricity Note: Generally case specific, so close work with local watermaster is necessary

Outside influences affecting availability:

Well deepening requirements

Hydrologic connection between surface and ground water

Endangered species and instream flow requirements

Water quality requirements, including temperature

Undeveloped municipal rights

Litigation regarding the source

Unadjudicated rights

Wetlands permit requirements

Cost of electricity

Note: Generally case specific, so close work with local watermaster is necessary

Reliability and Availability -- Legal Constraints on Availability Terms of the water right i.e., priority, rate and volume limits, place of use, point of diversion Basin plan regulations Contractual terms Conservation or management regulations Land use restrictions

Terms of the water right

i.e., priority, rate and volume limits, place of use, point of diversion

Basin plan regulations

Contractual terms

Conservation or management regulations

Land use restrictions

Shared Facilities Is water availability dependent upon delivery through shared facilities? Wells Pipelines Ditches

Is water availability dependent upon delivery through shared facilities?

Wells

Pipelines

Ditches

Shared Facilities Issues of Concern Access rights Easements, Rights-of-way, Licenses Joint maintenance obligations Shortage allocation Liability allocation Scope of use/expansion of use

Issues of Concern

Access rights

Easements, Rights-of-way, Licenses

Joint maintenance obligations

Shortage allocation

Liability allocation

Scope of use/expansion of use

Shared Facility Agreements Well/pipeline sharing agreements Ownership Access Maintenance Use Shortage Allocation Rotation agreements

Well/pipeline sharing agreements

Ownership

Access

Maintenance

Use

Shortage Allocation

Rotation agreements

Working with WRD

Oregon Water Administration Oregon Water Resources Commission Seven Member Citizen Commission Primarily Policy Oriented Oregon Water Resources Department Director and Professional Staff Grant New Rights and Administer Existing Rights

Oregon Water Resources Commission

Seven Member Citizen Commission

Primarily Policy Oriented

Oregon Water Resources Department

Director and Professional Staff

Grant New Rights and Administer Existing Rights

Department Overview 146 Staff Headquarters in Salem 5 Divisions Water Rights/Adjudication Division Field Services Division Technical Services Division Administrative Services Division Director’s Office (Phil Ward - Director)

146 Staff

Headquarters in Salem

5 Divisions

Water Rights/Adjudication Division

Field Services Division

Technical Services Division

Administrative Services Division

Director’s Office (Phil Ward - Director)

Water Right Section Make-Up Doing What? Staff Water Right Application Caseworkers 5 Extension Processing 3* Certificates/CWRE’s 2 Customer Service Counter 2 Support 3 Manager 1 TOTAL 16

Water Rights Process New Application Filed (Priority Date!) If Permit is issued, pay attention to performance conditions. Extension of Time? (If more time is needed) Certified Water Right Examiner needed for COBU. Certificate Certificated Rights can be transferred . Permits are eligible for permit amendments. Transfers and Permit Amendments can be used to move water rights onto other lands - and make other changes.

New Application Filed (Priority Date!)

If Permit is issued, pay attention to performance conditions.

Extension of Time? (If more time is needed)

Certified Water Right Examiner needed for COBU.

Certificate

Certificated Rights can be transferred . Permits are eligible for permit amendments. Transfers and Permit Amendments can be used to move water rights onto other lands - and make other changes.

Processing Secrets Application Acceptance Minimum Review Checklists Deficiency Letter Caseworker assignment Fiscal Section (Receipt) Data center (data entry/work list) Ground water section/Dam Safety File Cabinet

How long does it take? (To get a water right permit.) It depends on a lot of things 180 days (alternate reservoir process) 241 days (regular process…) Years Reimbursement Authority Certificate Extension of Time Transfer/Permit Amendment

It depends on a lot of things

180 days (alternate reservoir process)

241 days (regular process…)

Years

Reimbursement Authority

Certificate

Extension of Time

Transfer/Permit Amendment

Workload Issues Backlogs and Filing Rates Extensions - up to date within a few months Certificates - 6,000 and holding steady Water Right Apps - dropping slowly while increasing in complexity Limited Licenses – increasing Transfers - application rate is growing

Backlogs and Filing Rates

Extensions - up to date within a few months

Certificates - 6,000 and holding steady

Water Right Apps - dropping slowly while

increasing in complexity

Limited Licenses – increasing

Transfers - application rate is growing

Regulation Some of Oregon’s river basins are regulated to satisfy prior rights every year. Other basins, in wetter areas, have never seen regulation. Ground water uses can be regulated also. Illegal use investigations are more likely to occur in areas where there is not enough water to satisfy all rights or when some other project is taking place: Surface or ground water study TMDL (DEQ) Endangered Species Act

Some of Oregon’s river basins are regulated to satisfy prior rights every year.

Other basins, in wetter areas, have never seen regulation.

Ground water uses can be regulated also.

Illegal use investigations are more likely to occur in areas where there is not enough water to satisfy all rights or when some other project is taking place:

Surface or ground water study

TMDL (DEQ)

Endangered Species Act

Questions Anyone?

Thank you for attending.