Oregon Agricultural Water Law
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Oregon Agricultural Water Law



September 28, 2009 presentation at Oregon Association of Nurseries annual conference

September 28, 2009 presentation at Oregon Association of Nurseries annual conference



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  • “ Water is available” requires us to determine whether the resource is over appropriated To do that we analyze water level data from the area in question Here is a hydrograph from Victor Point Withdrawal area

Oregon Agricultural Water Law Oregon Agricultural Water Law Presentation Transcript

  • Presentation Overview
    • 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
  • 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”
  • Second Principle:
    • “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
  • Fourth Principle
    • “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
  • 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
  • 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
  • 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
  • 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
  • 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
  • Primary and Supplemental Rights
    • 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
  • 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
  • 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
  • Water availability …
    • 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
  • 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)
  • Groundwater Restrictions
    • 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
    • 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
  • 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
  • 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
  • Public Interest Review
    • 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
  • 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
  • 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
  • Shared Facilities
    • 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
  • Shared Facility 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
  • 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)
  • 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.
  • 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
  • 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
  • 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
  • Questions Anyone?
  • Thank you for attending.