Water right tools available for farms and ranches facing drought
By Elizabeth E. Howard
and Shonee Langford
For the Capital Press
On Feb. 13, Gov. John Kitzhaber declared a state of drought emergency in Harney, Klamath, Lake and Malheur counties due to drought conditions, low snowpack and a lack of precipitation.
The governor later issued drought declarations in Crook County on March 20 and in Jackson County on May 6 and is currently considering additional requests for declarations in Josephine, Grant and Wheeler counties. For water users in Klamath County only, the Oregon Water Resources Commission has adopted temporary rules granting a preference for human consumption and stock water uses for the duration of the drought, regardless of the priority date of such uses.
It is important to know that when the governor makes a drought declaration, the Oregon Water Resources Department may exercise emergency water rights authority, generally for the duration of the declaration or for up to one year after the declaration is made, whichever is shorter.
Importantly for farmers and livestock producers, in a drought emergency, the department has a number of tools at its disposal, including:
• Issue temporary emergency permits under an expedited process. For example, if a water user is unable to exercise surface water rights due to drought conditions, the user may apply for an emergency permit to use groundwater from an existing or proposed well instead. In some areas, an emergency permit may also authorize use of available stored water. The department has already issued several emergency permits to use groundwater this season, although some applications have been denied in areas with insufficient groundwater resources.
• Approve temporary transfers, authorizing changes in type of use, place of use or point of diversion of an existing water right, including “split season” transfers. This might be relevant when a water user has multiple water rights with different priority dates, some of which are shut off due to drought. Under those circumstances, the water user could apply to temporarily transfer senior priority water rights to where they are most needed. This tool also could be used to facilitate private agreements to temporarily move water rights between properties.
• Issue temporary in-stream leases to convert all or part of a water right to augment in-stream flow. If a farmer or producer is considering fallowing some land during the drought, this could be of particular interest as a way of exercising the water right while potentially being paid by a third party to leave water in-stream.
• Grant preference of use to water right for human or livestock consumption. As noted above, the Water Resources Commission has issued temporary rules creating this preference in Klamath County and may do the same for other counties as the summer progresses. The department is also currently considering creating permanent rules for Klamath County that would allow it to give preference to these uses whenever a drought is declared by the governor. Temporary rules expire after 180 days and may not cover all of the needed timeframe to protect livestock and human consumption. Permanent rules would alleviate that concern.
It is important to remember that the department is not required to exercise its emergency authority or to approve applications for emergency permits or transfers. That being said, this year is shaping up to be a very difficult water year throughout most of Central and Southern Oregon, and follows on the heels of a very dry year last year. We are recommending that livestock producers and farmers consider whether a request for emergency action by the department could make a difference for their operations and move forward on those options sooner rather than later.
Elizabeth E. Howard and Shonee Langford are water law attorneys at the Schwabe, Williamson and Wyatt law firm.