SALEM — Oregon lawmakers will consider restricting a legal tool that allows farmers to prevent irrigation shutdowns, though the proposed bill is less drastic than legislation that failed last year.
Under current water law, an enforcement order from Oregon water regulators that halts irrigation can be “automatically stayed” if the affected farmer challenges the action in court.
In 2019, critics of the provision argued it’s unfair to senior water rights holders who are unable to stop junior irrigators from using their water during prolonged litigation.
These concerns spurred the introduction of House Bill 3420, which would have eliminated the “automatic stay” provision from Oregon water law. However, the proposal failed to gain traction and died in committee.
During the 2020 legislative session, Rep. Marty Wilde, D-Eugene, plans to introduce a scaled-back proposal that would weaken the “automatic stay” provision without getting rid of it altogether.
Under his legislative concept, which will be considered by the House Water Committee, the junior irrigator must specifically request that the enforcement action be stayed, rather than having that occur automatically.
Also, the court must find that the farmer is likely to prevail on the merits of the case beforehand to block an irrigation shutdown by the Oregon Water Resources Department.
Irrigators who challenge enforcement actions in court would also have to post a bond payment or letter of credit, which would compensate senior water rights holders for attorney fees and costs if they win.
During a Jan. 14 committee hearing, Wilde said the approach would create a “more nuanced system” that would be fair to junior water rights holders with legitimate claims while also discouraging frivolous lawsuits.
“The current status of the law is all you have to do is walk into court, in essence, and you get an automatic stay,” he said.
Though Wilde’s proposal wasn’t subject to public testimony during the hearing, the earlier bill was criticized as unnecessary by several Oregon agriculture groups.
Critics pointed out that OWRD can override the automatic stay when the agency determines it would result in “substantial public harm,” and can pursue civil sanctions against irrigators who file illegitimate complaints.
Another piece of legislation that’s likely to inspire controversy before the House Water Committee would require increased reporting of water usage to OWRD.
Right now, entities such a irrigation districts and municipalities must measure and report their water usage, but they represent only about 16% of the water rights in Oregon. Other irrigators may be required to measure their usage, but it doesn’t have to be reported to OWRD.
Under a legislative concept that will be considered by the committee, any irrigator who’s required to measure water usage could be required by OWRD to also report that information.
“At some point, we’re going to have to grapple with how we report water use and use that data,” said Rep. Ken Helm, D-Beaverton, who chairs the House Water Committee.
Though the proposal may not result in a change to Oregon water law, the subject of measurement is an important component of Oregon’s water management, he said. “I’m bringing it mostly as a discussion piece.”
Past legislation that also proposed increasing water usage reporting was criticized by Oregon agriculture groups for providing fodder for environmental groups that litigate over such issues.
Also, farm advocates worried that such reporting could jeopardize the water rights of farmers who use less water than they’re entitled to, which is subject to forfeiture under Oregon water law.
However, during the Jan. 14 hearing, state water regulators testified that Oregon currently doesn’t have enough information to make important water decisions.
While there are about 500 to 600 water gauges in the state, that still leaves about 97% of named streams without any flow measurement, said Justin Greene, water quality administrator with the Department of Environmental Quality.
Aside from environmental concerns, this lack of data also prevents the state from making the most efficient investments in water infrastructure, said Renee Davis, deputy director of the Oregon Watershed Enhancement Board.
“Without really having a sense of our water conditions in the state, it is difficult to estimate the full funding need,” she said.
The information collected by water regulators would be used to resolve specific problems and help identify how water flows have changed over time, said Racquel Rancier, senior policy coordinator for OWRD.
“We don’t want to collect data just for data’s sake,” Rancier said. “What are the questions we are trying to answer?”