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The Oregon Legislative Assembly enacted Senate Bill 839 in 2013. The problem that this bill attempts to address is the earlier melting of the mountain snow packs that have traditionally been used as storage both for irrigation water and for enhancing late season in-stream flows for fish and other aquatic species. Water from that melting snow pack will continue to run out to sea without the construction of additional storage capacity.
Members of the House and Senate worked with Governor Kitzhaber’s natural resources staff to meticulously negotiate every word of SB 839. The bill specifically requires new water storage to be used to enhance a balance of agricultural, industrial, municipal and environmental benefits.
The agreed upon purpose of the bill was to enable the construction of more water storage. The method of choice was to divert more water to storage during abundant winter and spring flows. Newly stored water was to be used to mitigate both in-stream and out-of-stream shortages of water that result from the earlier melting of snow, as well as water shortages caused by periodic droughts.
In its final, carefully worded draft, SB 839 passed both the House and the Senate with only one dissenting vote. The bill’s emergency clause made it effective upon its signing into law by Governor Kitzhaber.
Unfortunately, there is no balance between the in-stream and out-of stream use of new stored water in the currently proposed application of SB 839. Further, the likelihood that any new state-funded water storage capacity will be built is virtually nil.
Those of us who helped to draft the final enrolled bill were focused on four outcomes:
* The provisions of the law should apply only to new or expanded water storage projects financed wholly or in part by the State of Oregon. Its provisions cannot and must not be applied to existing water storage reservoirs, because they would severely restrict the operation and benefits of those facilities. Its provisions cannot and must not be applied to privately funded projects, because meeting those provisions is not an economic possibility for most projects financed through the private sector.
* The public benefit of any new water storage project financed wholly or in part by the State of Oregon must be balanced between out-of -stream and in-stream uses. That balance must be created utilizing provisions that make the construction, operation and maintenance of new water storage projects financially feasible.
* The term "seasonal varying flows" must replace all reference to “peak and ecological flows” in all Oregon statutes and rules. They must apply only to water storage projects wholly or partially funded by the state. Further, “seasonally varying flows” must be developed to create a balance between the benefits of water storage and the ecological benefits of maintaining more natural stream hydrographs.
* Finally, the bill requires the Governor to appoint a Task Force to make recommendations regarding new water storage projects to the Oregon Water Resources Department. In order to ensure the balanced use of stored water, the statute requires the Task Force to make its recommendations by consensus. Consensus is defined, for the purposes of the law, as the affirmative vote of all but one member of the Task Force. Task Force recommendations were statutorily required to be made to the Oregon Water Resources Department on or before July 1, 2014.
SB 839 requires the Governor to appoint two Task Force subcommittees, each with three or more members. The first was charged with making recommendations to the full Task Force regarding how “seasonally varying flows” should be established. The second was charged with recommending provisions that must be considered in making water storage projects financially feasible. Subcommittee recommendations were statutorily required on or before February 1, 2014.
The clear legislative intent was for the subcommittee members to be selected from the Task Force appointees. Inexplicably, the Governor appointed the members of the subcommittees separately. Further, he appointed them many months prior to appointing the members of the Task Force.
Both subcommittees published their reports Feb. 1, 2014, as required by the statute. The reports from the science subcommittee and the economic subcommittee have been available to the public and interested parties for more than six months.
Even more inexplicable, Governor Kitzhaber delayed his appointment of the members of the Task Force itself until July, 2014. The newly appointed members met for the first time in August to organize and to discuss the subcommittee recommendations. This first meeting occurred well more than a month after the July 1, 2014 date that the Task Force was required by statute to make its final report to the Oregon Water Resources Department.
The subcommittee on “seasonally varying flows” concluded that no more than 15 percent of unallocated seasonal stream flows should be diverted to storage. We understand this to mean that only 15 percent of the stream flow, above the amount that is already legally permitted to be used, can be stored. It is important to recognize that allocated stream flow includes already established in-stream water rights. Conversely, the subcommittee concluded that 85 percent of the unallocated flows must be left in-stream at all times to protect stream morphology and aquatic habitat.
The subcommittee appears to rely on seasonal flow parameters that have been adopted in Florida, Maine and Virginia. Notably, riparian water law is practiced in all of those states. For that reason, they do not appear to be applicable in Oregon or other Western states.
Under riparian water law, the owner of land adjacent to a river or stream is legally allowed to divert the water for beneficial use on his land, but is not allowed to store the water. Limiting the diversions of water for storage in those states to only 15 percent of the peak stream flow may be perfectly logical because that storage would result in taking water from the landowner who has the right to use the water as it passes by his property.
This is not the case in the arid west. Under western water law, landowners adjacent to a stream or river have no riparian right to divert that water for their use. Under the Doctrine of Prior Appropriation, the first to divert the water for beneficial use has the first right to the use of the water. Diversion of water to storage for later seasonal use has been practiced by priority water right holders for more than 150 years.
SB 839 also requires that a minimum of 25 percent of the newly stored water be used for environmental benefit to enhance in-stream flows. That provision, combined with the restriction to 15 percent of flow diversion for storage, makes the effective storage for out-of-stream use only 11.25 percent of the peak seasonal stream flow!
The new law was written to strictly prohibit its provisions from being applied to existing water storage facilities. However, it is instructive to consider how the application of these provisions might affect existing storage and flood control facilities throughout Oregon.
Limiting existing flood control efforts to skimming 15 percent off the top of peak flood flows would negate most of the flood control benefits of virtually every flood control dam in the state. This would have a devastating effect on the efficiencies of flood control in Western Oregon. Applying these provisions to the Columbia River would virtually ensure the periodic massive flooding of large areas of the Portland metropolitan area.
Limiting existing water storage diversion to skimming 15 percent off the top of peak seasonal flows would negate most of the storage capacity of virtually every water storage project in Oregon. This would have a devastating effect on the efficiencies of storage for irrigation, municipal and industrial use in most of Eastern and Southern Oregon.
Task force members representing Water for Life and the Oregon Cattlemen’s Association are deeply concerned that the adoption of the subcommittee recommendations for “seasonally varying flows” will functionally prohibit any future state-sponsored water storage project from ever being constructed in Oregon. We can neither identify nor imagine a situation where storing about 10 percent of peak season flows could ever be an economically viable plan.
Some of the other members appointed to the Task Force represent the Oregon Farm Bureau, Oregon Nurserymen, the League of Oregon Cities and Associated Oregon Counties. We believe that strong opposition to the currently recommended provisions for “seasonally varying flows” is in the best interest of these organizations as well. We hope that they will use the statute’s consensus provision to insist upon a more reasonable and balanced application.
Governor Kitzhaber’s original support for SB 839 and his subsequent actions appear to be contradictory. He purports to champion the cause of new water storage, but he appointed a subcommittee that he knew, or should have known, would recommend “seasonal varying flow” parameters that would economically preclude new water storage. In fact, agricultural, industrial and municipal entities that divert water for use out-of-stream had little, if any, representation on that subcommittee.
The Task Force can, and should, work toward amending those subcommittee recommendations in order to allow for a functional plan to store more water. Governor Kitzhaber’s actions appear to indicate that he will be a stalwart obstacle to that quest.
Please remember, if we do not stand up for rural Oregon no one will.
Best Regards,
Doug
email: Sen.DougWhitsett@state.or.us I phone: 503-986-1728
address: 900 Court St NE, S-311, Salem, OR, 97301
website: http://www.oregonlegislature.gov/whitsett
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