Environmental Law Alert: Oregon Drought Declaration Opens Door to Water Use Alternatives
4/1/2010

On March 16, 2010, Governor Ted Kulongoski issued Executive Order No. 10-03, declaring a "state of drought emergency" for Klamath, Jackson, Douglas, Lane, Deschutes, and Lake Counties, Oregon. Barring extraordinary spring precipitation alleviating statewide drought conditions, similar orders could be issued for other areas in Oregon. While the Governor has significant powers during a state of emergency, drought declarations are issued principally to trigger four drought mitigation mechanisms otherwise unavailable under Oregon law: Emergency Water Use Permits, Temporary Drought Transfers, Temporary Ground Water Substitutions, and Options or Agreements for Use of Existing Rights.

Emergency Water Use Permits

Once the Governor declares a drought, those water users within the designated drought area whose water rights prove insufficient due to drought conditions may apply to the Oregon Water Resources Department (the "Department") for Emergency Water Use Permits to temporarily use water from an alternate source. Emergency Water Use Permits are temporary junior water rights available from the Department on expedited review, and without provision for contested case hearing. On March 9, 2010, the Department issued abbreviated application forms for Emergency Water Use Permits (available here and here). Provided that the landowner meets the application requirements, and the Department finds that the proposed use will not cause injury to existing water rights, and will not impair or be detrimental to the public interest, an Emergency Water Use Permit may be issued in as little as 10 days.

Emergency Water Use Permits are junior to all prior water rights, and may be curtailed at any time to prevent injury to senior rights if injury cannot otherwise be mitigated. Often, Emergency Water Use Permits may be used to authorize temporary groundwater use to ameliorate surface water shortages due to drought. Given the expedited application and review process outlined above, Emergency Water Use Permits can be potent mechanisms to make up for surface water deficiencies.

Temporary Drought Transfers

Another tool available to water users under an emergency drought declaration is Temporary Drought Transfers. Water users within a designated drought area whose water rights are otherwise deficient because of drought may apply to temporarily change the character of use, place of use, or point of diversion or appropriation of another water right to make up for such deficiency, without complying with the notice and waiting requirements of ORS 540.520. Like Emergency Water Use Permits, Temporary Drought Transfers may not injure existing water rights, and are subject to revocation if the Department later finds that the transfer results in injury without satisfactory mitigation. While application is made on the standard transfer form, the Department processes Temporary Drought Transfer applications on an expedited basis, which can take less than seven business days. Temporary Drought Transfers are one way for those with surplus water to temporarily move water rights to lands that need them without undergoing an extensive transfer proceeding.

Temporary Ground Water Substitutions

For those water users with both a primary surface water right and a supplemental ground water right appurtenant to the same lands, the Department may allow for temporary substitution of the supplemental right for the primary right. While a Temporary Ground Water Substitution is subject to notice and comment, and a contested case hearing if protested, the Department rules provide for expedited notice and waiting requirements with a limited 10-day protest period. While not as streamlined as Expedited Water Use Permits or Temporary Drought Transfers, Temporary Ground Water Substitutions provide another mechanism to access ground water for purposes of making up for surface water deficiencies.

Options or Agreements for Use of Existing Rights

The foregoing mechanisms are largely reactionary in that they allow water users to apply for certain water uses only after the Governor's emergency drought declaration. However, the Department's rules also provide for proactive drought planning. While the application process largely mirrors a non-expedited transfer proceeding, the Department has established a procedure whereby a private water agreement may be formally authorized for use during times of drought upon notice to the Department. Water right holders may enter into options or agreements whereby they agree to a distribution of water during times of drought (e.g., Landowner A curtails use and sells excess water to Landowner B). Provided that the proposed distribution would not result in injury to an existing water right, or impair or be detrimental to the public interest, and provided that the proposed use would not exceed the authorized use under either right, the Department may approve the option or agreement. Once formally approved, and under an emergency drought declaration, the parties may distribute water pursuant to the option or agreement merely upon advance written notice to the watermaster.

While 2010 threatens to be a difficult year, savvy water users will want to consider making use of the foregoing tools to dampen the effect of shortages. Should you have any questions regarding these matters, or other strategies for securing water, please feel free to contact:

David E. Filippi at (503) 294-9529 or defilippi@stoel.com
Heath A. Curtiss at (503) 294-9810 or hcurtiss@stoel.com
Greg D. Corbin at (503) 294-9632 or gdcorbin@stoel.com 
Jennie L. Bricker at (503) 294-9631 or jlbricker@stoel.com