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New Oregon instream water rights worry irrigators

Mateusz PerkowskiCapital Press

Published on November 20, 2017

Oregon’s fish and wildlife regulators plan to secure new instream water rights to preserve fish habitat, raising concerns about possible impacts on irrigators.

The new instream water rights are intended to protect flows, but the Oregon Department of Fish and Wildlife is still studying which river basins to target.

“This is a statewide approach based on need,” said Anna Pakenham Stevenson, ODFW’s water quality and quantity program manager.

ODFW also plans to revive negotiations over protested instream water rights applications the agency filed roughly two decades ago.

Both plans are potentially worrisome for farmers, since new state-owned instream water rights could lock up water that could otherwise be used for irrigation.

While the new instream water rights would be junior to those of existing water rights, they may preclude any additional irrigation water rights from being obtained in affected waterways.

If an instream water right claims all the unappropriated water in a stream, “an irrigator would not be able to get a new water right,” said Mary Anne Cooper, public policy counsel for the Oregon Farm Bureau.

Irrigators also fear that instream water rights will complicate certain processes — changing points of diversion, making water transfers and replacing intakes — due to the involvement of state agencies.

“It would increase the bureaucratic protocol we’d have to go through,” said Curtis Martin, a rancher near North Powder, Ore., and water resources committee chairman of the Oregon Cattlemen’s Association.

When a state agency leases existing water rights and devotes the water to instream flows, it can adversely affect junior irrigators, said Richard Kosesan, lobbyist for Water For Life, a nonprofit representing irrigators.

Junior irrigators are often dependent on return flows of water from growers with senior water rights, he said. If all that water remains instream, however, the junior irrigators don’t benefit from the return flows.

The reactivation of applications from 20 years ago could also be problematic for irrigators.

If state agencies succeed in obtaining those water rights, they’d have priority dates in the 1990s. In other words, they’d be senior to water rights obtained since then.

Originally, 140 of ODFW’s water rights applications from the 1990s were protested by groups and individuals, but the agency has resolved all but 61 of them.

The 61 remaining cases have long been dormant, but the agency can resolve them by withdrawing the applications, settling with the protesters or moving forward with contested case administrative proceedings, which can take from six months to three years.

“There wasn’t activity on these for a while and there have been renewed efforts to work on them as work (proceeds) on efforts to implement instream and out-of-stream needs,” said Racquel Rancier, senior policy coordinator for the Oregon Water Resources Department, in an email.

The agency plans to resolve the disputes over the next year or two, hopefully through settlements, said Pakenham Stevenson.

“If we can go from contention to mutual benefit, that’s where ODFW would like to work,” she said.

For example, in the Powder-Brownlee basin in Northeast Oregon, irrigators filed a protest against an instream water rights application in the early 1990s.

Rather than go through the contested case process, ODFW now aims to strike a collaborative agreement with irrigators to conserve water, said Martin, an area rancher.

Replacing open canals with pipelines would prevent water seepage, for example, creating a more direct benefit for flows than an instream water right, he said.

In some segments of a canal, half the water can be lost to seepage, Martin said. “We can put that in the pipeline and have basically zero loss.”


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