Recommendation for Big Look Task Force

October, 2006

Water, Paper or Planning?

By Tamra Mabbott, Umatilla County Planning Director

STATEMENT OF THE PROBLEM  

The Big Look Task Force and the Rural Policy Advisory Committee provide an opportunity to reconsider the relationship between counties and the state relative to comprehensive planning and management of water.   

The State Agency Coordination (SAC) Program, under OAR Chapter 660, Division 30, requires state agencies to adopt plans to show how their respective agencies comply with and coordinate with land use goals.  Those SAC plans were useful when they were developed but many need updating.     

A common guideline in eleven of the fourteen Statewide Planning Goals reads:  “[c]onsider as a major determinant the carrying capacity of the air, land, and water resources of the planning area.  The land conservation and development actions provided for by such plans should not exceed the carrying capacity of such resources.”  Emphasis added.  See Attachment.   

THE TANGLED WEB OF AGENCIES  

Interaction between state agencies and local government is varied, depending upon the issue and the jurisdiction.  Counties take the lead role in processing land use permits and notify state agencies.   Different types of development involve different state agencies depending upon the nature of the development and the land use permit.  For example, a county will provide notice, solicit comment, incorporate conditions to a permit for the Department of Geology and Mineral Industries (DOGAMI) on most applications for an aggregate site.  But the county would not likely notify the Oregon Department of Transportation (ODOT) unless an aggregate application was near a state transportation facility.   

The relationship between land use and transportation planning is a good model to consider for water.   The Oregon Transportation Commission adopts the Oregon Highway Plan and the Land Conservation and Development Commission has adopted the Transportation Planning Rule (TPR).    The ODOT then provides funds to counties and cities to develop Transportation System Plans (TSPs) for the local jurisdictions.    The TSP’s are required to meet the TPR guidelines but there is plenty of room for flexibility to customize plans for the local community.  The TSP’s have proven to be very useful tools for long range planning and evaluating the impact of new transportation and land development projects.  In order to be funded, new city , county and state transportation projects must be consistent with local TSPs.  And similarly, real estate development projects that affect transportation facilities are evaluated for their transportation impacts based on the TSP.  The jurisdictional boundaries are clear; the county-state relationship is established and documented.   Local jurisdictions adopt TSPs and the DLCD and ODOT staff work with the local jurisdiction to insure the TSPs comply with the TPR.  ODOT staff provides technical expertise to local communities during development of the local TSPs and then remain involved when necessary when land use applications relate to the TSP.  Each county TSP has unique features as well as some common components.   Initially there were relationships and ‘turf’ matters to work out, but for the most part it is a positive relationship.   Planning for water in Oregon could mimic the land use-transportation planning model in terms of both the development of water infrastructure in public facilities plans and in terms of the impact of development on water resources.  

THE DISCONNECT BETWEEN LAND USE PLANNING AND WATER  

Today, the experience of merging water and land use planning objectives is in contrast to land use-transportation experience.  The relationship, rules and protocol between Oregon Water Resources Department (OWRD) and counties is not as well orchestrated.   OWRD has a very limited staff and does not have a state water plan.  Planning, management and regulation of water varies throughout the state, depending upon the condition of a water basin.    The state has absolute regulatory authority over water matters and is not able to allocate resources to entities to develop local water plans.   OWRD gives deference to “basin” plans, but those plans are obsolete.  A new kind of community-based water plan needs to be developed, comparable to TSPs.     

There is no local management or regulatory control over water and no local incentive or funding to develop water plans.   This type of plan would have to be done on a basin, working closely with watershed councils, which have already prepared watershed assessments as part of the Oregon Plan.  Now, counties address water supply in their Comprehensive Plans only in a very general manner.    Counties tend to simply defer to OWRD in the land use permitting process, even when explicit comments are requested relative to a specific land use application.   That is, counties tend to address water matters in terms of deferring to the state agency or often to the local water purveyor’s ability to serve.  There is no meaningful analysis of how a particular land use permit application affects water sustainability in a basin, and no cumulative analysis of the impact.   

THE REGULATORY DROUGHT  

OWRD has been underfunded for a number of years.  In fact, they have suffered a 20 percent reduction in staff, including the field staff needed to implement Oregon water laws and regulations.  This has resulted in departmental focus on processing water right applications and deferring development of a long term plan for water supply or day-to-day water management in the field.  The OWRD and OWRC spends the majority of their time and resources processing water rights and in contested case hearings and litigation, much of which could be prevented with more communication and collaboration with the various stakeholders and partner agencies upholding their own missions.  

The state has sole legal authority over water rights and certificates for both surface and groundwater.  The focus of the OWRD implementation is the legal process.  The agency issues water rights and allows water use to continue according to the law and the prior appropriation doctrine.  But this has been at times, at the expense of the resource.   For example, senior water right holders are allowed to use groundwater even when there is a documented decline in the groundwater source whether the water source is a long term sustainable supply or what net effect the use would have on the regional water supply.  By contrast, land use standards require that a proposed land use demonstrate compliance with the zone and plan, compatibility with the overall land use pattern and transportation capacity to serve the traffic.   

OWRD has an obligation under ORS 536 to “…give proper and adequate consideration to the multiple aspects of the beneficial [water] use and control of such water resources with an impartiality of interest except that designed to best protect and promote the welfare generally.” Additionally,  OWRD is required to “…ensure a water supply sufficient to meet the needs of existing and future beneficial uses of water, and to adequately manage the state’s water resources…[through] planning and management…in a consistent and coordinated manner.”  The only way to assure that these requirements are met is through coordinated, site specific water planning.  

To OWRD’s defense, they have tried to develop water plans but the Oregon Legislature ultimately cut their funding to do so.  OWRD has said that their mission is to develop policy and regulate water use.  The results of the history and this approach are mixed.  In the Umatilla Basin , four Critical Groundwater Areas have been designated due to serious declines in groundwater supply forcing regulation.    Future CGWA designations and water conflicts could be avoided if land use planning and water planning were coordinated, as they are for transportation planning and facilities.  unless a critical groundwater area is declared.  In the past, the legal process allowed the OWRD to approve paper rights without assurances that the water supply is able to meet the paper right.   Again, this is due in large part to the limited staffing, which is what would be required to maintain current technical data to, for example, designate Critical Ground Water Areas and manage water supplies based on a defensible sustainable annual yield.  Broad statutory exemptions from permitting requirements for certain groundwater uses exacerbate the problem in many areas as landowners build new houses in areas with extremely limited or contaminated groundwater supplies.  Today neither the OWRD or the counties can restrict such development.  

OWRD response to land use notices is simply required to state whether or not the landowner has a legal (paper) right to use water or is exempt from permitting.  The agency does not take a position as to whether or not the proposed land use would be a beneficial use of water.  

CONCLUSION AND RECOMMENDATION  

The public sector has a responsibility to implement regulations based on carrying capacity of the land and water.  The first step is to connect water and land use in local plans for water facilities and use.   The ability to successfully implement the plans will require some institutional and corporate, as well as possible legal changes.     The following pages describe in more detail some of the current disconnections between water planning and land use planning and offers possible solutions.  The list was developed with the help of  JR Cook, Assistant Planning Director, Umatilla County ; and with the editorial comments of Patrick Griffiths, City of Bend Water .  Recognition should also be given to comments received by Damian Skyrnk, City of Bend ; Peter Gutowsky,  Deschutes County Planning; Todd Jarvis, OSU Institute for Water and Watersheds.   

Addendum contents:

1)      Land Use issues and possible solutions

2)      U.S. Water 2025 Program description

3)      Oregon Blue Book Agency Descriptions  

WATER AND LAND USE IN OREGON  

PLANNING GOALS  

Oregon has 19 Statewide Planning Goals.  Fourteen of the goals (including goals 3 and 4) require local government plans be based on carrying capacity of natural resources.   Oregon does not have Statewide Water Goals.  Long range planning is not tied to water supply.   

(1)     Update OWRD Basin Plans and  OWRD regulations to address existing zoning and land use. 

(2)     Submit Basin Rules and Basin Plans to LCDC for acknowledgement. 

(3)     Adopt legislative changes to move away from the Prior Appropriation Doctrine.  Existing water certificates could be grandfathered similar to land uses, where pre-existing, non-conforming uses are allowed.  Future water rights would be authorized on where the proposed use is shown to be in compliance with Statewide Planning Goals and the water development is within the “carrying capacity.”  

LONG RANGE PLANS FOR LAND AND WATER USE  

All 36 counties in Oregon have long term land use plans but very few counties, let alone water basins, have long term water plans.   The State of Oregon WRC is responsible for water supply planning but has not had the resources to develop water supply plans.  The combined result is that most basins have an uncertain supply of water and no long range plans to sustain water supply especially not in terms of all current needs, like community water supply, agriculture, industrial development and watershed restoration.  

Land use is managed by a system of plans and regulations.  Water management and regulation is primarily complaint driven.  

The lack of water planning leads to competing land uses.  For example, agricultural interests that invest in center pivot irrigation, equipment, etc. may have their water restricted if the OWRD designates a critical groundwater area.   For surface water, junior users often hold water rights that entitle them to use a certain amount of water, but that amount of water is often not available, so they get cut back (assuming someone complains).   Land use permits are permanent and require commensurate water and other resource guarantee.  Land is zoned to protect a number of uses but water management is based on a first come/first serve basis.  

(1)     Consider implementing water use “zoning”

(2)     Legislature to direct WRC to delegate water planning to local governments.  Counties (or local governments within a sub basin) would develop plans that would be acknowledged by the LCDC and OWRC.  The OWRD would then retain ultimate regulatory authority of water based on the plans.

(3)     Encourage local communities to develop plans for sustainable water supply, similar to what the counties are doing in the Deschutes , Rogue, Umpqua and Umatilla   Basins .  Counties could be responsible to coordinate plans for each sub basin.   Provide funding to counties for the planning activity.   

PUBLIC INVOLVEMENT 

Land use laws require rigorous public notification and opportunity for public involvement    By contrast, water law has minimal public involvement requirements and depends on complaints of injury by senior users as their protection, often at great expense.  For example, OWRD does not provide notice to surrounding property owners when they are considering a new water right application.   The agency publishes a notice that is circulated to local government agencies.  Most landowners learn about a neighbor’s water right when they see a new well being drilled, or some time after the permit has been granted.   Often neighboring landowners participate in a land use hearing primarily to raise concerns about water use, only to be discouraged when told that the county does not have authority over the water use, only the land use. This is particularly a problem with statutorily exempt wells.  The expectation is that the Planning Commission will make a decision based on the impact of water.  Most counties resolve the issue by deferring to the State Watermaster who has already issued a water right or lacks authority to deny a permit because the well is exempt.  

(1)     Revise the public notification process for issuance of water rights.  Improve the  opportunity for local involvement.  Adopt minimum notice requirements similar to ORS 197 requirements for land use. 

(2)     Restrict the amount of water that can be developed under statutory groundwater exemptions or eliminate the exemptions entirely.

(3)     Enhance local involvement by appointing local hearings boards, similar to Planning Commissions.  Also adopt a water Board of Appeals, akin to the Land Use Board of Appeals.  This would allow WRC to focus on state policy matters and leave the quasi-judicial matters to technical experts. 

(4)     Allow for mitigation and other remedies to address the inconsistency between water and land use.                        

FUNDING FOR WATER PLANNING AND REGULATION 

Most counties allocate funds for state watermaster (see attachment) positions which are part of the State Water Resources Department and are accountable to the state agency.  These county funded staff persons spend time implementing state water policy and law, resolving disputes about state water permits and assisting residents in their application for a state water permit.  Historically, the Oregon Legislature has cut OWRD funding, shifting the burden to counties.   

What options are available to the state and local communities to develop water supply plans?  Increased development fees, annual impact fees, consolidating agency functions?

A water use fee to be used to support the OWRD, watermasters and county planning?    

BURDEN OF PROOF 

In land use, the ORS and case law is clear that the burden of proof to justify an application is the responsibility of the applicant.   With water right applications, OWRD cannot deny an application if it is consistent with the basin plan, is for a beneficial use and does not injure other existing water rights   Local and state staff expends substantial effort to process and defend new applications even though most of the surface and groundwater in the state is already overappropriated.  In this regard, regulatory functions of the state (DLCD/OWRD) are inconsistent 

(1)     Make legislative changes so that the burden of proof is upon the applicant for water rights applications. 

(2)     Formally withdraw areas that are already overappropriated from any further water right permit applications.  

COORDINATED PLANS AS A REQUIREMENT FOR LOCAL, STATE, FEDERAL FUNDING  

As a pre-requisite of water transfers, granting of new water rights, restoration projects, new water supply projects or other related efforts, related funding could be tied to the requirement for a coordinated water management plan (similar to the TSP example given earlier).  

Most basins in Oregon also fall within the Columbia River basin [a1] [a1].  There is already a subbasin planning framework established based on anadromous fish requirements, that could become the basis for developing a more comprehensive framework for sustainable water management if and when an institutional framework is developed to support the effort.  Similarly, through the Oregon Watershed Enhancement Board all basins in the state are in the process of developing watershed assessments and action plans for watershed restoration.  And most municipal or quasi-municipal water providers must have water conservation plans and capital improvement plans.  The problem is that none of these various plans fit together to provide communities with comprehensive long term water plans equivalent to TSPs.  

A comprehensive water planning “body” could be formed within designated drainage units, and a funding mechanism developed through local levy, property taxes, or other regional means.  Or funds could be provided through the state.   This basin planning organization could coordinate and approve prioritized plans and facilities investments that include new permits, transfers and related restoration efforts for fish, and instream flow protections.  They could also request and coordinate studies and research required to support the findings necessary for requisite permitting processes.  Many would argue that these tools already exist in statute, but there is lack of proper coordination and oversight at the watershed scale – often resulting in redundant and inefficient project investments , shortsighted permitting and unnecessary litigation and costly delays.  

AGENCY COORDINATION 

In Oregon , administration of natural resource matters is separated.   LCDC, OWRC, EQC and their respective agencies operate independent of each other.  The State Agency Coordination Program was established to ensure interagency coordination, but so was the water basin planning program under ORS 536.  The two systems have never been effectively reconciled.  Certain SAC programs have proven very effective, for example, with DOGAMI, DSL, Department of Agriculture, ODFW.   The most recent update of the Oregon Water Resources Department SAC Program was in 1990.  Numerous laws, case law, treaty obligations, water conditions, planning efforts, economic trends have changed since 1990.  Water resources andpPlanning staff are limited by the existing SAC and ORS, even where opportunities for improved coordination are identified.  

(1)  Is the State of Washington Department of Ecology a good model for reorganizing Oregon ’s water and land use mission?  Are there merits to considering merging agencies, OWRD, DEQ, DLCD, etc. to more efficiently plan and regulate land use and natural resources?  A less radical approach could be to retain the existing structure but convene an integrated resource planning group or central Technical Advisory Committee. 

LAND SUPPLY AND WATER SUPPLY:  A PRIORITY 

Especially in arid, eastern and southern Oregon , water supply is a critical factor for economic revitalization.  Eastern Oregon has an abundant supply of land to develop, multimodal transportation but an impending water crisis.  Water permit streamlining offered by the OWRD provides a benefit to the developer in the short term but it should not be at the expense of long term sustainable water supply.    That is, the streamlining options should only be available where there is an acknowledged long term water supply plan. 

See my general comments:  predictable path to supply could include mitigation, but if predictable, that equates to creating the ability to create a reasonable funding stream through system development charges, impact fees or some other means.  

UNIFIED POLICY   -  BENEFITS OF ENHANCED WATER AND LAND USE COORDINATION: 

In theory, Oregon would benefit from a unified, multi-disciplinary policy for ensuring a long term, sustainable water supply.  Consensus-based water plans will provide the framework for development.  It would provide the framework for land use permitting and streamline the development process.

A unified policy and program, may, among many attributes, be necessary to retain state jurisdiction over the Columbia River .   

Basin Capacity criteria could be developed similar to that of the state coordinator for the Subbasin planning process within the Northwest Power and Conservation Council, and pilot projects could be funded for those regions ready to tackle this type of comprehensive planning process

A description of Oregon Basin plans as outlined in the Oregon Bluebook : 

Agency: Water Resources Department
Division: Resource Management
Program: Basin Planning

Program Description:

Basin Planning is responsible for overseeing the development of basin plans. ORS 536.300 (1) directs the Department, "to study: Existing water resources of this state; means and methods of conserving and augmenting such water resources; existing and contemplated needs and uses of water for domestic, municipal, irrigation, power development, industrial, mining, recreation, wildlife, and fish life uses and for pollution abatement, all are declared to be beneficial uses, and all other related subjects, including drainage, reclamation, flood plains and reservoir sites." ORS 536.300 (2) directs the Department to allow for other state agency input and to, "Progressively formulate an integrated, coordinated program for the use and control of all the water resources of this state and issue statements thereof."

In fulfillment of the mandate provided in ORS 536.300, the Department opens a stream basin for planning and schedules a series of public meetings to allow for community interaction and other interested party participation during the formulation of the basin plan. This planning process creates a basic framework for decision making in regards to that basin. This framework is a compilation of resource factors, which influence the way the water resource is yielded, used, and protected. A draft plan is produced and made available for comment prior to the final release of the Basin Plan. Consideration of all comments received in regards to the draft may result in changes to the final Basin Plan. The first basin plan was started in 1907 and the Willamette Basin was the last wholly contained basin to complete a plan. The Willamette Basin plan was completed in 1992.

The final published Basin Plan is used by the Department as guidelines to produce a Basin Program. The Basin Programs are then filed as guidelines for developing water usage within a stream basin in OAR 690.501-518. Oregon has eighteen basins that are wholly contained within the State's boundaries. Each basin has a Basin Program, except the Malheur and Owyhee rivers are combined into a single program. The Klamath Basin does not have a program, but is regulated by the Klamath Compact, which is ORS 542.610 through 542.750. Reservations and Planning (see separate description) is responsible for preparing amendments to the program.

Records Description:

The Water Basin Planning Records document the development of a water basin plan. The Water Basin Program Records document the publication of the program guidelines.

Agency: Water Resources Department
Division: Resource Management
Program: Water Management and Conservation

Program Description:

The Water Management and Conservation program is responsible for overseeing OAR 690-086-0110 to 690-086-0140 as delineated in OAR 690-410-0060. OAR 690-086-0110 to 690-086-0140 specifies major water users and suppliers are required to submit a water management plan and what information that plan will contain. OAR 690-410-0060 provides guiding principles for conservation and efficient water use.

Water users and suppliers that are required to submit a water management and conservation plan develop the plan and send it to the Department for review. This program reviews those plans for conformance to OAR-086-0140. This OAR details the required plan elements and standards. The standards require that the plan includes a description of the water system; elements detailing water conservation, water curtailment, and long range water supply; and a proposed date for submittal of an updated plan. A public review and comment period of thirty days exists for all water management and conservation plans. The Department considers all comments received during this review period in granting approval or disapproval of the plan. The approval of the water management plan by the Department fulfills the plan condition of the water right permit. The Water Rights and Adjudication Section maintain Water Right Permits (see separate description for each).

Agency: Water Resources Department
Division: Resource Management
Program: In-stream Water Right Leasing Program

Program Description:

The In-stream Water Right Leasing Program is responsible for granting temporary in-stream water rights leases in accordance with ORS 537.348(2). The program also coordinates with the Administrative Rules Coordination Office (see separate description) to develop the administrative rules regulating the in-stream water rights.

ORS 537.348(1) allows three state agencies to apply for in-stream water rights. They are the Oregon Department of Fish and Wildlife, the Parks and Recreation Department and the Department of Environmental Quality. An in-stream water right (see definition in ORS 537.332 (3)) is a water right that is protected in the stream. The Water Resource Department holds in-stream water rights in trust for the other state agencies.

This program is responsible for maintaining temporary in-stream water rights leases, while permanent in-stream water rights are maintained by the Water Rights program (see separate description). ORS 537.348(2) allows water right holders to temporarily, for up to two years at a time, lease an existing water right to an in-stream use. The in-stream use is protected similarly to an in-stream water right created by a filing from one of the three state agencies. At the end of the lease, the water right reverts back to the type of use stated on the water right.

Agency: Water Resources Department
Division: Resource Management
Program: Reservations and Planning

Program Description:

Reservations and Planning is responsible for coordinating with the Administrative Rules Coordination Office (see separate description) to develop administrative rules for reserving water in Oregon streams for future economic development. The water reserved by rule is available for issuance as water rights. Only water that is currently unclaimed by water rights or minimum streamflows is available for reserving.

Reservations and Planning is also responsible for coordinating with the Water Right Certification program (see separate description) for converting minimum streamflows to permanent in-stream water rights. ORS 537.346 calls for conversions of all minimum perennial streamflows to in-stream water rights with the priority date the same as the original minimum streamflow designation date. The in-stream water rights have all the same affects as all other water rights.

This program is also responsible for reviewing requests for changes and preparing amendments to the Basin Programs. State agencies and other interested parties may request amendments to the Basin Programs. This program reviews those requests and issues a staff report to the Director (see separate description) regarding the proposed amendments. If the amendments are adopted then the Basin Program, maintained by Basin Planning (see separate description), is amended. A copy of the amendment is maintained with the Basin Program Records in Basin Planning.