2009 Oregon Water Resources Legislation

By Steven L. Shropshire

Water professionals in Oregon should be aware of several water-related bills passed by the 2009 legislature, which adjourned on June 30, 2009. Several provisions in these bills establish new fees and filing requirements. All of the bills have an effective date of July 1, 2009. In some cases, rulemaking will be necessary to develop new forms and processes, so the actual implementation of the bills may be delayed further.

These new laws mark a significant uptick in the amount of substantive water legislation passed by the Oregon legislature. Most likely, this is only the beginning of an active period of natural resources legislation. Three significant bills pertaining to water diversion measurement, the downsizing of the amount of water allowed under the domestic well exemption, and an annual fee on all water rights did not pass, but will certainly be back in future legislative sessions.

Senate Bill 788 — OWRD Service Fees

This is an Oregon Water Resources Department ("Department") fee increase bill, which boosts the Department's fees to a level designed to achieve a 50 percent cost recovery. The list of new fees is too extensive to summarize here. For a complete list and an online fee estimator, visit the Department's website at www.wrd.state.or.us/OWRD/pubs/forms.shtml#fees.

• Raises fees on almost all Department activities.
• Establishes a new $300 exempt well recording fee for all exempt wells drilled after July 1, 2009.
• Requires owners of new exempt-use wells to submit a map of the well location (showing the location of the well by tax lot).
• Signed into law by the Governor on July 23, 2009.

HB 2231 — Well Drilling Start Card Fee Increase

• This bill increases the well drilling start card fee from $125 to $225.
• Signed into law by the Governor on July 22, 2009.

HB 2232 — Geotechnical Hole Report and Fee

This bill establishes a geotechnical hole report requirement, together with a reporting fee.

• Well drillers must develop well logs and submit a report to OWRD for any geotechnical hole that meets one of the following criteria:
  • Greater than 18 feet deep;
  • Within 50 feet of a water supply or monitoring well;
  • Used to determine water quality and open less than 72 hours; or
  • Drilled in an area known or reasonably suspected to be contaminated.
• The Oregon Water Resources Commission may develop an administrative rule or a form prescribing the contents of the geotechnical hole report.
• Any required report must be submitted together with a $25 fee. If more than one hole is drilled within seven days at the same project site, the fee for each additional report is $10.
• Signed into law by the Governor on July 1, 2009.

HB 3369 — Water Storage Funding Legislation

This became the most controversial water bill of the session. It creates a framework for a new loan and grant program for the construction of "water development projects." The controversy arose out of the fact that the bill ended up funding a specific project in the Umatilla Basin, but established significant new loan and grant program criteria that could one day apply across the state. The highlights of the bill include:

• "Water development projects" include not only above and below ground storage projects, but also drainage projects, irrigation projects, municipal supply projects, fish protection projects, and watershed/habitat enhancement projects (including the purchase of instream water rights).
• Creates new public interest review criteria for water development projects funded with state money that include the analysis of net environmental, social, and cultural public benefits; the protection of peak and ecological flows; conservation measures; and measurement plans, among other requirements.
• Requires grant applicants for most surface water projects to submit as part of their application:
  • An analysis of by-pass, peak, flushing, and other ecological flows and the impact of the project on those flows;
  • An independent comparative analysis of alternative means of supplying the project water;
  • An evaluation of the need and feasibility of using project-derived water to augment instream flows; and
  • An agricultural water management plan if the applicant is an agricultural water supplier.
• Requires grant and loan applicants to obtain a storage and/or use permit or a limited license from OWRD before submitting an application for state funding.
• Directs OWRD (in consultation with the Oregon Department of Environmental Quality and the Oregon Department of Fish and Wildlife) to develop an integrated water resources strategy that accounts for future statewide water needs as it pertains to water quantity, water quality, and ecological health.
• Signed into law by the Governor on August 4, 2009.

Several other water-related bills passed the legislature this year in addition to the four bills described here. If you are interested in receiving information about any of those bills, please contact the author at (503) 598-5583 or or visit the Oregon legislature's web site.

Published Summer 2009

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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