HOUSE COMMITTEE ON STREAM RESTORATION

& SPECIES RECOVERY

May 4, 2001 Hearing Room E

1:00 P.M. Tapes 115 - 116

MEMBERS PRESENT:

Rep. Bob Jenson, Chair

Rep. Jan Lee, Vice-Chair

Rep. Randy Leonard Vice-Chair

Rep. Tim Knopp

Rep. Jeff Kruse

Rep. Patti Smith

Rep. Al King

Rep. Kelley Wirth

MEMBER EXCUSED: Rep. Carolyn Tomei

VISTING MEMBER: Rep. Jackie Dingfelder

STAFF PRESENT: Sandy Thiele-Cirka, Committee Administrator

Linda K. Gatto, Committee Assistant

MEASURES HEARD:

HB 2788 – Work Session

HB 3958 – Public Hearing

These minutes are in compliance with Senate and House Rules. Only text enclosed in quotation marks reports a speaker’s exact words. For complete contents, please refer to the tapes.

TAPE/#	Speaker	Comments
TAPE 115, A
004	Chair Jenson	Calls the meeting to order at 1:52 p.m. and opens a work session on HB 2788.
HB 2788 – WORK SESSION
029	Michael W. Peterkin	Attorney representing the Cyrus’s. Discusses ditches as easements. States the issue with HB 2788 is whether piping can be considered maintenance.
120	Peterkin	Quotes from court case findings.
149	Chair Jenson	Questions if HB 2788 is proposing to pipe the Cyrus’s ditch.
153	Peterkin	Responds that the bill does not specifically speak to the Cyrus’s property.
160	Chair Jenson	States it is his understanding that the district is not proposing to pipe the Cyrus’s property.
167	Peterkin	States if HB 2788 moves forward, there is a possibility that the Squaw Creek Irrigation District will bill the Cyrus’s for the Cloverdale ditch if piping is defined as maintenance.
215	Rep. Lee	Comments that it is her understanding that in regard to the Cyrus’s property, it is a private ditch and that the court agreement substantiates that the district will not pipe it.
244	Peterkin	Responds that the Deshutes County case did not address the pipe issue. States the pipe issue arose just before trial when the district started piping the Cloverdale ditch. Notes that there is an agreement on the supplemental complaint that has been filed, but not finalized.
355	Peterkin	States that the questions is, will HB 2788 allow the districts more power to pipe open ditches at their discretion and without compensation. Comments that HB 2788 does not differentiate between easement types.
TAPE 116, A
012	Peterkin	Concludes testimony by relating the 1926 case Minto vs. Salem Water, Light and Power Company.
062	Kristina McNitt	Oregon Water Resources Congress (ORWC). Introduces David Vantoff.
077	David Vantoff	Attorney representing Water Resources Congress, (WRC). States that the testimony presented has been a one sided view of piping law. Comments that Oregon law is unclear whether piping is maintenance. Submits legal cases, (EXHIBIT A).
160	Chair Jenson	Questions what the implications are between the districts, the federal Endangered Species Act (ESA), and the Clean Water Act (CWA).
164	Vantoff	Responds HB 2788 gives the districts the ability to conserve more water to return to the steams and ultimately avoid problems with the ESA.
199	Harrison Conley	Deputy Legislative Counsel. States that federal grant programs that relate to irrigation and reclamation, in general, focus on the distribution of water. Comments that reference to ditches or canals appears to be a reference to the technology of the times.
234	Chair Jenson	Questions if the court recognizes impacts from technical changes.
236	Conley	Responds that maintenance has not historically been clearly defined. States the obligation is to maintain, replacing an existing improvement and replacing it with a different improvement may be outside the scope of maintenance. Adds that he can not predict the courts interpretation.
250	Thiele-Cirka	Reviews the –5 amendments and –6 amendments, (EXHIBIT B).
290	Conley	Comments on the Cryus clause in respect to contracts.
295	Thiele-Cirka	Reviews the –4 amendments, (EXHIBIT C).
318	McNitt	Comments on the -5 amendments and states the position of WRC.
(Prepared testimony from Leonard Knott, Deschutes County Farm Bureau, EXHIBIT D).
353	Rep. Leonard	MOTION: Moves to suspend the rules for the purpose of reconsidering the vote on HB 2788 and the –5 amendments.
	Chair Jenson	Motion carries and the rules have been suspended.
470	Rep. Leonard	MOTION: Moves to reconsider the vote by which HB 2788 AS AMENDED was sent to the floor with a DO PASS recommendation.
475		VOTE: 8-0 AYE: In a roll call vote, all members present vote Aye. EXCUSED: 1 – Tomei
	Chair Jenson	The motion CARRIES.
492	Rep. Leonard	MOTION: Moves HB 2788-6 amendments dated 5/4/01.
496	Chair Jenson	Hearing no objection, declares the motion CARRIED.
500	Rep. Leonard	MOTION: Moves HB 2788 AS AMENDED to the floor with a DO PASS recommendation.
TAPE 115, B
035	Rep. Knopp	States this issue needs more discussion and he will be a no vote.
044	Rep. Kruse	States concerns about having several water control districts in two different bills, in two different committees. States he will be a no vote.
052	Rep. Smith	States the suggestion to continue working on this issue is a good one and notes concerns with property rights and water rights. States she will be a no vote.
060	Chair Jenson	Addresses the committee and states the points made are well taken.
088		VOTE: 5-3 AYE: 5 – King, Lee, Leonard, Wirth, Jenson NAY: 3 – Knopp, Kruse, Smith P EXCUSED: 1 – Tomei
	Chair Jenson	The motion CARRIES. REP. JENSON will lead discussion on the floor.
096	Chair Jenson	Closes the work session on HB 2788 and opens the public hearing on HB 3958.
HB 3958 – PUBLIC HEARING
131	Kristina McNitt	OWRC. Reviews and submits hand engrossed with the –1 (EXHIBIT E)
193	Bill Portily	Stanfield, OR. Provides professional background and experience. Submits and discusses water right maps (EXHIBIT F) and notes length of time for water rights.
227	Portily	States HB 3958 will allow the crop decisions to be made later in season and explains why this is important.
240	Rep. Leonard	Questions the disadvantage to making the decisions later in the season.
261	Portily	Responds that the Water Resources Department (WRD) wanted time to review the concept before the season began.
303	McNitt	Comments that the reason for the 60-day timeline is WRD wants some control over the outcome.
334	Chair Jenson	Questions if HB 3958 increase the risk of injury to other users.
345	Portily	Responds it goes to the watermaster.
350	McNitt	States for the record that there is a strict injury test. Explains how this bill affects water right transfers.
373	Rep. Lee	Clarifies that the district has one point of diversion to mitigate any injury, but the individual has one or more points and they do not have the ability to mitigate.
380	Portily	Responds in agreement.
400	Chair Jenson	Closes the public hearing on HB 3958 and adjourns the meeting at 3:25 p.m.

Submitted By, Reviewed By,

Linda K. Gatto, Sandy Thiele-Cirka,

Committee Assistant Committee Administrator

EXHIBIT SUMMARY

A. HB 2788, legal cases, David Vantoff, 41 pp.

B. HB 2788, -5 amendments dated 4/23/01, -6 amendments dated 5/4/01, Staff, 3 pp.

C. HB 2788, -4 amendments dated 4/11/01, Staff, 1 pp.

D. HB 2788, written testimony, Leonard J. Knott, 1 pp.

E. HB 3958, hand engrossed –1 amendment, Kristina McNitt, 6pp

F. HB 3958, water rights maps, Bill Portily,