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,