SENATE COMMITTEE ON WATER AND LAND USE

 

 

March 10, 2003                                                                                                       Hearing Room D

3:00 p.m.                                                                                                                         Tapes 25-26

 

MEMBERS PRESENT:         Sen. Ted Ferrioli, Chair

Sen. Charlie Ringo, Vice-Chair

Sen. Jason Atkinson

Sen. Rick Metsger

 

STAFF PRESENT:                 Judith Callens, Committee Administrator

Megan Jensen, Committee Assistant

 

MEASURE/ISSUES HEARD:           SB 590 Public Hearing

SB 642 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 25A

004

Chair Ferrioli

Calls the meeting to order at 3:25 p.m. and opens a public hearing on SB 590.

SB 590 – PUBLIC HEARING

008

Judith Callens

Committee Administrator. Gives overview of SB 590, which requires the Water Resources Commission (WRC) to initiate proceedings for cancellation of a water right within 45 days of determination by the commission or by submission to the commission of evidence of water right forfeiture.

020

Richard Kosesan

Water for Life, Inc. Provides testimony in support of SB 590. States that the bill addresses delays in processing affidavits alleging nonuse of water rights.

040

Brad Harper

 

Water for Life, Inc. Gives testimony in support of SB 590 (EXHIBIT A). Explains that SB 590 proposes to improve the statute governing the process for investigating allegations of forfeiture due to nonuse. Believes that a timeline is necessary because it currently takes a long period of time for the Water Resources Commission to initiate cancellation proceedings.

078

Sen. Ringo

Asks for clarification on the 45 day limit.

082

Kosesan

Explains that the limit is 45 days after the initiation of a forfeiture proceedings.

087

Sen. Ringo

Asks what event precedes the start of the 45 day limit.

090

Kosesan

Replies that the 45 day limit begins after the presumption of non-use for a period of five years has been established.

093

Harper

Elaborates.

097

Sen. Ringo

Inquires if WRC is supported by general fund money.

099

Kosesan

Affirms WRC is supported by general funds, fee revenues and federal money.

105

Sen. Ringo

Expresses concern about WRC’s ability to fund the process.

108

Kosesan

Explains that there are options for different types of processes.

124

Sen. Atkinson

Wonders if SB 590 could potentially increase the Oregon Water Resources Department’s (WRD) workload and if there was a potential for the rule to be abused.

149

Kosesan

Elaborates on the presumption of water rights forfeiture.

172

Harper

Reiterates that the goal of SB 590 is to encourage faster processing of affidavits alleging nonuse of water rights.

183

Sen. Atkinson

Expresses concern that SB 590 might target people who are currently not involved.

190

Harper

Responds that is not the intent.

192

Chair Ferrioli

Clarifies the triggering event which starts the 45 day time limit.

198

Kosesan

Affirms.

204

Paul Cleary

WRD. Provides testimony against SB 590 (EXHIBIT B). Elaborates on the process of determining nonuse and forfeiture of water rights. Believes the process will place a burden on water users.

277

Sen. Ringo

Asks who instigates the forfeiture proceedings.

280

Cleary

Explains that it can come from another water user or from a water right holder who seeks a transfer of water rights.

288

Sen. Ringo

Inquires if WRD would initiate the process.

291

Cleary

Responds that there is a process for WRC based on its own determination of water rights forfeitures.

294

Sen. Ringo

Clarifies that WRD could actually initiate the process.

296

Cleary

Affirms and elaborates.

305

Sen. Atkinson

Asks if WRD would support a time period other than 45 days.

311

Cleary

Replies that there would still be a fiscal impact not anticipated in the Governor’s budget.

325

Chair Ferrioli

Comments on the balance between a water right holder who is not using the right and the water right permit applicant who is not able to get a permit.

340

Cleary

Discusses issuing water rights permits.

359

Chair Ferrioli

Comments on the 45 day limit.

373

Cleary

Clarifies the affidavit process.

393

Adam Sussman

Discusses water rights nonuse allegations in the Malheur Wildlife Refuge.

TAPE 26, A

003

Chair Ferrioli

Asks about the average time to process a permit.

004

Sussman

Explains timelines for issuing permits.

011

Chair Ferrioli

Clarifies that WRD would experience a significant budget impact.

022

Cleary

Affirms and elaborates.

028

Chair Ferrioli

Asks about the statute regarding forfeiture.

032

Cleary

Discusses the statute regarding forfeiture.

038

Chair Ferrioli

Inquires if there is a formal process for making a determination on the forfeiture.

039

Cleary

Affirms and remarks that WRD administrative rules address the issue.

041

Chair Ferrioli

Asks if the process includes any time limits.

042

Cleary

Replies that WRD’s administrative rules contain no time limits.

043

Sen. Ringo

Believes the evidence required to begin the 45 day process should be better defined.

047

Chair Ferrioli

Comments that there is some uncertainty in SB 590.

051

Cleary

Talks about the proceedings for a cancellation of water rights.

059

Jean Wilkinson

Oregon Farm Bureau. Gives testimony in support of SB 590. Believes that SB 590 will establish a process to act on forfeiture claims.

077

Chair Ferrioli

Closes public hearing on SB 590 and opens public hearing on SB 642.

SB 642 – PUBLIC HEARING

088

Callens

Gives overview of SB 642, which provides that a water right converted to an in-stream water right receives new a priority date if the water right converted was purchased or received as gift.

100

Cleary

Provides testimony against SB 642 (EXHIBIT C). Expresses concerns about the proposal that a water right converted to an in-stream water right be given a new priority date:

  • A proposal to change any water right priority date is inconsistent with foundation of Oregon’s water code
  • It is contrary to long-established Legislative policies that protect the priority date of existing rights
  • It could have unintended detrimental consequences to existing water users within Oregon’s water rights system

122

Chair Ferrioli

Clarifies that the concept of in-stream water rights did not exist in the early 1900s.

125

Cleary

Affirms and continues discussion of in-stream water rights.

180

Sen. Metsger

Inquires if the concern is that if the Legislature were to change the historical right of precedence in water rights, there would be no reason for future legislatures to determine that historic priority was of value.

187

Cleary

Affirms.

193

Chair Ferrioli

Asks about converting water rights uses.

197

Cleary

Explains the transfer process.

210

Chair Ferrioli

Talks about determining injury to a junior water user for the conversion to in-stream use and asks about the difficulty of converting an in-stream use to another use.

225

Cleary

Explains the transfer process from instream use to other uses.

234

Chair Ferrioli

Asks about the transfer of other water uses to in-stream water uses.

243

Cleary

Talks about the increase of in-stream lease transfers.

253

Chair Ferrioli

Confirms that in-stream leases are the current trend.

264

Cleary

Affirms.

269

Chair Ferrioli

States that SB 642 would affect a minority of the total transfers of water rights.

270

Cleary

Agrees.

274

Chair Ferrioli

Inquires if SB 642 would affect water leases.

276

Cleary

Responds that SB 642 only applies to in-stream transfers.

277

Chair Ferrioli

Expresses concern about the trend of purchasing headwater ranches with historical water rights.

300

Cleary

Responds that any transfer would go through an analysis to ensure that junior water rights holders are not injured by the transfer.

316

Chair Ferrioli

Asks how many water rights applicants have plead an injury on an in-stream transfer.

329

Cleary

Responds that he is unsure.

350

Chair Ferrioli

Points out that no one has plead an injury from in-stream water rights transfers because they have no standing.

354

Cleary

Responds that anyone can file a claim of injury, with or without a water right.

359

Chair Ferrioli

Talks about in-stream uses versus agronomic uses of water.

379

Cleary

Elaborates.

386

Chair Ferrioli

Expresses concern about water rights policies.

396

Sen. Ringo

Talks about instream water rights policies.

TAPE 25, B

006

Chair Ferrioli

Comments that instream water rights are new and believes it is a matter for public policy.

030

Janet Neuman

Oregon Water Trust (OWT). Provides testimony against SB 642 (EXHIBIT D). Expresses concerns regarding SB 642:

  • SB 642 would change the prior appropriate system by requiring that an existing, valid water right lose it priority date because it was transferred to one particular type of use
  • SB 642 would deprive Oregon of an effective, voluntary, market-based tool for addressing the problems of low stream flows
  • SB 642 would diminish the economic value of senior water rights

216

Chair Ferrioli

Asks if OWT has an obligation to protect or promote irrigated agriculture.

225

Neuman

Explains that OWT’s mission is to buy water rights for conversion to in-stream flows only from willing sellers.

235

Chair Ferrioli

Asks if she agrees with Cleary’s testimony that only about 7000 acre feet of water have been converted to in-stream water rights.

238

Neuman

Suggests that includes agency in-stream water rights.

240

Chair Ferrioli

Asks for a list of water right transfers and inquires who sets the market value for instream water rights.

252

Neuman

Replies that federal agencies and non-governmental agencies convert water rights to in-stream water rights.

256

Chair Ferrioli

Asks for clarification.

258

Neuman

States that the conversion is a two part transaction.

260

Chair Ferrioli

Talks about voluntary sellers who are facing bankruptcy and foreclosure.

270

Neuman

Believes there are many reasons to sell water rights.

278

Chair Ferrioli

States that selling water rights might be a more desirable outcome over foreclosure and bankruptcy.

288

Chair Ferrioli

Asks how the transactions are funded.

290

Neuman

Discusses funding sources.

295

Chair Ferrioli

Asks if some funding is private money.

298

Neuman

Explains the sources of private money.

300

Chair Ferrioli

Asks if OWT benefits from mitigation banking.

302

Neuman

Responds that OWT receives some mitigation funds.

308

Chair Ferrioli

Asks if OWT buys water rights to sell to a third party.

311

Neuman

Explains that OWT is essentially a broker.

313

Chair Ferrioli

Asks if OWT buys water rights and gifts or sells the rights to the state.

314

Neuman

Responds that no money is exchanged between OWT and the state.

316

Chair Ferrioli

Clarifies that the process is not similar to purchasing private land for conversion to public land.

325

Aubrey Russell

Oregon Trout. Provides testimony against SB 642 (EXHIBIT E). Believes that the bill will provide no benefit to out-of-stream users while impairing the ability of individuals to work alone or collaboratively with the state and federal managers to provide for the recovery of threatened fish stocks

424

Roger Martin

Confederated Tribes of the Umatilla. Provides testimony against SB 642 (EXHIBIT F). Expresses concerns:

  • SB 642 would eliminate the ability of the Oregon in-stream water right program to protect stream flows
  • Eliminating the priority date of the original permit would decrease the value of the original water right
  • SB 642 will impact the tribal fishery on the Umatilla River and other rivers.

TAPE 26, B

014

Chair Ferrioli

Talks about priority dates in water laws.

030

Kimberly Priestley

Waterwatch. States that Waterwatch opposes SB 642 (EXHIBIT G).

053

Dave Babits

Thompson’s Mills. States opposition to SB 642 (EXHIBIT H).

066

Jean Wilkinson

Oregon Farm Bureau. Provides testimony against SB 642 and discusses finding a balance for all water users.

100

Chair Ferrioli

Expresses concern about certified water rights and agronomic uses.

135

Sen. Atkinson

Asks about Oregon Farm Bureau’s position on Thompson’s Mills.

138

Wilkinson

Responds that the Oregon Farm Bureau supports Thompson’s Mills.

142

Sen. Atkinson

States that this has been a long-standing issue.

149

Babits

Reiterates that SB 642 should not be passed in its present form and discusses senior water rights.

158

Katie Fast

Oregon Cattlemen Association. Provides testimony in support of SB 642. Expresses concerns about removing water from the land in perpetuity, which could have a negative effect on agriculture.

188

Chair Ferrioli

Comments that the issue merits further discussion. Closes public hearing on SB 642 and adjourns meeting at 5:00 p.m.

The following prepared testimony is submitted for the record without public testimony for SB 642:

 

Gail Achterman

Submits written testimony (EXHIBIT I).

188

Chair Ferrioli

Adjourns meeting at 5:00 p.m.

 

EXHIBIT SUMMARY

 

A – SB 590, written testimony, Brad Harper, 2 pp.

B – SB 590, written testimony, Paul Cleary, 2 pp.

C – SB 642, written testimony, Paul Cleary, 3 pp.

D –SB 642, written testimony, Janet Neuman, 3 pp.

E –SB 642, written testimony, Aubrey Russell, 2 pp.

F –SB 642, written testimony, Roger Martin, 3 pp.

G –SB 642, written testimony, Kimberley Priestley, 2 pp.

H –SB 642, written testimony, Dave Babits, 2 pp.

I –SB 642, written testimony, Gail Achterman, 2 pp.