by Alex Baumhardt, Oregon Capital Chronicle
May 30, 2024

Gov. Tina Kotek is calling on lawmakers to modernize  Oregon’s water laws following guidance from four prominent water attorneys. 

Kotek and her natural resources advisor, Geoff Huntington, asked the lawyers late last year to make recommendations for improving water policy. On Thursday, they presented their concerns and recommendations to the House Committee on Agriculture, Land Use, Natural Resources, and Water and the Senate Committee on Natural Resources and Wildfire. 

They said the state needs to improve data collection, consistency and access around Oregon water use and water quality; make permitting less rigid and more efficient; get natural resource agencies to coordinate on record keeping and planning and integrate indigenous knowledge in state water policy development and administration.

In response to the lawyers’ guidance, Kotek recently paused efforts to revise the state’s Integrated Water Resources Strategy and added another natural resources advisor, Chandra Ferrari, an attorney who specializes in water law. 

The four lawyers behind the guidance and call to action are Adell Amos, a law professor at the University of Oregon; Janet Neuman, a retired Lewis and Clark Law School professor; David Filippi, a partner at law firm Stoel Rives in Portland; and Josh Newton, a partner at law firm Best Best & Krieger in Bend. Each has experience litigating cases focused on water protection, tribal natural resource law and water cases for agricultural and industrial use. 

“Oregon’s water management is at a tipping point necessitating decisive action and adaptation. We respectfully urge gubernatorial attention and leadership to address these needs,” the lawyers wrote in their appeal. “Oregon’s water laws and the administrative structures implementing those laws are simply not suited to meet the present and future needs of our state, whether for current water right holders, those seeking new water supplies, those looking to sustain and enhance the natural environment, or all of the state’s residents who depend on and value the state’s water resources.”

Concerns and recommendations

To produce their recommendations, the lawyers analyzed 11 different state water reports developed over 14 years.

Big problems that continue to plague the water resources department include lack of funding and lack of consistent reporting from the state’s water right holders. 

Only about 17 percent of the state’s 90,000 water right holders are required to measure and report their water use, and about 20 percent of those do not report despite being required to do so, Filippi said. The department has a backlog of more than 100 contested cases over water permits, some of which were submitted to the agency more than 30 years ago, the lawyers said. 

“In short, Oregon’s water, which belongs to the public, is being mismanaged despite the best efforts of state employees trying to carry out their public obligations,” the lawyers wrote in their appeal.

Overdue updates

A statewide water analysis of water quantity and use in each of the state’s 20 basins has not taken place since the 1980s. In 2021, the Legislature directed the water resources department to undertake such an analysis with the passage of House Bill 2018, but the work is still ongoing.

A bipartisan duo on the House agriculture and water committee, Rep. Ken Helm, D-Beaverton, and Rep. Mark Owens, R-Crane, last year unsuccessfully proposed halting all new water permitting until the agency completed a full water budget for the state. 

Meanwhile, during the last 20 years, Oregon has experienced some of the driest conditions on record. Over 80% of water rights recently approved by the water resources department are in areas where groundwater levels are declining, Danielle Gonzalez, policy section manager at the department, previously told the Capital Chronicle.

About 85% of all the water diverted from rivers, streams and aquifers in Oregon is used for agriculture, according to a 2022 report by the department.

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