Tumalo Irrigation District

District Patrons,

If you agree with the District's opposition to SB 1153, please review the talking points below and provide additional testimony if possible. The deadline to provide testimony is this Thursday, June 5th at 11:59 p.m.

As you can see from the talking points below, SB 1153 will be overly cumbersome to our District and the improvements that we have been making in an effort to conserve water, and to improve water delivery to our patron’s. On multiple occasions our patrons have asked how they can be more involved and make their voices heard. This is the time for that.

If anyone is interested in providing testimony about SB 1153, testimony can be uploaded to the Oregon legislature link (OLIS). Or you can email us a copy of your testimony, and we can upload it to the State system for you.

TID is submitting a letter to the Senate Rules Committee, which includes Chair Jama, Vice-Chair Bonham, Senator Golden, Senator Manning Jr., and Senator Thatcher. If you would like a copy of this letter, please let us know.  

If you send us an email or letter, please provide your name and whether you oppose or support this bill. We don’t want to presume that everyone feels the same way.

Chris Schull

District Manager/ Board Secretary

Tumalo Irrigation District

Opposition to  SB 1153 – General Background and Talking Points

SB 1153 creates new standards for evaluating transfers of existing water rights and would require the Oregon Water Resources Department (OWRD) to determine if a transfer will:

Result in the loss of instream habitat for sensitive,threatened, or endangered aquatic species in stream reaches that are not protected by an existing water right, or

Contribute to water quality impairment in water quality listed streams.

Both of these criteria are vague, unproven standards that currently have no test or structure for how OWRD would define what these mean or how to evaluate them. It prioritizes ambiguous environmental ideals over economics and food production. It assumes that instream values are more important than food supply, flood control, or any number of the services that districts provide.

SB 1153 would halt the use of transfers of water rights inmost places in Oregon. Transfers are a vital tool for various water right holders to make changes, including for type of use, place of use, or point of diversion.

New (surface or ground) water is largely unavailable, making transfers of existing water rights the only way to meet current or future needs. Transfers, both temporary and permanent, are the only practical option left for irrigation districts, farmers and ranchers to legally move water where it's needed.

SB1153 would make these basic adjustments harder, slower,and more expensive. Water users, water suppliers, farmers, and ranchers, all rely on the water right transfer process to efficiently manage water use in their respective operations and to secure additional water supplies when new water rights are not available.

In Oregon, a transfer is the only mechanism to change an existing water right. OWRD may not approve a transfer if the transfer would (i)enlarge or expand an existing water right in any way, or (ii) cause injury to any other existing water right on the water system. The existing injury standard ensures that existing water rights, including instream water rights,are protected.

SB 1153 would require OWRD to evaluate the two new criteria above in addition the existing injury and enlargement reviews, which will entail an extensive and time-consuming analysis that will further slow the transfer process. There are proposed amendments that would narrow to only apply to points of diversion (POD) changes, both temporary and permanent, and further specify to only apply in stream reaches where there are not instream water rights or water quality impaired streams.

This is still a broad category of transfers and the language we have most recently seen does not sufficiently narrow and references the numerous types transfers our district or patrons may use.

SB 1153 would make the transfer process nearly impossible to use in the future. Even if the bill is narrowed to only apply to POD changes,there are unresolved concerns about how these new evaluations would impact existing workload and backlog at OWRD.

There is no direction or additional resources provided to OWRD to ensure SB 1153 does not cause additional transaction processing delays.

SB 1153 will disincentivize the use of this essential water management tool and hamper innovative and collaborative water conservation and efficiency projects.

(Note: The proposed transaction fee increases at OWRD are also still unresolved, with HB 2802 proposing a 135% increase and a separate bill proposing a 50% increase.)

Concerned that the additional vague requirements in SB 1153and increased fees for transfers will result in water users choosing not to use transfers, leading to water management inefficiencies and rather than supporting wise water management for both consumptive and instream interests.

These new standards will require years-long, multi-agency review processes and introduce ample opportunities for third-party challengers to cause further delays. The current language does not require rule making or sufficiently detail what this review process would involve.

Timely processing of transfers is crucial for all water uses, in-stream and out-of-stream. The practical reality is a significant number of streams in Oregon are designated as habitat for a sensitive,threatened, or endangered species or are listed as temperature impaired under Section 303(d) of the Clean Water Act due to low water flow.

The Oregon Department of Fish and Wildlife (“ODFW”) and the Oregon Department of Environmental Quality (“DEQ”) both have the statutory authority to apply for instream water rights on any stream in Oregon at anytime to protect aquatic species habitat and water quality, respectively. SB1153 subverts these authorities and creates new undefined standards.

OWRD is charged with water quantity allocation and does not have the authority or expertise to evaluate the impacts of water right transactions on aquatic species or water quality. SB 1153 is unclear on how OWRD will consult with ODFW and DEQ and whether ODFW can charge OWRD for the review that they do—creating additional fiscal burden on OWRD.

SB 1153 was developed without any input from consumptive water users and bill language was not shared in advance. There was no collaboration, transparency on specifics, or opportunities for feedback regarding the language in advance of the bill being introduced on February 25.

Note: There have been weekly negotiations since the Feb 25 hearing (including OWRC and other ag, municipal, conservation, and tribal interests); however the only language that has been successfully negotiated relates to tribal review under Section 9 of SB 1153  Agricultural water users have come to the table in good faith and provided suggestions and comments to reduce our concerns and improve the bill. Virtually all our suggestions have been rejected or ignored.

SB 1153 ignores the current roles of state agencies who already have the authority to provide information to OWRD and condition water right transfers as needed. This includes Oregon Department of Fish and Wildlife (fish screens, fish passage, aquatic life, etc.); Oregon Department of State Lands (removal-fill); Oregon Department of Land Conservation and Development(land use planning and statewide goals); and Department of Environmental Quality (water quality). Increased Litigation Risk: Vague new criteria will invite lawsuits and challenges from the environmental litigation industry and require districts and farmers to defend themselves.

The bill also opens the door for transfer challengers to cause additional delays in the contested case or litigation context.

SB 1153 would also expose even the simplest transfer to protests by unrelated parties leading to even more delays and protracted litigation.

OWRD also lacks resources to meet its current legal expenses. While there is a proposed language that would limit which transfers these new processes would apply to, SB 1153 still references all types of transfers and potentially opens all of these transactions to unrelated parties arguing that a standard should or should not apply.

SB 1153 will lead to additional internal transfer application processing delays. Before any new standards are added to the transfer process, we must resolve the underlying issues that have caused OWRD’s processes, including the transfer process, to become inefficient and unworkable. Until these core issues are resolved, no additional language can convert the transfer process into the effective and protective tool it is intended to be for all water stakeholders.

SB 1153 is inequitable: The bill targets family farms,agricultural water suppliers, and rural water users but exempts cities from the same rules, even though their water rights are the same or similar. Proposed amendments would exempt most municipal water suppliers from these new standards and deliberately exclude irrigation districts and similar entities from this exemption. This creates confusion and inequitable standards between municipal and agricultural water users, particularly where there is shared infrastructure.

If there are exemptions for municipal water suppliers related to emergencies for health and safety, irrigation districts and similar water suppliers should also be included, for the same reasons.

SB 1153 blocks innovation and introduces more uncertainty:these two new vague standards will cause the existing transfer processes to be more time-consuming, expensive, and have a less clear outcome.

Districts and the farmers and ranchers they service will be less able to adjust to changing conditions, invest in conservation or move water to crops in need. Irrigation and water infrastructure improvements will slow down or stop.

There are no direct process improvements in SB 1153, no improvements to existing transfers or any other transaction within OWRD. No Proof of Harm or Problem:

Supporters haven’t shown any actual cases of environmental damage from transfers. We should not rewrite decades of water law based on speculation.

The Governor’s office has failed to provide a single example of how any transfer has negatively impacted stream flow or water quality, or why the existing injury/enlargement reviews are not sufficient, yet they are adamant that these two new standards are needed. It is a poorly constructed solution in search of a problem that will undoubtedly cause more confusion and conflict amongst all water stakeholders.

No Accountability:The bill lacks reporting requirements or deadlines for agency decisions. It opens the door to more bureaucracy, not better results.

The new standards under SB 1153 do the opposite; are not conducive to the wise and efficient use of Oregon’s water resources; and, if implemented, will have far-reaching effects on Oregon’s economy and the livability of communities across Oregon. SB 1153 is overly broad and complex,places new unfunded mandates on OWRD to implement, and should not be pushed through at the end of session on party lines.

The broad new standards proposed in SB 1153 need to be targeted to address a specific problem(which is thus far undefined) and be carefully crafted to avoid unintended impacts or making the problem worse.

There are other collaborative and bi-partisan options to improve Oregon’s Water Law system and ensuring that all water needs (in-stream and out-of-stream) are met—but SB 1153 is not one of them. Instead of rushing flawed legislation through one session, the state should pursue a collaborative, science-based effort.

(Conclusion) Oregon’s legislature should seek ways to enhance water right flexibility to ensure water users can improve operational efficiencies while protecting existing water rights, including in-stream water rights.

Note: The only section of SB 1153 that we are not opposed to is Section 9, which pertains to tribal review of transfer applications.Language has been negotiated that all parties at the negotiating table agreed to, and we are supportive of narrowing the bill to only that component.