Overdrafting Oregon: The case against groundwater mining.

• Author: Miller, Souvanny
• Position: COMMENT

People in the western United States rely on groundwater for agricultural, domestic, and conservation uses. Achieving balance among these often-competing interests is largely left to state legislatures and agencies. Oregon regulates groundwater according to a permit system based on prior appropriation. In some groundwater-dependent areas of the state, wells are drying up, and stream-levels and water tables are dropping. Oregon s aquifers are at risk of overdraft. Still Oregon s Water Resources Department has been approving new-use permits, allowing additional groundwater withdrawals, when it does not have sufficient information to determine that water is available. This Comment analyzes Oregon's governing statutes and regulations, and concludes that Oregon law prohibits groundwater mining and that Department's policy runs afoul of that prohibition. Comparing Oregon's groundwater law to other western states' law, the Article suggests that Oregon's legislature or the Water Resources Department should incorporate groundwater management mechanisms from these states to better enforce Oregon's groundwater mining prohibition.

1. INTRODUCTION 520 II. BACKGROUND: OREGON'S PERMIT PROCESS, ADMINISTRATIVE PROCEDURES ACT, AND "OPT-FOR-YES" POLICY 523 A. An Overview of Oregon's Groundwater Bights Permit Process 523 B. Judicial Review Under Oregon s Administrative Procedures Act 525 C. The Department's Opt-for-Yes Policy 526 III. CONFLICTS BETWEEN THE DEPARTMENT'S OPT-FOR-YES POLICY AND OREGON WATER LAW 526 A. Contravening Oregon s Express Public Policy 527 B. Failing to Perform Required Water Availability Reviews and Assessments 529 1. Public fnterest Review 529 2. Groundwater Availability Review 531 3. Groundwater-Surface Water Connection "Division 9" Review 532 IV. INCORPORATING ASPECTS OF OTHER STATES' WATER LAWS TO PREVENT OVERDRAFT 533 A. fdaho: Expressly Prohibiting Groundwater Mining 533 B. Washington: A Duty Not to fssue When Use Threatens the Public Interest 534 C. Arizona: Decreasing Groundwater Use over Time 535 D. Colorado: Predictive Conjunctive Management 537 V. CONCLUSION 538 "Giving away water with abandon has failed Oregonians repeatedly."

1. INTRODUCTION

   Groundwater--historically considered an elusive and secretive resource (2)--has made an uncharacteristically conspicuous splash in Oregon's mainstream news. Draining Oregon, an investigative series by the Oregonians Kelly House and Mark Graves, brought to the surface the underground-water crisis in the arid regions of central and eastern Oregon. Oregon's Water Resources Department (the Department)--the agency that allocates and regulates water rights--has been giving away water where it cannot determine whether water is available to give. (3) This practice both threatens Oregon's groundwater supplies and violates Oregon's water code.

   As the Draining Oregon series warned, if the Department continues to over-allocate groundwater, Oregon's groundwater supplies could be irreversibly depleted. (4) Over-allocation of underground aquifers can lead to groundwater mining, or pumping more water out of an aquifer than it can naturally recharge. (5) For agriculturalists who depend on aquifers to support their crops, for homeowners who depend on wells for their domestic use, and for wildlife dependent on interconnected surface water for life, groundwater mining poses a critical threat. (6)

   The effects of groundwater mining are apparent in Oregon where water has been over-allocated. In Harney County for instance, where the Department granted too many new permits, household wells are drying up. (7) Concerned about over-allocation, WaterWatch of Oregon filed multiple protests against new groundwater applications, and the Department stopped issuing new-use permits for Harney County in 2015. (8) The moratorium will continue until the Department can study the area and determine whether current water usage is causing the well-lowering and other water-scarcity issues in the region. (9) In the Fifteenmile Creek Basin, where steelhead have adopted unnatural spawning and migration patterns in response to a lack of water, over-allocating groundwater has exasperated surface water shortages. (10) Scientists worry that fish runs all over the state could suffer the same consequences if water tables continue to drop from mining. (11) The authors of Draining Oregon reported that the Department's unofficial policy for approving new groundwater-use permits without knowing how much water is available allows groundwater mining. (12)

   Because Oregon's water is a public resource, (13) each groundwater use requires a Department-issued permit or certificate which the agency approves according to Oregon's water code and the implementing regulations. (14) Unfortunately, the Department has been issuing new-use permits even when, by its own assessment, there is insufficient information to determine whether the new use can be fulfilled. (15) Put another way, when the Department has insufficient data to determine whether there is enough water to support the proposed use without harming existing uses, it opts for "yes, water is available."

   No Oregon appellate court has yet decided whether this unwritten "opt-for-yes" policy violates Oregon's water code. But, as discussed below, the statutes and regulations governing groundwater forbid groundwater mining. For instance, Oregon's water code requires that beneficial use be "within the capacity of available sources." (16) It also requires that the Department make an affirmative finding that water is available before issuing a permit. (17) The opt-for-yes policy ignores these requirements.

   This Comment argues that the Department's opt-for-yes policy is therefore illegal. Part II describes Oregon's current permit process, as exposed by the Draining Oregon series and legal challenges to the Department policies. Part III analyzes how the Department's opt-for-yes policy conflicts with Oregon's statutory and regulatory groundwater controls. This Part focuses on water availability requirements at various steps of Oregon's water-rights permit process. It concludes that the opt-for-yes policy violates those requirements. Part IV compares aspects of Oregon's groundwater management to other western states' more protective groundwater management and suggests that Oregon's legislature should incorporate anti-mining mechanisms from Idaho, Washington, Arizona, and Colorado into Oregon water law. The Comment concludes by suggesting steps the Department, the Oregon Legislature, and/or the Oregon Courts should take to stop and prevent groundwater mining in Oregon.

2. BACKGROUND: OREGON'S PERMIT PROCESS, ADMINISTRATIVE PROCEDURES ACT, AND "OPT-FOR-YES" POLICY

   Oregon allocates groundwater rights according to a permit system. (18) To issue a new permit, the Department must follow statutorily prescribed procedures and adhere to its own regulations. (19) If the Department fails to follow those procedures or acts inconsistently with its own regulations, then its action may be subject to judicial review under Oregon's Administrative Procedures Act. (20) For instance, permits issued under the Department's opt-for-yes policy can be challenged under the Act, and--as discussed in Part III--should be reversed by the reviewing court.

   1. An Overview of Oregon's Groundwater Rights Permit Process

      At various stages of review within the permit process, the Department must consider the amount of water, if any, that is still available for appropriation. (21) Most new "use[rs] must first obtain a permit from [the Department] to use water lawfully." (22) In addition to specifying an amount of water and conditions for its use, Department-issued permits secure for the permit holder a priority date--which safeguards the permit holder's right to water against permit holders whose priority dates are later. (23) In other words, a new or "junior" user will receive water only when there is sufficient water to fulfill the existing or "senior" user's needs. (24)

      Permit applicants must provide specific information about themselves, the proposed use, and the timeline for construction. As to the proposed use, applicants must describe the nature of the proposed water use, the "amount of ground water claimed," a "description of the lands to be irrigated" including acreage, descriptions of the proposed wells, and a map or drawing showing "the proposed point of diversion and place of use." (25) Department rules also require information about the proposed water sources, (26) "why the amount of water requested is needed, measures the applicant proposes prevent waste, to measure the amount of water diverted, to prevent damage to aquatic life and riparian habitat" and potential mitigation measures to "prevent damage to public uses of affected surface waters." (27) Once submitted, the Department reviews the application for completeness. (28)

      If the application is complete, the Department has thirty days to conduct and complete an initial review. (29) Water availability is an immediate concern. During this initial review the Department determines "whether there are any obvious barriers to the proposed use," (30) including whether "water is available from the proposed source during the times and in the amounts requested." (31) Other barriers include statutory or regulatory limits on the proposed use, whether the specific source is over-appropriated--e.g., a critical groundwater area. (32) The Department at this first stage may also consult with other state agencies. (33) Once the Department concludes the initial review, it sends its findings to the applicant. (34) If the applicant chooses to move forward with the application, the Department has seven days to publish a public notice of its initial review, which is then made available for public review and comments. (35)

      After the notice is published and comments are considered, the Department conducts a secondary review. (36) For thirty days of this second...