When Water Rules Become Land Use Decisions
(Note from the author: Here is my view of what is happening in Central Oregon. There are similarities to Klamath.)
January 31, 2003
By Jack D. Menendez
"Either you bring the water to L.A. or you bring L.A. to the
water" - Noah Cross in Chinatown
On Friday, September 13, 2002, the Oregon Water Resources Commission approved new rules governing groundwater permits in the Deschutes River Basin. The state can move ahead with new water permits in Central Oregon. We are not talking about private domestic wells here. These permits concern the use large volumes of water. For example, the Cities of Bend and Redmond are applying to use more water than the City of Portland's residents do.
Sir Winston Churchill once said, "A lie gets halfway around the world before the truth has a chance to get its pants on." The new groundwater rules say that they will protect the Deschutes River. Advocates for the rules claim that they will not dry up farms either. Nothing could be further from the truth. The new rules will dry up farms and will deplete the river of its water and natural character. The rules serve only to open Central Oregon for massive growth and development.
Researching a power plant proposal led me to the water rules. The now dead Cogentrix project would have consumed as much water as 100,000 domestic wells. Cogentrix proposed to pump this groundwater near the Crooked River. The project threatened the natural beauty of Smith Rock and the rural character of Central Oregon. To my astonishment, I found the new water rules even more alarming than Cogentrix!
Although my nose is intact, there were times, researching these water rules, that I otherwise felt like J.J. Gitts in Roman Polanski's film noir Chinatown. The movie, Chinatown, is a fictional tale loosely based on LA's grab for the Owen's river in a 1908 scandal. Owen's River farmers actually attacked and on several occasions breached the aqueducts carrying water to Los Angeles. Central Oregonians would do well to research the events leading to the demise of Owen's Valley agriculture.
Development in Central Oregon requires water. The cities of Bend and Redmond are growing quickly and want to secure future water rights. A 1991 Oregon state law protected the Deschutes River as a "Scenic Waterway". This protection effectively prevented the state from issuing new water permits in Central Oregon. Even groundwater permits went on hold because the Geology of Central Oregon is such that pumping groundwater depletes the Deschutes River.
In 1995, then State Senator Neil Bryant wrote Senate Bill 1033, which allows more ground water permits. According to this law, the new "conditional" permits must not "measurably" affect the Deschutes River. There must be mitigation of any impact. This means that a conditional permit owner must find water to dump into the Deschutes if their pumping lowers the river's flow. There is a little catch to this bill. It is scientifically impossible to establish that a specific water permit is causing low water levels in the river. You would think that would be a showstopper. To get around this problem, the rule makers decided to give all conditional permit holders a choice. A permit holder can mitigate all groundwater that they consume or suffer collective regulation should the River's water run low. The council calls this the collective suffering rule. This brings us to another catch: because of Central Oregon's geology, regulating groundwater permits would only affect water levels in the river years later.
In 2001, Senator Bev Clarno sponsored House Bill 2184. This briefly worded bill makes it possible to create banks where one can buy and sell water for the mitigation required by SB 1033. Taken together, HB 2184 and SB1033 are worthy of Enron. The two laws create a commodities market for water in Central Oregon. One can trade for a commodity, "Water Mitigation Credits" -- measured in acre-feet at markets called "Water Mitigation Banks". The state can now issue new groundwater permits as long as there is water in the market place i.e. the water bank. Also in 2001, the Oregon Senate confirms replacements for three of the six Oregon Water Resource commissioners who will pass new rules implementing SB1033 and HB2184.
Meanwhile, in 1999 Senator Gordon Smith and Representative Greg Walden amend the Oregon Resource Conservation act of 1996 to spend up to $7 million of federal money in reclamation projects within the Deschutes basin. The money funds the activities of the Deschutes Resource Conservancy, which will use the federal money to create a water bank.
The approval of the rules means that the state can now approve a thick stack of waiting water permits. In a few years, the state will check the flow of water in the Deschutes River to see how well the new rules are "protecting" the river. Surprise, there will be more water in the river than expected. Everyone will pat himself or herself on the back for a job well done. The state will issue more water permits based on the stellar performance of water banking. Politicians will crow about their market-based formula for conservation of resources. Regretfully, it is all a trick involving timing and accounting.
In five or ten years, the Deschutes River will run low endangering protected fish and violating the Scenic Waterway law. The river will need an immediate dose of water. A judge will realize that stopping groundwater pumping will not have an immediate effect on the river. The judge must issue an order that stops the taking of water directly from the Deschutes. The restraining orders will target older permits that have "surface water rights" i.e. they draw water directly from the Deschutes River. Jefferson County Irrigation districts could find themselves in a battle with the Warm Springs Reservation over who will loose their allocation. Central Oregon will repeat the Klamath emergency for the same reasons and with the similar results. As in Klamath, future Central Oregon power plants would continue to transform vast amounts of water into steam and the area's urban sprawl can continue unabated. Allow me to explain exactly how all of this will happen.
The water banks hope to provide more than enough water for Central Oregon's future growth needs by piping and lining leaky irrigation canals. Purchasing the "conserved" water from the canals would allow a permit holder to mitigate groundwater pumping. This promise of abundant water is false.
For better or for worse, hundreds of miles of leaky irrigation canals crisscross Central Oregon. The canals, built during the 1920's, leak a staggering amount of water and are second only to the Cascades as a source of recharge to Central Oregon's aquifers. This lost water is what piping and lining hopes to conserve for the water banks. The canals preexist most of the water rights in Central Oregon. Much of the recharge from canals happens in areas with very little natural recharge of their own.
Rural residents, in Central Oregon, depend on thousands of private wells drilled after the establishment of the canals. Most of the private wells, like the one that my family and I depend on, are "exempt" i.e., unprotected by the state. What would happen to our well if the canals stopped leaking?
Central Oregon's geology as it relates to underground water is conceptually simple. Imagine a basin made out of hard impermeable rock. A slot at the lower north end of the basin acts as a drain. Any water reaching the basin trickles down to the basin's northern end and exits through the narrow drain. Now imagine that a spongy material fills the basin. Water entering the basin fills the sponge and moves slowly downhill through the sponge toward the drain. It can take 5 years or more for water that enters the sponge to exit at the drain. Except for evaporation, water entering the sponge must eventually leave by way of the drain. Removing some of the water from the sponge by drilling into it and pumping water out reduces the volume of water leaving the drain later. This is true as long as the removed water does not somehow reenter the sponge later. For example, we could allow the water we pump to evaporate. The effect of removing water permanently from the sponge can take as much as five years or more to show up at the drain.
We call this basin the Deschutes River Basin and the sponge is its aquifer. The drain is actually, where the three rivers, the Crooked, Metolius and Middle Deschutes merge into the Lower Deschutes River. Most of the water spills into the basin along the West side that is the eastern slope of the Cascades. The state measures the basin's water flow at the Madras gauge on the Lower Deschutes River just below the drain. Leakage from the canals enters the spongy aquifer and all of that water eventually shows up in the river at the drain.
Compared to the canals, the rivers hardly leak at all. A process called, "sediment infiltration", seals the river bottoms over thousands of years. Water can flow into the river channels from the aquifer through springs that line the river's banks. Most of the springs are just above the basin's drain. Every drop of water in the aquifer that we do not consume eventually emerges from these springs into one of the three rivers.
Consuming water means that it leaves the basin through some other means than the river. For example, domestic well users do not consume much water because most of it reenters the aquifer through a septic system. At the other end of the spectrum is a power plant that turns 100% of its water into steam. Agriculture consumes about 80% of the water that it applies to crops by evaporation or transpiration through the plants. Only about 20% of agricultural water reenters the aquifer.
More than 80% of the water leaking from irrigation canals emerges through springs into the Crooked River upstream from the Opal Springs gauge. The Crooked River merges into the Lower Deschutes and accounts for a quarter of its flow. This is the fallacy of canal piping and lining. Stopping the canal leakage literally stops that water from entering the aquifer and eventually the river. Using that "conserved" leakage to offset the effect of groundwater consumption on the river is double dipping.
The USGS along with cities, tribes, and counties from Central Oregon began a study that will culminate in the next few months with a numerical model of the hydrology of the Deschutes Basin. This study only calibrates what we knew already: 100% of the groundwater flows into the Deschutes River and makes up 100% of the river at the Madras gauge. Using leaking water that would return to the aquifer as mitigation for consumption contradicts hard science.
The canals predate all scientific studies, most water permits, and nearly all private wells. No one can predict exactly what would happen if the canals are lined. The USGS study contains a hint though. Studies of test wells found that maximum pumping from one well cannot lower water levels in a nearby well as long as there is canal less than 3,000 feet away. How many domestic wells would dry up when the canals stop leaking? How many permit holders would find themselves in battles with their neighbors over protected water rights? Could large developments like Crooked River Ranch find themselves suddenly without water? These questions and others remain unanswered by the Water Commissioners.
The Water Commissioners are intelligent people and they are aware of the facts. Still, even though all kinds of experts have testified to the fact that using water conserved from canals as mitigation represents "double dipping", the Oregon State Water Commission insists that piping, and lining of canals remains an option for the water banks. Why are they doing this?
By writing the water rules as they are, the state is abdicating enforcement of its own environmental laws that protect the Deschutes. On November 12, 2002, environmental groups stepped in to protect the river. The court will likely find that piping and lining canals for conserving mitigation water is illegal. The politicians and press will be able to blame the environmentalists for the resulting all out assault on agricultural water supplies.
If cities and power plants are to consume more water and still protect the Deschutes River, as the law demands, then there is only one source of available water. That water is the normal evaporation that takes place when farmers water their crops.
Without the conserved leaking from canal water, the new water banks will likely affect the value of agricultural water. Suppose you are a farmer with a water right. You can choose to place your water right for sale, auction, or temporary lease through a water bank. A growing city like Redmond can bid on your water right. The farmer gets money for her water, the water bank gets a transaction fee, and the city of Redmond can pump more underground potable water. The water bank leaves the original water belonging to the farmer in the river. Redmond would need to purchase just enough water to cover its consumption i.e., the water that evaporates when residents water their lawns etc. Agricultural water is perfect for mitigation by cities because they loose about 80% of their water to evaporation during the summer though less during the winter.
Since the water banks treat agricultural water as a replacement for potable water, the marketplace will establish a single market price for all water. This is the nature of a commodities market. The highest prices paid for water, tap water, will come down. The lowest prices for water, agricultural water, will go up. Farmers, already hard pressed to make a living, will be tempted to sell their water and eventually their land. Anyone with money can purchase water through the water banks. There are no rules forbidding abuse. There is nothing to keep a wealthy individual or corporation with no water rights granted by the state from purchasing and controlling large amounts of water in Central Oregon. The Oregon Water Resource Commission says that it will "keep an eye out" for such activity. This is a one-way street for agricultural water. Farmers will not be able to outbid cities, industries, and resorts for water.
Suppose that the Oregon Water Resource Commission really believed that piping and lining of canals was a viable alternative to drying up farms. Surely, they would write the rules differently. There would be no reason to have mitigation banks. This would just be another civil project like building a dam or canal. The federal government would give millions of dollars to the Army Corps of Engineers to get the job done instead of the Deschutes Resource Conservancy. At the very least, the commission could write a rule that allows agricultural water to mitigate agricultural consumption only.
The laws protecting the flow of water in the Deschutes River refer to the River's recreational uses as its highest value. Yet, the new water rules threaten to turn the rivers into artificial streams. Water normally enters the rivers through springs that line the riverbanks. Water banking and mitigation will allow pumping to dry up the springs that have fed the river for so many millennia. Meanwhile, the mitigation banks will add replacement water to the rivers through other means. The rich local ecosystems that thrive off the springs and nurture the native fish will disappear while the chemistry and temperature of the formerly spring fed river water will change. An artificial river will replace a once thriving natural resource. The water commission has not studied these kinds of impacts on the natural character of the Rivers.
The Water Commission found it impossible to make rules that mitigate
in real-time for impact of pumping groundwater on the River. It is
OK according to the rules to replace water in the River during the
winter months and pump groundwater all year long. The Water Commission
assumes that the aggregate effect of mitigation will even out this
effect. The USGS, in the next few months, will have a numerical model
of the Deschutes Basin Hydrology available that could help determine
when the river will need water. The Water Commission does not intend
to use it. Piping and lining canals would de-calibrate the numerical
model and render it useless.
The new rules make it possible for the state to grant Bend the large amount of water that it is requesting for its future growth. The City of Redmond will get more than three times that much water. Together, Bend and Redmond are getting about 24 billion gallons a year beyond what they use now. The City of Portland's residents use about 21.5 billion gallons each year. Redmond and Bend will need more land as they expand their Urban Growth Boundaries. There will be plenty of farmland to feed their appetites.
The people responsible for the character of Oregon's water use laws were not directly present at the Commission meeting on Friday the Thirteenth. I met their lawyers. Who are these villains? How will you know them? I only know that they are people and organizations that can get new laws passed in the Oregon Legislature and in Congress. They can afford to hire expensive lawyers and lobbyists. They are so powerful that they can rewrite water rules, hand them to the water commissioners, and say, "Make it so". You will know them by their handiwork. You will know them when they show up to buy your dried up farms.
The Oregon Water Resources council intends to measure their success when they have 75% of the future permits allowed by SB 1033 actually pumping water. They will look at average water levels in the River. This will look like an enormous success. There will be more water than predicted but it is a trick. The rules require dumping mitigation water into the river as soon as pumping begins. The effect of pumping can take up to five years to show up at the Madras Gauge. Therefore, there will be plentiful water early on, but that water will more than disappear over time. A Klamath-style emergency will ensue. The people responsible for this fiasco will cry crocodile tears for the farmers in Jefferson County that lose their crops and their livelihoods. The native fish will be gone forever -- along with the food produced by Central Oregon.
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