Oregon agency may be awash in red ink from water litigation

Irrigation-related lawsuits filed against the Oregon Water Resources Department are causing the agency to spend a projected $1.3 million more than originally budgeted for the current biennium.

Oregon’s water regulators are rapidly spending the $835,000 they have available for litigation and may go nearly $1.3 million over budget in the 2017-2019 biennium.

A request for more litigation funds was recently turned down by Oregon lawmakers, which means the Oregon Water Resources Department will probably ask the Legislature’s Emergency Board for money later this year.

If OWRD can’t get additional litigation funds, the agency will have to delay replacing employees who have left, though it has yet to determine how many positions would remain unfilled, said Racquel Rancier, the department’s senior policy coordinator.

About $600,000 was spent on litigation within the first seven months of the biennium, which was roughly two-thirds of the money allocated for two full years of legal battles, Rancier said March 15 during a meeting of the Oregon Water Resources Commission, which oversees the agency.

Litigation costs have averaged about $86,000 a month, so funds are expected to run out soon — particularly since several cases may go to trial, increasing the expense, she said.

At the current rate, OWRD is projected to spend about $2.1 million on litigation in the current biennium.

The agency has a legislatively adopted budget of $98.6 million for 2017-2019, down from $107.4 million for the previous biennium.

Litigation over water has increased mostly due to more regulatory calls cutting off water to junior irrigators in the Klamath Basin, where an “adjudication” over the validity of water rights was completed in 2013, Rancier said.

Since the lawsuits are generally initiated against OWRD, the agency doesn’t have control over the costs. The problem is also growing worse: 25 new cases were filed against OWRD in 2015-2017, up from 13 new cases in 2013-2015 and 5 new cases in 2011-2013.

OWRD plans to continue discussing the issue with lawmakers to convey what services the agency can’t perform as a result of delayed hiring, Rancier said.

The agency plays a key role in Oregon irrigation by administering the state’s water rights system, such as approving wells, diversions, leases and transfers.

When the agency issues a water call, a junior irrigator can stay enforcement of that regulation by filing a lawsuit, said Tom Byler, OWRD’s director.

OWRD can lift such an enforcement stay — as it did last year — but the process can take several weeks, during which a senior water user’s rights are infringed, he said.

The ability to postpone water rights enforcement through liigation has long been “on the books,” but has only recently been used this way, Byler said.

“It’s troubling for us because it really undermines the prior appropriations doctrine,” he said, referring to the “first in time, first in right” system of Western water law.

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