Transferring Conserved Water to the Environment Oregon, Washington - - PowerPoint PPT Presentation

Transferring Conserved Water to the Environment

Oregon, Washington and the Paradox of Consumptive Use

Photo: (ↄ) Joe Mabel

Ted Howard Legal Fellow, Center for Environmental Law and Policy

Environmental Water Transfers in the West

Szeptycki, Leon F.; Forgie, Julia; Hook, Elizabeth; Lorick, Kori; and Womble, Philip, "Environmental Water Rights Transfers: A Review of State Laws" (2015)

California Water Code § 1707

(a)(1) Any person entitled to the use of water, whether based upon an appropriative, riparian, or other right, may petition the board … for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water. (b) The board may approve the petition filed pursuant to subdivision (a), subject to any terms and conditions which, in the board's judgment, will best develop, conserve, and utilize, in the public interest, the water proposed to be used as part of the change, whether or not the proposed use involves a diversion of water, if the board determines that the proposed change meets all of the following requirements: (1) Will not increase the amount of water the person is entitled to use. (2) Will not unreasonably affect any legal user of water.

O R S 537.348 P urchas e, leas e o r gift o f w ater right fo r co nvers io n to in-s tream w ater right

(1) Any person may purchase or lease all or a portion of an existing water right or accept a gift of all or a portion of an existing water right for conversion to an in-stream water right. Any water right converted to an in-stream water right under this section shall retain the priority date of the water right purchased, leased or received as a gift. At the request of the person the Water Resources Commission shall issue a new certificate for the in-stream water right showing the original priority date of the purchased, gifted or leased water right. (2) ...[A]ny person who has an existing water right may lease all or a portion of the existing water right for use as an in-stream water right for a specified period without the loss of the original priority date. During the term of the lease, the use of the water right as an in-stream water right shall be considered a beneficial use. The term of the lease may not exceed five years. There is no limitation on the number of times that the lease may be renewed. However, the total period for which a water right may be leased for split use…may not exceed 10 years regardless of the number of leases or renewals

• f leases issued for the water right.

OR ORS 537 S 537.348 .348 Pu Purc rcha hase, se, le leas ase or

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gift t of

• f w

wat ater r ri right ht for

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rsion to i

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stream eam wat ater r ri right ht (con

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(6) The department at any time may revoke or modify an order issued for a lease…if the department determines that the use

• f the water right for in-stream use under the lease has

resulted in or may result in injury to an existing water right.

Garrick, Dustin and Aylward, Bruce, "Transaction Costs and Institutional Performance in Market-Based Environmental Water Allocation" (2015)

Columbia Basin Water Transactions Program

Columbia Basin Water Transactions Program, 2017 Annual Report

Oregon’s Allocation of Conserved Water Program ORS 537.455-500

ORS 537.455 - Definitions (1) “Conservation” means the reduction of the amount of water diverted to satisfy an existing beneficial use achieved either by improving the technology or method for diverting, transporting, applying or recovering the water or by implementing other approved conservation measures. (2) “Conserved water” means that amount of water that results from conservation measures, measured as the difference between: (a) The smaller of the amount stated on the water right or the maximum amount of water that can be diverted using the existing facilities; and (b) The amount of water needed after implementation of conservation measures to meet the beneficial use under the water right certificate.

ORS 537.485 Priority of right to use conserved water

(1) …[T]he priority of any right to the use of conserved water, including an in- stream water right, under an application submitted and approved by the Water Resources Commission…shall be either the same as or one minute after the priority of the water right held by the person implementing the conservation measures. (2) A person who implements a conservation measure may choose the priority of the water right for the conserved water in accordance with subsection (1) of this

• section. However, the priority date chosen must be the same for the portion of

water allocated to the applicant and the portion of water allocated to the state.

ORS 537.470 Allocation of conserved water by commission

(3) After determining the quantity of conserved water, if any, required to mitigate the effects

• n other water rights, the commission shall allocate 25 percent of the remaining conserved

water to the state and 75 percent to the applicant, unless the applicant proposes a higher allocation to the state or more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources. If more than 25 percent of the funds used to finance the conservation measures comes from federal or state public sources and is not subject to repayment, the commission shall allocate to the state a percentage equal to the percentage of public funds used to finance the conservation measures and allocate to the applicant a percentage equal to the percentage of other funds used to finance the conservation measures. If the commission determines that the water allocated to the state is necessary to support in-stream flow purposes… the water shall be converted to an in-stream water right. If the water allocated to the state is not necessary to support in-stream flow purposes, it shall revert to the public for appropriation by the next user in priority. In no event, however, shall the applicant receive less than 25 percent of the remaining conserved water unless the applicant proposes a higher allocation to the state.

ORS 537.465 - Application for allocation of conserved water

(1) Any person or group of persons holding a water use subject to transfer…may submit an application to the Water Resources Commission for approval of an allocation of conserved water for a measure that: (a) The person or group of persons intends to implement; or (b) Was implemented by the person or group of persons within five years prior to the submission of the application. (2) An application submitted under subsection (1)(a) of this section shall include: (a) A description of the proposed measures; (b) A description of the existing diversion facilities and an estimate of the amount of water that can be diverted at the facilities; (c) The amount of water that will be needed to supply existing rights after implementation of the conservation measures; (d) The amount of conserved water expected from implementation of the conservation measures; (e) The proposed allocation and use of the conserved water… (f) The intended use of any water allocated to the applicant; (g) The applicant’s choice of priority date for the conserved water; and (h) Any other information the commission considers necessary to evaluate the effectiveness of the proposal.

Proposed Washington Conserved Water Statute:

• Sec. 3. (1) A person holding a valid water right who installs a water-

efficient irrigation system for use under the right may apply to the department for a transfer of the use of the water resulting from the reduction in evaporative loss plus any additional net water savings resulting from the installation. The water use may be transferred: (a) To other land owned by the person with less senior water rights or that lacks a full and sufficient supply of water or for the irrigation of an additional parcel or parcels of land owned by the person. The application for such a transfer must be processed based upon the same criteria as if the transfer were to be made to another person; or (b) To another person for use on other land.

Engrossed Substitute Senate Bill 5527 (1997)

Governor’s Veto Message

“ESSB 5527 would allow water right holders who conserve water through the use of efficient irrigation techniques to apply that water to new parcels of land,

• r sell or lease it to others, including the state.

A water right has specific parameters limiting the amount of water, the land on which, and purpose for which it may be used. Those parameters protect the public’s interest by ensuring that only the necessary amount of water is used, leaving excess water available for other important uses, after the needs of the water rights holder have been met. ... I will ask the Joint Natural Resource Cabinet to develop a proposal for the next legislative session that will provide an equitable way to allocate conserved water between off-stream and in-stream uses, and that provides incentive for irrigators to conserve. Water allocation issues should also be resolved collaboratively through watershed planning efforts.”

Veto Message on SB-5527-S (1998)

OAR 690-018-0014

(1) Applications for allocation of conserved water should be submitted prior to implementation of conservation measures. Project sponsors are encouraged to consult with the Department and other natural resource agencies and to submit applications early in the process of project development. The Department will work with applicants to identify and resolve any concerns of local water right holders, governmental entities, or

• ther organizations.

(2) Notwithstanding section (1) of this rule, applications for allocation of conserved water may be submitted for projects in which all or a significant portion of the project costs have already been incurred. However, these project sponsors must consult with other water right holders in the area, governmental entities, and other organizations who have asked to be consulted prior to submittal of an application to identify and resolve any concerns regarding the application. Conserved water shall not be allocated pursuant to an application under these rules if the application is filed more than five years after the conservation measure was implemented.

Defining Conserved Water

Before 2003: Conserved water is “the amount of water, previously unavailable to subsequent appropriators, that results from conservation measures.” After 2003: Conservation is the reduction in the amount diverted to fulfill a beneficial use.

OAR 690-018-0050

The Department shall review the application and consider any comments received under section (3) of this rule to determine: (a) If the proposed allocation of conserved water will result in a reduced diversion for the uses allowed under the original water rights; (b) If the proposed allocation of conserved water will harm existing water rights; (d) The quantity of conserved water needed to mitigate for harm to existing water rights and the quantity of conserved water that may be allocated; (e) The new rate and duty for the existing water rights held by the applicant and for any out-of-stream use of the conserved water rights; (f) In consultation with the Departments of Fish and Wildlife, Environmental Quality and Parks and Recreation, if conserved water is needed to support instream uses

Aylward, Bruce. “Restoring Water Conservation Savings to Oregon Rivers: A Review of Oregon’s Conserved Water Statute.” (2008)

Completed Projects Under ACWP

Aylward, Bruce. “Restoring Water Conservation Savings to Oregon Rivers: A Review of Oregon’s Conserved Water Statute.” (2008)

The paradox of consumptive use

Federal Agricultural Water Enhancement Program

• No demonstrated reductions in consumption.

Australia

• $2.5 billion in subsidies for irrigation efficiency improvements did not provide water savings on a basin scale.

Kansas

• Water consumption increased per unit of land, and irrigated acres expanded.

Morocco

• Drip irrigation increases yield/acre, total production and income, but increases evapotranspiration.

New Mexico

• Conversion to drip irrigation caused 8-16% increase in water consumption.

Oregon

• Irrigation upgrades in the Grassland Drainage Area resulted in increased consumption and larger irrigated

area. San Joaquin Valley

• Area using drip increased 31% 1972-2001. One study suggest no increase in consumptive use.

So… What should Washington do?

Questions: Ted Howard 360.672.5988 thoward@celp.org