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Water rights law should protect districts, help farmers
regarding Bill HB 3298

By William M. Ganong, Klamath Falls attorney,  July 11, 2003

Western water law is nothing if not complicated and convoluted, having slowly formed over a century as the arid West developed. A seductively simple water bill pending in the Oregon Senate, HB 3298, seeks to define the owner of water rights for all irrigation rights inside certain water delivery districts. HB 3298 is of immense importance to irrigators in districts.

When an individual outside a district applies for and develops a water right, that individual clearly owns that water right.

Inside districts more parties join the relationship: the district, multiple farmers, and sometimes the Bureau of Reclamation. Any of these three parties may individually or in partnership apply for and develop a water right.

When a district applies for a water right, that right usually is issued in the district’s name, in trust for the farmers who put the water to beneficial use on the land described in the water right at the rate and duty specified. The relationships between and among the district, the farmers and the bureau are well defined and critical. Districts cannot arbitrarily take over water rights by declaring themselves “co-owners” and thereby violate the legal trust relationship spelled out in Oregon law. All parties to water rights within a district are partners in the effort to maintain the integrity of the district and put the water to beneficial use.

HB 3298 unilaterally changes these relationships in every case for every water user in Oregon who is within certain districts. HB 3298 seeks to define the owner of water rights for all irrigation rights inside these districts as the person who holds title to the land to which the water right is attached, no matter the issue or the history of the particular water right and district.

In the name of private property rights, HB 3298 fully vests all ownership interests to individuals within districts – but at the expense of each other. Because districts, and not the Department of Water Resources (as is the case for individual water rights) regulate against injury, districts would be unable to protect farmers as a whole or farmers as individuals to ensure that water is managed fairly and without injury.

Irrigation districts are local governments managed by an elected board of directors. Qualified directors must be landowners in the district receiving water delivered by the district. Directors are elected from particular areas and serve three-year terms without compensation.

The Klamath Irrigation District Board is composed of five members who live and farm in the district. Two of the board members are fourth-generation farmers on land that their great-grandparents homesteaded and converted to productive farmland.

On behalf of its members, the KID is prosecuting water right claims in the Klamath River adjudication and is pursuing claims against the United States in the U.S. Court of Federal Claims, to recover damages farmers suffered by the taking of their water during 2001. Board members have personally participated as plaintiffs in other lawsuits and litigation filed by or on behalf of the district or in which the district has intervened. Board members have spent thousands of hours representing themselves and their neighbors on committees, before the Legislature, in different associations, and in court. The dedication and hard work of KID’s board members is representative of the dedication and hard work of all the boards of directors of districts throughout Oregon.

In litigation, lawsuits must be brought and prosecuted by the “real party in interest.” As trustees on behalf of its farmers, the KID can prosecute the takings case and KID can represent its farmers in the adjudication. If the definition contained in HB 3298 becomes law, then the argument that districts are trustees for farmers-water users goes away, the takings case is subject to dismissal, and the state may have to revise the manner in which it is reviewing our water right claims to require each individual landowner to personally participate in the process.

Farmers need to work together to protect the viability of irrigated agriculture. The Oregon Natural Resources Council, Earth Justice, the Sierra Club and others with an agenda to end irrigated agriculture in the West have worked for years to divide our agricultural communities, recognizing that “divided they fall.” It’s ironic that these same tactics of divide and conquer are being employed for passage of HB 3298 by an organization that primarily represents people who are farmers, but not farmers inside districts.

The reality is districts are farmers. And farmers are districts. HB 3298 severs the shared relationship between districts and farmers, and changes the whole concept of a water right having components of both diversion of water and beneficial use of that water. Neither farmers nor districts can do both without each other.

The legislature and our resources community are better served by working through the interim to fully evaluate the effects on all water users to arrive at consensus.

William M. Ganong, a Klamath Falls attorney in private practice, is general counsel to the Klamath Irrigation District. He represents districts in the Klamath River adjudication and serves as the agricultural water districts’ representative on the Special Districts Association of Oregon legislative committee.




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