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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