Drought Ongoing, New Water Laws Incoming

August 16, 2023
Drought Ongoing, New Water Laws Incoming

At the end of May, no part of Deschutes County faced extreme or exceptional drought — the first time that's been the case since June 2020. Drought reached its peak in mid-December 2021, when 56% of the county was deemed to be in exceptional drought. That designation is reserved for areas that are 98% drier than they are historically. As of April, there was no exceptional drought in Deschutes County, but Central Oregon isn't out of the woods yet. The latest report from the U.S. Drought Monitor found about 40% of Deschutes County remains in severe drought, and the other 60% is in a moderate drought. Irrigation districts responded with smaller allocations for their patrons.

Drought Ongoing, New Water Laws Incoming

Courtesy of the U.S. Bureau of Reclamation

Wickiup Reservoir, the largest reservoir in the Deschutes Basin, is storing more water than last year but is still well below what it usually stores.

It will take several seasons of above-average snowpack and precipitation before Deschutes County is back to its average water supply. The U.S. Geological Survey reports that 43% less water is flowing through Bend than average.

A handful of bills passed this year attempted to address Oregon's diminished supply of water. Locally, Deschutes River Conservancy lobbied for House Bill 4971, which allowed lands zoned for farming to lease their water back instream. But lands zoned for Exclusive Farm Use get reduced property taxes to engage in agriculture, and allowing water back instream could jeopardize that tax status.

"It was just another barrier to landowners participating, if they had any fear that they would lose that EFU tax deferral status, because when you do lose that you have to pay up to 10 years and deferred back taxes. So, it was a pretty serious financial burden, if that were to happen," said Kate Fitzpatrick, executive director of DRC.

HB 4971 removes that barrier, which could be significant with the high demand for agricultural water. About 85% of the state's water demand goes to agriculture, according to Zach Freed, the sustainable water program director at The Nature Conservancy in Bend.

"This is like kind of a natural place to look for solutions to find the find strategies that benefit both farmers and fish," Freed said. "Eighty-five percent of water demand is diverted from streams and rivers and pumped out of aquifers for agriculture.

"Another method to divert some would-be agricultural water back to streams and rivers is split-season instream leasing. Irrigators who apply for the program could use water for the first couple months of irrigation season and lease the water back in-stream later in the year. The concept lines up well with forage crops like hay and alfalfa, which are usually used as animal feed and are by far the county's most common plant products. Throughout the summer, forage crops become less and less productive as animal feed.

"As the hot summer season goes on, you get less and less productivity for the amount of water that you're using. So, the term that's used is 'crop per drop.' At a certain point, you're putting a lot of water onto a cold-season plant that has basically maxed out on its productivity for the growing season," said Caylin Barter, senior manager of the Oregon Water Police Program at the Wild Salmon Center.

Drought Ongoing, New Water Laws Incoming

Courtesy of the U.S. Bureau of Reclamation

The Oregon State Legislative Assembly authorized split-season leasing in 2001 as part of a pilot program, but House Bill 3164 made the program permanent earlier this year. Without the program, irrigators had to take an all-or-nothing approach, where they could lease in-stream throughout the agricultural season or use their water right on their land. Barter said the legislation addresses the two biggest barriers for farmers wanting to join the program: making it permanent and allowing farmers to do split-season leasing indefinitely. Under the pilot, irrigators were only allowed to take part in the program for a maximum of 10 seasons.

"If you are not diverting water out of a stream to grow forage, then that water is staying in the river and its supporting fish, it's supporting aquatic vegetation, it's keeping that water deeper and cooler. That's a huge environmental benefit, especially during these hot, dry summers that are becoming the norm in Oregon," Barter said.

DRC's Fitzpatrick said most of the water leasing in Central Oregon is for the whole season. Deschutes River Conservancy works with local irrigation districts to allow people to lease their water back into the river, and pays individuals based on the volume of water. DRC leases about 4,000 acres of water each year, which accounts for about a quarter of the flow in the middle Deschutes River south of Bend.

Measuring what water is used and what's put back instream is typical for irrigation districts and utilities, but rare for water rights as a whole. Freed said only one in six water rights in the state are required to measure the amount of water they use. Allocation for most individual water uses is on the honor system, where an individual is assumed to not exceed their allocations. And even when water uses are required to measure their usage, the state has been toothless when it comes to getting people to report it to them. House Bill 2010, an omnibus bill supporting several initiatives regarding water scarcity that Gov. Tina Kotek signed into law on Aug. 4, gives the Oregon Water Resource Department the power to require irrigators to measure their water usage and report it to the state.

"Now the state can tell them that they must submit that data — they must report the data that they collect. And this is particularly helpful for the Oregon Water Resource Department, who's the authority that's requiring this measurement. Because you can't manage what you don't measure," Freed said. "That seems like such a common sense, simple, and maybe even humble, change. But it's actually pretty foundational to how we can manage water in Oregon."

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