New Proposed Perpetual Tax on 85,000 Oregon Water Rights Holders

And Potential Significant Regulations

Senator Doug Whitsett, Oregon District 28 - Klamath

Hundreds of legislative proposals are drafted (LC Draft) for Oregon State Agencies by the attorneys at Legislative Counsel each legislative session. This year, the Oregon Water Resources Department (Department) has asked for LC drafts on six or more legislative proposals. At least three of the concepts should be of significant interest to all those who use the waters of the state.

LC 657 proposes to establish Department authority to change the name on a water right certificate and to establish a fee to fully pay for that service.

The name on a water right certificate is usually the name of the person, or entity, that first claimed the water right, and that originally made the improvements required to receive the permanent certificate. It has long been understood that water rights appurtenant to the land are transferred to the new land owner when the land is sold. However, the name on the certificate is usually not changed when the land irrigated by that water right is purchased.

A recent Oregon Supreme Court decision suggests that the owner of the water right is the name of the person or entity on the certificate, rather than the owner of the land to which the water right is appurtenant.

The proposed change would allow current landowners to pay to secure the water right certificate appurtenant to their land in their own name. The LC draft is not entirely clear whether the Department would have authority to change the name on a certificate without being requested to do so, or what course the Department would take if the requested name change is contested.

The change would also better enable the Department to communicate with water right holders, to improve compliance with water measurement requirements, and to clarify where to send the bill for the Department’s proposed new tax on the use of water.

LC 659 would establish a water right management tax to be charged to each of Oregon’s 85,000 holders of Oregon water rights. The tax would apply to all agricultural, industrial, municipal and in stream water rights.

The Department expects that a significant number of privately owned water rights will be abandon by their holders rather than pay the new annual tax on water. The draft is not clear on who would pay the fee for Oregon’s myriad in-stream water rights.

This tax would extract about $12 million per biennium from Oregon water users. The revenue is to be used to generally support the Department’s activities.

The concept assumes that anyone holding a permit, certificate or decree would be subject to an annual fee of $100 per water right, with a cap of $1,000 for all but municipal customers. Apparently the tax cap would not apply to municipal water rights because municipal systems have a base of rate payers that allows them to pass the cost of the water tax on to their customers.

LC 661 would expand the current water right transaction fee-schedule and then make it permanent.

The draft language increases the current fee schedules by about 13 percent across the board. It also adds a couple of additional new fees “to bring consistency” to the overall fee schedule. The Department alleges that the double digit fee increase is needed to account for increased Department costs.

In the event that this bill does not pass, a sunset clause in the current fee schedule authorization would automatically cause the fees to revert back to the amounts charged by the Department in 2003.

The recent adoption of Oregon’s Integrated Water Resources Strategy has the potential to significantly increase the regulatory activities of the Water Resources Department. Many irrigators and legislators have wondered how the Department planned to fund those activities. The answer appears to be double-digit fee increases and a new perpetual tax on the use of the waters of the state.

Please remember, if we do not stand up for rural Oregon, no one will.

Best regards,

Doug
 

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