Oregon Releases Draft Integrated Water Resources Strategy: Can We Afford the Price?

The Oregon legislature in 2009 enacted one of the most sweeping mandates for water resources planning in the history of the State. It mandated the creation of a “coordinated, integrated state water resources policy.” [1] The evil it sought to rectify was described in dark terms:

The economic and general welfare of the people of this state have been seriously impaired and are in danger of further impairment by the exercise of some single-purpose power or influence over water resources … by each of a large number of public authorities…[2]

Such influences were said to cause “single purpose policies” resulting in “friction and duplication of activities” and “confusion” over uses and controls of water resources. [3] This harsh report card called for action, and the Oregon Water Resources Department was given the task of cleaning things up: it was told to develop an “integrated state water resources strategy” that would enable it work better with other state, federal, and local agencies, and the Tribes, to improve data management, address climate change, population growth, land use matters, water supply, ecosystem services, in- and out-of-stream needs, and almost every other thing legislators could think of relating to water.[4]

The Department, which had strongly promoted the need for coordinated planning, may have had mixed feelings about getting what it wished for, because the task has been enormous. It has worked for years on the project, and this summer unveiled its much awaited “Draft Recommended Actions”[5] to its Integrated Water Resources Strategy. According to the Department, the Strategy is “designed to address the most critical issues facing Oregon’s Water Resources.” In these lean budget times, continued funding for the project has been a top legislative priority for the Department. It has spared no effort to reach out to the public for ideas and comments; indeed it has bent over backwards to obtain citizen input far and wide throughout Oregon. The current Strategy is the product of scores of Department-organized gatherings of every stripe and color: “stakeholder workshops”, “Open House events”, “Policy Advisory Group meetings” and online surveys. The resulting document contains “actions that reflect the themes and issues” heard in these many forums. It is as if the Department had cleaned the slate of its previous legislative mandate, and asked the public, “What is it that you think we should do?” Not surprisingly, the answer, reflected in the multi-faceted Strategy, is a vast compendium of current near- and long-term water issues.

The Structure of the Strategy

Faithfully following the directives of the legislature, the Department’s approach to constructing the Strategy has been to publicly brainstorm the full spectrum of issues related to water in the state. These were synthesized into twelve “bulletins,” which appear to be mini-essays on the subject covered. These are the meat of the Strategy. The Department intends each action to be “measureable, attainable, and effective.” In its release, the Department has again asked for public input, including calls for “other recommended actions that would be effective in your community.” Five of the bulletins, or less than half of the Strategy, cover what many might call the key “core functions” or traditional missions of the Department: water supply,[6] consumptive use,[7] instream uses,[8] water measurement,[9] and water management. [10] The bulletins are not arranged or titled that way, however, and specific topics or themes are often spread over several bulletins, with cross-references to link them together.

How do the other bulletins tie into the Department’s functions? These are water-related but appear to contemplate the Department’s collaboration with other agencies on a much broader scale than before. These bulletins include essays on energy,[11] climate change,[12] land use,[13] water and wastewater utility infrastructure,[14] and ecosystem health and public health,[15] education,[16] funding,[17] and a category called “Place-Based Approaches”[18] dealing with trans-boundary and broader regional issues.

The Scope of the Strategy

Since water affects nearly everything from land use to energy to public health, the Strategy correspondingly strives to be relatively all-encompassing. The water-energy nexus discussed in Bulletin 4 encourages the addition of power generation facilities to already existing infrastructure; seeks to promote installation of bio-gas, solar, wind, and hydropower projects at water and wastewater facilities, sets energy targets, and provides targeted training on energy management best practices for operators and supervisors at water and wastewater facilities. This expanded concept of collaboration and coordination with other agencies would of course necessitate an expanded budget for the Department.

Likewise, in the realm of ecosystem health and public health, the Department’s collaborative goals include “maintaining forested areas,”[19] and an action to “develop a statewide floodplain policy”[20] and one to “establish an interagency toxic chemicals reduction team”[21] and so forth. Actions within the traditional province of other agencies are those with which the Department envisions cooperative integration of water resources planning such other agency functions. Examples include: “Continually improve water quality standards, including the Priority Persistent Pollution list (P3), Total Maximum Daily Loads (TMDLs), new water quality standards for toxics, non-point source pollution, and toxic reduction plans.”[23]

Other actions are squarely within the Department’s traditional role of water manager, but appear long shots for funding. For example, Action 2.c is “Complete Water Right Adjudications.” The adjudication of the bulk of the Willamette Valley alone could dwarf the funding needs even of the Klamath Basin Adjudication which has been underway for 36 years. While it is almost universally recognized that adjudicated water rights add greater security and predictability in water use management, this action item is ambitious in this lean budget era; although as a plan for the future, it is plainly needed

There are action items which appear to be part of current debate, but signal expansions of present policies. Data gaps are the continuing theme in understanding Oregon’s in-stream needs, which is the subject of the third of the bulletins. The first action plan in this bulletin is to “complete our understanding of flows needed to support stream functions.” [25] The message here, in the in-stream needs bulletin, appears to be that the Department has committed itself to modeling base flows all over the state. “Base flows,” one may recall from the discussion on peak and ecological flows, “represent the low flow functions of the stream that provide minimal direct habitat for fish and other aquatic organisms.”[26] Further, the Department goes on to say that “in-stream water rights do not focus on protecting elevated stream flows;”[27] more information is needed “regarding what elevated flows are necessary to maintain the physical characteristics of a stream or to trigger biological processes.”[28] To those who have been involved in the peak and ecological flow debate, there is the sense here that the Department is planning to expand the P&E flow concept to more of the streams in the state beyond the limited context of existing legislation. The Department’s white paper on peak and ecological flows is cited as a source for this particular bulletin.[29]

Is the Strategy Feasible?

The current Strategy appears to be a thoroughly deductive one. It starts with the entire cosmos of water issues and distills a wide array of actions deduced from that set. But it is unlikely that the Department could have done otherwise, given the breathtaking scope of the enabling legislation. One wishes the legislature had allocated funds to the Department to focus first on its core missions; once those were adequately funded, to allocate money for some essential coordination and long-term planning, without making the Department consume precious resources (human and financial) to reinvent the wheel. It could have directed the Department to determine what obstacles were preventing it from efficiently achieving the key components of its core missions. That alone would be a productive exercise. It would be no surprise, however, if budget limitations featured prominently if not exclusively in that list. It also should be no surprise that in this more ambitious, approach, budget concerns should appear in virtually every bulletin as a potential obstacle to the accomplishment of the actions identified in those bulletins.

To take one example of the proverbial budget elephant in the room, having reliable data is an absolute essential for effective functioning of any resource agency. The very first bulletin (Understanding Oregon’s Water Resources/Supplies) addresses the need for greater and more comprehensive data collection. This includes the need for groundwater monitoring systems and integration of federal, state, and local data collection efforts. Having presented a picture of Oregon’s data needs for both groundwater quality, conjunctive management of surface water and ground water, and the description of important data gaps, the bulletin concludes with the following statement:

At one time, the Water Resources Department had a budget of more than $1 million per biennium for these activities; currently, there are no funds dedicated to this purpose.[30]

It is hard to argue with the bulletin’s conclusion that “robust water data provide a firm foundation for agency planning, decision-making, and program implementation.” As water issues become more complicated and competitions over remaining available resources intensify, however, water resources data will be subject to increasing scrutiny and challenges.[31] In other words, without data, decisions will be made on less solid footing and be more prone to delay and subject to more administrative and judicial challenges. Action 1.B calls for the Department to “Fill in Data Gaps in Specific Issue Areas”[32] and that program alone is worth a dedicated effort to resolve. But in this broad Strategy document, it is only one of thirty six actions competing for staff, dollars and attention.

Conclusion

There are aspects of the Strategy that appear more aspirational than strategic. What, for example, is one to take away from action 5.c dealing with climate change adaptation in the following Action: “Help restore and protect wetlands, uplands, forests, and riparian zones to increase the capacity for natural water storage.”[33] What, exactly, will that entail? Who in the Department will do that, and how? With what funds? Similarly, from Action 6.c, dealing with the water and land use nexus: “Help local governments integrate water quality information into land-use decisions.” [34] How is this to occur? And, from action 7.c on improving dam safety, “Encourage efforts to evaluate and retrofit Oregon’s dams in anticipation of seismic events, aging, and other conditions.” [35] Again, this is a completely unobjectionable goal. But it is difficult to know exactly how this and similar actions might occur, with what staffing and under what budget conditions.

In fairness, one cannot expect too much detail from a wide-ranging strategic plan, though it is hard to resist asking such questions. There is in fact much that is commendable in this compendium of issues related to water. The effort in pulling out and summarizing the main issues where water is involved may in the future assist the Department in better relating to other agencies on interconnecting issues, and help it obtain funding for its legislative priorities. In all twelve bulletins, it is actually hard to object to a single action as not being indubitably beneficial to the public. One can suppose if looking back ten years from now the Department has managed to fully address a quarter of those goals it might be regarded as successful.

For more information on Oregon water law, please contact Douglas MacDougal or any member of Marten Law’s water resources practice group.