Streamlined water rights dispute procedures raise due process fears

Published 10:17 am Thursday, March 20, 2025

Two Oregon lawmakers want to streamline how water rights disputes are resolved but the proposal is drawing criticism from organizations representing farmers and environmentalists.

The amount of time needed to process certain water rights applications has been the subject of “constant complaints,” but grumbling won’t solve the problem, said Rep. Ken Helm, D-Beaverton, a chief sponsor of the bill.

“We have the chance to make changes to make a real difference,” Helm said during a recent legislative hearing.

House Bill 3544 would revise a slew of procedures for “contested cases” over new water rights and transfer requests, such as setting a 180-day deadline for administrative hearings.

Among other changes, the bill would also create a uniform dispute process for various types of applications, which currently have different procedures, and would establish remote hearings as the default option, thus avoiding the “cost and logistical challenges” of siting and scheduling them in person.

To obviate the need for hearings altogether, HB 3544 would create more opportunities to settle water rights disputes and strengthen the Oregon Water Resources Department’s ability to encourage negotiations, with the assistance of dedicated judges.

“Can we drive toward settlement of certain protests faster?” Helm asked.

In recent years, lawmakers have spent about $3 million to beef up administrative staffing to reduce the state’s backlog of more than 220 contested cases over water rights.

While that added funding sped up the resolution of many disputes, the backlog has kept growing as more cases continue to arise.

The situation has made clear the problem will persist unless lawmakers make reforms to contested case procedures and policies, said Rep. Mark Owens, R-Crane, the bill’s other chief sponsor.

“They’re coming in faster than we can process them, so we need to do something other than throw money at it,” Owens said.

Though many provisions in HB 3544 are uncontroversial, agricultural and environmental groups are nervous about the due process implications of some aspects of the proposal.

For example, the Oregon Farm Bureau worries the emphasis on remote hearings will disadvantage growers without internet access and fears that limits on the scope of hearings will stop “water users from fully presenting relevant arguments.”

The proposal would bolster the role of case law under certain conditions, allowing administrative judges to cite previous rulings as controlling precedent rather than analyzing the legal issues anew each time.

The Farm Bureau is concerned these provisions will hinder farmers from having their applications fully reviewed on a case-by-case basis.

“Every water right is different, and it is essential that decisions reflect the specific circumstances of each case rather than applying rigid interpretations of past rulings,” the group said in written testimony.

The Trout Unlimited and Wild Salmon Center nonprofits argue the bill imposes an increased “burden” on third parties to participate in contested cases, thus hindering their ability to represent the public interest in water rights decisions.

The Waterwatch of Oregon nonprofit shares this concern and also objects to the 180-day time limit on hearings, since this doesn’t account for the “complexity and the significance of issues” involved in some disputes.

The bill would make “sweeping changes to a complex system that has evolved over many years to balance efficiency and due process rights, with significant potential for unintended consequences,” Waterwatch said in written testimony.

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