A new legal interpretation has cast doubt on whether legislation is necessary to allow limited commercial irrigation with domestic wells in Oregon.

Based on an opinion from the Office of Legislative Counsel, which advises lawmakers on legal matters, the Oregon Water Resources Department appears to have wrongly prohibited small farmers from using domestic wells on commercial crops, said Rep. Anna Scharf, R-Amity.

“The agency overstepped,” Scharf said in a recent legislative hearing. “We should ask that the state agency interpret the law correctly.”

Domestic wells are exempt from regular water rights permitting requirements, but they’re limited to withdrawing 15,000 gallons daily and can only irrigate a half-acre of lawn or garden.

Since last year, OWRD has been ordering small farmers to stop using domestic wells to irrigate crops for commercial sale, which many claim will drive them out of business.

The recent enforcement of what the agency says is a longstanding restriction has spurred the introduction of House Bill 3372, which would allow 3,000 gallons of domestic well water per day for commercial irrigation.

Proponents of the bill argue it doesn’t make sense to effectively prohibit crop sales when existing law allows up to 5,000 gallons per day to be used for other commercial purposes.

“I can have a resort, I can have a dog kennel, I can do a lot of things that use up to the 5,000 gallons and that’s legal,” said Rep. Mark Owens, R-Crane, chief co-sponsor of HB 3372. “But if I decide to irrigate some cut flowers on my property and sell them, that’s illegal.”

Opposition to the bill has made political bedfellows of the Oregon Farm Bureau and Waterwatch of Oregon, an environmental nonprofit with which agriculture advocates seldom see eye-to-eye on water policy.

Waterwatch believes the rules for domestic wells are already too permissive and shouldn’t be loosened further, while the Farm Bureau fears the bill would place small growers at a competitive disadvantage if they’ve invested substantial money to obtain water rights.

Owens, who is an alfalfa farmer, says he was compelled to sponsor the bill because affected small farmers are unlikely to obtain new water rights in many regions where surface and groundwater are over-allocated.

Under existing law, small farmers would technically violate domestic well regulations if their children auction off livestock raised as part of their 4-H or FFA activities, he said.

Since exempt domestic wells are only responsible for about 4-5% of groundwater withdrawals in Oregon, the bill is unlikely to seriously contribute to groundwater depletion, he said.

“It’s not, in my opinion, going to increase use,” Owens said.

Urban residents can typically use unlimited amounts of city water to irrigate lawns and crops for whatever purpose they want, but rural landowners who are dependent on wells don’t have such freedom, said Rep. Ken Helm, D-Beaverton, co-sponsor of HB 3372.

“That seems unfair to me,” Helm said, noting that the bill would bring regulatory restrictions on urban and rural water users into greater balance.

However, a recent determination from the Office of Legislative Counsel indicates that HB 3372 may be unnecessary because commercial irrigation with domestic wells is already permissible.

According to the opinion, the irrigation of crops intended for sale is included under the existing 5,000-gallon allowance for commercial uses.

“In short, we believe a court would likely conclude that a small farm’s production of farm products for exchange or sale qualifies as a ‘commercial purpose’” under existing law, according to the opinion letter.

Lawmakers should stand up for small farmers who’ve received cease-and-desist orders from OWRD, since they generally lack the financial means to litigate with the state government, Scharf said.

“I believe what we have done is come up against an individual or individuals within an agency who did not understand the law and took it upon themselves to notify small farmers they were in violation of state statute,” she said.

The Legislative Counsel’s interpretation is unlikely to quell the controversy, though, as a 2008 opinion from the state’s Department of Justice arrived at the opposite conclusion.

In limiting domestic wells to irrigating a half-acre, existing law specifically says a garden must be non-commercial, which implies commercial gardens are prohibited entirely, according to DOJ.

“Because the statute prescribes those specific instances where exempt ground water may be used to water land, it appears that the legislature intended to limit permissible watering or land application only to the specific instances described explicitly in the text,” the agency said.

Since small farmers probably don’t want to end up in court over the issue, Scharf said she’s willing to keep negotiating over the bill even though she voted against it.

The proposal is likely to be revised by the Senate Natural Resources Committee, which is now reviewing HB 3372 after it recently passed the House, 41-16.

The bill’s sponsors want to further revise the proposal’s language in the Senate to make clear it does not apply to unlicensed cannabis production.

Lawmakers have been trying to curb unlawful irrigation of marijuana for years, so they don’t want the bill to create a “loophole” for such illicit producers, said Rep. Ken Helm, D-Beaverton, the proposal’s chief co-sponsor.

“It was never our intent to allow this,” he said.