A well is drilled in Eastern Oregon in this file photo. The Oregon Senate has passed a House bill that would allow limited irrigation from domestic wells. (Capital Press file photo)

Despite objections about double standards raised by a coalition of farm organizations, Oregon lawmakers have decided to allow limited commercial irrigation with domestic wells.

Up to 3,000 gallons of domestic well water per day can be used to irrigate a half-acre of crops grown for sale under House Bill 3372, which passed the Senate on May 27 after previously winning approval in the House.

Supporters say the bill clears up legal uncertainties and reflects the reality of small-scale farming, as many growers use domestic wells for commercial irrigation without realizing it may be prohibited.

“This bill removes that rather strange circumstance,” said Sen. Jeff Golden, D-Ashland, noting that domestic wells can already be used for a variety of other commercial purposes.

However, opponents of the HB 3372 — including the Oregon Farm Bureau, Oregon Cattlemen’s Association, Oregon Dairy Farmers Association and several others — argue it fundamentally alters state water law and will likely contribute to groundwater depletion.

Moreover, based solely on size, the bill favors one group of farmers over others who’ve spent many years and dollars securing water rights permits to irrigate legally, said Rep. Anna Scharf, R-Amity.

“The rules you played by will not apply to others because they are small and we trust them more than we trust you,” Scharf said of the bill.

The state has roughly 250,000 domestic wells, which are exempt from water permitting regulations, all of which would be able to irrigate commercial crops under the bill, she said.

Scharf said it’s unrealistic to expect the limits on commercial irrigation in HB 3372 to meaningfully prevent excess groundwater usage, as the bill relies on the honor system and will not be enforced by watermasters.

“No one will check that it’s not three-quarters of an acre or 4,000 gallons,” she said.

Under existing law, domestic wells can use up to 15,000 gallons for household uses, including 5,000 gallons for commercial purposes, and irrigate a half-acre lawn or non-commercial garden.

Last year, the Oregon Water Resources Department began taking enforcement action against small farmers who were selling crops grown with such domestic well water, taking many by surprise.

“A lot of them, without knowing it, are breaking the law,” said Rep. Cyrus Javadi, R-Tillamook. “We’re not creating new water use, we’re clarifying what’s already happening.”

Such a clarification is particularly necessary as the OWRD and Oregon Department of Agriculture did not agree whether irrigation was included among the commercial uses allowed under existing law, said Rep. Mark Owens, R-Crane.

Similarly, the Office of Legislative Counsel, which advises lawmakers on legal issues, believed growing crops for sale was already allowed as a commercial use, while the state’s Department of Justice did not.

Since half-acre gardens and lawns can already be irrigated with domestic wells under existing law, the OWRD’s enforcement action amounts to prohibiting people from selling or trading the fruits and vegetables they’d grown, Owens said.

Domestic wells only represent about 4% of groundwater withdrawals in the state, and that’s unlikely to change as a result of HB 3372, Owens said.

The bill is meant to curb what’s widely perceived as government overreach but it’s unfortunate that it’s proven so divisive, he said.

“It saddens me that some of our agricultural friends are not supportive,” Owens said.

Without changing the fundamental elements of HB 3372, the Senate amended the bill to exclude unlicensed cannabis producers from using domestic wells for commercial purposes.

Also, the Lower Umatilla Groundwater Management Area is excluded from the allowance for commercial irrigation until 2028 under the Senate’s amendment.

The latter change was necessary because nitrate testing in that region is still ongoing to determine the sources of aquifer contamination, Owens said. “We don’t want to add any more variables until that is complete.”

Before the bill comes law, the House and Senate versions must still be reconciled and it must be signed by Gov. Tina Kotek.

Rep. Ken Helm, D-Beaverton, noted that under existing law, domestic wells can withdraw 15,000 gallons per day even though the average household only uses 300-350 gallons per day.

The allowance for commercial irrigation would likely only apply to several thousand domestic well owners who grow commercial gardens, which bolsters the production of local fruits and vegetables, Helm said.

“I think that is not a big risk for the state to make,” he said. “It’s a fair trade-off.”

For opponents of HB 3372, though, the bill would unfairly reward those who did not bother following the legal procedures to obtain water rights.

“This bill sends exactly the wrong message,” said Rep. Bobby Levy, R-Echo.