Academic journal article Environmental Law

Overdrafting Oregon: The Case against Groundwater Mining

Academic journal article Environmental Law

Overdrafting Oregon: The Case against Groundwater Mining

Article excerpt

People in the western United States rely on groundwater for agricultural, domestic, and conservation uses. Achieving balance among these often-competing interests is largely left to state legislatures and agencies. Oregon regulates groundwater according to a permit system based on prior appropriation. In some groundwater-dependent areas of the state, wells are drying up, and stream-levels and water tables are dropping. Oregon s aquifers are at risk of overdraft. Still Oregon s Water Resources Department has been approving new-use permits, allowing additional groundwater withdrawals, when it does not have sufficient information to determine that water is available. This Comment analyzes Oregon's governing statutes and regulations, and concludes that Oregon law prohibits groundwater mining and that Department's policy runs afoul of that prohibition. Comparing Oregon's groundwater law to other western states' law, the Article suggests that Oregon's legislature or the Water Resources Department should incorporate groundwater management mechanisms from these states to better enforce Oregon's groundwater mining prohibition.

I.   INTRODUCTION                                           520
II.  BACKGROUND: OREGON'S PERMIT PROCESS, ADMINISTRATIVE
     PROCEDURES ACT, AND "OPT-FOR-YES" POLICY               523
     A. An Overview of Oregon's Groundwater Bights Permit
        Process                                             523
     B. Judicial Review Under Oregon s Administrative
        Procedures Act                                      525
     C. The Department's Opt-for-Yes Policy                 526
III. CONFLICTS BETWEEN THE DEPARTMENT'S OPT-FOR-YES
     POLICY AND OREGON WATER LAW                            526
      A. Contravening Oregon s Express Public Policy        527
      B. Failing to Perform Required Water Availability
         Reviews and Assessments                            529
      1. Public fnterest Review                             529
      2. Groundwater Availability Review                    531
      3. Groundwater-Surface Water Connection "Division
        9" Review                                           532
IV.  INCORPORATING ASPECTS OF OTHER STATES' WATER LAWS TO
        PREVENT OVERDRAFT                                   533
     A. fdaho: Expressly Prohibiting Groundwater Mining     533
     B. Washington: A Duty Not to fssue When Use Threatens
        the Public Interest                                 534
     C. Arizona: Decreasing Groundwater Use over Time       535
     D. Colorado: Predictive Conjunctive Management         537
V.   CONCLUSION                                             538

"Giving away water with abandon has failed Oregonians repeatedly."

I. INTRODUCTION

Groundwater--historically considered an elusive and secretive resource (2)--has made an uncharacteristically conspicuous splash in Oregon's mainstream news. Draining Oregon, an investigative series by the Oregonians Kelly House and Mark Graves, brought to the surface the underground-water crisis in the arid regions of central and eastern Oregon. Oregon's Water Resources Department (the Department)--the agency that allocates and regulates water rights--has been giving away water where it cannot determine whether water is available to give. (3) This practice both threatens Oregon's groundwater supplies and violates Oregon's water code.

As the Draining Oregon series warned, if the Department continues to over-allocate groundwater, Oregon's groundwater supplies could be irreversibly depleted. (4) Over-allocation of underground aquifers can lead to groundwater mining, or pumping more water out of an aquifer than it can naturally recharge. (5) For agriculturalists who depend on aquifers to support their crops, for homeowners who depend on wells for their domestic use, and for wildlife dependent on interconnected surface water for life, groundwater mining poses a critical threat. …

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