There have been a lot of news articles, youtube videos and social media posts about the Oregon State government shutting down small farms in new rules. That is not entirely true but there have been some new developments and enforcements of old laws that are leading to some problems for some small farms. FoFF has been monitoring this situation for months, working with the communities at risk, and advocating for them with agencies and legislators since Fall of 2023. Let’s go over the situation and the concrete ways that we can take action together.

What is Going on?

Water District 2

In Water District 2 (Lane, Linn and Benton Counties), 24 farmers were sent letters by the watermaster informing them that they had become aware of potential illegal water use on the property. Some of those folks were able to clear it up easily because the letters were an easy fix for them or a misunderstanding. Some of the people who received the letters were indeed flouting water law on a large scale. But a group of very small growers who received these letters were shocked to learn that they were violating the law. 

Since the Groundwater Act of 1955, all farmers have needed a water right to irrigate crops for sale or pasture land for commercial grazing. There are some notable exemptions to water right requirements including:

• Anyone with a domestic well can irrigate a ½ acre NONCOMMERCIAL garden without a water right. This can be for any crops for personal use, flowers or a ½ acre lawn and must be the same half acre for the whole season (not rotating by the day to different ½ acre plots).
• 5,000 gallons for a single commercial or industrial use on the property excluding irrigating farmland. 
• Stockwatering purposes – water for livestock to drink (not to irrigate pastures for their feed)
• Domestic use of up to 15,000 gal/day (inside your home for drinking water, bathing, appliances, cooking, washing, etc.)

Read the full statute language here.

***Also it is worth noting that this only applies to folks irrigating from a well. If you are irrigating crops from city water that is A-OK because you are metered and paying for that use through your utility.

This means that anyone who is growing any plant for sale (or to feed an animal for sale) needs to have a water right to do that in Oregon. We have been asked how many farmers in our network were operating without a water right and although we believe the vast majority of our farmers do have a water right, but because these exempt wells (usually drilled for domestic use) do not have good records and folks wouldn’t have to report this use, we don’t know but this process has shown us it is certainly not zero. It is also important to note that up to this point, this was mostly a complaint driven process. If your water use was messing with your neighbors water or the ecosystem and they noticed, they could report that illegal use and get you checked out. We were told from a source who spoke to the water master that this round of letters represents a shift from that assumption in the Willamette Valley and that now the water master will be using aerial photography, drive by checks, and farmers market/farm stand advertisements to find people who may be operating a commercial farm without a water right. 

Although this is enforcement of an existing law, the water masters have been given more resources and staff members to crack down on illegal water use over the last couple years as the state grapples with how to cope with the ongoing drought. We highly encourage all folks growing food for sale to look up the property where you are farming and be sure of your water rights status.

OWRD Groundwater Allocation Rulemaking Process

The second part of the equation in small farms feeling squeezed is that the Oregon Water Resources Department is in the process of approving rules that would make it even harder than it is now to obtain a new groundwater right. In our experience, for the last 5-7 years farmers have reported that the groundwater right application process is arduous, expensive and uncertain. Many folks have reported a minimum of 18 months of wait time to go through the process; it costs a couple thousand dollars just to apply (let alone any new equipment/infrastructure required) and there is no guarantee the right will be approved. Surface water rights are even harder to come by as more surface streams are over appropriated than groundwater aquifers. Read more about the water right process from OWRD.

There are currently draft rules proposed that would add an extra layer of scrutiny to a water right applications. Proponents of these rules say that this is necessary for ecosystem health and to curtail over appropriation of water that has resulted from flaws in the system for decades and have been compounded in a scarce time. Opponents of the rules say that they are unnecessarily broad and would prevent new rights from being issued even if conditions improved over time. FoFF is not currently taking a position on this rulemaking process, but there is no denying that we are entering a new era of water law and enforcement to handle the ongoing drought crisis.

There is a public comment period open right now with a deadline of May 31, 2024. There are also public meetings where people can ask questions of OWRD staff.

• April 4 – Bend
• April 18 – La Grande
• May 16 – Central Point
• May 21 – Salem/virtual

 Find more info on comments and public meetings here. This is a complex issue and FoFF is still reaching out to experts on all sides. We will share our public comments when we have gathered more info.

All groundwater right applications received before these rules are enrolled (projected to be the end of September 2024) will be evaluated on the current system. If you have been considering applying for a new water right, do it now.

What can farmers do if they find out they have no water right?

The current guidance for farmers who received those letters in Water District 2 is to apply for water rights to come into compliance. As discussed above this is a very long and expensive process with no assured outcome, so it is not possible for all farmers/situations.

Other ways that farmers can grow food without a water right include:

• Dry Farming. Check out the Dry Farming Institute for more info on getting started.
• Grey Water catchment and recycling. The restrictions on water use from domestic wells only apply to the initial reason the water is pumped from the ground. If a farmer chooses to set up water recycling for gray water from some parts of their home water system, they could re-use the water on their fields. Keep in mind the presence of detergents and household chemicals in some waste water and its possible impact on plants.

• Rain water catchment systems.  Farmers can also harvest rainwater from the roofs of their home and farm buildings and store it for use on the farm. Like all catchment systems, the tanks are expensive and cumbersome, but could work in the right scenario. 

• Water Purchase and storage.  Although this is prohibitively expensive and risky in the event that your farm loses access to water deliveries because of natural disaster or future financial hardship, a farm can purchase tanks and water to fill them. We don’t recommend this route, but it’s an option.
• Pursue a Water Right Transfer. Transfers of water rights (surface or groundwater) can occur between farms in the same aquifer. In order to initiate the transfer process, the farm with the water right needs to have proof it is active (has applied water for beneficial use in the last 5 years). Transfers can be temporary or permanent. OWRD tells us that temporary water right transfers are the quickest applications to process and that transfer can last up to 5 years. Learn more about permanent transfers here and temporary transfers here.

• Keep in mind that putting in a storage pond also requires permits and most of the time requires an existing water right. Learn more here.

The hard reality is that most all of these solutions require a big investment from the farmer and will take longer than a growing season to implement. This means that finding out your water source is not permitted is often a death sentence for a small farm business.

What does FoFF think about this?

Friends of Family Farmers believes all natural resource use for farming should be in line with the capacity of the ecosystem of and around the farm. Farming should be a way to build soil health, biodiversity, water and air quality, and the health of our community for generations to come. We also believe that regulation should be in line with the level of real risk associated with an activity. This is why we have always advocated that larger, more industrial farms need to be regulated according to their environmental risk, and differently than small operations using organic practices. This can be seen clearly in our work to limit the proliferation or misuse of resources in industrial agriculture.

We also know that the water rights system is tied to the racialized history of inequality of land access in our state. Water rights (especially senior ones) are a privilege often reserved for intergenerational farming families who pass down land with water rights and those who can afford the high cost of land tied to these rights. Because of racist exclusion laws, people of color were not allowed to own land in Oregon until far into the 20th century. This means that those families didn’t have the same opportunity to access the land or inter-generational wealth that comes from land ownership. In addition to that history, the soaring cost of farmland driven by non-farmer investment buyers also widens the gap between the people of all backgrounds who want to work the land and those who can afford it. If we want a more equitable food system, we need to evaluate how this inequality determines who is allowed to grow food for their community. But all this needs to be balanced with the understanding that the ongoing drought and climate change driven aridification of many traditionally productive working lands is real and powerful.

With our current understanding of the situation and the law, Friends of Family Farmers believes that the current exempt uses (½ acre garden or 5,000 gallons/day of commercial use) should include the ability to grow food for sale within those parameters. If a person could start a car wash and use 5,000 gallons a day on a residential well, but not use the bounty of their garden to strengthen the resiliency of their community, the system is not serving us well. We do not believe in expanding these exemptions past their current levels, but the prohibition on growing food for sale is misplaced. 

What can be done and how do I get involved?

If your farm is being impacted directly by these issues in Water District 2 or elsewhere in the state please contact Alice Morrison (alice@friendsoffamilyfarmers.org) to be added to our community outreach and organizing efforts on this topic. 

More to come!