What is going on?
Current Water Law
Since 1955, it has been required to have a water right to intentionally grow any plants for sale in Oregon. Domestic exempt wells (a well drilled in order to serve a home, and not associated with a water right for irrigation) are not legal sources of water to irrigate commercial agriculture. There are exemptions for domestic exempt well use including the stockwater exemption (unlimited water for livestock drinking water needs), domestic use (15,000 gal/day), noncommercial gardening on a half acre (no gallon limit), and an exemption for a “single commercial or industrial use” (5,000 gal/day but the statute specifically excludes irrigation as a commercial use). As the law stands, it is legal to grow food using domestic exempt well water and it is legal to run a business using a limited amount of domestic exempt well water, but it is not legal to grow food for sale using domestic exempt well water.
Recent Increase in Enforcement
Although this law has been on the books, there has not been widespread enforcement of this rule on people growing small amounts of crops for sale using domestic exempt well water in the past 70 years. This has been a complaint driven system where if a neighbor was negatively impacted by a farm’s actions they could make a complaint to the Oregon Water Resources Department (OWRD) and have that farm’s water use investigated. Although there are examples of this type of use being egregious (and being stopped through OWRD enforcement actions) the vast majority of cases of farms operating on domestic exempt use that we are aware of are small scale and using the most conservationist irrigation technology available. When asked what triggered the recent enforcement on small domestic well users, OWRD cited recent funding from the legislature due to the ongoing drought to clamp down on illegal water use as the driving force.
It should be said that although there is no accurate data on the number of domestic exempt wells currently being used for small farms (exempt wells are simply not tracked by OWRD in this way), the department estimates that although domestic exempt wells make up about 88% of all wells in Oregon, they account for only 4% of the groundwater pumped for any reason in the state. Comparing this to water rights held irrigated agriculture which encompasses 7% of the number of all wells in Oregon, but accounts for 82% of the groundwater pumped for any reason, it is clear that policing this small slice of water usage rather than enacting meaningful reforms in the current water rights system will not solve the water scarcity problem in Oregon.
Why does FoFF care?
FoFF is working on this issue because we have received overwhelming community input that this is important to the farmers we work with and we think there is a reasonable solution for this problem that respects the needs of the environment and small farms. Here are some of the reasons we think we should find a solution based on the values of our organization and the input of our community.
Water Rights Access in Oregon
For the last 5-10 years, it has been very difficult to obtain a new water right. Whether it is for surface or groundwater, we have been quoted wait times of minimum 18-24 months for application processing, the cost starts at about $2500 to apply, and most applications are denied. Due to the flaws of the doctrine of prior appropriation and the incentives for overuse in the current system, OWRD has had to implement new rules that will make it very, very difficult to obtain a new large scale water right in Oregon. These rules will take effect in October and will make it even more difficult to successfully secure a new right. Please talk to your watermaster before applying for a new right as they will be able to advise you if it is worth the time and money. Additional large scale water rights in might not be possible in many places, but FoFF believes that use within the scale of current domestic well exemptions should be available for commercial irrigation.
In addition to the solutions we are proposing here, FoFF is very interested in supporting improvements to the Limited Licenses program and incentivizing Water Rights Transfers for interested land holders. We are in communication with OWRD and on the lookout for potential improvements we could support or contribute to.
Land Access
Oregon has experienced skyrocketing land costs in the last 7 years. According to an OSU analysis of the 2022 Census of Agriculture Data, Oregon experienced farmland price per acre increases at more than 3 times the national average. That is a statewide average and some areas of the state experienced 70-80% per acre increases in the period between 2017 and 2022. Although we do not have data implying that the price of land with water rights has increased at a higher rate, it is a fact that water rights make farmland more expensive than a comparable parcel without them. This means that more farmers without access to intergenerational farmland and/or wealth, or income from off farm jobs are unable to purchase farmland and are more likely to lease the ground they need for their farm businesses. Although leasing has many benefits and many farmers do it, it does not afford the security of land ownership or the opportunity to build equity, which holds back young and beginning farmers. Not to mention that this reality is compounded by the racist exclusion laws in Oregon’s past that continue to have ripples in farmland ownership for farmers of color today.
Land access is consistently the number one barrier to small farm success in our biennial farmer surveys and focus groups. We founded Oregon Farm Link more than a decade ago to help alleviate the problem, but we cannot control market forces. We want to give our farmers the opportunity to grow their crops and businesses with land security and legal access to water on small acreages for small scale farms would increase options for beginning farmers and those facing historical barriers. This is also an entry point for beginning farmers to have more options when accessing land to start their businesses, gain the requisite experience to apply for USDA/FSA loans, and build a market share to grow into a larger property with more legal access to water. FoFF is aware that commercial use of exempt well water can only ever be a solution for small scale operations and we will continue to work on solutions to land access as a broader topic.
What are we going to do about it?
Community Meetings
Join us for community meetings around the state! These meetings go into detail on the current law and exemptions, give options and resources for farmers navigating the current system and end with a discussion of potential policy options. Here are the upcoming meetings:
- Springwater Grange, October 19, 6:30 pm
All are welcome and pre-registration is not required. We hope to see you there!
Legislative Change
We are currently in discussion with the community, partner organizations, state agencies, and legislators to find a solution for this problem. We are planning to bring a bill with our legislative partners to resolve this statutory barrier and are still collecting feedback. Stay tuned for draft legislation and opportunities to give feedback on potential solutions!