“When I was in graduate school 30 years ago, the question in our hydrology class was,
‘How much water can we take out of the stream?’
Now, it’s ‘How much water should we leave in the stream?’”
~ Dr. Robert Hirsch, former Associate Director for Water, USGS, 2007.
The economy and growth of Oregon have always
depended on its water resources. Indigenous tribes
settled along the waterways and used them as a
source of food and travel. Lewis and Clark followed
the Columbia River to the coastline and mapped the
Northwest. Later arrivals followed the Oregon Trail
to its rich valleys, established communities along the
rivers of the state, and relied on water resources to
provide for transportation, to supply energy for mills,
and to irrigate crops.
Much has changed since then, but Oregon law continues
to base water rights on historical uses, and the
current claims for water rights may actually exceed
the available supply. The recent water shortages in
the Klamath Basin have highlighted the legal and
scientific challenges in managing scarce water resources.
Today, Oregon has denser development and
more competition for water resources. In addition, the
historic use of waterways as a disposal site for pollutants
has degraded many waterways, thus limiting
potential uses as water sources. Even with added water
regulations and increased scientific understanding
of natural systems and their interrelationships, many
of the state’s water resources remain stressed and
degraded. Federal and state funds
for addressing water issues are
limited and in some cases have
Because the League of Women
Voters of Oregon positions on
Water Policy and Planning (1985)
and Water Quality (1969) do not
reflect these transformations,
Oregon League members proposed
an update that combines
water quality and quantity issues.
This first report will address the
current status of Oregon’s water
laws and regulations.
This document illustrates the complexity of water
laws and the historic separation of water quality and
quantity regulations. This report is not intended to
supplant comprehensive information from state agencies.
For more detailed information on specific topics
please contact the appropriate resource. This report
is also online at http://www.lwvor.org/recentstudies.htm#Water. In part two of the League’s Water Study,
specific concerns and gaps in water laws will be
presented. By using the information compiled in this
report, League members should be able to understand
what has been accomplished, and then begin to comprehend
water issues and needs of the 21st Century.
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LOOKING AT OREGON'S WATERS
Any examination of Oregon’s water supply must take into account the fluctuation of available water due to
variability of rainfall and snow melt. These factors
affect the amount of water available from all sources.
Water for all uses, public and private, is obtained
from surface sources such as rivers, streams and
springs (86%) or from ground sources (14%).1
Many users obtain their water through a variety of
suppliers including but not limited to Bureau of Reclamation,
the Army Corps of Engineers, unicipalities and public or private water districts. Other users
obtain water through private/direct diversion outside
of water supply or delivery. The State of Oregon
does not own any significant water infrastructure.
In order to manage water issues, Oregon is divided
into 18 river basins, not including the Columbia
River which is treated as a separate unit. Within these
basins there are multiple uses for water that vary
by location and demand. For assistance in planning
and evaluation, Oregon has identified beneficial uses
for water rights as managed by the Water Resources
Department (WRD), Oregon Revised Statutes (ORS)
536.300, and assigned beneficial water quality standards
by watershed (Table 1) managed by
the Department of Environmental Quality (DEQ),
Oregon Administrative Rules (OAR) 340-041. To
some extent, these broad designations determine both
the quality and priority of water uses.
ORS “536.300 Formulation of state water
resources program; public hearing in affected
river basin. (1) The Water Resources
Commission shall proceed as rapidly as possible
to study: Existing water resources of this state;
means and methods of conserving and augmenting
such water resources; existing and contemplated
needs and uses of water for domestic,
municipal, irrigation, power development,
industrial, mining, recreation, wildlife, and fish
life uses and for pollution abatement, all of
which are declared to be beneficial uses, and all
other related subjects, including drainage, reclamation,
floodplains and reservoir sites.”
Who Owns the Water?
The people of Oregon own the water. As a bit of history,
back in 533, Justinian stated: “By law of nature
these things are common to mankind – the air, running
water, the sea and consequently the shores of the
sea.” This concept became part of the Magna Carta in
1215. In 1859, the U.S. Congress granted Oregon title
to the beds and banks of navigable water bodies as a
part of the Oregon Admissions Act. By 1909, Oregon
water law explicitly stated that, “all water within the
state from all sources of water supply belongs to the
public.” ORS 537.110.
The management of these waters is subject to the
“Public Trust Doctrine” that requires the state to
protect the public’s use of waterways for navigation,
commerce and fisheries. In 1987, Oregon also recognized
the in-stream use of water for “recreation” as a
public use by ORS 537.332 (5)(a).
“Waters of this state” means any surface or
ground waters located within or without this
state and over which this state has sole or concurrent
jurisdiction. ORS 537.007(12).
Ownership of waters in all waterways (regardless of
the ownership of the beds or bank) lies with the state
as the result of federal statutes providing for the disposal
of public domain lands in the mid-to-late 19th
century.3 A separate body of law governs the state
ownership of bed and banks of a waterway.
Certain waters of the state are subject to “Tribal Reserved
Water Rights.” These Tribal rights have been
defined by a number of notable court cases (“Winters
Doctrine” and the “Boldt Decision”) that are based on
historic U.S. Government/Indian treaties and historic
tribal uses. While the federal government holds
Indian waters in trust for the tribes, the McCarran
Amendment gave management of the tribal waters to
the states. In 1997, Oregon adopted a “Government-to-
Government Interest Statement” that commits Oregon
to sharing this management responsibility with
the nine Oregon tribes.4
Tribal Rights Relating to Water
Winters Doctrine Winters v. United States, 207 U.S. 564 1908
“In agreeing with the federal government to the creation of reservations,
the tribes agreed to vast land cessions in return for guarantees
that certain lands would be permanently reserved for Indian use and
occupation.”5 Use was construed as sufficient water to fulfill the
purposes of the reservation: in other words, a reserved water right.
Though not quantified, these water rights date from the date of the
reservation. ‘Winters rights’ or federal reserved water rights are
creatures of federal law and are not subject to state law requirements
such as ‘use it or lose it.’ In a line of cases following Winters,
the U.S. Supreme Court held that federal reserved rights are
not just Indian water rights but also attach to other federal lands that
are dedicated to specific purposes, such as national forests, nationals
parks, and wildlife refuges.
Boldt Decision U.S. v. State of Washington, 384 F. Supp. 312; 1974
While the U.S. Supreme Court held that irrigation water rights
reserved in an Indian treaty could only be limited in amount to the
“total reasonably required by the needs of the tribe,” this general
principle and application was applied to fishing rights. The Boldt
decision concluded that the quantity of off-reservation harvest could
be limited by conservation needs of the fish; and, the number of
fish limited for non-treaty fishermen, as well as treaty fishermen in
their “usual and accustomed grounds and stations” off-reservation.
The decision divided the harvest with 50% going to the non-treaty
fishermen and 50% to the treaty fishermen. The treaty Indians,
however maintained exclusive rights to the fish on reservation.
McCarran Amendment 43 U.S.C. §666 1988
Because federal reserved rights are often very senior in priority
and potentially large in volume, yet are not lost by non-use, these
rights create a good deal of uncertainty for state water managers.
The McCarran Amendment, originally adopted in 1952, helps states
deal with this uncertainty. The law allows states to adjudicate and,
to some extent, to administer federal water rights, including Indian
reserved rights and other federal reserved rights. Thus, when a state
conducts a general stream adjudication of surface waters or a basin
adjudication of groundwater, the state can join the federal government
as a party in order to determine the existence, priority, extent,
and quantity of the federal rights, thereby integrating these rights
with state-issued prior appropriative rights.6
REGULATING WATER QUANTITY
Prior Appropriation Doctrine
A permit from the Oregon Water Resources Department
(WRD) is required to use the waters of the state.
Since 1909 the allocation of waters of the state has
been governed by the “Prior Appropriation Doctrine”
which “ensures that the first water user to obtain
water rights has first access to water in times of shortage.
If a ‘downstream’ landowner has the earlier priority
date, the ‘upstream’ landowner may have to let
the water pass unused to meet the needs of the senior,
downstream water right holder.”7 In other words, first
in time, first in right.
Water rights are attached to the land, as long as the
water is used. Once established, a right cannot be forfeited
without proof that the water has not been used
for at least five consecutive years. In the event of a
conflict between users with water rights or permits,
the priority date determines who may use the water.
If rights have the same date of priority, domestic and
livestock uses have preference over other uses. In
addition, should the governor declare an emergency
drought, priority is given to domestic and livestock
Water is not available from most surface water
sources in Oregon for new water rights, and most of
the surface water during the low flow period is fully
appropriated. In late summer months many users are
cut off when there are insufficient water levels for
out-of-stream use. In 1987, the law allowed the Departments
of Fish and Wildlife, Environmental Quality,
and Parks and Recreation to acquire water rights
for the protection of fish, to minimize water pollution,
and for various public recreational water uses. These
in-stream water rights are, with some exceptions, subject
to senior water rights. The state regulates water use from all sources through a variety of measures.9, 10
Back to top
REGULATING SURFACE WATERS
Stream Withdrawal (Out-of-Stream Water Rights)
The Water Resources Commission and Department serve the public by practicing and promoting responsible water management.11
Early water rights were established through the prior appropriation doctrine; however, today permits are required to use surface water because in Oregon all water is publicly owned. Withdrawing water from streams, lakes or rivers must be for beneficial uses. Such uses may include commercial or non-commercial irrigation, drinking water, water storage, and manufacturing applications. These uses must not waste water.12
Some surface water uses exempt from permit requirements are:
- Natural spring use, unless said water flows off the property at any time of the year.
- Stock watering, without diversion, directly from the water source.
- Salmon and Trout Enhancement Program (STEP) for egg incubation.
- Fire control emergencies and fire fighting training.
- Forest management such as slash burning, although the user must notify the Department of Fish and Wildlife(ODFW) and WRD and follow their rules or restrictions of the WRD.
- Certain land management practices if water use is not the primary intended activity.
- Rain water collection and use from an artificial impervious surface (e.g. building roof or parking lot).13
The water right process involves three steps: application, permit, and final certificate of an out-of-stream water right. The certificate may remain valid forever so long as the water right is regularly exercised according to the terms and conditions specified in the certificate. After a water right certificate has been issued, certain aspects of the water right may be changed by filing a “transfer” application. The application requires proposed use and source of water, legal descriptions for property, maps to include roads and rights of way crossed, names and addresses of any other affected property owners, and information from the local land use planning entity. Supplemental forms are used for irrigation (Form I) or municipal uses (Form M). Notice is sent to state agencies, county planning offices, and individuals or organizations.
Public comment may occur without charge at this point. Notification of those living near the application site is not required.14
Public Notices, comments and appeals processes differ among agencies. Specifics regarding the process followed may be obtained from relevant agencies. In some cases fees may be required.
To change or modify an existing permit requires a permit amendment application, similar to a transfer application. The application shows the proposed change of a point of diversion (place where water is removed from a source), point of appropriation (the original source from where a permittee is allowed to take water), place of use, or any combination of these. The proposed change must not injure other water rights. 15 After a water project is finished, the permit holder has one year to submit proof of water use to the WRD. Except for certain small ponds, the final survey is conducted by a certified water rights examiner using the map and the beneficial use statement. The survey is the basis for the issuance of the
Water Rights Certificate. Water certificates continue as long as water is used without waste as allowed by the certificate.16
Oregon law also allows for diversion and use of water for short-term or fixed periods. ORS 537.143. A “limited license” allows the use of water if water is available (such as in winter wet periods) that will not injure other water rights. A limited license can be made available as soon as three weeks after filing with the WRD. Irrigation is usually not allowed unless the source is stored water or the need is a one time occurrence for a newly established crop.17 ORS
Water Transfers and Diversions
Because out-of-stream water use is restricted to
what is listed in the water right, a change in place
of use, point of diversion, or type of use requires a
permanent transfer. Generally, these transfers do not
increase the amount of water or the priority date of
the existing water right, but any portion of the water
right involved in a change of use or place that is
not included in the change can be lost. For example,
if a water user wants to change from irrigation to
domestic use, or a municipality changes the point
of diversion to a new water intake, the water right
holder must apply for a transfer. The application steps
include a description of current use, the change proposed
and proof of use, land ownership (or consent
of owner), a map prepared by a water right examiner
and compliance with local land use plans. WRD
reviews the application to make sure other water
rights are not affected, public comment is allowed,
and WRD may apply conditions or deny the application
if other water rights are injured. Only after the
transfer is approved can the water user can make the
proposed change. Temporary transfers can be made
in place of use, such as those needed for rotation of
crops, but not for changes in type of use. The application
procedure is similar to permanent transfers.18
Cancellation of a water right may occur after five
years of continuous non-use but is not automatic.
Upon receipt of sworn affidavits asserting non-use,
an administrative proceeding is initiated. Cancellation
can occur even if the current property owner did
not own the property when the use was discontinued.
Once cancelled, water may not be used unless a new
water right subject to current laws and rules is obtained.
Water conservation is inherent in the water right;
however, saved water from efficient practices cannot
be put to uses beyond those specified in a water right.
A water user may submit a conserved water application
to the WRD asking for authorization to use a
portion of the saved water for a new use or for an
in-stream use such as improving stream flows or fish
Some agricultural and municipal water users are
required to prepare water management and conservation
plans. The WRD gives workshops and technical
assistance on such management practices.
All legally established water rights are on record in the
Salem office of the WRD. These records are also maintained
in the local watermasters’ offices. Vast online
resources are found at http://www.wrd.state.or.us. Records
identify a water right but do not specify whether
the water use is continuous or is subject to cancellation.
Any department research request has a fee.21
The state has 20 watermaster districts that enforce
water laws and permit uses. Most of the watermasters’
work involves responding to complaints about
water use and determining when junior water permit
holders must be cut off during times of water shortages
(usually late summer). These locally-based state
watermasters measure and monitor streamflows for
management and planning needs within budgetary
Watermasters, under the direction of
WRD regional managers, enforce water
laws and measure the waters of the state.23
Developing a water right often involves permits and
requirements from other agencies as well. City and
county planning offices are the best resources when
construction occurs in waterways, riparian areas, and
In-Stream Water Rights
History – Protecting In-Stream Uses
Oregon was one of the first states in the West to
protect in-stream water from appropriation by prohibiting
the use of streams feeding into Columbia
River Gorge waterfalls. In 1955, the Legislature went
further by authorizing the Water Resource Board to
adopt minimum perennial stream flows deemed necessary
to support aquatic life, minimize pollution and
to provide for recreation. Only the Oregon Fish and
Wildlife Department (ODFW) and the Department
of Environmental Quality (DEQ) were authorized to
request these minimum flows. ORS 537.336. This
legislation had limited effect because the minimum
flows were junior to existing water rights.
The Legislature in 1987 passed the landmark In-
Stream Water Right act declaring that in-stream uses,
as well as out-of-stream uses, were to be considered
“beneficial.” ORS 537.346. All existing minimum
stream flows were converted to in-stream water
rights. Like the 1955 minimum stream flow law, the
1987 law had a limited effect on protecting in-stream
uses. Much of Oregon’s water was already appropriated
and these new water rights were junior to the
older existing rights. Also “minimum” stream flows
were not always adequate to protect the designated
in-stream uses.25 By 2007, more than 500 minimum
perennial stream flows had been converted to instream
water rights and more than 900 state agency
in-stream water rights had been issued.
The 1987 law authorized a method for flow restoration:
the transfer of existing out-of-stream water
rights by sale, lease, or donation. ORS 537.348. By
2007, almost 50 in-stream transfers had been completed.
The Oregon Water Trust, Deschutes River
Conservancy and the Klamath Basin Rangeland Trust
have been active partners in the in-stream leasing
In the early 1990s, the Oregon Water Resource Commission
(WRC) adopted standards for in-stream
flows for Oregon’s free-flowing scenic waterways as
a different route for in-stream protection. The Scenic
Waterways act required, with some exceptions, that
flows must be sufficient to meet the purposes of the
act. Fish, wildlife, and recreation are designated “beneficial”
uses for Scenic Waterways. ORS 390.805-
.925. Before issuing a permit to withdraw water from
a scenic waterway, the State must demonstrate that
water is available to protect those beneficial uses, referred
to as “Diack” flows. The Legislature has since
modified the act by allowing permitting for human
consumption, livestock, and groundwater uses under
certain circumstances. 27 ORS 390.835(5)-(12).
WRD processing of applications for in-stream water
rights is much the same as for out-of-stream
rights. The department can approve, reduce or reject
a request and is the final authority in determining
water flows necessary to protect public uses.28 ORS
There are several differences in processing in-stream
and out-of-stream rights. Water availability standards
are different for the two. A water right certificate, not
a permit, is issued for in-stream use. The certificate
is held in the name of the State as the official trustee
for the people of Oregon rather than in the name of
the applicant. There is no fee for processing as this is
considered a “public” use of the water. ORS 537.341.
In-stream water rights are unique and allow few
exceptions to the prior appropriation doctrine. Those
exceptions are for multipurpose storage of water,
municipal use, and emergency water shortages. ORS
357.354. Hydroelectric use would also trump an
earlier in-stream water right. ORS 537.352 (storage),
ORS 537.360 (hydroelectric).
Transfer and Leasing
According to the 1987 In-Stream Water Rights Act,
water rights can be purchased, leased, or sold for
conversion to in-stream use. ORS 537.348. WRC is
required to approve a water right transfer that allows
a change in type of use, point of appropriation or
place of use. A transfer request must be approved if it
meets the basic requirements and if it does not result
in an enlargement of the original right. Water rights
transfer retains the original source and priority date.
Existing water rights can be leased for temporary
conversion to an in-stream use or may be sold for
permanent conversion. A greater need for water and
the limited supply has created a market for conserved
water and an incentive to conserve.29 In 1997, the
Legislature clarified that users can purposely use less
water (i.e., conserve) without eroding the amount of
their right providing they are ready, willing and able
to divert and use the full amount and that unused
water may be leased or sold.
Short-term leases are the primary vehicle in Oregon
for creation of in-stream rights. These leases cannot
exceed five years, creating a trial period for landowners
who are reluctant to transfer their in-stream rights
permanently. Short-term leases are also useful for
landowners who are not using their water right and
are thus at risk of forfeiting their right because of
By legal definition, natural springs are surface water,
not groundwater. Use by a landowner may be exempt
from permitting, if the spring arises on a property, but
does not form a channel that flows off the property.
Many residents in Oregon use springs, and often dig
cisterns where the springs are seasonal. Residents
are advised to check with the local watermaster as
to whether they have an exempt use or need a water
Wetlands are considered “waters of the state” and are
defined by soils, vegetation, and hydrology. Bogs,
fresh and salt water marshes, vernal pools, playas,
fens, and swamps are all regulated as wetlands.
The Department of State Lands (DSL) estimates
Oregon had 1.4 million acres of wetlands in 1995.
In 1859, the date of statehood, Oregon had about
2.4 million acres. Losses are attributed to industrial,
residential and commercial development as well as to
historic ditching or draining of lands for agriculture.
Use of wetlands for agriculture is not regulated if the
use has been continuous since 1989.
Oregon, like the federal government, is committed
to a goal of “no-net-loss” of wetlands. Both also
require mitigation if wetland loss is deemed unavoidable. Mitigation can be on-site, off-site, compensated
through purchase of credit in an authorized mitigation
bank, or a “payment-in-lieu” of mitigation.
Since 1989, DSL has had permit authority for filling
and/or removing material from wetlands under
Oregon’s Removal-Fill Program. ORS 196.795-990.
Many projects impacting wetlands also require a
permit by the U.S. Army Corps of Engineers (Corps)
under Section 404 of the federal Clean Water Act
(CWA). Before issuing a permit, DSL requires signoff
by the appropriate local government which determines
that the permit request is consistent with
the local comprehensive plan and land use regulations.
Coastal Zone Certification is also required if
the project is within the Oregon coastal zone. The
Department of Land Conservation and Development
(DLCD) is responsible for determining consistency
with the Oregon Coastal Zone Management Program.
32, 33, 34, 35, 36
All individual applications for wetland permits have
a public response period, and a public hearing may be
requested. Permits may be appealed.
Storage of Water, Including Dams
Surface water is fully appropriated during the summer
in Oregon. However, with the predictions of
climate change, state, county, city, and local water
districts are reviewing water storage options. Types of
water storage include above and below ground.
Above Ground Storage
The main sponsor of the dam building era of 1900-
1960 was the federal government. Dams were authorized
for agriculture, flood control, energy, and transport
of product. Historically, the primary purposes
for dams in Oregon were irrigation and flood control.
The two federal agencies that continue to oversee
dams are the Bureau of Reclamation and the Corps.
The Corps can issue contracts to use stored water for
municipal and industrial water supply and water quality.
37 Corps projects are almost entirely west of the
Cascades. In the Willamette basin, 13 dams store 2.3
million acre feet (750 billion gallons). The Bureau
stores about 2.5 million acre feet (815 billion gallons)
in Oregon. In addition, all but one of 24 storage dams
in Oregon (McKay Dam on the Umatilla Project) are
run by private or public water-user organizations.38
A water right is not required for dams constructed
by the Corps, but a water right is required for use of
stored water managed by the Bureau of Reclamation.
Unlike dams in southwestern U.S., big dams in Oregon
and in the Northwest capture only some of the
runoff during the wet seasons.
Evidence indicates that dams can be disastrous for
fish. The impact of tributary dams may be even more
harmful. Chinook are extinct above the Hells Canyon
Dam complex on the Snake River, above Pelton and
Round Butte Dams on the Deschutes River and above
upper basin dams in the Willamette, Umpqua, Rogue,
Umatilla, and Walla Walla Rivers. The Upper Deschutes
Dam complex cuts fish off from three major
river systems. Two dams were identified for removal:
Marmot Dam (removed in 2007) on the Sandy River
and the Savage Rapids Dam (removal in progress) on
the Rogue River.39 Other projects are in process.
There are almost 15,000 reservoirs recorded in
Oregon’s water rights records. Purposes of the various
federal reservoirs in Oregon were specified when
Congress authorized them. There are a few big nonfederal
reservoirs in Oregon, usually used for hydroelectric
By 1950, project purposes were locked in, and today
use of water for another purpose is very difficult.
Some releases have been accomplished by side-stepping
the original purpose, i.e., for navigation, but
this is rare. Updating a storage project’s authorization
requires an Act of Congress.40 Reservoirs in the
Columbia River basin retain only approximately 30%
of the area’s runoff.41
Below Ground Storage
Oregon is exploring supplementing groundwater
availability using Aquifer Storage and Recovery
(ASR): withdrawing surface water during high flows
and storing in an aquifer. Both municipalities and the
agricultural sector are exploring this concept. The
WRD has looked for sites with hydrogeologic suitability,
principally in Columbia River basalt. Basalt
aquifers are usually deep formations, preventing
“mining” by other wells, and they generally do not
show serious water quality problems in recovery. If
the water source is municipally treated prior to storage,
water quality is generally not a problem. Currently
ten sites have been studied in basalt aquifers
and two in other aquifer types. The current sites are
operating under a limited license for withdrawal, with
a five-year test period.42
The ASR process requires well injection to store
water with filtration and disinfection infrastructure
prior to injection to prevent contamination of existing
groundwater. Drinking water standards must be met.
ORS 537.534. However, in some areas water quality
issues limit the process. For example, agricultural users,
because they do not have water treatment plants
on-site for sanitizing injected water, face more water
quality issues. Nitrates from fertilizer and vegetation
are the primary agricultural pollutant. Original
groundwater can also contain heavy metals, salts,
and nitrates above drinking water standards. In these
cases, the cost of treatment could exceed the benefit
of the recovered portion of the water.
Other public concerns have largely been related to
noticeable effects on other users in the area. When
water is injected into aquifers, the water level rises
in nearby wells and new springs may be created. The
use of stored water may impact fish or affect water
supply to other users. ORS 537.531 to .534 and OAR
690-350-0100 to 690-350-0300.43
Back to top
Groundwater was not covered by state law until 1955
when the Oregon Legislature passed the Ground Water
Act.44 Groundwater in Oregon is generally regulated
by ORS 537.505 to .795 and 537.992.
Some uses of groundwater in Oregon are exempt
from water right permitting requirements.
These uses include:
Single or group domestic purposes include drinking
water from wells that serve a daily population of less
than 10 and have less than 4 connections.
- Stock watering,
- Lawn or noncommercial garden irrigation
not exceeding ½ acre in total area,
- Single or group domestic purposes not exceeding
15,000 gallons per day,
- Industrial or commercial purposes up to
5,000 gallons per day,
- Down-hole heat exchange uses not exceeding
15,000 gallons per day, and
- Watering school grounds of ten acres or less
of schools located within a critical ground
water area. ORS 537.545.45
A network of groundwater level monitoring wells is
maintained by WRD to monitor water levels in wells.
However, not all of Oregon’s groundwater aquifers
Regulation of well construction is the primary means
of safeguarding Oregon’s groundwater from contamination,
waste, and loss of artesian pressure. According
to the DEQ, 70% of Oregonians, including over 90 % of rural residents, rely on groundwater as
their primary or secondary drinking water source.47
There are an estimated 200,000 to 350,000 individual
home domestic wells that supply drinking water to
The WRD, aided by their Ground Water Advisory
Committee, regulates well construction. Regulation is
achieved through notification and required reporting,
plus established well construction standards and well
logs. Since 1955, the WRD has maintained a record
of well logs, but any on-going monitoring of water
quality from wells with three or less hookups is not
required and is at the owners’ expense.
Wells are generally constructed by a state-licensed
well contractor, but WRD does allow individuals to
dig their own wells.ORS 537.753. Although some
Oregon counties have adopted rules about the siting
or placement of wells, the State of Oregon has not.
A well can be placed at the convenience of the homeowner,
with some minor exceptions. When finished,
every well must be tested for flow and drawdown.
About a quarter to a third of new wells are state inspected.
Recent legislation requires that wells be
retested with any sale or exchange of property. 49
ORS 448.271. Also, the Health Division can require
other tests for contaminants in an area of questionable
If a well is abandoned, the WRD has a procedure to
protect groundwater from contamination. OAR 690
Div. 220. The number of wells abandoned over time
and unfilled is unknown.
In the 1990s, the state began
a well identification program.
Since 1996, all wells
drilled, altered, or deepened
must have an identification
number and are required to
be included on all property
deed transfers. Any lands
with wells without numbers
will need to acquire numbers
in order to sell the property.
While many of Oregon’s
wells are used for domestic
water supply, the WRD
has three other categories:
monitoring wells, geotechnical
holes, and residual other
“holes.” These wells or holes
are governed essentially the
same way as water wells and require licensed contractors,
start cards, well logs, and regulated construction
Other Groundwater Regulations
Earlier laws appeared to assume an unending supply
of water. In the 1950s, with the realization by
the public, the Legislature, and various agencies that
withdrawal of groundwater may affect surrounding
water sources, and that groundwater sources may be
hydraulically linked to surface water sources, regulation
of ‘critical ground water area’ and ‘limited
ground water area’ was developed. By designating
areas as critical or restricted (limited), well construction
and water extractions could be regulated. Counties
may also have groundwater requirements.
Critical Ground Water Areas have been established
“ … when pumping of ground water exceeds the
long-term natural replenishment of the underground
water reservoir … the Water Resources Commission
must declare … a critical ground water area and
restrict water use. The law is designed to prevent
excessive declines in ground water levels.” In such
areas, “certain users of water may have preference
over other users, regardless of established water right
priority dates. Critical ground water areas also can
be declared if there is interference between wells and
senior surface water users or deterioration of ground
water quality.” ORS 537.730.
Ground Water Limited Areas are
designated when the WRC takes preventive action
before declines in well levels occur. In areas
where groundwater aquifers are isolated in volcanic
rock or basalt, “heavy
pumping from the basalt … have caused declines;
new water rights are restricted to a few designated
The map on page 12 shows both limited and critical
ground water areas currently designated in Oregon.53
These areas differ from the Ground Water Management
Areas designated by the DEQ for water quality
purposes. County, city, and local administrations may
have additional regulations. The current limited and
critical areas tend to be centered in the populated
regions. As data become available other areas may be
identified and designated.
MEASURING AVAILABLE WATER
Historically, use of water under a state water right
did not require measurement and reporting of water
use to the state. For about the past 20 years, however,
the state has increased efforts to acquire information
about water use. In 2000, the WRC initiated a
strategy for improving water measurement statewide.
The strategy prioritizes diversions having the greatest
impact on stream flows in areas with the greatest
needs for fish. The WRD has developed a statewide
inventory of significant diversions within high priority
watersheds (have high potential for fish and stream
flow restoration as established by ODFW and WRD)
and will be working to increase measurement at these
diversions.54 Since 1995, new water rights permits for
both surface and groundwater rights have included a
requirement for measuring and reporting use. ORS
537.099 requires that federal and state agencies, cities,
counties, schools, irrigation districts, and other
special districts report water use on an annual basis.
This condition of use is based on reporting the quantity
diverted as specified in the water right. As of
2003, about 8% of surface water and groundwater
rights are required to be measured, either by statute
for public entities or permits for individual right holders
which constitutes about 46% of the water diverted
The WRD and area watermasters use the following
categories for scrutiny of compliance with the metering
requirements for approximately 2,200 significant
diversions in high priority watersheds:
- Water rights with measuring as a condition of use.
water diversions that are greater than five cubic
feet per second, or greater than 10% of the lowest
monthly 50% exceedance flow as defined in the WRD’s
water availability model and greater than 0.25 cubic
feet per second. Exceedence flow is consumptive use
as a percentage of natural stream flow in a priority
watershed. Fifty percent exceedance is use greater
than 50% of the lowest monthly stream flow.55
Watermasters may require metering of any older water
right to satisfy a public concern or for the purpose
of complying with newer regulations. ORS 540.310.
The WRC’s original goal was to complete the inventory
and assessment on the high priority stream flow
restoration watersheds identified by ODFW by April,
2005. In 2008, of the 2,200 significant diversions, approximately
29% have been brought into compliance
with the metering regulations and another 17% are on
the approved plan to become compliant.56 A high portion
of water users are out of compliance. Watermasters
are working on public outreach and education,
but there is no funding to offset users’ investments in
metering devices that, based on size and sophistication,
can cost up to tens of thousands of dollars.57
REGULATING WATER USE FOR
The Pacific Northwest is blessed with major rivers.
Hydroelectric generators on the Columbia River provide
much of Oregon’s electricity. Oregon’s first hydroelectric
facility was installed at Willamette Falls in
1889. The Umpqua, Klamath, and McKenzie Rivers
are also major contributors to Oregon’s hydroelectric
generation. Although hydroelectricity has environmental
impacts, it has historically been a cheap and
reliable source of power, relatively more benign than
other sources of power and also considered a renewable
The types of hydroelectric projects include impoundments,
run-of-the-river, and pumped storage. An
impoundment includes a dam creating a reservoir for
water storage thus enabling control of the river flow
to produce power when most needed. These projects
are generally owned by private utilities such as
Pacific Corporation and Portland General Electric and
local/public utilities such as the Eugene Water and
Electric Board. There are a few privately owned run-of-
the-river projects that divert some water from the
stream to run through power turbines, after which the
water rejoins the stream. Pumped storage is another
type of hydroelectric power generation. Low-cost
off-peak electric power is used to pump water from
a lower elevation reservoir to a higher elevation.
During periods of high electrical demand, the stored
water is released through turbines. Oregon has no
pumped storage at this time, but a project is proposed
for the Klamath Falls area.
Who’s in Charge
In 1980, Congress passed the Pacific Northwest Electric
Power Planning and Conservation Act, 16 USCA
Sec. 839 et seq., establishing a multi-state Northwest
Power and Conservation Council. Under the act, the
Council and Bonneville Power Administration,58 a
federal agency, must protect, mitigate, and enhance
fish and wildlife while assuring an adequate power
supply. 16USCA Sec. 839 (b)(e)(2). Thus began the
struggle between fish and hydroelectric power, which
was made even more intense when Northwest salmon
species were listed as endangered. The Northwest
Power and Conservation Council designated certain
areas (stream segments) that, in Oregon alone, protect
over 9,000 stream miles from hydroelectric production.
Most non-federal hydroelectric projects are licensed
for a 50-year period by the Federal Energy Regulatory
Commission (FERC).60 Many existing hydroelectric
facilities in Oregon and the Northwest are due for
The WRD is the lead agency in hydroelectric projects.
An agency consolidated review is required for
larger projects as a result of a law passed in 1997,
which recognized the state’s role in FERC’s process
for relicensing projects. The Hydroelectric Application
Review Team, composed of representatives from
the WRD, DEQ, ODFW, and the Oregon Energy Facility
Siting Council, participates throughout FERC’s
entire lengthy process to assure that Oregon’s statutory
policies and environmental concerns are addressed.
The state agencies must review the need for power,
the protection of anadromous salmon and steelhead,
potential loss of wild game fish, and recreational opportunities.
WRD considers water rights for hydroelectric generation
as either perpetual for municipal corporations
that apply for permits (unless conditioned) or for
non-municipal corporations that apply for time-limited
licenses. A public hearing is mandatory for larger
projects (over 100 theoretical horsepower), but not
for smaller projects unless the Water Resources Commission
(WRC) believes it is in the public interest.61
REGULATING WATER MOVEMENT
OR SALE OUT OF STATE
One of the current issues of concern is the movement
of water from one basin to another, which could potentially
reduce the available water for those closest
to the water source. The issue is addressed in ORS
537.810(1) which states:
“No waters of the state arising within a basin shall
be diverted, impounded or in any manner appropriated
for diversion or use outside the boundaries
of that basin except on the express consent of the
However, this does not apply to the Klamath Basin
or to Goose Lake nor to municipalities that have
historically transferred water for their use. ORS
537.810(3)(4). (A separate statute covers Walla Walla,
Washington, which diverts water from Mill Creek,
a tributary of the Walla Walla River. ORS 537.835.)
The Legislature may grant an exception to this general
prohibition against diversion for “the protection
of the natural resources of the basin and for the public
health and welfare of current and future inhabitants of
the basin of origin.” ORS 537.810(1). These protections
also apply to “waters forming a common boundary
between states.” ORS 537.820.
REGULATING WATER QUALITY
During the early years in Oregon, water was seen as
an infinite resource that would always remain clean
and usable. As population grew, the waters deteriorated
due both to industrial discharges, chiefly from
pulp and paper mills, and to domestic wastewater
discharge. Early in the twentieth century, the population
became alarmed that water quality was decreasing.
Much of the concern focused on the Willamette
River, which served as a center for population and
In 1938, Oregon voters initiated and passed the Water
Purification and Prevention of Pollution Bill that
created the Oregon State Sanitary Authority (OSSA)
under the jurisdiction of the Oregon State Board of
Health to enforce regulations. The newly established
OSSA began to enact wastewater treatment requirements
for both cities and industries. These actions
included an initial requirement for primary treatment
of wastewater (settling of waste and treatment of
discharge with disinfectant). Smaller communities
came into compliance during the 1940s. In 1952,
Portland opened the Columbia Boulevard Wastewater
Treatment Plant providing primary waste treatment.62
In 1958, OSSA began to require secondary treatment
of sewage wastes (anaerobic bacterial digestion of
waste). In the 1960s, OSSA adopted rules to require
permits of dischargers both for domestic wastewater
and industrial discharges, limiting quantities and
types of discharge. In 1967, Governor Tom McCall
pledged stricter pollution laws statewide and a cleaner
Willamette River. By 1968, all single identifiable
sources of water pollution discharge were regulated
By the 1960s, water pollution awareness had increased
across the United States. The Water Quality
Act of 1965, now entirely superseded by the Clean
Water Act, was the first major federal step in controlling
water pollution and required states to submit
water quality standards and plans for meeting them
to the federal government for review and approval.
The OSSA was responsible for developing Oregon’s
National concern reached a peak when Ohio’s
Cuyahoga River burned. In 1972, the U.S. passed
the revised Federal Water Pollution Control Act, 33
USC 1251 et seq., commonly known as the Clean
Water Act (CWA) that became the incentive for a
nationwide challenge to improve water quality. This
broad act called for identifying pollution problems
and developing measures to reduce and eliminate the
problems. Through this act, the U.S. Environmental
Protection Agency (U.S. EPA) took on the responsibility
to regulate activities that threaten the quality
of the nation’s water resources. Oregon assumed the
responsibility for waters within state boundaries.
Congress adopted a comprehensive water policy for
the nation in the federal CWA and set as a national
goal the elimination of pollutant discharges to the
navigable waters of the U.S. by 1985. An interim goal
was set to ensure that all navigable waters would be
fishable and swimmable by 1983.64
To reach these goals, Congress established a
- No one has the right to pollute the navigable
waters of the United States. Dischargers are
required to obtain permits.
- Permits shall set limits on the concentration
of the pollutants being discharged. A violation
of the limits carries a penalty of fines or
- The best available technology shall be used
to control the discharge of pollutants.65
Over the last 36 years, the federal and state governments
working together have moved forward
to address pollution problems. The first measures
addressed pollution at the end of pipes discharging
to surface waters (point source pollution). Since the
late 1980s the regulation has begun tackling the more
complex problem of pollution from water such as
stormwater running across surfaces, picking up pollutants
and eventually depositing these pollutants in
surface waters (nonpoint source pollution).
The CWA allows the U.S. EPA to delegate much of
the regulation to the states. Oregon has encompassed
the federal requirements in state legislation and in
some cases exceeded federal standards. Regulations
both identify the quality of water needed for specific
purposes and direct what kind and how much pollution
may be discharged. The initial step in the program
required gathering data and on-going monitoring
of water bodies.
MONITORING WATER QUALITY
Oregon has recognized that in order to determine
the quality of water, a monitoring program must be
implemented. The on-going measurement of water
quality provides base values to identify problems and
improvements in water bodies and determine if the
water body meets the standards for the identified uses
such as fish survival, navigation, drinking and swimming
(Table 1). Oregon has a number of
monitoring programs. Monitoring is tracked, primarily
through the DEQ.
Some of the water quality monitoring programs
the DEQ directs, supervises or tracks across the
state include: Coastal Environmental Monitoring
and Assessment Program, Groundwater
Monitoring, Long-term Large River Monitoring,
Regional Probabilistic Stream Assessment,
Oregon Beach Monitoring Program, Total
Maximum Daily Load (TMDL), Volunteer
Monitoring, Willamette Basin Mercury Study,
and Toxics Monitoring Project in Willamette
Watershed. Individual permits require additional
monitoring. The Department of Public Health
requires public water sources to test drinking
water both at the source and prior to service.
Wastewater utilities are required to monitor
water quality at discharge points.66
One of the challenges that Oregon faces in water
quality testing is providing funding to maintain its
monitoring program. Individual chemical and biological
test expenses range from just a few dollars to
several hundred for a single test. Some tests must be
performed in a certified laboratory. Under the Safe
Drinking Water Act, labs running samples for public
water supply systems must be certified. Sample collection,
preservation, and lab analysis must be performed
through standard field approved methods and
quality assurance protocols. Other tests can be performed
by trained volunteers in the field. In all cases
accuracy and reproducibility are essential. Supervision
by trained qualified personnel is required. From
year to year, the amount of testing may vary depending
on monitoring cycles, funding and staffing.
As science advances, tests become more accurate
allowing for identification of ever smaller amounts of pollutant. Because testing parameters and methods
have changed and improved over the years, historic
data is sometimes not comparable and decisions must
be made based on available knowledge.
The DEQ addresses these problems through an ongoing
program of physical, chemical, and biological
water quality monitoring. The program is divided
into three activities: 1) collecting valid and relevant
data through sampling and assessment, 2) managing
data from all sources to ensure availability of accurate
and complete data, and 3) analyzing and interpreting
water quality data for reports which identify conditions
and threats to water quality, evaluate trends, and
model proposed actions.67
In the 1970s the DEQ developed the Oregon Water
Quality Index (OWQI). With this easily understood
tool, the DEQ is now able to track improvements or
problems with water quality in specific water bodies
over time. This tool provides for the analysis of
a defined set of variables and produces a score that
describes the general water quality. Variables analyzed
include temperature, dissolved oxygen (percent
saturation and concentration), biochemical oxygen
demand, pH, total solids, ammonia and nitrogens
from nitrate, total phosphorus, and indicator bacteria
(E. coli since 2002). Scores range from 10 (worst
case) to 100 (ideal water quality). Sites for testing are
selected throughout the state to provide geographic
coverage and include the major rivers and water bodies.
In 2007, there were 144 monitoring sites in the
network. The DEQ notes that the number of sites may
vary periodically due to both logistics and budgetary
Recognizing that the volume and flow of water are
important components of water quality, the WRD
works with the ODFW on ensuring appropriate
stream flow for fisheries and recreation. The WRD
Strategic Measurement Plan approved by the WRC
in 2000-2001 outlines requirements for monitoring
flows, volumes, and usage of water resources at the
source. Although the program is still developing initial
information, it will eventually provide a valuable
resource for stream flow information.69
The ODFW Plan for Salmon and Watersheds,70 established
in 1997, is used throughout the state to maintain
water quality in important salmon streams. Much
of the water monitoring performed within the state
supports the goals of this plan. However, the ODFW
recognized that the plan did not address the needs
of other species and introduced the Oregon Conservation
Strategy in 2006. This strategy focuses on
habitat, since healthy fish and wildlife need healthy
habitats. The plan contains components for monitoring
and consolidating data from other departments,
universities, watershed councils, soil and conservation
districts, and the federal government. It may
provide a stronger monitoring network for Oregon
and reduce overlap between agencies.
Federal funding for monitoring has been provided
through the CWA, the Total Maximum Daily Load
(TMDL) requirements of the CWA, and the Federal
Beach Act. In Oregon, under the Beach Monitoring
Program funded by the federal government, the DEQ
monitors water quality for Oregon’s ocean beaches.
Coastal county health departments issue swimming
advisories as appropriate. In general, the DEQ has
worked to consolidate information and prevent duplication.
The ultimate goal is to obtain the maximum
information for a strong database that can be used to
evaluate water quality in Oregon.
In 2007, the DEQ received funding from the Legislature
to begin a Toxic Monitoring Program in Oregon
watersheds. The program will develop a monitoring
and assessment plan focusing on toxic pollutants that
pose the greatest threat to human health and the environment.
The DEQ will collect samples from multiple
water sources, analyze and interpret data, determine
potential local pollutant sources, and assess the level
of threat to human health and the environment from
identified pollutants. When problems are identified
the DEQ will work with sources and stakeholders
to eliminate the pollutant. The initial sampling and
analysis plan targets the Willamette River.71
Identifying Impaired Waters
Section 305(b) of the federal Clean Water Act
(CWA), 33 USC 1315 requires states to report on the
extent to which all navigable waters meet water quality
All surface waters including rivers, lakes, ponds,
reservoirs, wetlands, estuaries and coastal waters
are considered “navigable waters” under the
The DEQ is primarily responsible for managing
water quality in Oregon. Water quality standards are
set to fully protect beneficial uses. They can be either
narrative or numeric criteria. All state water quality
standards contain a section that describes how
water currently meeting standards will be protected.
This is called the antidegradation policy.72 The DEQ
establishes beneficial uses for each navigable water in
Oregon (Table 1) and decides what to test.
Table 1: Designated Beneficial Uses.
Water quality standards are established by DEQ
to protect beneficial uses of the State’s waters.
Beneficial uses are assigned by basin in the
Oregon Administrative Rules for water quality,
OAR 340-041-0101 through 0350, which
domestic water supply
industrial water supply
fish and aquatic life
irrigation wildlife and hunting
water contact recreation
commercial navigation and transportation
Section 303(d), 33 USC 1313, of the federal CWA
requires each state to determine which estuaries,
streams and lakes do not meet the clean water
standards. These water bodies are placed on Oregon’s
“303(d)” or “impaired waters” list. The current list
contains about 1400 water bodies. Standards most
often violated are for temperature, bacteria, and dissolved
oxygen. Other standards include, but are not
limited to, sedimentation, habitat modification, toxics,
pH, chlorophyll A, and biological criteria (such as
benthic invertebrate and fish health). Specific pollutants
are also listed along with the names of the water
bodies. Oregon’s Impaired Waters list is available
online at http://iaspub.epa.gov/waters/state_rept.control?p_state=OR. Definitions are located in OAR 340-42-0030 and statutes are located in ORS Chap. 468B (water quality).73, 74
Total Maximum Daily Loads (TMDLs)
Once impaired waters have been placed on the 303(d) list, the federal CWA mandates that states take action
to upgrade the quality of the listed water to achieve identified beneficial uses. The CWA requires each
state to evaluate the impaired waters and establish
a defined numerical Total Maximum Daily Load
(TMDL) for each impaired water. A TMDL is the
maximum amount of pollutant that a water body
can assimilate without violating state water quality
standards for identified beneficial uses. It is DEQ’s
role to list and develop a completion date for TMDLs
for those waterbodies that do not meet water quality
The DEQ conducts a study of the impaired water to
determine the TMDL load. The DEQ calculates a specific pollution load limit TMDL for each type of
pollutant entering a body of water for the entire basin
or subbasin. Once the TMDL is determined, each
known source, both point sources (such as pipes) and
nonpoint sources (such as runoff from irrigation or
stormwater) is given a portion of the TMDL. Point
sources include but are not limited to discharges from
industry and municipal sewage treatment facilities.
Nonpoint sources include but are not limited to
runoff from farms, forests, urban areas, and natural
sources such as decaying organic matter or nutrients
in the soil. The total TMDL includes the sum of
the discharges from all known sources plus a safety
margin. Seasonal variation, uncertainty, and growth
that allows for future discharges to a stream or river
without exceeding water quality standards are taken
Ultimately each source of pollution is limited to an
assigned amount of discharge that will not impair
the water. In order to establish the TMDL in Oregon,
DEQ has developed an approach to look at the quality
of an entire river and watershed rather than whether
or not a specific discharge meets existing permit
requirements. Streams are addressed in either subbasin
groups or entire basins, as in the Willamette. It
is thought that using a broader approach will not only
speed up the process but also facilitate recognition of
basin interrelationships. Based on the results of the
watershed evaluation, specific discharges may have to
meet more restrictive requirements.
Not all identified impaired waterways have completed
TMDL studies. As of 2006, DEQ had established
TMDLs and allocations for at least some
streams in all of Oregon’s major river basins, except
the mid-coast, John Day, Malheur, Owyhee, Willamette
Rivers, and Goose and Summer Lake basins.
TMDL completion for the entire state is scheduled for
DEQ estimated that 75% (68 subbasins) of the 91
subbasins in Oregon are primarily affected by forestry
and/or agricultural nonpoint source activity. Of
these 68 subbasins, half are wholly federally owned
and/or managed lands. The other half are either
privately owned lands or mixed federal, state, and
private ownership. The remaining 23 subbasins are
affected by both point and nonpoint sources, including
municipal sewage treatment plants, industrial
discharges, urban stormwater runoff, construction
activities, agriculture, and forestry.78-79
Point Source Pollution
Historically both domestic
and industrial wastes
were routinely discharged through pipes into Oregon
streams and rivers without treatment or standards.
Since 1938, Oregon has been addressing the problem.
In 1972, the State took on delegated responsibility
under the federal Clean Water Act (CWA) for the
National Pollutant Discharge Elimination System
(NPDES) permit program. The federal program was
in fact modeled on Oregon’s own state water pollution
control facilities permit program.80 Point source
pollution refers to direct discharges (end of pipe or
ditch) of pollutants that could affect water quality
to a receiving stream, mainly from publicly owned
wastewater treatment plants or industrial facilities
discharges. The CWA recognized that discharges
could include pipes discharging directly into bodies
of water or discharging to the ground that ultimately
seeps into surface waters. Today, all point source discharges
must be permitted through the DEQ. Public
notice of both new and renewed permits is posted on
the DEQ website at http://www.deq.state.or.us/news/publicnotices/pn.asp. In most cases there is a 14 day
notice period for state Water Pollution Control Facilities
(WPCF) permits and a 30 day notice for NPDES
In considering point source pollution discharges, the
DEQ looks at the pattern of water flow that distributes
a pollutant. This is termed the toxic mixing zone
or regulatory mixing zone, a cubic dimension of
water that has a higher concentration of pollution because
the discharge source is at the start of dispersion
(plume). The DEQ specifically describes the size of
the area at the end of the discharge pipe into a receiving
stream of water where the effluent with its established
permit limits mixes with the receiving stream.
The permitee is required to meet in-stream water
quality standards at the downstream boundary of the
mixing zone. This zone is further divided to identify
the much smaller area (usually around 10% or less of
the regulatory mixing zone) where initial mixing occurs.
Measurements do not occur in this zone, but further
downstream, after the pollutant has more evenly
distributed into the waterway. These mixing zones are
viewed as a pollution point with concentrations that
may affect levels further downstream,81, 82
and usually are not identified by signs or warnings for the public.
Maps are available at http://www.deq.state.or.us/wq/wqpermit/mixingzones.htm.
Point Source Permit Program
To evaluate water quality, the DEQ has established
both narrative and numeric water quality standards.
Narrative standards specify that surface waters of the
state must be free from the following pollutants that
result from human activity: suspended solids, floating
debris, color, odor, toxic substances and nutrients that
create nuisance growths of weeds and algae. Numerical water quality standards have been set for an
extended list of various pollutants and can be found
in OAR 340-041.
The DEQ uses these standards to establish enforceable
effluent limits in permits and to regulate the
discharge of treated wastewater. Two types of permits,
National Pollutant Discharge Elimination
System (NPDES) and Water Pollution Control Facility
Permits (WPCF) are issued. Both types of permits
prescribe limitations on discharge treated wastewater
and set reporting requirements.83
National Pollutant Discharge Elimination System
NPDES permits are issued pursuant to the CWA and
ORS Chap. 468B for discharges directly to “waters of
the United States” which include surface waters such
as streams, rivers, lakes, oceans, and wetlands. “Major”
permits typically cover large sewage treatment
plants with discharge flows of more than one million
gallons per day or large industrial producers with a
high potential for large quantity discharges of toxic
pollutants. Facilities that do not meet the definition of
major are placed in the “minor” permit category.
The NPDES permit specifies the maximum allowable
level of total suspended solids, biochemical oxygen
demand, nutrients and bacteria that can be discharged
to a stream as well as the minimum level of dissolved
oxygen that must be present in the discharge.
The regulation also established for various industrial
sectors such as steel, pulp and paper, electronics,
etc., specific technology based effluent limits for the
typical pollutants discharge from that sector. Where
water bodies are water quality limited and TMDLs
have been established, the permit contains the established
waste load allocation for any TMDL parameter.
The department also requires each major permit
facility to provide data describing the pollutants in
its discharge. The department performs a Reasonable
Potential Analysis on this data to determine if
the level of these pollutants will violate water quality
standards. If there is a potential for the discharge
to violate standards, facility-specific water quality
based effluent limits are established and placed in the
facility’s permit to prevent it from violating water
quality standards.84 NPDES permits must be renewed
every five years. Criteria for permitting may change
as water quality concerns change throughout Oregon.
Notice of permit applications are posted on the DEQ
website. Hearings may be scheduled if requested by
ten or more members of the public.85
Water Pollution Control Facilities Permits
State WPCF permits are issued pursuant to ORS
Chap. 468B and OAR 340-045 specifically for disposal
systems such as land irrigation and lagoons that
do not discharge directly to surface waters. (Note:
Permits for residential septic tanks and drain fields
are part of DEQ’s onsite septic system program and
are discussed later.)
NPDES and WPCF permits are either individual
site specific or general permits. General permits are
developed when DEQ can adequately control comparable
discharges from sites with similar activities with
a standard set of requirements.
Wastewater Treatment Facilities Requirements
All public wastewater systems must first obtain a
Permit to Install (PTI) before a treatment plant can be
constructed. The PTI is issued after the plans for construction,
operation, and management are examined
to ensure that the receiving stream will be protected.
In Oregon, wastewater treatment plants are self monitoring.
Facilities permitted by the DEQ are required
to conduct laboratory analyses on wastewater discharges
to determine if permit limitations are being
met. The results are typically submitted monthly to
the DEQ in a Discharge Monitoring Report (DMR).
Manual tracking of a DMR is slow, but DEQ recently
established a DMR data entry system for major facilities
so that monthly data is now entered as the DMRs
are submitted to DEQ. Permit writers now have direct
electronic access to the major facility DMR data to
review and determine if a facility is in compliance
with its permit. In the future, if funding becomes
available, the DEQ will add “minor” facilities to this
DMR data base. The DEQ is also pursuing the potential
for entering DMR data through an “E-DMR” data
submittal format, but this will take several years.86
The DEQ inspects major facilities once every two
years and minor facilities once every five years. Because
of staff limitations, the DEQ relies on complaints
to discover most violations.
The wastewater treatment facilities are public entities.
However, in some instances public facilities may contract
with companies such as CHM2 Hill Engineering
to run treatment plants.87
Updating the DEQ Wastewater Permitting Program
The wastewater regulation program is complex. The
number of recognized pollutants has significantly
increased. The renewal of a permit requires multiple
studies and extensive evaluation of the treatment
process. Large volumes of data and information must
be evaluated. In 2005, Senate Bill 45 was introduced
by Governor Kulongoski on behalf of the DEQ as
part of the funding and program improvements package
recommended by the Blue Ribbon Committee on
Wastewater Permitting. Based on recommendations,
the DEQ set specific goals for improvements:
- Reducing the major NPDES individual permit
backlog to 10% by the end of 2007.
- Improving accountability by developing and
tracking permit issuance plans and establishing
individual performance expectations.
- Improving emphasis on key water quality concerns
and a more holistic solution by issuing
permits using a watershed approach.
- Reviewing compliance data in a timely manner
and improving compliance inspections.
- Yearly reports track progress on the goals.
In addition to enacting Senate Bill 45, the Legislature
approved increasing wastewater permit fee revenue
by 11% and appropriated $420,000 in additional
General Funds for the wastewater permitting program
for 2005-2007. In the 2007 report, the DEQ requested
additional money to address program and staffing
A septic system consists of a tank and a drain field
used for homes or other facilities that are not connected
to a municipal sewer system. It treats sewage
to prevent ground and surface water pollution. The
septic tank removes “settable and floatable solids.”
The subsequent clarified septic tank outflow drains
through the filters in the drain field.
Generally, when the amount of scum and sludge (the
gunk at the bottom) is more than 35% of the septic
tank’s volume, it is time to pump the tank. The factors
determining this are roughly the size of the tank and
house, plus the water usage. In newer construction, a
1,000 gallon septic tank serves up to four bedrooms.
If a family of four resides there, the tank should be
emptied approximately every three years, but that
same tank can be pumped about every six years, if
two persons share that identical house.89 If the tank is
not pumped properly, new wastewater will not have
sufficient time for its solids to settle, and the drain
field will clog and cause sewage to overflow to the
The DEQ regulates septic systems. OAR 340-071-
0110 establishes the rules for the construction, alteration,
repair, operation, and maintenance of onsite
wastewater treatment systems. In addition to permission
from the DEQ on siting a new septic system,
other local land use ordinances or limitations on digging may
apply. Native American Tribes may also have identified some
ground as ancient burial sites or former campsites,
and tribal permission to dig may be required before
installing either a septic tank or a drain field.
Oregon septic workers are required to have licenses.
Under OAR 340-071-0650, installer and maintenance
provider license re-certification is required every
three years after receiving the initial certification.
The DEQ is responsible for monitoring and enforcement
of regulations for industrial pollution. Oregon
actually began regulation of industrial discharge prior
to the 1972 CWA. Beginning in 1958 the secondary
treatment of wastes was required for industrial
plants along the Willamette River and its tributaries.
In 1968, Oregon State Sanitary Authority (OSSA)
rules required industries and municipalities to obtain
permits before wastes could be discharged into
Oregon waters. 90, 91 Today all industrial facilities that
discharge process wastewater are required to obtain a
The state-administered program for industrial point
source discharges includes several component permits.
Point source permits are required for discharges
of wastewater such as sewage or processing water,
wash water, and even for wastewater that may be relatively
clean, such as non-contact cooling water. The
point source of the discharge may include a variety
of disposal systems including land irrigation, seepage
ponds, onsite sewage systems, and dry wells, or may
discharge to surface water directly through a pipe or
ditch, or indirectly through a storm sewer system.
Depending on the nature and method of discharge, industries
may receive NPDES or WPCF permits from
the DEQ similar to permits issued to waste treatment
facilities. Alternatively for minor discharges the DEQ
may decide to include the industry under a General
Permit as part of an umbrella permit process.
Industrial wastewater discharge permits require
monthly reports that are sent to the DEQ. Permits
must be renewed every five years. Industrial dischargers
do their own monitoring. The monitoring tracks the amount of pollutant, such as specific chemicals,
bacteria, sediments, toxins, dissolved oxygen, excessive
nutrients, and nitrates found in the water.
As part of the permitting process, federal and state
regulations have set standards for acceptable levels of
discharge based initially on “best practical technology”
with a goal of setting standards based on “best
available technology.” However, because of the diversity
of industries, early standards often were based
on “best available judgment.” As more information
and technology becomes available, the standards are
being adjusted. Because of the number and diversity
of industries, the review process may not be current.93
With a goal of minimizing direct discharges to waters
of the state, the DEQ encourages industry to consider
discharging to publicly owned wastewater treatment
facilities. Wastewater treatment facilities are responsible
for reviewing the nature of discharges from
industrial plants and for determining requirements for
quality prior to accepting discharges. Before accepting
industrial discharges the wastewater treatment
plant must determine that discharges will not impact
its NPDES or WPCF requirements. Local facilities
can charge fees and require extensive monitoring. Often
the discharges must be pretreated prior to entering
the sewer in order to meet the standards of the waste©
water treatment facility.
Since control of the pollutants may necessitate treatment
prior to discharge to the Publicly Owned Treatment
Works (POTW), the U.S. EPA recognized the
need for a uniform standard for “pretreatment” of
industrial waste. In 1981, the U.S. EPA authorized the
DEQ to regulate pretreatment programs in Oregon.
Objectives of the pretreatment program are:
- Protect POTWs from pollutants that may cause
interference with sewage treatment plant operations.
- Prevent introducing pollutants into a POTW
that could cause pass through of untreated pollutants
to receiving waters.
- Manage pollutant discharges into a POTW
to improve opportunities for reuse of POTW
wastewater and residuals (sewage sludge).
- Prevent introducing pollutants into a POTW
that could cause health or safety concerns for
workers, or that could pose potential danger to
the public or to the environment.
Depending on the nature of the discharge the pretreatment
program will vary. “Limits may often be met by
the non-domestic source through pollution prevention
techniques (product substitution, recycle and reuse
of materials, more efficient production practices,
improved environmental management systems, etc.),
pretreatment of wastewater, or implementation of
best management practices.”94
In Oregon, local governments (including sewage
collection and treatment agencies as defined in ORS
Chap. 451, cities and counties) manage approved pretreatment
programs. Oregon has about 25 approved
programs that oversee more than 300 industrial users.
The programs are managed through a variety of approaches
including permitting, regulatory efforts, and
voluntary programs between local waste treatment
entities and industry.95
The U.S. EPA has composed industry sector notebooks
as guides for water pollutant controls and
environmental information. These notebooks provide
a holistic approach for reducing pollution, including
regulations and compliance information and are
available for specific industry sectors.96
Different industries need differing pollution reduction
approaches. In June, 2007, Governor Kulongoski
signed a clean water bill which required a statewide
assessment of toxic pollution and pollution prevention
planning by some high volume polluters. The
bill provided funding to DEQ “to conduct a statewide
assessment of the most dangerous pollution – chemicals
that persist for a long time in the environment or
that accumulate in people’s bodies – entering Oregon
waterways. The Department would prioritize pollutants,
identify sources, and identify available pollution
prevention and reduction strategies.”97 It will help
develop solutions for facility specific pollution treatment.
Nonpoint Source Pollution
Oregon prides itself on its “green” concerns and thus
has taken a leadership role in encouraging many
practices that address nonpoint source pollution as
part of the statewide planning process established in
1973. In the early 1990s, the federal government directed
the activities of the CWA toward a new target,
stormwater runoff, referred to as Nonpoint Source
(NPS) pollution. This is water that runs over the
surface of fields, roofs, driveways, roads and other
impervious surfaces, dissolving or suspending and
carrying these materials to water bodies. Activities,
such as clearcutting forest, clearing land, storing raw
materials without covering, increasing impervious
surface, and intensive animal farming, can all impact
water. Individual activities, such as washing cars on
the street, storing landscaping dirt in the street, and
dumping oil down storm sewers, also contribute to
the problem. Pollution from these sources includes
sediment, metals, animal waste (and accompanying
bacteria), chemicals, fertilizers, oil and grease, as
well as increases in water temperatures. In addition,
the velocity of runoff increases when the surfaces are
smooth and water is directed quickly to water bodies.
This higher velocity in turn results in erosion,
prevents infiltration and changes the natural flows of
streams and rivers.
With recognition of runoff as a major pollution
problem, the activities of individuals as well as
communities, industries, treatment plants, construction
sites, forestry, and agriculture all bear
Agricultural Control of Runoff
In a speech made to the National Cattlemen’s Association
Board of Directors in March 1993, the U.S. EPA
Deputy Director David Davis stated that EPA data
show NPS pollution is the largest remaining water
quality problem in the U.S. He further said that data
from the states attribute 41% of the total NPS pollution
In 1993, Oregon’s Agricultural Water Quality Management
Act, ORS 568.900-.933, was passed. Following
enactment the Oregon Department of Agriculture’s
(ODA) Agricultural Water Quality Program
was developed. The act was amended in 1995 and
“reinforces ODA’s responsibility for and jurisdiction
over agricultural practices and water pollution associated
with farming practices on agricultural and rural
lands.” ORS 561.
The ODA worked in partnership with 45 local Soil
and Water Conservation Districts to identify 39 watershed-based Agricultural Water
Quality Management Areas across the state. A Local Advisory Committee consisting of
farmers, ranchers and community leaders was established in each area
to identify area water quality problems and opportunities to address these problems and to establish
the Agricultural Water Quality Management Area Plans. All 39 plans have been approved by the Board
of Agriculture. These plans provide the direction for resolution of agricultural water quality issues. A list
of the plans and updates is available at http://oregon.gov/ODA/NRD/docs/pdf/plans/pln_rl_hstry.pdf.
The ODA works with producers through education
and assistance to ensure voluntary individual compliance.
The ODA is charged with the investigation of
agricultural conditions that would cause pollution
of public waterways. A complaint form is available
online. Complaints are investigated by ODA and
a second effort is made to work with the producer
through voluntary compliance. If the producer does
not comply, enforcement action including civil penalties
Animal Waste Runoff
Animal waste can be a valuable resource that, when
managed properly, reduces the need for commercial
fertilizer. However, these wastes can affect water
quality. Data indicate that approximately one-third
of the agricultural NPS pollution is caused by animal
waste runoff from feedlots, holding areas and
pastures.101 Waste from animal concentrations and/or
manure storage areas that are not protected can wash
into streams reducing oxygen in water and endangering
aquatic life. Likewise, when this waste is allowed
to seep into groundwater, water quality is jeopardized.
Nitrates entering well water from sources such
as animal waste and fertilizer can be particularly dangerous
to infants due to its capacity to cause oxygen
depletion in the blood.
If proper practices are followed pollution can be
reduced. These protective practices are very often referred
to as Best Management Practices (BMPs) and
include facilities or structures, management practices,
or vegetative cover.
To address the issue of animal waste, the ODA
operates the Confined Animal Feeding Operations
(CAFO) Program. The program was started in the
early 1980s to prevent CAFO wastes from contaminating
groundwater and surface water. The general
definition of a CAFO is “the concentrated confined
feeding or holding of animals in buildings, pens, or
lots where the surface is prepared to support animals
in wet weather, or where there are wastewater treatment
facilities (e.g., manure lagoons). OAR 340-051-
0010 (2), 40CFR sec 122.23.” According to the ODA,
waste may include, but is not limited to, manure,
silage pit drainage, wash down waters, contaminated
runoff, milk wastewater, and bulk tank wastewater.
See also OAR 603 Div. 74 CAFO Operation Program.
Permitting and enforcement of the CAFO program
are regulated by the ODA. The ODA initially issued
Water Pollution Control Facilities permits for animal
waste. More recently, under U.S. EPA guidance, the
ODA has begun issuing National Pollutant Discharge
Elimination Program permits to CAFOs that fit the
federal definition of a concentrated animal feeding
operation. All permitted CAFOs must prepare an
animal waste management plan. The plan provides a
detailed description of facilities and operations with
respect to containment, treatment, storage, and disposal
of waste and wastewater, and addresses how the
facility will comply with permit conditions.102
Forestry Operations Runoff
The Board of Forestry’s mission is “to lead Oregon in
implementing policies and programs that promote environmentally,
economically, and socially sustainable
management of Oregon’s 28 million acres of public
and private forests.”103
Forestry regulations with regard to water can be
found in ORS Chap. 197 and ORS 197.180. Regulations
are linked to state land use planning, the Oregon
Plan for Salmon and Watersheds, and requirements
for impaired waters and Total Maximum Daily Loads
Strategy D of the five strategies in the Forestry
Plan specifically addresses water quality:
“Protect, maintain, and enhance the soil and
water resources of Oregon’s forests.
D.1. The board will support and contribute to
continuing statewide efforts under the Oregon
Plan for Salmon and Watersheds to protect
and enhance Oregon’s native fish populations
and water quality, while sustaining a healthy
D.2. The board will continue to use the Forest
Practices Act as the primary means to protect
soil productivity and water quality and also
promote ongoing voluntary resource restoration
and enhancement efforts by forest landowners
through the Oregon Plan."
Urban, Industrial and Construction Runoff
State Nonpoint Source Permitting Programs for
Under the National Pollutant Discharge Elimination
System (NPDES) permit system the Federal government
set up a two phase permitting process to address
stormwater pollution. The DEQ has been delegated
the responsibility for issuing and enforcing state
permits. In Phase I, larger Municipal Separate Storm
Sewer Systems (MS4) communities with populations
over 100,000, industries in specific standard industrial
categories (SIC) such as chemical industries,
and construction sites disturbing over five acres were
required to obtain permits. In Phase II smaller MS4s
(communities under 100,000 that meet federal urban
population definitions) and construction sites disturbing
over one acre were required to obtain permits.104
In most cases there is a 14 to 30 day notice period.
Public notice of both new and renewed permits is
posted on the DEQ website at http://www.deq.state.
Municipal Separate Storm Sewer System (MS4)
The MS4 permits require communities to develop
stormwater pollution prevention programs. In Oregon
these programs are referred to as Stormwater Management
Plans (SWMP). Pollution reductions in both
Phase I and Phase II are intended to reduce pollution
to the “maximum extent practical.”
Under Phase I, the large to medium size Oregon
urban areas were required to submit permit applications.
These applications were required for the cities
of Portland, Gresham, Salem, and Eugene, Clackamas
County, and Clean Water Services (Washington
County). The Phase I communities were required to
prepare a detailed permit application with information
on their existing stormwater systems, sampling
of discharges, and other specific information. These
permits required self-monitoring. All permits required
the development of a SWMP that included BMPs to
reduce pollution to the “maximum extent practical”
and to prevent additional discharges unless otherwise
permitted. The communities are required to submit
a yearly report on their progress in completing plan
tasks.105 Specific plans are available at http://www.
In Phase II, the federal government specified six
components that MS4 permits for smaller urban
populations area must address in a SWMP: public
education, public involvement, unlawful discharge
detection and elimination (including mapping of the
system), construction site permitting, post construction
stormwater maintenance requirements, and community
good housekeeping (development of in-house
BMPs). However, the Phase II federal permits did not
require monitoring.106 The State has the authority to
develop the approach to meeting the requirements of
the permit. A complete list of communities requiring
permits is available at http://www.deq.state.or.us/WQ/
The NPDES 1200-C stormwater general permit administered
by the DEQ requires permits for construction
which include clearing, grading, and excavation
operations that disturb one acre or more of land. Applicants
are required to submit an application form,
a Land Use Compatibility Statement, and an Erosion
and Sediment Control Plan. The permits for projects
disturbing more than five acres are subject to public
review. Effective October 1, 2006, construction sites
that discharge stormwater directly to or into a storm
sewer system that discharges to a water body listed as “impaired” for turbidity (water clarity) or sedimentation
on the State’s 303(d) list, or to a water body covered
under state TMDL pollution limits, must include
stormwater sampling and BMPs to treat or control
The industrial activities that are subject to permitting
requirements are determined by SIC codes listed
in the federal regulations 40CFR 122.26(b)(14) and
(15). These activities include many types of manufacturing,
transportation, mining, and steam electric
power industries, as well as scrap yards, landfills,
certain sewage treatment plants, and hazardous waste
management facilities. Applicants are required to
submit an application form, Stormwater Pollution
Control Plan (SWPCP), SWPCP checklist, Land Use
Compatibility Statement, and fees. Exemptions are
available to industries that demonstrate no runoff
exposures.108 These industrial activities are covered
by individual as well as general permits. The permits
require monitoring and reporting to the DEQ.
Pesticides have been identified in waterways and may
be a significant problem for habitat and use of water.
To better track and understand this concern, the
Oregon Legislature passed the Pesticide Use Reporting
System in 1999. Sec. 3 Chap. 1059 Oregon Laws
1999, ORS 634.042. The law requires web-based
yearly reporting of all pesticide applications (including
herbicides, fungicides, insecticides): 1) conducted
by a government entity such as spraying rights-ofway,
insect control for public health, or testing for
research, 2) conducted by business including industry,
agriculture and forestry, and 3) conducted in locations
used by the public. The reporting is compiled
on a watershed basis.109 The report requires providing
the name and identification number of the pesticide,
the date applied, the quantity, location, and purpose
of the application.110 The Pesticide Use Reporting
System is due to sunset on December 31, 2009. OAR
603-057-0405 to 0418.
The DEQ is implementing a Pesticide Stewardship
Program in five targeted areas around the state. Water
quality is being assessed. Where pesticides are discovered
the DEQ is working with local agricultural
agencies and interests to develop and implement
management practices to reduce pesticide levels in
the waters of the state.111
Protecting Habitat and Fisheries from
Fish and wildlife resources need both adequate and
high quality water (that is, water quantity as well as
water quality). Historically, fish and wildlife have
suffered from a lack of free flowing, clean water.
Many species have been listed as “threatened” or “endangered”
under the federal Endangered Species Act.
16 USCA 1531-1534 (1973). The dramatic decline of
salmon and steelhead is well known but other lesser
known species, such as the Klamath Basin short-nose
sucker, have also been listed. “Entire age classes of
young suckers are routinely lost due to poor water
quality conditions,” according to the U.S. Fish and
Oregon has developed several programs of its own in
response to declining species. Beginning in 1996 with
Governor Kitzhaber’s Coastal Salmon Restoration
Initiative and the subsequent Oregon Plan for Salmon
and Watersheds in 1997, the state has expanded species
“The plan, in short, has achieved dramatic and
significant results for salmon, watersheds, agency
effectiveness, and voluntary conservation actions
of the private sector.”113
The plan, based on voluntary actions taken by private
landowners as well as interagency coordination of
both dollars and activities, is funded by the Oregon
Watershed Enhancement Board (OWEB), federal
funds and salmon license plate dollars. The OWEB
funding resulted from a citizen’s constitutional initiative
in 1998 that allocated 15% of the net revenue
of the Oregon lottery to parks and natural resources.
These lottery funds are distributed 50% for “financing
the protection, repair, operation, and creation
of state parks, ocean shore and public beach access
areas, historic sites and recreation areas”; and 50%
for “financing the restoration and protection of native
salmonid populations, watersheds, fish and wildlife
habitats and water quality in Oregon.”114 See Oregon
Constitution, Article XV, Section 4(b).
The DEQ provides both loans and grants for programs
that address nonpoint source (NPS) pollution
using funding provided under Section 319 of the
federal CWA. In 2009, about $1.6 million in grant
funding is available, and the DEQ is seeking applications
from government agencies, tribal nations and
nonprofit organizations to address nonpoint sources
of pollution affecting coastal, river, lake, drinking and
groundwater resources of the state. 115
From species protection to watershed management is
a big step, but as Rick Bastasch in The Oregon Water
Handbook notes, “What happens in a watershed can
have a great impact on the timing and quality of the
water it releases.”116 This impact, in turn, affects
many economic activities in the watershed. Along
with Oregon Watershed Enhancement Board, 45
Soil and Water Conservation Districts (ORS Chap.
568), and about 90 Watershed Councils “convene
diverse interests in a non-regulatory forum to articulate
a common vision for ecological and economic
sustainability and livability in watersheds.”117 ORS
Addressing Runoff to Coastal Tributaries
Oregon’s Coastal Nonpoint Pollution Control
The Oregon Department of Land Conservation and
Development (DLCD) administers the Oregon’s
Coastal Non Point Pollution Control Program
(CNPCP) which was developed in compliance with
requirements of Section 6217 of the Coastal Zone
Management Act Reauthorization Amendments of
CZMRA is administered
at the federal level by
the U.S. Environmental
Protection Agency (EPA)
and the National Oceanic
and Atmospheric Administration
federal requirements are
designed to restore and
protect coastal waters
from nonpoint source
pollution and require
coastal states to implement
a set of management
on guidance published
by EPA. The guidance contains measures for the
following areas: agricultural activities, forestry
activities, urban areas, marinas, hydro-modification
activities, and protecting wetlands. In Oregon,
the geographical boundaries for the CNPCP are the
same as the Coastal Program boundary except in
the Rogue and Umpqua basins where the CNPCP
boundary includes these basins in their entirety.118
The regulatory activities supporting the program
include state rules developed under other departments
such as the DEQ. The CNPCP provides a strong program
of technical assistance that includes the activities
of the Oregon Sea Grant, an important federal
educational component of nonpoint source (NPS)
Overall, little is known about the quality of groundwater
in Oregon. As of a 2003 report, the DEQ
had assessed the groundwater quality of less than
7% of the state. The WRD has assessed only approximately
15% of the groundwater supplies for
the state.119 Groundwater regulation is part of the
Oregon Groundwater Quality Protection Act of 1989.
ORS 468B.150-190. The act sets a goal for the state
to “prevent contamination of the groundwater resource,
to conserve and restore the resource, and to
maintain the high quality of Oregon’s groundwater
resources for present and
future uses.” The DEQ has
primary responsibility for
Monitoring data from ambient
and monitoring of public
water supplies show that
35 to 45 areas have some
impairment or reason for
concern. The most commonly
is nitrate followed by
pesticides, volatile organic
compounds, and bacteria. Data from over 14,000
private wells across the state show wells with nitrate
levels above the federal drinking water standard to be
as high as 18% in some counties, while other counties
show none. A Ground Water Management Area can
be declared if area wide contamination, due in part
to nonpoint sources, is found to exceed one half of a
drinking water standard or 70% of the nitrate drinking
water standard. DEQ declared two groundwater
management areas in the 1990s (Malheur County in
Eastern Oregon for nitrates and the pesticide Dacthal,
and the Lower Umatilla Basin in North Central
Oregon for nitrate contamination) and more recently
added the Southern Willamette Valley. For these areas
action plans are in process and monitoring is underway.
120 Another area of concern is the La Pine area of
central Oregon where potential problems have been
identified from contamination due to high density
on-site sewage disposal. A demonstration project is
underway in this region to look at alternative innovative
on-site systems. Deschutes County has recently
passed additional regulations.121
Drinking water quality regulations
The Oregon Drinking Water Program (ODWP) is
administered by the Department of Human Services
(DHS), Public Health Division (PHD). Their responsibility
is to assure Oregonians safe drinking water.
The program accomplishes this by administering and
enforcing drinking water quality standards for public
water systems in Oregon. The ODWP “focuses
resources in the areas of highest public health benefit,
and promotes voluntary compliance with state and
federal drinking water standards. The program also
emphasizes prevention of contamination through
source water protection, provides technical assistance
to water systems, and water system operator
training.”122 The regulations can be found in OAR
333-061-0032, Public Water Systems, effective
2-15-2008.123 Relevant rules and regulations are in
ORS 448 (Oregon Drinking Water Quality Act) and
OAR Chap. 333. These standards come from drinking
water standards established by U.S. EPA under
the federal Safe Drinking Water Act. ODWP adopts
standards no less stringent than the federal standards,
directly administers and enforces them in Oregon
under an agreement with the U.S. EPA called “Primacy,”
and operates under U.S. EPA oversight. ODWP
in turn works closely with local health departments
throughout Oregon to oversee public drinking water
The PHD regulates public water systems where piped
water is provided to the public for human consumption.
In Oregon, public water systems with greater
than three hook-ups, or serving more than 10 people
at least 60 days per year, are regulated. Water not
distributed through pipes is regulated if there are 15
or more service connections or if it serves 25 people
in a day, 60 days per year. Public systems can be
small shared systems, transient non-community water
systems such as campgrounds, wayside restaurants
and parks and non-transient, non-community water
systems, such as schools, worksites and hospitals. According
to the PHD, approximately 90% of Oregon’s
citizens get their drinking water from public water
systems. ORS 225.020 gives cities the right to own/
operate water supply facilities. The 50 largest public
water systems supply drinking water for 70% of the
population of the state.124
In terms of sources of drinking water by population,
50% of Oregon’s citizens rely solely on groundwater
(mostly small systems). Approximately 30%
rely solely on surface water. These are mostly large
systems. Another 20% rely on surface water and
As of 2008, there were 3,600 water systems in Oregon.
The majority of Oregonians receive water
through a few large water systems. There are many
small systems that each provide water to only a few
hundred people and are scattered throughout Oregon.
About 91% of public water systems provide water to
500 or fewer people, and over half of the community
water systems serve fewer than 200 people.125
Public drinking water systems must meet specified
design criteria and perform monitoring. Public systems
must have a certified water operator in place.
The state provides a training and certification program.
Systems are required to prepare a public information
report each year as well as providing the state
with required reports and monitoring information.
Oregon has established a safe drinking water benchmark
to measure progress of both the drinking water
program and public water suppliers as they implement
safe drinking water standards. The benchmark
measures the percentage of the population served by
community water systems that supply water meeting
all health-based standards continuously during
the year and the percentage of the community water
systems that supply water meeting all health-based
standards during the year. Approximately 1300 programs,
including all larger systems across the state,
are involved in benchmarking. According to the 2007
benchmark report, 96% of individuals served by
public water systems were served water that met the
health-based standards, and 86% of the community
water systems met the standard.126, 127
Following the 1996 Amendments to the Federal
Safe Drinking Water Act, new resources were made
available for Oregon DHS to provide drinking water
protection and assistance to public water systems
and communities. In partnership with the Oregon
Economic and Community Development Department
over 80 Oregon communities have received almost
$150 million in revolving fund loans since 1997 to
construct safe drinking water projects. In partnership
with DEQ, “Source Water Assessments” have
been completed for all public water systems serving
15 or more connections, or at least 25 people yearround.
As a result the DEQ and DHS groundwater
and surface water source areas which supply public
water systems have been delineated. Each area has
been inventoried to determine potential sources of
contamination and the most susceptible areas at risk
According to the DEQ,
As a result of the assessments, communities already
have both a detailed map of where their water
comes from and a list of the potential contaminant
sources (natural and man-made) that may affect
the water quality.… The individual communities
can use the assessment results to voluntarily develop
a plan to protect the source area. The assessment
report provides information to the community
that enables them to focus limited resources on the
higher-risk areas within the watershed or recharge
zones for wells.128
Land Use Planning and Water
The Department of Land Conservation and Development
(DLCD) oversees the statewide program for
land use planning. The program, in effect since 1973,
includes both state statutes and administrative rules.
State law requires each city and county to address
19 statewide goals in a comprehensive plan for local
land use and to implement a development code to put
the plan into effect. Land use decisions must meet
Laws stress the need for coordination in order to keep
plans and programs consistent at all levels throughout
the state. OAR 660.015. County and municipal
Comprehensive Plans are submitted to and reviewed
by the State for compliance with the goals. The planning
process requires citizen review and involvement
(Goal 1). The plans are expected to consider other
planning documents including but not limited to the
Oregon Plan for Salmon and Watersheds, the Oregon
Conservation Strategy, Oregon Wildlife Diversity
Plan, the Comprehensive Conservation Management
Plan for the Lower Columbia River, and the Oregon
Statewide goals related directly to state waters include:
Goal 5: To protect natural resources and conserve
scenic and historic areas and open spaces
Goal 6: To maintain and improve the quality of the
air, water and land resources of the state
Goal 2 requires local governments to establish a
land use planning process and policy framework as
a basis for all decisions and actions related to land
use and to assure an adequate factual base for such
decisions and actions. Goal 11 relates to planning and
developing a timely, orderly, and efficient arrangement
of public facilities and services, including those
for water, sewer/septic, and stormwater, to serve as
a framework for urban and rural development. However,
the biggest barrier to linking land use decisions
to water quantity and quality is lack of scientific data
on Oregon’s water resources, especially in rural areas.
Local governments, when reviewing land use applications,
must rely on data from the applicant except in a
few places in Oregon where government or impartial
scientific data exists. In cases where there is opposition,
decision-makers must deal with dueling experts
when considering water issues. An additional barrier
is the jurisdictional disconnect between local governments
and state agencies. 129
The statewide land use planning program also has
goals related to coastal issues. These are:
Goal 16: Estuarine Resources,
Goal 17: Coastal Shorelines,
Goal 18: Beaches and Dunes,
Goal 19: Ocean Resources 130
Planning agencies must consider state and federal
regulations, including issues surrounding TMDLs
and impaired waters. In conjunction with other state
departments, DLCD has prepared a Water Quality
Model Code and Guidebook available at http://www.
state’s water permit guide is available at http://www.
In 2005, the Legislature passed Senate Bill 82 that
established the Oregon Task Force on Land Use
Planning known as “The Big Look.” The task force is
charged with studying and making recommendations
to the 2009 Legislature on:
1. Oregon’s land use planning program in meeting
the current and future needs of Oregonians in all
parts of the state;
2. Respective roles and responsibilities of state and
local governments in land use planning; and
3. Land use issues specific to areas inside and outside
urban growth boundaries and the interface
between areas inside and outside urban growth
Among the issues brought to the task force has been
how to better connect the issues of water quality and
quantity with land use decisions.131
According to a 2008 report prepared for the Legislature,
an estimated 2,700 public water systems in
Oregon are subject to regulation under the federal
Safe Drinking Water Act. An estimated 208 publicly
owned wastewater collection/treatment systems serve
the majority of Oregon’s urban centers.132
The estimated combined total cost to repair or replace
antiquated systems or construct improvements
sufficient to come into or maintain compliance with
state and federal regulations for water or wastewater
infrastructure improvement needs exceeds $4.48 billion.
Of that number, state economists estimate that
there is a $1.23 billion gap between what communities
have in local revenues to finance themselves and
the total cost of improvements. For many of Oregon’s
small- to medium-sized communities, the impact on
economic competitiveness of the community will be
Across the country, states and regions are adopting
policies to address climate change. Since 1920 temperatures
have been rising in the Pacific Northwest.
The average annual precipitation has changed, land is
being submerged on the central and northern Oregon
coast, and the snowpack level has declined. Between
1950 and 1995 snowpack in the Cascades decreased
by about 50% and peaked earlier in the year. Changes
in the hydrological system may result in coastal and
river flooding, continued snowpack declines, and
lower summer river flows.133
By the 2040s the average annual temperature is expected
to increase by 4.1º F. This trend is expected to
continue. The Northwest will have drier summers and
wetter winters with more rain and less snow. This will
include great risks for floods in winter and decreased
late-spring and summer streamflows. Storm severity
may increase in Oregon, melt snow packs faster,
cause more flooding, decrease summer streamflows
and yield less water for fish, irrigation, drinking water,
recreation, and pollution abatement.134
A law signed by Governor Kulongoski in 2007 aimed
to reduce greenhouse gas emissions with three goals:
by 2010 to begin reducing gases, by 2020 to achieve
greenhouse gas levels 10% less than 1990 levels, and
by 2050 to achieve greenhouse gas levels 75% below
1990 levels. This bill also established a Global Warming
Commission of 25 members, which is responsible
for meeting the greenhouse gas reduction targets, to
examine cap and trade systems, to develop an educational
strategy and to track impacts on Oregon.135
Oregon belongs to the Western Climate Initiative
(WCI), a regional collaboration launched in February
2007 by the governors of Arizona, California,
New Mexico, Oregon, Washington and two Canadian
provinces to develop strategies to address climate
change. The recommendations from the WCI are
expected in 2009.
Water Supply and Conservation
In 2007, the Legislature funded the Oregon Water
Supply and Conservation Initiative to assess existing
and long-term water supply needs, inventory potential
storage sites, analyze conservation opportunities, calculate
basin yield estimates, and provide grant funding
for community and regional water planning.
In 2008, the Water Conservation, Reuse and Storage
Grant Program, established by Senate Bill 1069,
was designed to fund the qualifying costs of planning
studies that evaluate the feasibility of developing water
conservation, reuse or storage projects. Funding of
$1.6 million is available for grants, with a maximum
award of up to $500,000 for each feasibility study.
As a result of these efforts, new legislation is expected
in 2009 to build on the information gathered from
the work being done at the local level through these
A SNAPSHOT IN TIME
This document outlines the current status of laws and
regulations in Oregon controlling the use and protection
of our waters. It does not intend to provide indepth
information of individual regulations, but rather
a guideline for deeper study of individual issues.
Regional, city and county regulations have not been
discussed in this document. Since laws and regulations
are constantly changing, users are encouraged to
verify information for specific projects.
In developing this report, the study committee has
learned that many regulations overlap, agencies approaches
differ, and goals may sometimes conflict.
For example beneficial uses for water removed from
waterways may conflict with protection of the quality
of a stream. The committee has observed that the
most significant user of water is agriculture for irrigation
and conflicts relating to protecting fish under
the Endangered Species Act are occurring. The study committee has also learned that many decisions are
dependent on the scientific knowledge of our waters.
The demands on agencies are significant and enforcing
regulations is challenging.
After reviewing this document readers should have
a better understanding of water regulation. Based
on this understanding, readers may be better able to
protect our scarce water resources and to participate
in more efficient consumption of Oregon water. Part
two of the report will provide an in-depth discussion
of current water issues and concerns.
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