Draft nears on major Oregon water use report

Oregon’s Integrated Water Resources Strategy Explores Relationships Between Water and Land Use Regulation
By Michael Gelardi
Davis, Wright & Tremaine LLP
Oregon Law firm

The Oregon Water Resources Department (“WRD”) recently released what WRD hopes will be the final draft of Oregon’s strategy to manage the state’s water resources. The 2009 Oregon Legislature required WRD to develop an “Integrated Water Resources Strategy” (“IWRS”) to protect water quality and ensure adequate water supplies. The IWRS seeks to promote better coordination among the many state agencies and local government units with fragmented authority over water resources. With this effort Oregon joins the majority of other western states that have earlier adopted statewide water plans.

One of the most complex and fragmented issues affecting both water quality and water quantity is land use planning. The IWRS contains several recommendations related to land use regulation and these recommendations have evolved considerably over the three drafts of the IWRS, often moving from the specific to the general. This article explores these land use recommendations.

Use of the Statewide Planning Goals to Protect Water Resources

Oregon’s Statewide Planning Goals are one of the foundations of Oregon’s land use system. The Planning Goals set the state’s land use principles and provide instructions to local governments on how to fulfill the Goals. The December 2011 draft of the IWRS contained two specific recommendations related to the Planning Goals. WRD changed both of these recommendations in its June 2012 draft.

First, the December 2011 draft IWRS recommended tightening restrictions on the conversion of forest land under Goal 4. The June 2012 IWRS draft removes this recommendation. This is interesting because there have been multiple recent efforts to allow greater development in forest zones. For example, a recent legislative earmark and Executive Order have allowed three southern Oregon counties to move forward with an effort to redefine forest lands in these counties.

Second, the December draft recommended additional local land use planning under Goal 5 to protect drinking water, wetlands and riparian corridors. Although the June draft notes that many local governments have not completed planning related to critical groundwater areas and wellhead protection areas, it stops short of recommending additional Goal 5 planning efforts. Rather, the June draft recommends only that local governments “protect water sources in the course of land use decisions.” This change could be significant because local governments are limited in their ability to consider land use impacts to natural resources that are not identified under Goal 5.

The June 2012 IWRS draft also amends another recommendation related to Goal 5 natural resources. The December draft recommended the development of a “state floodplain policy to set the framework for regulation and permitting work.” The June draft mentions that such a policy “could” set this framework, but does not specifically recommend development of a floodplain policy.

State Agency Land Use Coordination

The June IWRS draft contains a new recommendation that state agencies update their State Agency Coordination (“SAC”) policies. SACs generally require state agencies to ensure that their actions are consistent with state and local land use regulations. For example, applicants for state permits are generally required to produce a “Land Use Compatibility Statement” from their local jurisdiction stating that the applicant is in compliance with local land use rules. The SACs outline which agency decisions are relevant to land use regulations and when an agency will seek outside input regarding land use compliance.

It is not clear from the June IWRS why WRD believes the SACs are outdated and what updates WRD believes would be beneficial. The June IWRS draft states only that state agency SACs should keep pace with changes in local comprehensive plans and multiple state agency requirements. Changes in a local comprehensive plan, however, should not affect a state agency’s duty to coordinate with that local government regarding land use compatibility.

Low Impact Development and Green Infrastructure

Both the December and June drafts of the IWRS recommend amending local land use codes to encourage green infrastructure. Green infrastructure and building standards can help conserve water and reduce water pollution from stormwater runoff.

The June IWRS notes that local governments need “strong administrative support and direction” as well as “technical resources and assistance” to develop and implement mechanisms to encourage low impact development. The IWRS nevertheless provides no recommendations on how to support local governments in encouraging green development.

Conclusion

The IWRS identifies a number of important connections between water and land use policies, yet provides only vague suggestions on how to improve these policies. In fact, the June draft reflects a move away from the more specific recommendations in the December version. It is unclear how either the Legislature or the Executive Branch could utilize the IWRS to implement concrete changes to Oregon’s land use system.

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