The Jan. 25 report on Oregon’s water shortage, released by the Secretary of State’s office, prominently included a cautionary quote from the legendary western explorer John Wesley Powell, delivered in 1893 as the regional approach to water management started to take form:
“I tell you gentlemen you are piling up a heritage of conflict and litigation over water rights, for there is not enough water to supply the land.”
He spoke as though that were a bad thing. Experience across the West shows that it might point to a useful direction for Oregon.
The report, “State Leadership Must Take Action to Protect Water Security for All Oregonians,” points out that despite the national myth that Oregon is water-drenched, most of the state is arid, and even many of the wetter areas – including much of the Willamette Valley – have seen below-average water supplies in recent years. Travelers near the Willamette can see many farms using irrigation more intensively than they once did.
The problems are accumulating: “Many communities are not fully integrated into water decisions and often not even aware there is a problem.” the report stated. “The Oregon Integrated Water Resources Strategy is not clearly connected to state and regional planning efforts and does not have clear implementation pathways. Oregon’s state leadership and agencies do not necessarily share water security priorities. Agencies have distinct areas of focus and limited resources and capacity that limit the ability to engage broadly with communities or work across agency lines. Oregon water data is disaggregated, sometimes incomplete, and not set up to support regional governance needs. … State water regulatory agencies have broad discretion but face external pressures that may hinder them from fully using this discretion to benefit the public.”
Oregon has worked on water planning for half a century, but its basic approach is top-down prescriptive: an attempt to set statewide or basinwide policies intended to address water needs.
The 11 recommendations in the new report, for example, call for “sustain(ing) legislative commitment” and “connect(ing) a regional planning system with an integrated state water plan” and setting up new planning and improving communications, in both government and with the public, on water issues.
An Oregon water framework would include statewide priorities, a statewide water plan, a coordination body, regional and local water plans, and additional regional and local “planning bodies” – a highly complex system that might have a hard time with effective coordination and with clarity.
However helpful these ideas are, they are incomplete. No other western state – and every state from the Great Plains west has significant water challenges – has succeeded in managing water this way. Nearly all emphasize another approach, one already built into Oregon’s water system: administration through the prior appropriations doctrine.
An example (possibly the most successful in the country) can be found next door in Idaho.
Idaho’s available water resources are, in most regions, weaker than Oregon’s, and it has sometimes struggled to deliver water as needed. For decades, the state tensely balanced water demands for its agricultural and hydropower systems (and in smaller amounts for other uses), an arrangement that blew up in 1982 with a state court decision giving primacy to water use by an electric utility. A series of negotiations followed, and the settlement that emerged included an adjudication of all of Idaho’s water in the Snake River system. That covered close to 90% of all the water in Idaho, and the court case that resulted was the largest of its type in the nation’s history.
It was also highly successful. The 28-year adjudication – done at what amounted to light speed in the world of water adjudications – took account of every person and organization seeking to use water in the system, and rationalized who was able to receive what. The court (and administratively, the state Department of Water Resources) bases case-by-case decisions on state law and court precedent, with some leeway to account for specific local conditions and needs. A state water resources board sets overall policy.
Oregon has in place the basis for taking a similar approach. Like other western states, Oregon allows users to obtain water rights under the “prior appropriation” system, in which senior users (“first in time, first in right”) have priority as long as they use the water beneficially. Policy decisions are made based in part on what is considered a beneficial use, and who can claim it, followed by negotiations among the people affected. In some places, fish and wildlife can obtain what amounts to water rights under a trust system, as can recreational and other users.
In limited ways, Oregon already does some of this. A major water adjudication is underway in the Klamath River basin, and much of the rest of the state has been adjudicated at various times. But the results have never been well integrated and have not been developed statewide, a key element to successful state water management.
Oregon can’t, through legislation or regulation, create more water. But it can more clearly articulate how its water should be used. The new advisory report, coupled with case studies from around the regional neighborhood, can show how.
This article originally was published in the Oregon Capital Chronicle.
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