Like other western states Oregon has a water department - the Department of Water Resources - and extensive water law and regulation, and there’s a reason for this. Water is an essential resource, our lives depend on it, and ensuring we have water available means regulating it intelligently.
To do that, we need information, and high on the list of data points we depend on is this: Who uses the water - the largest portions of it - and what that means for other water users. You could say that’s a question of essential public interest.
It’s also a question for lawsuits, current Oregon lawsuits that may portend whether we have enough information to manage our water.
In many places around the west (and around Oregon), water use is easy to track. Most western states operate under the prior appropriation doctrine - first in time, first in use - which allows the first person to put a claim for a specific source and amount of water to use, to have priorities over other users. This system of priorities is carefully recorded in public records. A 2015 report from the U.S. Geological Survey relied on that information in estimating, for example, that 42 percent of freshwater withdrawals are used for irrigation agriculture.
But some users of water, who get theirs in subdivision from primary water right holders, aren’t so openly recorded, and these can account for some big water uses.
Last September, a reporter from The Oregonian requested information from the city of The Dalles about how much water the tech giant Google was using at its operations there. The city refused to release the information, saying it amounted to “trade secrets” considered confidential under state law. Residents in the area, including farmers and businesses, have raised questions and expressed concern about how much water Google may be using.
That argument was rejected by the Wasco County district attorney, who reviewed the case and concluded that although a trade secret might be considered confidential, the city hadn’t shown that information about raw water usage qualified; he said the information should be turned over. (The situation was linked to a $28.5 million agreement between the city and Google, so city officials had some interest in the arrangement.) The city of The Dalles fired back with a lawsuit against the Oregonian. The case continues.
This year, another effort to find out who is using scarce water has surfaced at Bend. But while the case at The Dalles centers on information kept by a public agency, the Bend dispute concerns a private company. Maybe.
The Source Weekly newspaper had decided to look into water use in its mostly dry east-of-Cascades area, and said what started out as a basic records request has evolved into an inquiry about oversight for this community's most precious and basic of resources.”
With that in mind, it asked leading water utilities for information (including addresses) about their major water users. In many parts of the state information like that could be gleaned from state water records. The cities of Redmond and Bend complied. (The records turned up many cases of major water leaks that led to water loss and bloated bills.) But Avion Water, which serves about 8,000 households and others in the Bend area by contract, is a privately-held business, placing it typically outside the reach of the state’s public record laws. Avion rejected the request, saying the public records laws didn’t apply to it.
The issue here too went to the county’s district attorney, in this case John Hummel. He took a similar tack as his counterpart to the north, while noting that Avion is a private company. In its article, the Source described his take this way:
“Hummel sided with the Source and ordered that Avion must release the records, because it is ‘the functional equivalent’ of a public body, according to Hummel’s decision, meaning it would be subject to public records laws. To support this, he cited that Avion currently has a franchise agreement with the city of Bend and is regulated by the Oregon Public Utility Commission. He also stated that Avion did not provide enough evidence that the addresses of its customers were exempt from disclosure.”
The DA added, “Because Avion failed to convince me that residential addresses of their water users constitute a type of personally identifiable information … I find that these residential addresses are not exempt from disclosure.”
What a court will make of that is unclear. Many private organizations cearly exempt from public records laws are regulated, as Avion is.
In many areas public oversight of information can be and has been limited when services move from public to private control. Is water a special case - or should we rethink what’s really public and what’s private?