SOLUTIONS

Utilizing Water Law

Water rights are primarily matters of state law. Oregon water laws, and the water laws of most states throughout the American West, are based on the doctrine of prior appropriation which is often referred to as "first in time, first in right." Under this doctrine, water rights are issued to irrigate a designated set of acres, with a specific amount of water, diverted from a specific point in a river. Each water right is assigned a "priority date" indicating when the right was first used or applied for. Unfortunately, in many instances more rights have been issued to divert water than there is water in the river, particularly in late summer. The "first in time, first in right" rule of water resource allocation guarantees that those with claim to the oldest water rights in a river system get their water first during times of shortage.

Oregon statutes declare that beneficial use without waste is the "basis, measure and extent of the right to appropriate water". Until the recent passage of the Instream Water Rights Act, only out-of-stream, consumptive uses were recognized as beneficial use; prior to passage of the Act any water left instream was not being put to a beneficial use and was available for appropriation (i.e., to be taken out of the stream). In addition, these water laws did not provide any incentive to conserve water resources. Water is available for free (there is no charge for use of water itself), and there has been little enforcement of the "without waste" requirement. Until passage of the Conserved Water Program law, if a water right holder invested in improvements that increased efficiency, any "saved" water would simply be available to the water right holder with the next priority date free of charge.

Another common feature of the prior appropriation doctrine is that water rights are subject to the use it or lose it rule. Under Oregon law, if a water right is not beneficially used within five years, then the water right holder may lose the right altogether. Until the recent legislative amendments to the state water code, there was no way for a water rights holder to leave water instream for an extended period without risking losing the right. Therefore, water right holders often choose to spread water on a field whether or not it is needed for crops, simply to protect their water right.

In 1987, the Oregon legislature made several changes to the state water code that made it possible for water right holders to voluntarily reallocate some water resources to instream uses to meet environmental needs including protecting aquatic habitat, improving water quality and providing recreational opportunities. These changes, made by the Instream Water Rights Act and the Conserved Water Program, provide the basis for OWT's work.

Instream Water Rights Act - ORS 537.348

In Oregon it was not until 1987 that instream flows were legally recognized as being a beneficial use of water, with passage of the Instream Water Rights Act. The Act provides three ways to create instream rights. The first two ways may be initiated only by state agencies and result in creation of instream water rights with relatively junior priority dates (which means that the water may not remain in the stream if there are others with senior water rights). These two ways are conversion of minimum perennial streamflows adopted under the 1955 Act, and allowing certain state agencies to apply for new instream water rights from 1987 on. The third way, in which OWT specializes, allows private parties to create instream rights by purchasing, leasing, or accepting a donation of existing water rights for conversion to instream rights, with the same priority date as the original right. The older the priority date, the better the chance that the water will remain instream when others on the stream begin irrigating. Of the above three options, acquiring instream water rights with older priority dates is the only means that goes to restoration of streamflows.

The OWT process of Converting Existing Out-of-Stream Water Rights to Instream Flows using the instream water rights act involves negotiating a private agreement with a water right holder, and then applying to Oregon Water Resources Department for approval to transfer the water right to instream use.

Oregon’s Conserved Water Program - ORS 537.455

The 1987 Oregon legislature amended the state's water laws to provide incentives for the first time for water rights holders to conserve water resources by making more efficient use of water. The Conserved Water Program makes it possible for a water user who voluntarily conserves water to retain control over a portion of the saved water. The water user has several options for reallocation of 75% of the saved water, including using it to irrigate additional lands, leasing or selling the water, or dedicating the water to instream use. In exchange for granting the water user the right to reallocate a portion of the saved water, 25% of the conserved water is allocated under the law to the state as an instream water right. To the extent that OWT contributes resources to a conserved water project, we encourage alternatives that increase instream flow to the extent feasible.

Implementing Conserved Water Projects
The Oregon Water Trust has pioneered development of projects under the Conserved Water Program. Most projects involve increasing efficiency of irrigation methods, especially converting from less efficient flood irrigation to more efficient sprinkler irrigation. The landowner has the freedom to determine the fate of 75% of the saved water and 25% becomes an instream water right. Should the landowner choose, all of the saved water could be returned to the stream to augment flow. Project development usually involves the water rights holder, OWT staff and technical consultants, watershed councils and other community groups, and government agency staff.

There may be several phases in the process of implementing a Conserved Water Project including: project design; cost estimates; funding applications; agreement between water rights holder, OWT and other interested parties; and application to Oregon Water Resources Department for approval of project. The application must then go through a four-step process including public notice and comment, OWRD review and determination, project approval and completion, and issuance on new certificates.

Water right holders who voluntarily conserve water may choose to return all or some of their portion of the saved water to instream use. OWT works with parties on a case-by-case basis to design and implement CWPs to enhance streamflows.