Rockne Roll / News-Register##Irrigation “guns” watering large fields are common sights in western Oregon during the summer. The massive sprinklers can deliver large amounts of water across hundreds of feet.
Rockne Roll / News-Register##Irrigation “guns” watering large fields are common sights in western Oregon during the summer. The massive sprinklers can deliver large amounts of water across hundreds of feet.
By Nicole Montesano • Staff Writer • 

Water rights a forbidding tangle in the West

Drought is drawing attention throughout the American West this year, partly because the state of California is in crisis. Close to half the state is in exceptional drought, the most acute stage.

The greater parts of eastern Oregon and a significant portion of the coast are in extreme drought along with Hood River county and parts of Multnomah, Clacakamas and Wasco counties, while the rest of the state is in severe drought.

California’s water problems are hiking food prices across the country, and they are far from unique. Farmers are coping with costly water shortfalls in states throughout the West.

The western U.S. has been abnormally dry for the last 15 years, according to state Agricultural Water Resource Specialist Margaret Matter. She said unusually high temperatures are exacerbating the problem.

The summer melting of winter snowfall in the mountains normally supplies half a continent with water. But with the highest winter temperatures in recorded history, most of last winter’s precipitation fell as rain.

Combined with record-setting summer heat, that has caused problems throughout the region. Farmers in Oregon, Montana, Washington and Idaho have watched their crops wither in the heat. And with water supplies in jeopardy, forest fires pose an increasing threat.

Closer to home, things look slightly less dire. But here, too, there are problems, including the same record high temperatures, low river flows and dry soil.

More than half of Oregon snowpacks experienced new record lows last winter. As a result, there’s little snowmelt to boost stream flows.

Water Master Joel Plahn of the Oregon Water Resources Department, who oversees Marion, Polk, Yamhill and Benton counties, said that water restrictions began about two months earlier than usual, because the rivers are so low this year.

By mid-July, Governor Kate Brown had signed drought declarations for 23 of Oregon’s 36 counties, and asked Oregonians to conserve water.

Meanwhile, fish dependent on cold water are suffering massive die-offs. The Oregon Department of Fish and Wildlife, in response, has established unprecedented restrictions on fishing for salmon, steelhead, sturgeon and trout in.


Water law contributes to problems

Water problems come and go in the West, but they never completely disappear. A Byzantine maze of archaic water law has kept jurisdictional fights over access to water more or less constant throughout the region for more than 100 years.

Water law expert Randy Stapilus of Carlton said that stems largely from the fact the quantity of water is considerably more limited in the western U.S. than east of the Rockies.

Stapilus, a former journalist, is the author of “The Water Gates: Water Rights, Water Wars in the 50 States,” published by Ridenbaugh Press in 2010. He also publishes The National Water Rights Digest, a staple for parties enmeshed in the adjudication process.

“In general, there are two main kinds of water regulation,” Stapilus said.

The first, known as riparian doctrine, “tends to occur in Eastern states, places where there’s plenty of water,” he said. Essentially, it accords rights to landowners whose property borders waterways.

“It’s relatively loose and lax, and it works well as long as there’s plenty of water for everyone,” Stapilus said. “When there isn’t, people end up in court.”

The second main type, western water law, is far more tightly regulated.

“People coming into the western states realized from the beginning that there was a lot less water, so they were going to have to find a different way to deal with it,” Stapilus said.

Western water laws date to the days of the California gold rush, and are based in seniority, under a doctrine known as prior appropriation. It is often described as “first in time, first in right.”

That means whoever claimed the water at the earliest date holds the highest priority.

Rights have been passed down, along with property, for more than 100 years. And they retain their seniority.

If there isn’t enough water for the holder of a senior right to draw a full allotment, holders of more junior rights can have their rights cut off. Such restrictions are by no means uncommon, especially in dry years.

Despite the soggy reputation of the Pacific Northwest, Stapilus noted, water is limited even here, particularly during the summer months, when it is most in demand.

In Yamhill County, water restrictions began early this year.

Plahn, the local watermaster, said the first curtailment notices were mailed July 15-18 to the owners of rights to South Yamhill River water issued after Nov. 3, 1983. The notices ordered them to stop drawing water from the river to leave enough for more senior holders.

Farmers depending on those rights for summer irrigation, Plahn said, often have backup systems in place, consisting of either wells or reservoirs holding winter-captured rainwater. Those who have such backups will switch to them, he said.

“But if they have no supplemental source,” Plahn said, they’re off for the season — or until flows return.”

By mid-August, the state was cutting off all rights issued after 1975 for the South Yamhill, and considering the possibililty of additional cuts.


Water rights maintained by regular use

In Oregon, a water right “must be used as provided in the right at least once every five years,” according to the Water Resources Department. “With some exceptions,” it says, “after five consecutive years of non-use, the right is considered forfeited and is subject to cancellation.”

Some rights date back to the early 1900s. They are generally attached to the land where they are assigned, and are transferred with it to new owners.

However, water rights can also be sold separately, a fact that some cities, including McMinnville, are now taking advantage of as they try to ensure supplies for the future.

Although more efforts are now being made, the water conservation group WaterWatch of Oregon notes on its website, “Without WaterWatch, many of Oregon’s rivers and streams would run dry. During key dry months in almost every river basin in the state, there are too many water rights and not enough water to go around. Even in the 21st century, it can be legal in Oregon to drain our rivers until they are bone dry.”

In a June 9 article titled, “Use it or lose it laws worsen western U.S. water woes,” published on the Scientific American website, Abrahm Lustgarten and ProPublica wrote, “The common element of all these laws is the blunt ethos of the West: Water exists mainly in order to get used up, even if that means deepening the problems of neighboring states.”

Even today, more than a century after the system was created, many Western water laws refer to “beneficial use,” by which they usually mean some use other than occupying a river. But there are limited exceptions.

Stapilus noted that an instream water right can also be considered a beneficial use if formally established by the state, generally to protect fish flows. So can water kept in the river to generate hydroelectric power, he said.

Each state operates differently. In cases where a river flows through many states, such as the Colorado, there are networks of user agreements. The complexity, along with fierce opposition from holders of senior water rights, serves to thwart reform efforts.


Oregon water is over-allocated

In Oregon, all water is publicly owned. Water use rights are granted by the state Water Resources Department.

But water is overallocated in many areas, so restrictions are becoming increasingly common.

The state Water Resources Department notes that in many parts of the state, surface water “is no longer available for new uses in summer months” and that “groundwater supplies are also limited in some areas.”

There are now seven sections of the state declared “groundwater critical,” meaning that pumping of groundwater exceeds the long-term natural replenishment of underground reservoirs. There are also 14 “groundwater classified” areas, 12 of them located in the northern Willamette Valley.

These areas restrict new water rights to a few designated uses. They include Parrett Mountain, Chehalem Mountain, Eola Hills and Amity Hills-Walnut Hill in Yamhill County.

Applications for new water rights can be challenged by holders of existing rights and the public.

In 1987, the state Legislature established “instream water rights” for the first time in Oregon, giving the departments of Fish and Wildlife, Environmental Quality and Parks and Recreation the legal ability to retain water in rivers. They must go through the same process as other supplicants, though, and abide by the same seniority-based rights hierarchy.

The law also allows the governor the right to prioritize human and livestock consumption over fish rights, after issuing a drought declaration.


Yamhill River among those over-used

Oregon has authorized users to remove 560 cubic feet per second of water from the South Yamhill River, which frequently fails to sustain that much flow in the first place.

According to a monitoring station near McMinnville, overseen by the U.S. Geological Survey, the river was discharging only 21 cubic feet per second on July 21, and was down to a depth of 10.24 feet at the monitoring point. By early August, it was down to 14 cubic feet per second.

The South Yamhill is a fish-bearing stream considered suitable for salmon.

Accordingly, Plahn said, the state established a right on June 22, 1964, designed to protect the river’s aquatic life.

It calls for maintaining a minimum flow of 20 cubic feet per second at all times. That right, however, is subordinate to more senior rights, and may be overridden by emergency drought declarations.



Nice work on the article, Nicole!

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