Many Rivers to Cross: An Update on Oregon’s Water Wars
By Real Estate & Land Use Practice Group
SAALFELD GRIGGS PC
It may seem like a conundrum to those of us in the moss- covered valley that there is a Water War brewing in our state; but there is. The Secretary of the Interior just released her 2025 plan that shows five potential “water war sites” in Oregon. Both the Salem and Bend areas are listed as “moderate” war zones. I recently attended a two day seminar on Oregon Water Law, and I left with the distinct feeling that over the next ten years we will see water law shape our growth and economic development policies in a manner similar to the effect land use laws had on those policies in the 1980s and 1990s.
Why do I say this? Well, first, all Oregon rivers and surface waters are over appropriated. That means that there are more water rights granted to Oregon rivers and streams than there is water in them.
Next, eighty percent of Oregon’s water rights are appropriated for agriculture, with municipal and industrial uses making up much of the remaining twenty percent. As agricultural water rights are sold and transferred to cities and environmental organizations, or recaptured by the state for instream flows, I wonder what the long term effect will be on our agricultural economy. In some cases the value of a farmer’s water rights exceeds the value of the land itself.
Another warning is that historical water rights of many cities are being challenged for non-use. In other words, those water rights held in reserve for future urban growth may be lost in some cases. Also, the Endangered Species Act (ESA) is being used to trump cities’ future water rights in favor of instream flow protection of threatened and endangered species. These issues will have a serious impact on future industrial and urban sector growth.
The ESA is also forcing changes in the way we all look at water quality, riparian corridor protection, water temperature management, and instream flows for recreation and species protection. Weekly, if not daily, we read reports of the Klamath Basin confrontation between the Tribes, recreational users, agriculture, and environmental groups. The Klamath Water Wars, such as those of 2001 where armed federal marshals were called in, are far from over.
And, for many of us Central Oregon aficionados the Water Wars come a little closer to our own hearts. Approximately one half of the water used in the Bend area is for golf course irrigation. The City of Bend is facing a public policy stalemate on growth because it is reaching municipal water supply capacity. The city had hoped to find “additional” water by lining the irrigation canals in Deschutes County and appropriating the “saved” water for municipal purposes. However, the plan has been challenged by groups who contend that the water which percolates down from the unlined canals recharges the ground water aquifer. Therefore, the city cannot line the canals because it will damage those aquifers. The Deschutes Water War is just beginning.
In order to avoid your own Water War, I suggest that if you use surface or underground water for other than a domestic well, that you have your water rights certificated by the state. If you have a water right you better use it. Even certificated water rights forfeit to the state if they go unused for 5 years.
Finally, if you are a surface water right holder and you can implement conservation measures, you may be able to sell or lease the “saved” water to an organization for instream flow enhancement.
Most of us enjoy Oregon’s beautiful water ways. They provide us with tremendous aesthetic, recreational, and spiritual values. They are the habitat for threatened and endangered species. Protecting instream flows certainly has a “quality of life” element. As the population of our state grows, there will be even greater need to use water more efficiently and manage the resource for diverse purposes. Keep an eye on this subject. There are “Many Rivers to Cross.”