Conflicting Values in the Water “Sustainability” Debate; By Brian Sheets

Last Wednesday, I had the opportunity to attend a Continuing Legal Education seminar, the topic being “Is Western Water Law Sustainable?’ Over the course of the hour and a half long discussion, we heard the history of the way the prior appropriation doctrine assumed its prominence in the water law of Oregon, and then a two sided argument about how Oregon’s water laws were, or weren’t up to the challenge to deal with issues related to depleted stream flows and decreased water availability.

The main points offered by the proponents of western water law being sustainable were that the laws are evolving to meet changing demands and public values. For example, allowing DEQ, ODFW, and OPRD to apply for in-stream water flows to promote increased water for wildlife, recreation, and pollution abatement. The opponents of western water law had a much more concise point, stating unabashedly that western water law is not sustainable, was the “mother of all train wrecks,” and “ a slow motion disaster.” Besides the hyperbole and fleeting reference to environmental philosophers, a reoccurring point of discussion that came up was how water was a public resource, and yet water users were not being charged to use the water associated with their water rights.

Besides being a directly economically crippling measure aimed at taking cropland out of production, the trickle down effects of charging for water use would be astronomical. Should Oregon be the only western state to impose a “tax,” “user fee,” or whatever label sounds appropriate at the time, locally sourced produce would increase in cost.  Oregon farmers would not be able to compete on a national level with regional or national producers. Would these out of business farmers be able to cover their bank loans after this water-use paradigm shift? Unlikely, so the financial industry would be harmed as well. What about municipalities? Would the municipalities be charged for consuming public water? And where would the costs shift? What about domestic wells? Of course, these are largely rhetorical questions because the answers are obvious: the consumer would face increased costs for “made in Oregon products,” face increased costs of living to reside in Oregon, and contribute to higher transportation activity when cheaper goods from out-of-state are imported. Disposable income would shrink, and the Oregon economy would contract.

What is apparent is that key philosophical differences and values involved in the “sustainability” discussion make a middle ground difficult to achieve, especially with a shared resource like water because nearly everyone has a stake in the decision making process. If we can take an example of conflicting values from history, such as the debate on which theological approach is correct, we have a ways to go to bridge the gap and gain consensus on this important and pressing issue.