Guest post by James Carver
I’ve worked for over thirty years in the field of water law in the office of the State Engineer and the Water Resources Department. During those years I served as head of the Water Rights Division and later as Deputy State Engineer under Chris Wheeler. I also presided over administrative hearings pertaining to water law for the State Engineer and his successor, the Director of the Water Resources Department.
Around the turn of the 19th century, Oregon saw a need for a system to document water use. Recognizing that an orderly system for recording and prioritizing water rights would be necessary as water uses grew, the legislature, in 1909 adopted Oregon’s first comprehensive water code. The code held priority and beneficial use as the standard for distributing water to growing agricultural and domestic needs.
Over the years, the Oregon legal system has fleshed out the scope of water rights and defined them as property rights akin to land. The Oregon Supreme Court concluded that a perfected water right is a property right and an appurtenance to the real property on which it is used. The legislature has also recognized new practices that satisfy beneficial use. These include leaving water instream to ensure minimum stream flows exist to support various fish species.
Unfortunately, there is now a growing movement to distribute water based on a public benefit analysis without regard to priority. Believers in this new distribution system argue that water rights holders have been given access to public water without a requirement for payment in return. Therefore, they should be subject to losing the water if it is needs for the public good. Since users never “owned†the water, it can be taken from them without compensation. However, there are major drawbacks to such as system.
A water distribution system constantly subject to alterations based on nebulous concepts, such as the public good, will likely result in a great devaluation of land with water rights attached. For example, lending institutions will become more hesitant to finance projects involving water because the water on which the project is based may disappear without compensation if the state decides the public good is better served by taking it.
The doctrine of prior appropriation is well established in Oregon and any departure from the current system may carry with it economic consequences that far outweigh possible benefits gained from applying more water to uses in the public good.
