Academic journal article Environmental Law

At the Confluence: Oregon's Instream Water Rights Law in Theory and Practice

Academic journal article Environmental Law

At the Confluence: Oregon's Instream Water Rights Law in Theory and Practice

Article excerpt

I.   INTRODUCTION
II.  OREGON WATER LAW: FIRST IN TIME, FIRST IN RIGHT
     A. Instream Water Rights
     B. Nuts and Bolts: On the Ground Regulation of the Right to Use
        Water in Oregon
     C. The Mechanics of Leaving Water Instream
     D. The "No Injury Rule"
        1. The Property Right in Water
        2. Context for Application of the Rule in Oregon: Transfer
           Proceedings
        3. Defining Legal Injury
        4. Contours of the Rule Part I: Legal Definitions of Return
           Flow
        5. Contours of the Rule Part II: Hydrologic Definitions of
           Return Flow
III. OBSTACLES TO INSTREAM FLOW PROTECTION
     A. Practical Limitations
     B. "Creative "Administrative Challenges to Instream Transfers
        1. ENAF Is Enough?: Estimated Average Natural Flow as a
           Ceiling for Instream Rights
        2. Another "Beneficial Use" Ceiling
        3. NOT "Ready, Willing, and Able?". A Creative Application of
            the Forfeiture Law
     C. Formal Opposition to Instream Transfers
        1. Big Trouble on Little Creek: The Water Trust's Contested
           Case Hearing
           a. Regulation of Junior Rights Is Not Legal Injury
           b. Water Right Transfers in Oregon Begin with the
              Presumption that the Entire "Paper" Right is
              Transferable
           c. A Water Right Holder Is Not Entitled to the Undiverted
              Portion of Another Right Holder's Water
           d. Changing the Historic "Shape" of a Water Right Is Not
              Injury If the Change Is Within the Extent Allowable
              Under the Right
           e. Continued "Subirrigation" from Adjacent Lands After an
              Instream Transfer Does Not Constitute Enlargement
           f. Efficiency of a Water User's Conveyance System Is Not
              an Injury Consideration
        2. Imposing the "No Injury Rule" Come Hell or High Water:
           Watermaster Opposition
           a. The Standard for Proving Return How Requires More
              Than Mere Speculation
           b. Timing of Return Flow Must be Taken into Account
           c. Instream Applicants Should Pay Close Attention to
              Irrigation Season Limitations
           d. Return Flow Entering the River at a Point Above a
              Downstream Junior's POD Should be Subtracted to the
              Extent of Potential Injury

IV.  ACHIEVING STREAMFLOW PROTECTION BY MODELING SUCCESS
     A. A Measurement Model: Washington's Measurement
        Requirement
     B. Austin Ranch: Changing Use Without Risk of Injury
     C. Private, Market Solutions on the Lostine River
V.   RECOMMENDATIONS FOR THE FUTURE
     A. First-Tier Recommendations
        1. Enact a Comprehensive Measurement Requirement
        2. Treat Instream Transfers Equally with Consumptive Uses
           in Transfer Proceedings
     B. Second-Tier Recommendations
        1. Strive for Creative Solutions Within the Existing Legal and
           Regulatory Regime
        2. Look for Private Solutions
VI.  CONCLUSION

I. INTRODUCTION

This Comment explores streamflow protection issues as they intersect and conflict with existing water regulation practice in the state of Oregon. Numerous factors make the protection of streamflows for ecological benefit difficult. These factors include: the practical limitations of managing a complex and unpredictable natural system; the administrative reluctance stemming from local opposition to non-consumptive uses and years of enforcing the status quo; and the formal, legal opposition on the part of those who fear that protecting streamflows will interfere with their own rights. The difficulties represent not only conscious choices but inhere in the antiquated doctrines of Western water law. This Comment explores particular impediments to streamflow protection raised by the prohibition against legal injury to others' water rights. …

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