Fresh water is essential to nearly every aspect of our lives. It is also a finite (and shrinking) resource, making decisions about who gets to use water, for what purpose and when, a precarious balancing act between competing interests. Agricultural, municipal, and industrial uses typically remove water from a source in direct competition with public uses, such as recreation, fishing, habitat for fish & wildlife, and aesthetics. Water resource managers must balance public rights against private rights; instream, nonconsumptive rights against offstream, consumptive uses; environmental protections against economic development. Simply put, water rights are complex.
Water usage is broadly divided into eight categories: public supply, self-supplied domestic, irrigation, livestock, aquaculture, industrial, mining, and thermoelectric power. Managing allocation among these categories is essentially a system of risk distribution, aiming to allocate a finite, increasingly scarce, and universally desired resource under principles of equity, predictability, and sustainability.
In the United States, formal water management, i.e. water law, is primarily governed at the state level. Generally, despite the scientific reality that surface water and groundwater are inextricably connected, the American legal system treats surface water and groundwater separately. The distinction is the source of much legal conflict, especially when it comes to wetlands. Check out the recent Sackett v. EPA decision for a recent example of this conflict.
This article focuses on surface water allocation in the U.S., which is generally governed by two legal doctrines: riparian and prior appropriation.
The riparian doctrine is common in eastern states, which are considered water rich. This doctrine promotes shared uses of a water source by landowners adjacent to the source itself. Uses must be reasonable—in other words, the right holder has a right to use the natural flow of a water source so long as that use does not unreasonably harm others’ access. The water right is attached to the land itself and does not have to be used to exist.
The American West, which is considered water scarce, predominantly follows the prior appropriation doctrine. This doctrine is based on the principle of “first in time, first in right,” and water rights are held separately from land ownership. Water must be put to beneficial use and the right can be lost if unused.
A prior appropriation system emphasizes security and transferability of water rights for off-stream and off-site development. This system made sense in arid Western states with vast public lands and limited private ownership, where water needed to be diverted to operations far from the source, such as mining or agriculture.
What does this mean in practice?
When water is scarce and stream flows diminished, junior (newer) water rights are cut off first, while more senior (older) rights are protected for longer. Accordingly, water managers must know who holds a right, when it was established, how much water it allows, where it can be used, and for what purpose.
How does all of this relate to Oregon SB 1153?
In Oregon, all water is publicly owned. To use water, all individuals or entities (with a few exceptions) must obtain a license or permit from the Oregon Water Resources Department (OWRD). This system records the priority of water rights and allows them to be transferred.
Currently, when a water right is transferred (either between users or to a different use), the OWRD does not have to consider environmental impacts—only whether the change would harm existing water rights.
SB 1153 aims to close this loophole. If enacted, it would require the OWRD to consider potential environmental impacts of transfers, specifically whether moving a water diversion point upstream would reduce streamflow and whether relocating a well within a quarter mile of a stream would disrupt flow. These kinds of transfers can significantly impact instream flows, which in turn affects fish populations, water quality, and overall health of a river system.
