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Water Storage Rights Hit a Snag

  • Jonathan Wood
  • Water markets are an essential tool for promoting efficient use of water and increasing water available for fish and other conservation purposes. For instance, the Tumalo Irrigation District in Oregon plans to upgrade its canals and change how it stores water to improve efficiency. The water saved through these improvements could be restored to streams for the benefit of the Oregon spotted frog and other struggling species, generating income and credits for the district to fund further improvements. Unfortunately, the plan hit a snag: Oregon recently ceased permitting changes to water storage rights.

    According to Capital Press,

    Historically, the Oregon Water Resources Department has permitted the transfer of stored water among reservoirs, as well as the transfer of stored water to instream uses, said Elizabeth Howard, an attorney representing the district. Over the past year or so, however, the agency has ceased approving such requests, seemingly due to a changed legal interpretation by the Oregon Department of Justice, Howard said.

    According to the Oregon Department of Justice, the state’s water law authorizes permits for trades and changes to use rights but not for storage rights, even though the state has previously issued such permits.

    Storage rights play an essential role in western water law. Water is available from rain and snowmelt for only brief periods during the year (or not at all, in cases of drought). Storage makes water accessible when needed. Thus, farmers may store water in the wet spring to water fields in the dry summer.

    But storage isn’t only useful for agriculture. It also plays an important role in conservation, by enabling water to be put back in the stream at key times. When water levels get too low, due to drought or other causes, fish can be stranded or harmed by water overheating. Moving water from upstream storage to downstream storage can increase flows at critical times without sacrificing use rights.

    Such win-win solutions are much easier to achieve in states with nimble water markets than in states that erect excessively bureaucratic processes. Without markets, conflicting demands to water have to be resolved through the political process, which is more costly, less predictable, and prone to exacerbate conflict rather than resolve it.

    Fortunately, Oregon’s problem may prove to be temporary, as the legislature is considering a bill to explicitly authorize water storage trading. So far the bill has garnered the support of water users, conservationists, and state regulators. Indeed, the only criticism seems to be that the bill doesn’t go far enough to guarantee flexibility and increase the role of water markets.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

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