In Oregon, the water flowing in our rivers and streams belong to the public. However, no law exists to stop private water users from completely draining a stream. For over a century, Oregon has been operating under a water right system known as “prior appropriation”, which gives the first person to use water from a river the legal right to do so forever, regardless of the effect on the river, the environment, or even other water users.
Unfortunately for fish, instream uses did not obtain the right to participate in this water right system until 1987, when WaterWatch pressed the Legislature to adopt an ambitious approach to restoring and protecting streamflows known as the Instream Water Rights Act. The Act set out a two pronged approach to protecting water instream: state natural resource agencies could obtain new instream “water rights” to protect fish and wildlife, water quality and recreation and existing water right holders could transfer their old out-of-stream rights instream—with the “senior” priority date preserved.
The law has had mixed results. While over 1500 new instream water rights have been issued, because these rights are so “junior” in time many are the last to be honored on a stream. So even on streams that have new instream water rights, it can be legal for senior water right holders to drain the last drops from a waterway. On the other hand, the transfer of “old” water irrigation rights instream under the Act has proven a useful restoration tool. These transferred rights can move to the front of the line.
The Deschutes River provides a good example of the strengths and weaknesses of this Act. The Middle Deschutes used to go nearly dry every summer, but now runs at over 150 cubic feet per second due largely to the success of transferring senior irrigation rights instream. On the other hand, the Upper Deschutes, which only enjoys a circa 1987 right, can still be legally drained dry even though its instream water right calls for 300 cfs.
In the upper Deschutes, a broad based group of water interests has come together to try to address the annual dewatering of the stream. WaterWatch is taking part of this effort. If you want to help influence this effort, we encourage you to send in a Letter to the Editor of the Bend Bulletin letting them know how important a healthy Upper Deschutes River is to you. Public opinion is important to this discussion.
As to the rest of Oregon, if you are feeling outrage or dismay at this
recent fish kill, please keep those feelings alive and help weigh in on important water bills during the legislative session. Reforming western water law is critical to the long term health of Oregon’s rivers. This fish kill provides a visceral and heart-wrenching example for the legislative changes that need to occur.
The two above pictures demonstrate the annual ongoing problem on the Deschutes River below Wickiup Dam. The Deschutes hydrograph is upside down - with high flows in the summer and low flows in the winter. The first picture shows flows at 1295 cfs in the summer, the second picture shows flows at 25 cfs in the winter.
Links to media stories:
- Bend Bulletin: Low River Flow Kills Fish
- Bend Source: Low Water Leaves Scores of Fish Dead on Upper Deschutes
- Oregonian: River-level drop kills thousand of fish
- KATU: Thousands of Fish Die as Deschutes River Level Drops
Bend Bulletin Letters to the Editor policy
Letters should be limited to one issue, contain no more than 250 words and include the writer's signature, phone number and address for verification. The Bulletin edits letters for brevity, grammar, taste and legal reasons. The Bulletin rejects poetry, personal attacks, form letters, letters submitted elsewhere and those appropriate for other sections of The Bulletin.
Please address your submission to either My Nickel's Worth or In My View and send, fax or e-mail them to The Bulletin.
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Bend, OR 97708