Water law has outlived its purpose

It has been the law in Oregon for more than a century: The owners of properties with the oldest water rights get water long after those with junior rights have been told to stop irrigating. Has the time come to devise a better system?

Reporter Mark Freeman's story in Sunday's Mail Tribune describes situation in the Evans Creek drainage in this drought year. Above the Wimer covered bridge, only property owners with rights dated 1896 or earlier are getting any water. Downstream from the bridge, the cutoff date is 1902.

On the Little Applegate River, only users with water rights older than 1916 are getting water now.

This practice reflects the doctrine of prior appropriation — the principle that governs water law across the West. East of the Mississippi, the riparian doctrine generally applies, meaning only landowners with water flowing through their property can divert water. In Oregon, water rights are attached to property, but the water may actually flow across a neighboring parcel, with the right holder able to pipe it to his land.

In the beginning, prior appropriation favored pioneers over later arrivals. But water rights transfer to new owners when a property is sold. So today, a new arrival from out of state can purchase a parcel with an 1890 water right, regardless of how many years his neighbors may have been using water, and the senior right prevails.  

Another wrinkle is the problem of over-appropriation. Some streams such as Evans Creek have more water rights attached to them than there is water in the creek. So  most junior water right holders get cut off from diverting water even in normal years.

Sorting all of this out is the job of Jackson County Watermaster Travis Kelly. It's Kelly who knocks on the door and tells junior water right holders they have to stop irrigating.

Kelly stresses that the water law is non-personal: Everyone understands how it works, and his job is to be as equitable as possible.

Still, it would seem that a system could be devised that would recognize the longevity of people living on and farming a property rather than the age of the water right attached to the deed.

Oregon water law does not permit users to waste water, no matter how old their right. And it does require the owner to exercise that right by diverting water on a regular basis or risk having the right canceled for non-use.

But when the same people have been irrigating the same land for four decades — and their families perhaps for a century or more — it's hard to see why it's fair to cut off their supply when someone who recently purchased property with an older right can claim the water first.

Changing this system is not a simple matter, and we don't pretend to have all the answers. But it's a basic matter of fairness, and one that should be addressed.

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