Oregon Carves a Path for Water Transfers in the West

June 12, 2017
Oregon Carves a Path for Water Transfers in the West

SINCE 1971, CRIS Converse and her family have relied on water from Oregon’s Whychus Creek to raise cattle and grow hay. Their Pine Meadow Ranch thrives, in part, because the family’s water rights date back to 1850, assuring access to water virtually without limit.

By the 2000s, however, concern for Oregon’s salmon populations had become a powerful movement. And salmon that had spawned in Whychus Creek for millennia couldn’t get past the Converse family dam.

So Converse agreed to sell part of the family’s water rights to help salmon. And she used the proceeds to purchase a new irrigation system to make the ranch far more water-efficient.

The deal was relatively easy to pull off because Oregon’s water transfer laws are recognized as the best in the West. The state has approved more than 1,900 water transfers since 1987, many engineered to restore streamflow and wildlife.

“I believe in preservation,” Converse said. “It would be cool to see a salmon. What’s more important to me is to have water there. This creek used to go dry in the summertime. I want a volume of water in the creek, and I strongly believe in that.”

According to a recent study by Stanford University’s Water in the West program, Oregon has approved almost twice as many water transfers as Washington, the next most-active state. Every other Western state has approved fewer than 100 transfers in the same 30-year period.

“There are lots of terrific success stories in Oregon … where small tributaries that were dewatered now have water,” said Leon Szeptycki, lead author of the Stanford report. “The real strength of Oregon law is it has a real diversity of tools. Whatever an irrigator’s situation, you can tailor a deal to fit that irrigator’s needs.”

Water transfers can take many forms. Some may be temporary: A farmer fallowing a field for a few years can make money leasing the unused water. Others are permanent, as in Converse’s situation.

Regardless of the term, there is one overarching goal: unlocking water rights from the bureaucracy that confines them in many states, so that water can be more easily shifted where it’s needed in an era of scarcity.

Historically throughout the West, water rights were available on a first-come, first-served basis, starting in the 1850s. By the time many communities were settled, all available streamflow had been parceled out and diverted for farming or new communities, leaving little left in the stream for wildlife.

More recently, changing development patterns have altered things. As farms get parceled out for housing subdivisions, the total water consumption on that tract of land declines, because houses generally use less water than crops. That leaves surplus water that can be leased or sold.

“In some places, growth and development is happening fast enough that water is being freed up,” said Tod Heisler, executive director of the Deschutes River Conservancy. “Around 2005, we started to see a glut of this water.”

The Converse water transfer was completed in 2012. The ranch had an 1850 water right to divert water at 3.2 cubic feet per second from Whychus Creek. It was collected using a small concrete dam upstream within Deschutes National Forest. Then it flowed 2 miles downhill to the ranch in an earthen ditch.

Converse said she became convinced to do the transfer when she learned the ranch was losing nearly one-third of its water right to evaporation and seepage from the ditch.

“So we knew we didn’t need all of our water right,” she said. “And that is the hardest part for people to understand. I understood it, but I had to get my mom to understand it.”

Ultimately, Converse agreed to move her point of diversion downstream to a section of creek adjoining the ranch, and to allow the dam to be torn down. The ranch gave up 1 cubic foot per second of its water right, the same amount previously lost to seepage and evaporation, which was rededicated to instream flow.

In return, environmental groups paid the ranch $400,000. Converse used the money to purchase a modern center-pivot irrigation system, which is far more water-efficient than its previous apparatus.

Oregon’s Instream Water Rights Act, passed in 1987, requires that any water transferred to instream flows retains the seniority of the original water right. That means the water transferred from the Converse ranch to Whychus Creek holds the same 1850 priority it had on the ranch. This makes it very valuable to wildlife, Heisler said, because it becomes an extremely reliable flow.

Demolishing the dam on Whychus Creek also reopened 13 miles of habitat to migratory fish.

“That flow is protected now from diversion by the other water right holders,” Heisler said. “The increased flows have dramatically reduced the temperatures and dramatically increased the macroinvertebrate population – the bugs. So I think we’re going to see fish populations come back very strong.”

Another Oregon law, the Conserved Water Act, holds additional benefits for streams. It requires that when a farmer receives government funds for a water conservation project – such as a subsidy to install efficient drip or microsprinkler systems – at least 25 percent of the conserved water must be given up for instream flows. And once again, this flow retains the original priority right.

Unlike many other states, Oregon also has money available to buy water for instream flows. Some comes from environmental mitigation funds paid by the Bonneville Power Project, the massive system of federal dams that generates hydropower in the Northwest.

WaterWatch of Oregon, a nonprofit group, played a role in writing many of the state’s water transfer laws. The group’s executive director, John DeVoe, said the most important lesson for other states is to create a legal vehicle to protect water that is transferred for instream flows.

“Once you have that, you can create some of these market mechanisms – leasing, purchasing, donating – whatever it is you want to protect the water instream,” DeVoe said. “There should be a way, politically, to move some of this forward in other Western states.”

Transfers also make water a much more flexible commodity for farmers, who hold the vast majority of water rights in the West. If a farmer decides to “fallow the back 40,” as DeVoe put it, he can lease the water that field required as a temporary transfer, helping the stream while earning a little money.

If the farmer decides to get out of the business entirely, a permanent sale of water rights can help pay for retirement or a career switch.

Another Oregon law requires water rights associated with hydropower projects to revert permanently to instream flow if the water goes unused for hydropower generation for five years.

This law joined with a dam-removal project to help restore the Rogue River in 2009. Large water rights attached to the hydropower dams could not be sold and diverted for some other purpose, but had to be dedicated to instream flow.

“This year the Rogue’s Chinook salmon were doing better than most of the populations on the West Coast. You can attribute that to all the instream transfers,” DeVoe said. “We’re seeing salmon spawning where biologists have never seen them spawning before. It’s provided water for the fish, it’s greatly reduced their travel time to get to spawning grounds. I think it’s been quite beneficial.”

Oregon’s system isn’t perfect. For instance, DeVoe said, there have been cases in which transfer laws were used to “park” water rights – and earn money from them – when they probably should be considered abandoned.

In a few cases, DeVoe said, energy companies have used temporary water transfers as a stalling mechanism to protect their water rights while working to develop a new hydropower project.

“I think there’s a fair amount of water that is technically forfeited that is being covered by these instream leases,” he said. “We could use a more robust process.”

Problems with the state budget may also put water transfers at risk. Fee increases adopted in 2013 by the Oregon Water Resources Department to fund its water rights division are set to expire on June 30. If that happens, fees will revert to 2009 levels, requiring the department to lay off five employees.

A bill now before the state legislature, HB 2295, would remove the sunset provision. It would also approve an additional 15.9 percent fee increase to cover cost increases projected through 2021.

In fact, Converse is now helping other ranchers understand the process. She joined the board of directors of the Upper Deschutes Watershed Council, the same group that originally pressed her to give water back to Whychus Creek. She hopes to serve as a voice for agriculture in future watershed restoration efforts.

“It was a really great process,” she said, “and I wanted to help other ranchers understand you can do these things, but you have to do them cautiously and carefully.”

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