Public Rights vs. Private Rights with water


An article in the Nov. 9 Bulletin reported that due to low water reserves, the Bureau of Reclamation that controls water release from Prineville Reservoir might limit flows in the Crooked River to preserve water for irrigators to the detriment of fish and the Crooked River’s aquatic ecosystem.
A number of other recent commentaries have championed agriculture and their use of water for irrigation.

These articles fail to ask a fundamental question.

Why are irrigators allowed to dewater our rivers, destroy aquatic ecosystems and potentially kill thousands of fish with impunity?

If a fisherman were to keep one extra fish, he/she would be fined, but irrigators kill tens of thousands of fish and fish dependent wildlife (from mink and otters to bald eagles and osprey) with no consequences?

In addition to the loss of fish and wildlife, irrigation withdrawals contribute to substantial water pollution including greater sedimentation in the river and higher water temperatures, not to mention significant channel modification and loss of riparian vegetation. All of this without any legal consequences or even public condemnation.

To add insult to injury, Sen. Jeff Merkley, D-Ore., has obtained $30 million of our taxpayer money to pay for the piping of leaky Ag irrigation ditches that enhances the property values of irrigators and the irrigation district—at public expense to mitigate some of the irrigation impacts to the Deschutes River.

Such solutions are like suggesting that taxpayers should pay to install scrubbers on coal-fired power plants to reduce air pollution rather than having the people buying power from the utility pay for pollution reduction.

Just as the air is a public resource that no one owns, and thus no one has a “right” to pollute the air, our waterways are also public resources that no one owns.

There is no such thing as a “water right” to pollute and degrade our rivers.

Since 1869 the Oregon Supreme Court has recognized that water is a public resource.

In 1918, Oregon became one of the first states to recognize recreation as commerce protected under the public navigation easement.

A law review published in Environmental Review concluded: “Although the state can authorize private rights in those resources (water), all private rights are subject to the state’s sovereign ownership — a public easement — requiring the state to maintain these resources as trustee for the public.”

Translation — the state has a legal obligation to protect our rivers on behalf of all citizens for fisheries, recreation and other values.

Though economics is not a legal criterion for protecting the public’s resources, keeping water in the river has a higher economic value to the region’s economy than using that water for irrigation.

Ag interests continuously inflate their economic value in order to garner support for subsidies. But in reality, Ag provides minimal economic benefit to our region.

For instance, according to Headwaters Economics, all agriculture (and irrigated Ag is a subset of this) contributed to only 1.2 percent of the nongovernmental income of Deschutes County, while Travel and Tourism accounted for 21.7 percent of income.

This figure does not account for the income of 43.2 percent of people who do not depend on the local economy for their income but who live or have moved to Deschutes County attracted by the natural environment including outdoor recreation.

Because none of the proposed solutions ever consider eliminating irrigated agriculture, they can never indeed “fix” the problem. We will still have unnatural flows in our rivers and less than a healthy aquatic ecosystem.

In the end, we need to restart discussions from the perspective that restoring and maintaining healthy river ecosystems is a higher priority than the private use of our water to irrigate fields of hay or pasture.

Not only is this a wise ecological and economical pathway, but it is also an ethical pathway into the future.


  1. Michael A. Lewis, PhD Avatar

    Thanks for these articles about the ethics (or lack thereof) of standard land management assumptions. They really focus the light of reason on these unethical and ultimately self-destructive practices.

    Though we have staked our line of no compromise, we are increasingly surrounded by the clear cuts and fire roads of development interests. Yet we must make our stand and die with the sure knowledge that we did not give in to the destruction of the natural world, the good Earth.

  2. MAD Avatar

    Unfortunately, most all states west of the Mississippi River have water rights laws that are based on the prior appropriation doctrine – which basically says, “first in time, first in right.” So, farmer A has a permit for X amount of water from a source (river, stream, whatever). Farmer A has the oldest filed right and therefore can receive his full allocation to the detriment of all other later filed rights. This goes down the line from one right holder to the next.

    Although theoretically, public lands and resources are held in trust for the general public, and there is an affirmative duty on the Government to protect it for all, very rarely do courts hold governments to any level of accountability and it’s all tainted by politics and the wink and a nod system.

    This publication by the state is a good overview of the madness.

  3. idaursine Avatar

    The ESA 45 years later:

    “When you ask most people, they value the fact that our rivers don’t catch on fire, that we have wildlife, that we have these iconic landscapes that define us… but that doesn’t come without thinking about it—and choosing to value it,” Greenberger says. “On this anniversary, “we have to decide what kind of legacy we want to continue into the next 45 years.””

    1. MAD Avatar

      Having grown up on the East coast, I think it’s fair to say more left and right coast people are in tune with the ESA and other protective laws like the Clean Water Act, Clean Air Act, etc. unfortunately, after relocating to Montana and traveling through the west for the last 20 years I have come to realize that many out here do not agree with these laws or their concepts.

      This is exemplified by States slaughtering bison who leave Yellowstone – even though elk transmit the disease; poachers killing wolves from New Mexico to our Canadian border, and the mindset of agricultural and extractive industry is the best for people.

      In regard to the particular water issues discussed above, I wasn’t aware the water regulation was impacting a listed species under the ESA. If it did, it would trigger a NEPA analysis, a preliminary EA and the Feds would weigh in on it. Probably the same results in the end, but different process than just local or state action-regulation.

      1. Nancy Avatar

        “In the end, we need to restart discussions from the perspective that restoring and maintaining healthy river ecosystems is a higher priority than the private use of our water to irrigate fields of hay or pasture”

        Just looked over a plan that was adopted 20 years ago for the valley I live in (with a great creek running through it who’s primary use is for hay field irrigation) and what stood out was the need to protect agriculture:

        *Discourage future industrial development due to its incompatibility with rural agricultural areas.

        *Adopt a countywide ordinance that provides an explicit statement of Right To Farm protections.

        This is pretty typical for the entire county.

        1. MAD Avatar

          Don’t misinterpret me – I do not ascribe to the legal theory or prior appropriation as being valid in today’s world. With our increasing knowledge of ecosystem connectivity and the availability of options for agriculture and food sources, I believe there should be wholesale change in the regulatory scheme toward conservation & preservation, rather than exploitation for individual profit.

          I’m not optimistic it will ever happen in my lifetime (or at all) in Montana, Wyoming, and Idaho.

          1. Nancy Avatar

            “I believe there should be wholesale change in the regulatory scheme toward conservation & preservation, rather than exploitation for individual profit”

            And I’m in total agreement, MAD but like you, not optimistic it will ever happen in my lifetime either.

            Right now I’m a bit confused (and dismayed) about the increased destruction of sagebrush steeps in my area and it’s taking place on private ranch lands. Land that for decades, was grazed but at the same time subsidized, if left in a natural state (sagebrush steeps)

            It appears the dynamics have changed in some minds looking to profit
            even though the landscape hasn’t but fact is wildlife habitat is going to pay the price.

            A good read:



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George Wuerthner