8009

• UCREFRP Catalog Number: 8009
• Author: Natural Resources Law Center.
• Title: Restoring the Waters.
• USFW Year: 1997.
• USFW - Doc Type: Boulder, CO.
• Copyright Material: YES

Justifying Instream Flows
Water In-place as a "Beneficial Use"
While the entities involved in the transac-
tion must be satisfied with the negotiated
price, most states must also be persuaded
that the instream flow has been put to a
"beneficial use" to protect the rights from
challenge by other water rights holders. A
monitoring and enforcement plan is
needed for each acquisition to assure that
the dedicated water actually remains in the
stream. The proponents of minimum
instream flows must also be able to
determine, by a method acceptable to the
state, whether actual instream public
benefits, such as improved fisheries
habitat, are being achieved. Unfortunately,
fisheries and hydrologic experts do not
always agree on appropriate methods for
demonstrating the links between water
flows and fish populations.
Public Acceptance of Transfers
Attempts to transfer water rights to
instream flow may also face political
opposition. Even when market transfers
between willing buyers and willing sellers
are used as an alternative to regulatory
mechanisms for improving instream flows,
there is still a perception among many in
the agricultural community that this is
simply another scheme to take away
farmers' water rights and "separate water
from the land."
Although the agricultural community
generally views an individual's water right
as a form of private property, when an
individual farmer considers selling or
leasing his right, the water right is viewed
by some as community property. Sur-
rounding farmers become very concerned
about the water leaving the land and going
back instream. In Oregon, this has been so
even though none of the transactions that
the Oregon Water Trust has negotiated to
date have involved taking entire working
farms out of agricultural production. In
the Buck Hollow transaction., ranching
continued with substitute hay; the Sucker
Creek transaction did not involve land
currently being farmed or ranched.
In rural communities, concern about losing
control of irrigation water (and ultimately
of farmland) extends beyond farmers to
other members of the community depen-
dent on the agricultural economy. The
local feed, farm implement and grocery
store owners all share the concern that
transfers of water rights from agricultural
to instream use will cause a decline in the
community's economy, reducing their
income and job opportunities for their
children. These concerns about the future
of rural economies are the major reason
that most of the Trust's transfers have been
temporary lease transactions rather than
permanent acquisitions. The next few
years will be a critical period for the Trust
to build a sense of "trust" among the
water rights holders and rural communities
- to demonstrate that allowing the
market to operate can be beneficial, or at
least not harmful, to all affected interests.
Proposals were introduced
in the 1995 and 1997
Oregon legislative sessions
to repeal the instream
water rights law
completely, and to prevent
the sale of any agricultural
water right to any party
other than another
agricultural interest.
Although these bills were
not adopted, they did
make some headway
through the legislative
process and illustrate the
controversial nature of
water rights transfers for
instream flows.
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