tl;dr — Water League seeks to assert the Public Trust Doctrine to protect the hydrologic cycle for posterity.
Water League is pressing the state to audit Water rights periodically to ensure the Water use established by Water right certificates is beneficial to the public — that the Water use is not only beneficial to the Water user upon the date they perfect a Water right, but that it is also continuously beneficial to the public (interest) and not an impairment or detriment to the public health, safety, and welfare.
We are also pressing forward with the concept that the public interest is an empirical fact (a posteriori) that can reasonably be understood in all its diversity (qualitatively and quantitatively) through sociology, peer-reviewed science, social ecology, community building, focus groups, polls, and the like. We do not adhere to the a priori assumption that the public interest cannot be known because of its inherent diversity, its shifting characteristics, or because there are so many truths that none exist at all. Claims have been made that the public interest is an unknowable idea in order to obstruct the concept that the beneficial use of Water is in the overall public interest. We question: is the public’s Water being used for the highest and best purposes and are there places where Water use is beneficial to the Water user but not sufficiently beneficial to the public?
We are pressing the state that beneficial use is the most important consideration when deciding to extract Water because it is a compact between the Water users and the public (interest); whereas, prior appropriation is an agreement just between Water users themselves at the Water spigot or creekside where they sort out who among them is first in line to take Water that belongs to the public but find there is not enough for all of them to be fully satisfied.
Water League engages the public in Water stewardship because the Water belongs to them and how Water is used matters to them. In this period of megadrought, increasing Water scarcity, and aridification, we are finding that the public is a silent majority on the topic of the beneficial use of Water.
Water League engages the public in Water stewardship with the following intended outcomes:
1) People evolve their relationship with Water to the extent they experience life as a form of Water and care for Water as they do for themselves and others;
2) Then, with their inspired connection with Water, people act to benefit their health, safety, and welfare as it pertains to Water in them and the environment around them.
Water League believes that the Public Trust Doctrine is an effective way for the public to express their interest. To a lesser extent, Water League works on statutes, agency rules, and policy. Given that the public interest is an empirical set of diverse facts, numerous claims about how to conserve Water are manifold. As such, Water League believes in the abundance model and asserts the many reasons why Oregon should do a better job holding Water in the public trust. Water League believes that the many ways Water scarcity plays out in the various lives and Watersheds throughout the state must reflect the abundant reasons and the manner by which the state holds Water in the public trust.
Through our Water Action Community program, Water League brings the concept of the Public Trust Doctrine and the critiques about Beneficial Use vs. Prior Appropriation to the public. On these issues, we share the ideas of Joseph Sax, Charles Wilkinson, Mary Wood, Mark Squillace, Carol Necole Brown, Richard M. Frank, Frank J. Trelease, William F. Cloran, and others.
We have found that the public is able to embrace these concepts when they view them as a matter of common sense best expressed as being in their (the public) interest. The reason why these ideas have been estranged from the public is that the public interest and the Public Trust Doctrine have been at odds with and exclusive of each other. Why?
First, the definition of the public interest, as it pertains to Water use, has been wrongly understood as each individual working on their own forming a collection of independent interests. The assumption needed to make this definition work is the idea that if a person has an interest, and that person is a member of society, then that individual person’s interest is necessarily in the overall public interest. This is how the state officials view the definition of Beneficial Use of Water: if within a broad range of legal definitions, an individual’s use of Water is beneficial to them, then that Water use is necessarily beneficial to the public, and therefore, in the public interest. Of course, this idea is false because there are many acts people take regarding Water use that is beneficial to them (that is in their interest) but are not beneficial to the overall interest of the public. Indeed, we live in a world full of laws to protect the public interest from the negligence of individuals. Oregon Water law is full of them; however, when it comes to the most important factor, Water use, the worst damage to the ecological assets the public relies on and cares about comes from individuals acting in their own interest at the expense of the public interest.
Second, the Public Trust Doctrine at its core is about the interest the overall public has in the health, welfare, and safety of the world in which they live. The public wants to live in a built and natural environment that is safe and healthy now and in the future. They want the ecology they use to power their economy to persist indefinitely. And the public wants the geologic formations, atmosphere, Water, flora, and fauna to be healthy because humans inherently know their existence depends on the health of the overall environment around them. The Public Trust Doctrine is a 2,000-year-old law that protects the overall public interest in the world in which they live from the negligence of individuals or discreet special interest groups.
When members of the public consider whether certain Water uses are not beneficial to them, and the state stands by and does nothing, they turn to the Public Trust Doctrine for relief.
All Water in the state belongs to the public. All Water use must be simultaneously beneficial to the user and the entire public (or, at the very least, not harm the public or their interests). The state does an insufficient job of holding Water in the public trust; as a result, too much Water use is not beneficial to the public and is not in their interest. At a time of increasing Water scarcity, members of the public wish that the state would do a better job holding Water in their trust; however, many do not have the words to express their concerns. Hence Water League’s mission is to engage the public in Water stewardship.
Water League proposes using the Public Trust Doctrine to protect Water (its abundance and clarity) and its related ecological assets (surface channels and bodies, aquifers, riparian areas, mature forests, etc.) on the grounds that non-beneficial uses harm Water, ecological assets, public, flora, and fauna. This includes surface Water and groundWater.
Water League seeks to protect aquifers, many of which are hydrologically connected to surface Waters that eventually feed into navigable streams. (Reference ELF v. CA Water Board on groundWater and Waiahole Ditch Contested Case in Hawaii; both stand on the connection of groundWater to navigable rivers. The Public Trust Doctrine has traditionally protected public access to navigable rivers.) In Oregon, we wish to protect and defend Wild & Scenic Rivers, state-designated Scenic Waterways, streams subject to the Public Use Doctrine, and even streams with minimum stream flows, many of which eventually flow into navigable Waterways. To put the connection argument succinctly, Water League seeks to apply the Public Trust Doctrine to parts of the hydrologic cycle that range from aquifers to navigable rivers.
Where there is no hydrologic connection with surface Waters, we would push to expand the Public Trust Doctrine to include confined groundWater in areas the state designates as Critical GroundWater Areas. Such designations strongly suggest the value of the ecological assets and the concern the state has for them. We realize this is a heavy lift. In Cherniak v. Brown, the justices said [emphasis added]: “We hold that the public trust doctrine currently encompasses navigable Waters and the submerged and submersible lands underlying those Waters. Although the public trust is capable of expanding to include more natural resources, we do not extend the doctrine to encompass other natural resources at this time.” Water League is very interested in finding out if the courts think hydrologically connected and/ or confined groundWater can be held in trust by the state of Oregon. We think the increasing rate of Water scarcity is a compelling fact to expand the Public Trust Doctrine.
For a theory on the Public Trust Doctrine at play:
The statutory and rulemaking side designating Critical GroundWater Areas (CGWA) and the imposition of Corrective Control Provisions (ORS 537.742) through contested case hearings followed by appeals court challenges is one avenue that can take 5 to 10 years. This process curtails Water use in areas experiencing severe declines in groundWater and is therefore the most politically-charged action the state takes with regard to Water use. To address the inherent weaknesses in the statutory and rulemaking process, we suggest using the Public Trust Doctrine as a simultaneous avenue proceeding concurrently in the courts on the grounds that non-beneficial irrigation use is harming the Water, its assets, the hydrologic cycle, and public interest. As a feature, the science coming out of the statutory and rulemaking CGWA process can be very useful to pressing a Public Trust Doctrine case on the same aquifer because the court case could obtain a lot of high-quality hydrogeologic discovery.
A hybrid option is that the Public Trust Doctrine could also be woven into the CGWA contested case hearings and the subsequent appeals court challenges that will follow the final orders by the state.
We think that balancing the types of Water uses based on their relative beneficence to the public and their surrounding environment is different but still reminiscent of the “clash of values” discussed in the paradigm-shifting Mono Lake case (National Audubon Society v. Superior Court 1983). For example, a municipal or domestic Water right vs. an irrigation right that’s used to irrigate alfalfa for overseas export, grown in a region with declining groundWater, is a “clash of values” that can be resolved by arguing that the particular irrigation right is a non-beneficial use because it is harming the aquifer and surface Waters, both of which are of great value to the public who must also have access to their higher-order domestic and municipal uses. The public does not have to have irrigation Water in areas of water scarcity; that Water use is elective just like a green lawn in the desert. Plus, irrigation in areas of declining water availability is the type of Water use that’s doing all the damage.
There is an irony regarding the Mono Lake reference to the “clash of values:” going forward, the domestic and municipal uses can be protected alongside or because of the Public Trust Doctrine‘s protection of the environmental assets from the malevolence of unreasonable irrigation. (Mono Lake curtailed domestic and municipal uses to balance the needs of the ecology; now the two have formed an alliance.) The Public Trust Doctrine can sustain these ‘higher and better’ uses while protecting the aquifers and surface Water base flows. Here, we see here a “shifting of alliances,” where the interplay and politics between types of Water uses and users include: the domestic and municipal uses, the agricultural uses, and the ecological assets including flora and fauna. What the Public Trust Doctrine does is it looks at the whole system of squabblers through the lens of posterity and then comes down on the side of who needs Water the most right now and what protects Water the most in the future. The fundamental assumption is that since Water is life, lives are at stake and nothing less than the Public Trust Doctrine can assert the necessary sanctimony to cut through the self-interest and get to the public interest (which includes the public’s concerns for ecological conservation and preservation for posterity).
Simply put, Water League seeks to assert the Public Trust Doctrine to protect the hydrologic cycle for posterity.