Privatizing the Job of Water Trustee

An open letter to Oregon state officials who are the fiduciary trustees of Oregon water that belongs to the public:

May 15, 2023

Greetings:

In our continuing effort to be of assistance to our state legislators, agencies, and the people of Oregon, we submit our response to the Legislative Counsel’s position on the interpretation of Oregon Water Resources Department (OWRD) rules about “whether irrigation of a crop grown illegally—at an illegal cannabis operation, for example—may constitute a “beneficial use” for purposes of relevant Oregon water laws and rules.” Representative Pam Marsh asked the Legislative Counsel (LC) to look into this question on behalf of Water League following our August 17, 2022, letter to her and others asserting that “the spirit of HB 4061 strongly suggests that using water from a municipal water right to irrigate illegal cannabis crops is not a beneficial use of the public’s water.” Water League sent this response to express our concern about the July 6, 2022, OWRD claim: “It is not a misallocation of a permitted water right to water a non-registered cannabis site.”

We believe that such a policy position by the OWRD is prima facie evidence of a failure to fulfill its function to hold water in the public trust. While this specific statement does not broadly represent the state’s legislative and legal position on its responsibility to hold water in the public trust, it does represent an ongoing pattern of neglect we believe the state legislature and OWRD’s regulatory function must address and correct.

First, we address the OWRD’s interpretation of the beneficial use statutes and agency rules that the LC defends. We incorporate a reference to the Water Resources Commission when we refer to the OWRD in this letter.

The LC’s position begins in paragraph seven and continues through paragraph ten of the opinion, following introductory statements and a few citations from ORS Chapters 536, 537, and 540.

In paragraph seven, the LC writes:

“…I would imagine that an application for a water right permit or water right certificate does not specify, and is not required to specify, the growth of any particular crop, which may change over the course of years or even during a growing season.“

The LC speculates that if there were a way to regulate which crops could or could not get wetted, it would be by tailoring the water right in a more specific manner. While the state approves water rights for Cranberry Use and issues Limited Licenses to establish hazelnut trees and restore riparian areas, we agree that tailoring tens of thousands of existing water right certificates in this manner is unreasonable.

A water right is not the repository for the values that shape the public interest, nor for what may be the changing rules and laws that say what a beneficial use of water is. A water right certificate is a fictional spigot various persons can hold so they may use water that belongs to the public. The usufructuary right may only be exercised if two criteria are met: 1) the water use is beneficial to the user, and 2) the water use is beneficial to the general public (or at least not a detriment to the public). Both criteria must be met for the water use to be in the public interest. Our position derives from an understanding that the actual beneficial use of the water and the water right certificate are distinct.

We understand that a water right certificate authorizes beneficial use. As a separate “thing” (res) from a water right, beneficial use can be defined and identified before and after the existence of any water right. In Oregon’s early legal landscape, population and economic growth was the benefit sought. What is beneficent is a judgment that has and must change over time per the public interest and environmental conditions that impact their health, safety, and welfare.

The LC speculation on specifying individual water right certificates would require conflating the water use established by the water right and the actual beneficial (or non-beneficial) use of that water. Since the latter is separate from the former, the conceptualization, discussion, and regulation of beneficial use can happen outside all water right certificates. Fort Vannoy Irrigation v. Water Resources, 345 Or. 56, 188 P.3d 277 (Or. 2008) described this problem by referring to how ORS 540.520(8) treats “‘beneficial use’ and the ‘water use [established by a water right certificate]’ as distinct from one another; the former is authorized by the latter.” Three more provisions clarify the distinction between “the right to use water established by a water right certificate” and the “ownership interest in the use of the water provided under the certificate.”

The conceptual use of water established by a water right (dry) is like a Platonic Ideal Form separate from the material world of (wet) water that has several characteristics, including its place of use, point of diversion, what the water will do, the time when it may be used, how much and how fast it may or must flow, and so forth. A vested water right certificate only empowers the holder so long as the actual beneficial use of the water and the other material terms of the certificate persist. In Fort Vannoy, this relationship between idea and reality was manifest in the trust relationship between the irrigation district and the beneficial user, Ken-Wal. The distinction between the “water use [established by a water right certificate] and beneficial use” is as real as the legal contest between the respondents and petitioners in Fort Vannoy.

The environment or public opinion may impact the water use authorized by a water right certificate; evidence of the former is in many water right transfers, and of the latter, in municipal water rights limited by HB 4061. It is the intent of water resources legislation and OWRD rules to apply both a legal and beneficial (to the public) use standard statewide.

The concept of water right transfers suggests that the immutability of the “water use [established by a water right certificate]” does not necessitate similar immutability in the actual beneficial use of water authorized by a water right certificate. The former is a legal fiction with a long precedent that the OWRD should not cancel a water right certificate except in rare circumstances. The latter is material, and the terms change as needed by water right transfers to maintain the sanctity and relevance of the former. In some instances, the material aspects authorized by water right certificates mutate to keep the water right certificate alive; they keep it from becoming subject to cancellation.

Applicants for new water rights and transfers usually request the terms they wish to see authorized by water right certificates; ultimately, the OWRD sets the terms. We contend that legislators and the courts can change those terms at any time while any or all water right certificates remain in force because these terms are distinct from the water right certificate.

For example, the state legislature could sever from existing water right certificates various non-beneficial irrigation activities, such as wetting illegally grown cannabis plants or noxious weeds at commercial nurseries in the same way the state already outlaws wetting bare soil to make plowing and tilling easier. The lawmakers could clamp down on the so-called inadvertent irrigation of noxious weeds and invasive species that is rampant on farmlands throughout the state because this non-beneficial use of water causes harm to the ecology and economy and unreasonably wastes the public’s water.

The failure to clamp down on waste and non-beneficial uses constitutes negligence as concerns the state government’s obligation as trustee of the public water. The concept of what is and is not a beneficial use of water that belongs to the public is a matter of public interest. In the same way that OWRD can designate Critical Groundwater Areas and impose Corrective Control Provisions under ORS 537.535, 537.742, and OAR 690-010, the state legislature, OWRD, and judges can also choose to limit, or delegate the limiting of, what plant types can and cannot be wetted. State officials control what water rights can and cannot do far away from the physical location of water rights by order, statute, rule, and precedent. The OWRD processes applications for water right transfers, holds contested case hearings, and cancels water right certificates in offices and hearing rooms.

The next step in our response is to examine how the legislature has set up limitations on existing municipal water rights by statute, as it most recently did with HB 4061.

First, some context on the way the OWRD uses the definitions. The OWRD can elaborate on the types of water uses defined in OAR 690-300-0010. As with many definitions, there are already sub-types of uses referenced in the statutes and rules. For example, the LC quotes irrigation examples, which “include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course, play field or vineyard and alkali abatement.” Also note that the OWRD chose to permit water use for alkali abatement (mostly in areas where farmers wish to grow crops in the deserts east of the Cascades, such as Harney County) but not for plowing and tilling anywhere in the state. We believe differentiating among traditional agricultural processes is possible and necessary when the public interest is at stake.

Oregon, through its legislature and delegated rule-making agencies, has the inherent right to act for the public welfare. Water use for illegal crops and crops that pose or create actual threats to natural resources and communities, we believe, can be severed from all water rights by legislators and courts. In OAR 690-300-0010, a park, golf course, and play field refer to grass; a vineyard refers to grapes; a tree farm refers to Christmas trees (mainly), and an orchard refers to various fruits and nuts. Why does the rule include such specific examples of plant types in the definition of “irrigation” if not to exercise the protection of public water? If it were to assist farmers in better understanding the concept of irrigation (which they hardly need a lesson on), then the legislative function of the state should also include, by logical extension, specificity on what cannot be irrigated, such as noxious weeds, unlicensed cannabis, and perhaps even water-thirsty crops grown in Groundwater Restricted Areas and basins subject to statutory limitations set by Scenic Waterways.

The LC wrote:

“Also, as a practical matter, having the department track and verify all the crops to which permitted or certificated water is applied, or verify ongoing compliance with laws other than the water laws, would be a substantial administrative task that currently does not appear to be contemplated in statute.“

We suggest the use of restrictive listing rather than permissive listing to overcome such an administrative task. That said, the ability to track plants based on plant type is already established. Plant tracking occurs with the categorization and enforcement against noxious weeds and invasive species across the state. The state and federal Departments of Agriculture track crops, the acres, and the water use for those crops throughout the state. Law enforcement tracks and shuts down unlicensed cannabis operations. And HB 4061 limits water deliveries and enforces increased water theft penalties and fines based on plant type and legal status, both of which require tracking and verification.

Suggesting that the OWRD would endure a substantial administrative task as the reason for not outlawing water use on certain plant types implies that the legislature and courts cannot reasonably outlaw certain activities. Not only does that lower the bar for the level of competence at the OWRD (which has seen a significant expansion in personnel in 2022), but it also casts aspersions on partnering agencies such as the OLCC, ODA, OSP, and county sheriffs.

Why can HB 4061 Section 6(6)(a) increase the penalties and fines for irrigating unlicensed cannabis plants without a water right separately from all other plant types, but as a practical matter, the OWRD and other state agencies cannot enforce a law that prohibits irrigating certain plant types with a water right?

We contend that there is no reason why Oregon and its agencies cannot contemplate and enforce a law that says people may not irrigate certain plant types, legal or illegal, with or without a water right, in areas where groundwater is in decline, or where Scenic Waterway flows are measurably reduced, or wherever degradation of the public’s water has reached a threshold that impairs or is a detriment to the public health, safety, and welfare.

We do not share the LC’s conclusion on the following court outcome or the relevance of the “rule” that: (emphasis added):

“…a court likely would decide that the department’s interpretation of the relevant rule is reasonable, and that irrigation of a crop may constitute a “beneficial use,” regardless of whether cultivation of the crop is lawful under laws other than the water laws.“

That the LC believes a court would consider water use beneficial when such water use is the most important factor in the commission of a crime suggests a serious disconnect between the public interest and the fiduciary duty state officials have holding water in trust for the public. The further implication is that a court would find HB 4061 unlawful.

Legislators passed HB 4061, making the conveyance of water from a municipal water right to unlicensed cannabis grow sites unlawful, aware of the Attorney General’s opinion from 1993 that says:

A water right for municipal use is distinguished by the fact that the water is delivered through a municipal water system, not by the ultimate use of the water, so long as that ultimate use falls within the wide range of uses designated as ‘usual and ordinary.’ 

HB 4061 got right to the heart of what a municipal water right is all about: delivery. It changed what a municipality could and could not deliver; meanwhile, the rest of the aspects of the water right carried on. The “type of plant” figures prominently in Section 2(E) of HB 4061 regarding the beneficial use determination of whether a public water supplier may deliver municipal water to unlicensed cannabis sites. HB 4061 assumes that water deliveries to unlicensed cannabis sites can be severed from municipal use because it is not “usual and ordinary” to grow an illegal crop with municipal water (the Attorney General’s opinion from 1993). It is not a beneficial use of the public’s water, and the existence of the municipal water right certificate is not only unhurt by the severance, it is also better able to serve the public interest.

There was a previous time when making such deliveries was allowed, but when the public outcry called for the legislators to make them stop, they intervened and stopped the deliveries. Legislators acted in the public interest under their fiduciary duty to hold water in the public trust. And they did so because public values and sentiments were observed and observable. We think the courts would agree. In fact, we believe that plant propagation does not have to be heavily regulated by the OLCC, ODA, or OHA to pose a risk to the public insofar as water delivery and irrigation are concerned.

Given that water delivery is the unique and primary characteristic of a municipal water right, prohibiting delivery to a location based on plant type is the same as prohibiting irrigation based on a plant type. We believe this is a justified comparison and that legislators, the OWRD, and the courts can sever irrigation to certain plant types by taxonomic or legal classification when it is demonstrably in the public interest to hold water in the public trust.

We now move on to whether the term beneficial use has meaning, and if so, to what extent the OWRD and legislators acknowledge beneficial use.

The LC states: “Under Oregon law, the term “beneficial use” is not defined but at least includes irrigation. ORS 537.170(8)(a).” While an explicit statutory definition is long overdue, we contend that the functional meaning of “beneficial use” in statutes is implicitly defined throughout the water code because the meaning is not just about what water can wet, but what water means to people, what water’s value is to the public, what water does in terms of work, and how the beneficial use of water contributes to the health, safety, and welfare of the public.

In ORS 537.170(8)(a), the OWRD director or commission must consider “any other beneficial use to which the water may be applied for which it may have a special value to the public.” Public values are known and empirically knowable; they form the basis of the public interest for which all laws are written. As such, the values contribute to a legal understanding based on the usage of the elements of beneficial use.

ORS 537.170(8) goes on to say that beneficial use also means (b) “The maximum economic development of the waters involved,” which includes non-human uses such as in-stream flows on which economists place value. Provision (c) refers to “The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control.” The public values water quality maintenance; therefore, it is a beneficial use. We also know from provision (e) what is meant by preventing non-beneficial uses; specifically “wasteful, uneconomic, impracticable or unreasonable use of the waters involved.”

We also know from ORS 537.332 that public uses, such as navigation, pollution abatement, and “conservation, maintenance and enhancement of aquatic and fish life, wildlife, fish and wildlife habitat and any other ecological values” are beneficial uses of water. ORS 537.531 states: “The Legislative Assembly declares that aquifer storage and recovery is a beneficial use inherent in all water rights for other beneficial uses.” This statute says that such conservation is a beneficial use; as such, it is a public value that shapes public interest. In ORS 540.610(1), Oregon declares: “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state.”

We know that the water code requires the “most beneficial use,” the “maximum beneficial use,” and the “highest and best uses” of water. These gradients strongly suggest that there is a hierarchy contemplated among the various water-use categories, a continuum of what beneficial use means as it pertains to the public interest. For example, ORS 537.142(2) says: “The use of water for a salmon and trout enhancement project…is a beneficial use… whether or not the project is located on waters of this state for which the use is restricted.” The statute lists all the protected waters that this particular beneficial use does not need to avoid, presumably because of its “most beneficial use” status. ORS 537.525(5) declares that “Adequate and safe supplies of ground water for human consumption be assured, while conserving maximum supplies of ground water for agricultural, commercial, industrial, thermal, recreational and other beneficial uses.”

ORS 536.310 says as much in its preferences, saying in provision (1) [emphasis added] that “existing rights, established duties of water, and relative priorities concerning the use of the waters of this state and the laws governing the same are to be protected and preserved subject to the principle that all of the waters within this state belong to the public for use by the people for beneficial purposes without waste.” ORS 536.220(1)(b) calls for an integrated water resources strategy “designed to encourage, promote and secure the maximum beneficial use and control of such water resources.” Provision (c) refers to the “confusion as to what is primary and what is secondary beneficial use or control of such water resources.” Provision (2)(a) says that the state agency “shall give proper and adequate consideration to the multiple aspects of the beneficial use and control of such water resources with an impartiality of interest except that designed to best protect and promote the public welfare generally.” It is significant that this last provision clearly states that the public welfare interrupts the impartiality of interest given to the multiple aspects of beneficial use. Following this public interest standard comes ORS 536.340, which seeks to ensure the classification of water as to highest and best use in each basin.

Beneficial use is a doctrine embedded in law because water scarcity is a fact of the region west of the 100th meridian. We do not have enough water to waste or use in the commission of a crime or on other activities that are not in the public interest. ORS 536.310(1) defines the underlying principle “that all the waters within this State belong to the public for use by the people for beneficial purposes without waste.”

Importantly, ORS 536.320(1) says the Water Resources Commission shall not have the power “to modify, set aside or alter any existing right to use water or the priority of such use established under existing laws.” We believe this to be a statement of non-retroactivity necessary for the orderly administration of the law and a reference to rights that existed at the time that Chapter 536 became law and established the Commission’s powers and limitations. This statute reserves the modification and altering of water rights for legislators and judges, whether the changes be in the character (e.g. HB 4061) or rate and duty (e.g. ORS 537.742).

We now move on to our concern that the OWRD incorrectly uses “seniority” to provide political cover for a separate but equal stance on the various beneficial uses of water.

While the court in Phillips v. Gardner, 2 Or. App. 423, 469 P.2d 42 (Or. Ct. App. 1970) uses prior appropriation to settle the contest between local water users when local surface waters run low, we believe it is wrong to broadly rely on seniority beyond this limited ruling to excuse a disregard for well-established water use principles and the public interest regarding consumable drinking water, aquifer protection, and in-stream flows.

While Phillips ruled that the 1909 Water Act asserted the primacy of the doctrine of prior appropriation over the 1893 statute, ORS 540.140, which declared water use preferences, it did so, stating that “Priorities are meaningful only in times of shortage.” According to this ruling, prior appropriation settles the contest between local water users when local surface waters run low, and only applies to settling the scores between water users. This is not a ruling that settles the score between water users and the public interest.

Unlike prior appropriation, the beneficial use doctrine settles the score between water users and the public. Beneficial use is constantly relevant all year long, decade after decade, across all of the West, and it must have primacy over water use decisions (both management and governance) commensurate with the increasing water scarcity and multi-factor aridification impacting both surface waters and groundwater generally. While prior appropriation addresses short-term localized water availability among a few people, beneficial use applies to everyone all at once with a general concern for posterity.

State officials misconstrue the prior appropriation doctrine by applying it beyond the determination of who can use water when supplies run low at a particular locale. By doing so, state officials promote the idea that getting to the river or spigot first is more important (beneficial) than the actual use of the water. We contend this erroneous water use policy is a serious detriment to the general public. State officials have improperly imbued prior appropriation with the powers that properly reside in and belong to the beneficial use doctrine. 

This impropriety is the mechanism whereby the OWRD systematically over-appropriated streams and aquifers for decades and then declined to periodically audit the water use established by tens of thousands of water right certificates. It is also how and why the OWRD and LC find themselves in the untenable and unwholesome position of defending, theoretically, non-beneficial water use by organized crime syndicates who irrigate their illegal cannabis with certified water rights. In the Illinois Valley, Josephine County, non-beneficial water use is a leading aggravating factor worsening the negative impacts of water scarcity, drought, and aridification. Water theft and the misuse of water rights are a detriment to the public health, safety, and welfare. We request an end to the laissez-faire attitude toward water misuse and waste by a public trust agency.

Most laws restrict the individual liberty of one to act when others may be harmed. It is not always the case that what may benefit one necessarily benefits all, but there may be times when a sole or minority beneficiary does not impair the public and is permitted to operate. We are concerned about water use that is detrimental to the public interest insofar as it can reasonably be understood by state agencies, legislators, and the public. Even if there were unlimited amounts of water in Oregon and water scarcity was not a concern, using a water right certificate to justify water use in the commission of a crime is not a public value. And, because increasing water scarcity is a fact, public values are changing about irrigating water-thirsty crops in regions where surface water or groundwater levels are in decline. We have become aware that such profligacy is not valued by the public and is not in the public interest, especially when agricultural products result in virtual water exports.

Scholarship on the tension between the doctrine of prior appropriation and the doctrine of beneficial use has a long history related to the public interest. This debate has become more acute in recent times due to increasing water scarcity. In 2022, the Nevada Supreme Court undermined the doctrine of prior appropriation by contemplating water cuts across the board among irrigators. The U.S. federal government may do the same to protect the health, safety, and welfare of residents in Arizona cities whose livelihoods rely on Colorado River water. The argument against prior appropriation has always critiqued the bracing inequity of the doctrine. The idea seniority may justifiably prevent access to water that other humans need to live is coming to an end.

Oregon’s water code is clear on the quid pro quo that if the public is going to give certain individuals usufructuary rights to use water that no one person may own because it belongs to everyone, then that water use must be, in the most general and specific terms, in the public interest. Minimizing beneficial use in the statutes has the side effect of setting up the argument that the water code does not play much of a role in enforcing the beneficial use of water. To press this point, the LC implies that such a job falls to one lonely rule, OAR 690-300-0010 (5), and suggests the rule cannot bind enforcement of laws outside the water code.

The purpose of agency rules, which have the force of law, is to clarify the statutes and assist in the implementation and enforcement of the statutes. When faced with the wide-ranging ways the statutes describe, define, elucidate, and expound on the meaning of beneficial use, the Water Resource Commission adopted a rule that is a simple and direct definition of beneficial use, the plain reading of which is no mystery. The LC cites OAR 690-300-0010(5), the meaning of beneficial use, as “the reasonably efficient use of water without waste for a purpose consistent with the laws, rules and the best interests of the people of the state.”

The LC said “it seems unlikely that a court would conclude that a department rule, alone, obligates the agency to ensure compliance with laws other than the water laws.” We contend it is not a lonely rule left on its own to govern over all the laws of the state that pertain to crimes and violations where water is present or when water is used in the commission of those crimes and violations. Rather than being “alone,” this rule speaks authoritatively to the regulation, implementation, and enforcement of the beneficial use of water, its highest and best uses, the public interest, their values, and the health, safety, and welfare of the public. Oregon’s legal principles, public policies, statutes, and other rules support OAR 690-300-0010(5). Because this rule embodies “a purpose consistent with the laws, rules, and the best interests of the people of the state,” enforcing beneficial use based on its connotative meaning in statute and its literal meaning in rule can and should be done regardless of the state’s lassitude enforcing other laws of the state.

Is the reluctance to establish and enforce water use laws against organized crime based on a fear that the public will also demand the curbing of some quasi-legal water uses? Should the public be allowed to question “non-beneficial” uses of water by growers of legal crops and what may be quasi-legal crops? We believe the answer to both questions is yes. For too long, the water code and agency rules have come under attack by lobbyists representing large water user interests for decades. We know that the public does not value using water to irrigate illegal cannabis plants with a water right. We also have anecdotal information (and intent to further research) that the increasingly-concerned public does not value irrigating water-thirsty crops in Groundwater Restricted Areas and in regions where Scenic Waterways are at risk of being measurably reduced. We ask state officials to give priority to the public interest over special interests.

A water right holder’s seniority over others does not ensure that their use is beneficial, valued by the public, and in the public interest. Nonetheless, the state has kept in place the doctrine of prior appropriation over the doctrine of beneficial use by mere fiat. The 19th-century idea that miners invented to sort out their bar fights has become an inequitable policy perpetuated by officials’ quiet acquiescence to the inertia of the past. To adequately hold water in trust for the public, the OWRD must ensure that the largest water users in Oregon use water beneficially. We call for periodic audits of the water use established by water right certificates. We will provide the state with the basis for a plan by which to conduct these audits.

Such a policy will protect and help minimize reductions in farmed acreage and the cancellation of water rights while ensuring that all beneficial uses have access to sufficient water supplies. We believe feeding Oregonians and their livestock must be protected from non-beneficial uses of water. Notably, several bills in the 2023 session seek to protect water rights from cancellation due to non-use resulting from an insufficient water supply. We emphatically support these efforts. Farmers are aware they cannot beneficially use some of the water use established by their water right certificates and do not want to be penalized for non-use. We ask state officials to recognize the same thing: that all water rights in Oregon with a duty of more than five acre-feet per year should be audited to ensure the beneficial use of the water right certificates the state has issued since 1909 and water uses decreed since 1848. Since many water right holders cannot use some or all of the water use established by their water right certificates, the OWRD and legislators should incentivize not wasting the water by ending the “Use It or Lose It” doctrine.

Lastly, we believe the LC assertion that “courts generally are ‘highly deferential’ when reviewing an agency’s interpretation of its own rules. See, e.g., Staats v. Newman, 164 Or. App. 18, 23 (1999)” misses the litmus test of plausibility, an important detail in Staats, which undermines the author’s argument that:

“Thus I believe a court likely would decide that the department’s interpretation of the relevant rule is reasonable, and that irrigation of a crop may constitute a “beneficial use,” regardless of whether cultivation of the crop is lawful under laws other than the water laws.“

While in Staats the court opines: “The department’s interpretation of that rule is subject to highly deferential review,” the opinion follows with this condition: “As long as the interpretation of an agency’s own administrative rule is plausible, we are not at liberty to reject it.” As to the LC written opinion of the rule, we believe it is not a plausible interpretation of OWRD’s rule to say that it allows a criminal organization to grow an illegal crop that will either be distributed in further violation of state and federal laws or burned. There is no possible legal use of the plants; the entire growing process is a waste of water.

In Staats, the court concludes:

“In this case, petitioners do not explain why the department’s interpretation is implausible, only that they disagree with it. We reject their contention that the department erred as a matter of law in construing the rule to exclude naturally occurring subirrigation.“

Water League went to great lengths to explain why the OWRD’s interpretation of the beneficial use statutes and rules is implausible in our August 17, 2022, letter about how and why the OWRD misconstrued OAR 690-300-0010(5). There is ample justification for believing the OWRD has erroneously interpreted a provision of law; in this case, we believe it has misconstrued its own rule. And such misconstruction has run afoul of numerous water law statutes that cite how water use must not “impair or be detrimental to the public interest” (32 instances in Ch. 537) and must “protect the public health, safety and welfare” (33 instances in Ch. 537).

The opinion in Staats cites a case Don’t Waste Oregon Committee v. Energy Facility Siting Council, 320 Or. 132, 881 P.2d 119 (Or. 1994) on the topic of what it means to construe and misconstrue a rule, saying:

“As noted, this court is authorized to overrule an agency’s interpretation of a rule if an agency has “erroneously interpreted a provision of law.” ORS 183.482(8)(a). In this case, the “provision of law” is the rule itself.“

Increasing water scarcity in the West now forces numerous states to make water-wise decisions they contemplated back in the 20th century. Curtailing non-beneficial surface and groundwater uses that do not serve the public interest will help protect our water sources in the present and for posterity. It is critically important that Oregon’s elected and appointed officials perform their fiduciary duty to hold water in trust for the public. The era of privatizing the job of trustee, by giving undue power and influence to special interests, must come to an end.

Sincerely,

Christopher Hall
Executive Director