The closest to Water we’ll ever get is our own bodies. Water lives in us all. How we treat Water is how we treat ourselves and each other. We are Water.
And yet, we scared off Water and now experience Water scarcity.
How could we be more mindful of our relationship with Water? Such mindfulness has been the foundation of Native cultures and people for millennia. Today, a growing segment of the public is rediscovering the understanding that Water is the first medicine for all Beings. Respect for Water is our best hope for our shared future with Water and the path towards a mindset of abundance.
Given the increasing rate of Water scarcity and aridification in the west, ensuring our Watersheds have Water is among our most critical missions. Ensuring our Water future is a multifaceted challenge requiring many different perspectives. Water League seeks to engage the public in all its diversity and various points of view to come together around a shared vision for abundant clean Water.
We, the people, have standing to determine how Water flows through our lives. We can and should steward Water use, knowing that what we have most in common with each other is Water. Instead of driving us apart (Mark Twain’s “Whisky is for drinking; Water is for fighting“), Water should bring us together.
Oregon law says, “All Water within the state from all sources of Water supply belongs to the public.” (ORS 537.110) This is how the state holds Water in the public trust to protect, conserve, and serve Water for the benefit of the public. The Public Trust Doctrine is Common Law, a two-thousand-year-old legal concept founded on the understanding that some resources are so essential they belong to no one because they belong to everyone. Coastal Waters and beaches, navigable rivers and lakes (including tributaries and aquifers that feed into them), wilderness, national parks, and the air we breathe are held in the public trust to varying degrees based on the various states’ constitutions and laws.
Unfortunately, Oregon has a long way to go when it comes to holding natural phenomena in the public trust. Recently, in Chernaik v. Brown, the Oregon Supreme Court refused to hold that “under the public trust doctrine, the state has the same fiduciary duties that a trustee of a common-law private trust would have, such as a duty to prevent substantial impairment of trust resources.”1 This particular case was about holding our atmosphere in trust for the public.
Meanwhile, the Supreme Court of California took a much more enlightened approach when it ruled in the historic National Audubon Society v. Superior Court case that:
The public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.2
Going forward, Oregon must ensure the posterity of our natural phenomena. We must have abundant and clean Water for future generations of farmers, for our Watersheds, and clean Water to drink. We can secure our Water future by demanding our state officials more closely hold Water in the public trust.
Regarding what our shared Water future will look like, the cliché of hoping for the best while planning for the worst is good advice. We know there will be more mouths to feed, both human and livestock, and there will be a need for increased Water use efficiency. If there is a decreasing Water supply coupled with rising temperatures, then planning for the worst scenario looks reasonable.
The time has passed to threaten the cancellation of Water rights if they are not used for five years. Such an antiquated policy encourages waste in an already over-appropriated Water rights system. Those who do not use their Water rights leave the Water in the streams and aquifers for others to use, reducing the need to Call for Water or dry up the stream, damaging the ecosystem. “Use it or lose it” was fine to establish use claims over 100 years ago. Today, however, since the Water resources are significantly over-appropriated, any chance to keep the streams cool with good base flows while ensuring beneficial uses that are demonstrably in the public interest is a win for the future.
Water League supports defending the sanctity of Water rights for all beneficial uses by emphasizing the highest and best uses. This is easy for us to say because it is the law. Irrigation of crops for human and livestock consumption here in the United States is one example of a highest and best use. But agricultural products with large Water export footprints ought not to be produced in regions where drought and aridification pose existential threats. The term Virtual Water Export refers to the amount of Water used to make a product that is sold overseas, such as alfalfa for horses and cows living in Asia. In some areas of the west, cultivation of Water-thirsty crops is coming to an end because Water diversions and groundwater pumping in semi-arid regions aren’t sufficient or sustainable anymore.
By law, all Water use must be beneficial to the user and the public; as such, beneficial use is a legal compact between the Water users and the public. Prior appropriation, on the other hand, is an agreement between Water users themselves to address acute, seasonal Water shortages at specific streams and wells where Water availability is too low for all users to get the Water they want. Once their proposed beneficial use has been established by the state, then lining up at the river or groundwater spigot according to seniority is the right thing to do. This is the law, but special-interest lobbying has drowned out the law and put the focus solely on seniority with little regard for the public interest.3
The primacy of the beneficial use of Water is the long-standing paradigm for Water use in the west that intense special interest influence began to upend over 70 years ago. Industry artificially elevated prior appropriation over beneficial use to avoid questions about the merits of their Water use as it has related to the public interest. The Waterboarding of our laws and the Public Trust Doctrine by lobbyists and their agency captives must come to an end. Your support on this matter is crucial. It is especially important to recognize the time-immemorial beneficial uses of Water first peoples have always had caring for rivers, forests, and fish. For 10,000 years they maintained uses of natural phenomena that settlers have nearly destroyed in under 200.
Right now, across the western states, some Water uses are being curtailed in favor of others that the public deems more important. This is a good first step in reducing the damage. Now is the time to identify and assert the highest and best uses for Water. Making hard choices about how to use Water will either come from external environmental forces with the increasing rate of Water scarcity, or they will come through our internal planning and awareness as we try to get ahead of the curve. Planning now, while not under such extreme pressure, is preferable. Water League has begun a long-term project educating the public about what’s been going on, what’s happening today, and what they can do for tomorrow.
P.S.:
Water League supports storing groundwater by protecting the forest lands of the Pacific Northwest, so there is more Water retention three generations from now instead of increased desertification. More mature forests will increase rainfall infiltration and Water retention and slow snowmelt runoff. With substantial regrowth of forests reaching deep into the earth and high into the sky, the sponge effect will hold Water and replenish aquifers. When rain falls, it can either soak into the earth or runoff. Soaking in replenishes groundwater which is what feeds streams. It is the most cost-effective and sustainable form of Water storage.
Stream flow arises naturally from two main sources: in-stream base flow from groundwater pushing upward to the surface supports all streams that flow from summer into fall, and runoff from rain and snowmelt fills ditches and ephemeral creeks that swell rivers.
Before industrial development, rains and snowmelt didn’t cause such rushing rivers. Throughout the past, most of the rain and snowmelt was held by trees, plants, and soils and then it soaked slowly into the ground below streams. Stream channels filled slowly during the thaws of spring with fewer, less extreme floods. Returning our watershed to its “sponge” function meets many other needs as well, such as wildlife habitats, abundant fisheries, and irrigation for farmers.
P.P.S.: Click here if you’d like to support Water League with a donation and become a Rainmaker 🙂
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1 Chernaik v. Brown, 367 Or. 143 (2020)
2 National Audubon Society v. Superior Court (1983)
3 https://youtu.be/Ux2bkoGvSRM?t=1908
For some perspective:
“All water within the state from all sources of water supply belongs to the public.”
“Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state.”
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