written by Amy Faust | illustrations by Michael Williamson
At few points in Oregon’s history has water become such a lightning rod as when Nestlé Waters announced plans to set up shop on the banks of the Columbia River in Cascade Locks, a town of 1,148, in Hood River County.
In 2008, the bottled water arm of the $243 billion Swiss company trained its sights on Cascade Locks, where water, under the jurisdiction of Oregon Department of Fish and Wildlife (ODFW), flows from Oxbow Springs into the Columbia River Gorge. Over the years and primarily through dealings with the administration of Gov. Ted Kulongoski, the multinational corporation negotiated rights to bottle and sell 100 million gallons per year of publicly owned water.
At first, Nestlé encountered little political resistance, but then the opposition took hold. Public data from the Oregon Government Ethics Commission showed that the company flooded the Oregon legislature, spending more than $500,000 from 2008 through 2015 as Petition 14-55 came closer to voting time in May. This measure prohibited the commercial production of bottled water.
A pro-Nestlé contingency of Cascade Locks residents (in alliance with a Nestlé-funded group called the Coalition for a Strong Gorge Economy) contended that providing water in exchange for fifty jobs in the economically depressed town of Cascade Locks was a win-win. Opponents included the Local Water Alliance, a coalition of small businesses and citizens, as well as environmentalists, farmers, tribal leaders and even Oregonians who otherwise paid little attention to water-related issues.
In November of last year, Gov. Kate Brown waded into the issue and requested that the ODFW halt the transfer of water rights to Nestlé. Governor Brown also requested that any exchanges involving state-held water rights be subject to more public involvement and public input.
Over the years, Nestlé’s actions have come under scrutiny. Its water bottling operations in California became embroiled in a public relations test after coalitions sued the company for its practices during California’s drought. At Oxbow Springs, Nestlé tried to take a further step of locking up permanent rights to public water. Swapping precious state-held water rights for corporate gain during a statewide drought pulsed through the Nestlé case, according to Julia DeGraw, northwest senior organizer for Food & Water Watch.
Even though the voters of Hood River County united and passed Measure 14-55, the fight may not be over. “While we firmly believe this decision on a county primary ballot is not in the best interest of Cascade Locks, we respect the democratic process,” said Dave Palais, natural resource manager at Nestlé Waters North America and spokesperson for the Cascade Locks project. Nestlé Waters has the right to challenge the proposed initiative. Further, the Oregon State Legislature has the power to repeal or amend the initiative with a majority vote.
Activists claim this battle against the bottler revealed critical gaps in Oregon’s water laws. “We need policy that works for a broader segment of interests than they currently work for—not just for large businesses and big agriculture,” DeGraw said of the Nestlé case.
Widespread Drought in Oregon
The U.S. Drought Monitor map of Oregon looks like an adult coloring book, with swathes of canary yellow, vanilla cream and tangerine that spread over the counties’ gridlines. Last year, Governor Brown declared drought emergencies in twenty-three of thirty-six counties in the state.
“In the longer term, if climate predictions are correct, these conditions will become the new normal,” Brown said. “Oregon, along with other western states, must plan for and address how a changing climate challenges our current systems and policies, and threatens our economy and quality of life.” University of Oregon School of Law dean and water law expert Adell Amos agreed with this assessment: “Drought in Oregon has previously been treated as an oddity, but those days are over.”
Many think of Oregon as a wet western state. Ducks and beavers are, after all, water-loving creatures. And yet, drought-stricken regions comprise about two-thirds of our state’s square mileage. As for how our wildlife is faring, a new study by the Audubon Society of Portland found that 189 endangered climate sensitive species live in Oregon.
Oregon has more than 35,000 farms and ranches, mostly locally owned and operated, which the Oregon Farm Bureau estimates are directly and indirectly responsible for $50 billion in goods and services. Water is the lifeblood of these operations and demands eighty-five percent of our state’s supply. For measure, municipal and industrial sectors (combined) consist of a mere fourteen percent of the water demand. Over the next thirty-four years, this ratio will remain essentially the same, according to the Oregon Water Resources Department (OWRD).
A complicating factor is Oregon’s trend in temperatures. Last year, the state hit its highest average temperatures ever recorded, according to the National Oceanic and Atmospheric Administration. By 2050, the OWRD projects an average increase of eight degrees. This means we’re likely to see less snowpack and spring runoff, yet more water evaporating from plants and trees. Higher temperatures mean thirstier plants will have less surface water to drink.
Oregon Basin Outlook Report, a data collection and narrative report from the U.S. Department of Agriculture and Natural Resources Conservation Service, shows that this year a warm April accelerated the snowmelt—in some regions up to four weeks early. While it fills the reservoirs in the short-term, it diminishes streamflow throughout the summer months and into autumn. This situation is particularly troubling for riverine life and users who rely on surface water for their livelihood.
“Oregon and the West are on the verge of a water crisis,” said John DeVoe, executive director of WaterWatch of Oregon. “This is one of the central issues of our time. We need to pay close attention.”
The Water Clash
While Oregon’s needs are changing as a state, our water regulations are still largely based on the 1909 Oregon Water Code, a time when, DeGraw said, “People had no concepts of limits.” With every ounce of water needed by myriad interests, over allocation becomes more apparent as unmet needs mount.
So who decides how to use each drop? Welcome to the fundamental rule of Oregon water law: First come, first served. While all water in the state is publicly owned, the rights to use that water may belong to a city, to the state or to a landowner (water rights are generally attached to a piece of property). OWRD manages these rights in the form of permits. In rural areas, the older the rights, the more water—and the more freedom—a water user has. Even older than these claims are the rights held by many of Oregon’s Native American tribes, who signed agreements with the government over a century ago acknowledging their presence since “time immemorial.” Depending on the treaty, a tribe may have the right to irrigate, fish, preserve a sacred stream, or, in some cases, simply enjoy the benefits of an unchanged river.
In drought-free areas, these interests rarely overlap. But when scarcity results in clashes, the next step is the adjudication of a water source. Once the courts examine the rights promised to property owners and tribes (as has happened in the Klamath Basin in recent years), there’s often little left to satisfy the needs of the wildlife or the ecosystems that rely on a freely flowing water source for their health. While adjudication is somewhat avoidable, according to Amos, “The reality is that water conflicts are going to become more common because we simply won’t have enough water in our system to meet everyone’s needs.”
Theoretically, our “prior appropriation” system of water rights should keep overuse of water in check. Every water permit explicitly states how much water a user can take, and even the rate at which they can take it, and “junior” users don’t get their water unless “senior” users are getting their share. Newer claims and permits have more restrictions that reflect growing concern about scarcity. But what about older claims?
According to DeVoe, only water users whose rights were granted after 1993 are required to measure their usage. “Half of the water that is diverted is simply not measured at all,” he said. “Some of the biggest users of water are senior rights holders, and this leaves most of them unaffected.” Furthermore, “Regulation of water is largely done on a complaint basis, so if no one complains, no one is measuring.” Regulating more than 85,000 permits is done by a total of twenty-one watermasters (typically an engineer or hydrologist responsible for a particular region), just half the staff from previous years after two budget cuts. “Until recently, they had one watermaster covering 11,000 square miles of southeastern Oregon,” DeVoe said. “That is by design and as the water users would have it because the users do not want scrutiny of their often wasteful methods.”
OWRD contends that measurement is an increasing part of the role it plays. Its staff “practices proactive water management, rather than relying solely on a complaint-driven process,” said Diana Enright, OWRD public information officer. “Watermasters often negotiate voluntary reductions, rotations or compliance schedules with water users. Senior rights holders may volunteer to use less than their entitlement, so that junior users are not completely shut off.”
The biggest water users (generally those with the oldest rights) are not always enthusiastic about limiting their allotment, according to DeVoe. “I’ve actually heard farmers at hearings say, ‘I can’t measure, because if I was limited to the amount of water I’m entitled to, I wouldn’t be able to deliver water to all of my fields.’ Think about that.”
Faith-based Inventory of Water
When surface water flowing in our rivers and streams runs low, cities and farmers turn to the underground water found in aquifers. Things get murky here, however, because no one knows how much groundwater we have in our aquifers. “Even the scientists don’t know what we have,” said Laura Schroeder, a water rights lawyer.
While state water policy has long treated aquifers as a limited resource, regulating usage levels is, according to Schroeder, impossible. Each well has a “straw” that accesses groundwater. “We are realizing that when you dig deep, you’re going to go through different aquifers,” Schroeder said. “So how do you enforce senior water rights when you don’t know which aquifers are being accessed by a particular straw? You can’t do it.” The state hopes to minimize this problem, but Schroeder said the laws surrounding it are “arbitrary and don’t relate to science.”
While new regulations instigated by OWRD suggest greater emphasis on conservation and stewardship, critics acknowledge that the state must more aggressively revamp its policies with an eye toward a drier future. This would require a “big shift in western water law,” said Amos, as agencies evolve from “simply issuing permits to playing the role of managing the resource and deciding who gets what.”
Todd Jarvis, a hydrologist with OSU’s Water Resources Graduate Program, said our state “hasn’t done a lot of investment in water … I don’t know how many employees they have at the OWRD, less than 100. And they’re trying to take care of everything. That’s a big job.”
And Then: The Wet West Side
According to “Willamette Water 2100,” a study conducted by the OSU Institute for Water and Watersheds, at least one of our basins will remain drought-free. Jarvis said the Willamette may end up so flush with water that in coming decades it may become an economic temptation to sell some of that water to California. Why sell water to a neighboring state while two-thirds of our own state is dry? Because diverting water south would be easier than drilling through Oregon’s mountain ranges to pipe water from west to east. “Drilling holes through mountains has been done in other states, but it’s a huge investment,” Jarvis said.
To help ease drought in the drier eastern parts of the state, Jarvis favors a state investment in recharging aquifers, which requires treating surface water and injecting it underground to store it for later recovery. As climate change causes more rainfall and less snowfall, “We should be smarter about capturing that and putting it into the subsurface,” Jarvis said. So what’s the downside? “It’s expensive and people worry that if we invest in it, how long will the system work?” Meanwhile, California is safeguarding its water supply each year under a $7.5 billion bond measure passed in November 2014. “In Oregon, we need to become more entrepreneurial in this regard,” Jarvis said.
Oregon has, Jarvis noted, come a long way since 2008, when it was one of two states in the country without a statewide water plan. OWRD produced the 2012 “Integrated Water Resources Strategy,” which outlined the need for the state to invest more in research, management and community outreach to meet increasing demand.
“Oregon is finally starting to wake up and take care of ourselves,” he said. “Not enough compared to other states, but it’s a step in the right direction.”