A case for the extension of the public trust doctrine in Oregon.

• Author: Yates, Scott B.

1. Introduction

   Amidst the torrential rains and heavy flooding that plagued the Pacific Northwest during the past two years, it is difficult to fathom that there is a water shortage in the state of Oregon. Yet, many of Oregon's rivers and streams lack sufficient water flows during at least part of the year to adequately sustain their aquatic environment.

   The realization that unnaturally low flow levels are having a deleterious effect to Oregon watercourses is nothing new. In 1953, the Oregon Legislature organized the Water Resources Committee (Committee) to study and compile a report documenting the conditions of the state's water resources, and make recommendations regarding the formulation of an integrated state-wide approach to the management and allocation of Oregon's water.(1) In 1995, the Committee returned with a report, emphasizing to the legislature that "[t]he investigations of the committee reveal that on many Oregon streams more permits have been issued by the State Engineer, in accordance with the law, for more water than is available during low-flow months."(2) Problems with overappropriation were not solely relegated to the semi-arid portions of Central and Eastern Oregon; such conditions were present even in water-saturated areas west of the Cascade Mountains.(3)

   Unfortunately, time has not solved Oregon's streamflow problems. The 1995 Strategic Water Resources Management Plan issued by the Oregon Water Resources Department (OWRD) contains observations similar to those noted by the 1955 Committee Report.(4) The 1995 Plan observed that streamflow problems have remained static and unimproved in many of the state's main river basins, and that in recent years some of Oregon's rivers and streams experienced even lower flows and worsened water conditions.(5)

   The environmental and biological effects of unnaturally low streamflows are countless, and a full recitation of such effects is beyond the scope of this paper. However, one of the most obvious and politically timely effects has been that imposed on Oregon's native salmonids.(6) The trials and tribulations of these magnificent fish have been well documented, especially their battle to overcome the effects of the four "Hs": hydroelectric systems, hatcheries, harvest, and habitat degradation.(7) In regard to habitat degradation, low streamflows are one of the primary obstacles to the completion of the salmon's lifecycle, often blocking migration routes, interfering with spawning, or impeding the development of juvenile fish.(8) This is particularly evident in the major Oregon rivers and their tributaries located east of the Cascade Mountains.(9) Native anadromous steelhead and salmon often find an already treacherous return to their natal streams made even more difficult by low flows in the major Columbia River subbasins such as the Deschutes,(10) John Day,(11) and Umatilla.(12)

   While the anadromous salmonids in the Pacific Northwest have received the bulk of the attention in recent years, other nonanadromous salmonids have been dramatically affected by adverse stream conditions caused by low streamflows.(13) The Lahontan and Westslope cutthroat trout, two important subspecies of cutthroat trout native to Oregon, have seen their populations dwindle in recent years due in large part of excessive irrigation withdrawals.(14) In addition, many population of Mid-Columbia and Snake River redband trout, a subspecies of rainbow trout, have had their habitat either reduced or adversely affected by unnaturally low flows.(15) The various nonanadromous salmonids are located throughout the Deschutes, Crooked, John Day, Umatilla, Grand Ronde, Imnaha, Burnt, Powder, Malheur, and Owyee River Basins, areas in which water is a scarce commodity in the summer, fall, and sometimes winter months.(16) The slogan "fish need water" is biologically sound, and is confirmed on a daily basis in rivers and streams throughout Oregon.

   The problems posed by unnaturally low streamflows cannot be identified solely on a quantitative basis. Low flows often result in adverse water quality conditions. The Oregon Department of Environmental Quality (ODEQ) rencently released a draft list of "water quality limited water bodies."(17) ODEQ used habitat-flow modification as one of the listing criteria to identify water quality limited water bodies.(18) A listing of the areas where flow modification was most severe reads like a "who's who" of Oregon rivers. A nonexhaustive list includes at least one segment of the mainstem and a varying number of tributaries of the following rivers: Crooked, Deschutes, Grand Ronde, John Day, Malheur, Burnt, Powder, Rogue, Umatilla, and Umpqua.(19)

   Despite the present dewatered condition of many Oregon rivers and streams, the state legislature has failed to enact a conservation scheme that would adquately remedy the situation. The instream water rights provisions in the state water code enacted in 1987 does not sufficiently balance the needs of the aquatic environment with the usufructuary rights of appropriators.(20)

   This Comment argues that the Oregon Supreme Court should adopt the holding enunciated by the California Supreme Court in National Audubon Society v. Superior Court of Alpine County (Mono Lake)(21) to extend the geographical scope of the public trust doctrine in addressing the harm caused to navigable waters by the diversion of water from nonnavigable tributaries. Expanding the geographic scope of the doctrine in this manner would formally wed the public trust and appropriation doctrines in Oregon. The expansion would also judicially recognize equally vital state interests in appropriating water for certain beneficial out-of-stream uses, and in preserving water instream. More importantly, the adoption of the public trust doctrine in the appropriation context would affirm the duty of the State of Oregon to continuously supervise diversionary uses of water to ensure that they are compatible with trust values.(22)

   Pertinent Oregon case law indicates that if faced with similar issues addressed by the California court in Mono Lake, the Oregon Supreme Court would identify the public trust doctrine as coexistent with, as opposed to subsumed by, the doctrine of prior appropriation under Oregon's water code. Furthermore, the extension of the public trust doctrine in Oregon is supported by the overaching control that Oregon exercises over the allocation and management of water resources, and the statutory duty of OWRD to incorporate trust considerations in water appropriation decisions.

   This Comment is divided into three primary Parts. Pat II examines Oregon's instream water rights statute, exploring some of the primary reasons why this approach has been unsuccessful in preserving a biologically sufficient water level in many state streams. Part III is a brief introduction to the public trust doctrine, exploring its historical development, modern extensions, and application by the California Supreme Court in Mono Lake. Finally, Part IV examines the public trust doctrine in Oregon, and, utilizing the analytical framework established by Mono Lake, argues that the public trust in Oregon should extend to damage caused to navigable waters by excessive diversions from nonnavigable tributaries.

2. Oregon's Instream Water Rights Statute

   1. Enactment of Oregon's Instream Water Rights Statute

      Oregon has traditionally been in the forefront in enacting statutory schemes aimed at keeping water in the river, and away from the reach of the appropriation process. The Oregon Legislature passed laws that focused on the preservation of minimum stream flows in 1955(23) and 1983,(24) each time with limited success.(25) In 1987 Oregon passed the Instream Water Rights Statute,(26) thereby adopting its present approach to affording some value to keeping water in the stream. Like its "minimum streamflow" predecessor, this statute is progressive in terms of western water law because it recognized that in certain limited circumstances, instream uses are considered equivalent to out-of-stream uses. However, because of limitations both on its face and as applied, the statute has not performed as expected.

      Under the Instream Water Rights Statute, only three state agencies are authorized to request an instream water rights.(27) The Oregon Department of Fish and Wildlife (ODFW), ODEQ, or the Oregon Department of Parks and Recreation (ODPR) may individually determine the quantity of water necessary to buoy a particular water use, and then request that the Water Resources Commission issue an instream water right for that amount.(28)

      OWRD receives all agency applications for new instream water rights.(29) Once received and deemed complete, the application is processed, and the Director of OWRD undertakes an initial review of the requested instream water right.(30) In addition, each instream water right application is subject to public interest review by OWRD.(31) OWRD presumes that a proposed instream water right will not impair or be detrimental to the public interest if 1) the proposed use is allowed under the applicable basin plan, 2) water is available, 3) no existing water rights are injured, and 4) the instream use will not violate applicable administrative regulations.(32)

      When granted, an instream water right dates from the filing of the application, and is held in the name of OWRD "as trustee for the people of the State of Oregon."(33) An instream right has the same legal status as any other water right granted by OWRD.(34) However, the statute contains a strict proviso that an instream water right shall not take away or impair any rights granted by the same prior to the establishment of the instream right.(35)

   2. Shortcomings of Oregon's Instream Water Rights Statute

      Despite the legitimate attempt to find a place for instream water rights within the doctrine of prior appropriation, the Oregon scheme has not proven satisfactory to conservationists. The Oregon Instream...