Endangered Species Act enforcement and western water law.

• Author: Bricker, Jennie L.

1. INTRODUCTION

   As pioneers settled the western United States, conflicts over water use frequently arose. East of the 100th meridian, water supplies were relatively plentiful, west of that meridian, however, low rainfalls--combined with hot, dry summers--necessitated a different approach to water use. State policy makers recognized that need and developed the system of prior appropriation--"first in time, first in right."(1) Early in the twentieth century, many western states, including Oregon, adopted the prior appropriation doctrine. While the doctrine has undergone a number of refinements, it has long provided western water users with a fair and predictable method for allocating water when supplies were insufficient to meet overall demand.

   At the end of the twentieth century, uncertainty over water allocation in the Pacific Northwest is reappearing, and water conflicts are again brewing. As more and more fish species are listed under the Endangered Species Act (Act or ESA),(2) calls to leave more water instream for fish are becoming commonplace. While many view the ESA as a tool for trumping long-established state water rights and returning water to streams in order to protect threatened fish species, others view the ESA as effectively undermining states' rights and usurping local economies. Whatever one's particular view may be, a prudent observer will recognize that disputes about water are likely to be at the forefront of the controversy over the survival of listed species and the survival of the Northwest's agricultural communities. While the prior appropriation doctrine still has the potential to provide certainty in the post-ESA era, current pressures on the doctrine will necessarily involve policy choices. For instance, some would argue that in exchange for certainty, the doctrine rewards waste and discourages conservation, thereby unnecessarily protecting wasteful senior water users while punishing conservation-minded junior water users, all at the expense of local economies. At the same time, those who developed their water rights later in time did so with the full knowledge that the more senior users had priority. To require proportionate reductions in water use arguably places a disproportionate burden on senior water users.

   For the foreseeable future, there surely will be much uncertainty with regard to the intersection between the ESA and state water rights. However, the time is ripe to begin a formal dialogue. Western state governors and state water resources departments have an opportunity--indeed, an obligation to the people of their states to develop strategies for coordinating directly with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) on the growing conflict between the ESA and state water law. While it may be premature to choose one approach over another, states must begin taking the initiative so that when new shortages are brought about by the need to protect fish and the federal agencies are demanding water be returned to streams, state water resource agencies can provide direction to field staff and water users as to how water is to be returned to streams and who will return iL The direction should not be on an ad hoc basis, but instead must be fair and predictable. While many observers anticipate that cooperation among water users--basin by basin--may be the most effective and immediate solution, basin-wide cooperation among users may be the exception to the rule. The authors hope this Article will provide a strong starting point for further discussion on these issues, which are so vital to the economic and environmental futures of Northwest communities.

   Part II summarizes water allocation in the western states under the system of prior appropriation. Part III provides an overview of key sections in the ESA, the specific listings of fish species in the Pacific Northwest, and the habitat issues attendant to those listings. Enforcement of the ESA prohibition against "take" of protected species(3) is the focus of Part IV; specifically, Part IV explores whether the federal agencies will be able to prove that a particular diverter of water has violated the ESA take prohibition. Part V outlines the issues and conflicts between federal and state law. Part VI analyzes some possibilities for cooperative solutions to fish conservation, and finally, Part VII presents some specific ideas for whole-basin water reallocation models.

   As detailed in Part VIII, this Article concludes that federal hammer-style enforcement over water users is a bad idea. Any workable solution to the conflict must be cooperative, creative, and respectful of the western prior appropriation doctrine.

2. WESTERN WATER LAW AND THE PRIOR APPROPRIATION DOCTRINE

   1. Overview

      In the United States, water law has developed according to the unique needs and resources of each state. East of the 100th meridian, surface water is plentiful and precipitation is generally sufficient to support agriculture without irrigation. In the West, precipitation amounts to only ten to twenty inches annually, and farming without irrigation is generally impossible. In addition, streamflows, which depend largely on spring runoff from glaciers and snowpack accumulated during the winter months, vary widely from season to season and from one year to the next. Despite the relative scarcity of water, about two-thirds of the nation's food supply is grown in the West.(4)

   2. Riparian Doctrine

      In the East, plentiful water supplies have allowed state water law to develop with loose legal doctrines and imprecise standards. The riparian doctrine's standard of reasonable use controls water rights in eastern states. Basically, everyone who lives next to water has an inchoate right to its reasonable use, shared fairly with other riparian.(5) The amount of water to which each riparian is entitled varies with availability.(6) Thus, in times of water shortage, all riparians must reduce their consumption proportionately. This system of proportionality is possible because water is plentiful, and true drought conditions are uncommon. Generally, pro rata reductions do not create significant hardship.

   3. Prior Appropriation Doctrine

      In western states, where water is scarce and crops perish without irrigation, a more sophisticated, precise, and predictable doctrine than riparian rights was required for development and progress to continue.(7) Western states adopted the rule of priority--first in time, first in right.(8) Thus, under the prior appropriation doctrine, water belongs to the first person to put it to beneficial use. That person has the most senior right to water, but only to the exact quantity used and only as long as the use continues.(9) In times of shortage, senior users take their full measure of water first (that is, they "call the river"); if no more water is available, junior users are precluded from using the water supply.(10) Although the result can be harsh--junior irrigators without water may have no alternative but to watch their crops die in a drought year--the doctrine has developed out of necessity, and it is crucial to agricultural production in the arid West. When there is a shortage of water, allowing senior users to call the river ensures that the farmers with the most senior rights will still be able to produce crops. Those holding junior rights expect that they may get no water and prepare for the possibility, just as senior users know they can rely on their full water right.(11) If western irrigators used the riparian system of proportionate reduction in a year of severe drought, probably no one would have sufficient water for irrigation, and no crops would survive. This is exactly the result that the prior appropriation doctrine was designed to avoid.

   4. Water Rights in Oregon

      With the passage of the Water Code in 1909,(12) Oregon adopted the system of prior appropriation for the allocation of surface water throughout the state. Oregon law provides that "[a]ll water within the state from all sources of water supply belongs to the public."(13) Water may be "appropriated for beneficial use."(14) Beneficial use is "the basis, the measure and the limit of all rights to the use of water."(15) Water users are not allowed to waste water, however, waste has been narrowly defined so that even very inefficient water users are entitled to the full measure of their water rights if their use of the water is supported by custom.(16)

      Beneath Oregon's statutory water law lies an administrative foundation--the Water Resources Commission, a seven member policymaking body responsible for conducting public hearings, adopting administrative rules, and providing direction to the Oregon Water Resources Department (Department).(17) The Department administers Oregon's permit system governing the acquisition of all new water rights as well as water rights transfers, adjudications, and forfeiture.(18) The Department assigns a date to each application for a new water right; once the right is perfected and a certificate is issued, that date becomes the priority date. That date controls the right of the holder to use water in relation to all other certificate holders that divert water from the same stream.(19) Watermasters administer these rights in the field, monitoring the exercise of water rights by certificate holders and enforcing the rules of priority.(20) Oregon is divided into eighteen water districts; the director of the Department appoints one watermaster to regulate each district.(21)

      Oregon law protects instream water rights within the same priority system, and watermasters can and do regulate users on a stream to protect instream flows.(22) However, any water that remains in the stream, but is not part of a certificated instream right, is available for use by appropriators--even if the extra water is left instream by a senior appropriator pursuant to a federal mandate under the ESA.(23)

3. THE...