Reaping the Whirlwind: Water War Along the California-Oregon Border

Huffington Post — June 19, 2013

Not clear how many HuffPosters go Biblical, but this one fits. With a fresh backdrop of unprecedented forest fires in the West, ferocious storms along the Eastern Seaboard (tornadoes attacking elsewhere), alternating drought and flood in the country’s interior wreaking havoc on the Mississippi and the next of many rounds on its way, you can almost hear the booming voice indicting us with a good, “they have sown the wind, and they shall reap the whirlwind.”

But before anybody cranks up the old Climate Deny Machine to deconstruct whether 19 of 20 scientists can agree these weather events are related, let’s pivot to something that we definitively know humans made happen: a burgeoning water war along the Oregon-California border. As you read this, Oregon state employees are traveling across the Klamath Basin, shutting down the irrigation systems of ranchers and farmers to make sure that the Klamath Tribes get water they just found out they are legally entitled to.

This water war, pitting tribes and fish and wildlife against ranchers and farmers, is truly the result of human actions: in every sense, this environmental whirlwind was engineered by America legally, physically and economically. It is the obvious result of the application of a century-old water law that struggles to keep up with changing demands and modern priorities.

The law that allowed this war to start, called “Prior Appropriation,” was drawn up to encourage the settling of a dry land for a nation in a hurry. Hastened by gold, railroads and Manifest Destiny in 1800s, we needed a practical and simple way to know who could use scarce water resources when. Prior Appropriation grew out of a time and place where the West seemed boundless. A world where no one could predict that someday in the future, just about every drop of water would eventually be promised to someone before it reached the ocean. Prior appropriation did just that: it allocated “water rights” to all comers on a first come first serve basis. And it over-allocated many: across the Western United States, more people hold water rights “on paper” than there is actual water in streams in a given year.

Despite the lack of water accounting, for a long time the system worked. Settlement grew. Agriculture grew. The desert literally bloomed. What didn’t grow was the water budget. In fact, we have no more water on Earth today than we did when the planet opened for business. But in this country, our water is highly managed–it moves when and how we say it moves. The plumbing system of the American West has enough water in ditches, canals and reservoirs to put all of Oregon, Washington, Idaho and a chunk of Montana under a foot of water simultaneously.

Prior Appropriation creates clear winners and losers during times of water shortage. In dry years, those with older (aka “prior”) water rights can tell those with younger water rights to shut off. And from this long-standing interpretation of water law came the current conflict in the Klamath. Before this year, most of the water right owners in the Klamath didn’t know who had the prior rights and who had the less valuable junior rights. That is because the basin had not yet finalized their Water Rights in a process called “adjudication.”

The Klamath water rights were finalized barely a month ago and this process once-and-for all legally determined who gets what water in dry years. It was through this process that the Klamath Tribes were awarded water rights with priority dates that go back to “Time Immemorial.” That trumps every other water right holder’s date in the Klamath Basin. As coincidence would have it, this year is off to a dry start. The Klamath Tribes have made a call on their water, shutting off an untold number of ranchers and farmers downstream, to ensure that they can use their water for traditional needs of fishing, hunting, and agriculture.

This has predictably upset the apple cart (quasi-Biblical) for those farming in the basin and tensions are as high as they have been since agriculture was shut off to help endangered salmon in 2001. Right now, for safety in the basin, watermasters (the state of Oregon employees who have to shut off junior users) have taken to going out in teams of two and notifying the sheriffs’ office where they are headed. In a developed nation, that seems pretty wild.

To me, the real question has become: What events will jar us into realizing we need to shift our water management style? Our high capacity to ignore big, observable facts gives preference to how things used to be over how things ought to be–and that won’t work on the road ahead. The environmental issues we will face will be violent, fast and unpredictable. Several factors will move beyond our control. But our water future is something within our control, and we should solve for that.

A pathway exists to achieve more optimized use of water, but it will look different than how we have done it in the past. We need to accurately quantify the annual water budget, leaving enough for streams and ecosystems to function properly. Then we need to allow the trading of water among uses to allocate the water to the most productive uses and users.

This won’t be an easy transition. Some enviros will say that the market is no way to allocate a public resource like water; some ranchers and farmers will claim that family farms will be out-competed for water by bigger, more sophisticated agribusiness interests. Risks have to be managed, but such a sea-change in water management is not without successful precedent Instead of creating winners and losers according to whose great-great-great grandfather settled first, a system in Australia efficiently and fairly promotes economic and environmental gains, and ours should too. A race to produce more with less rather than a race to the bottom of the well is the better one to run.

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