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...Rivers Low Flows C. A New Protagonist for Oregon's Rivers: The Water Resources Committee D. A Great Notion: Explicit Protection of Minimum Streamflows E. An "Integrated, Coordinated Program for the Use and Control of Water Resources of the State, " One Basin at a Time F. Stacking the Deck Against Streamflows IV. FURTHER EXPERIMENTATION WITH INSTREAM FLOW PROTECTION A. Designated Scenic Waterways B. Further Yet: Official Instream Water Rights V. CONCLUSION: "FINALLY ... THE ACTUAL RIVER" Along the western slopes of the Oregon Coastal Range ... come look: the hysterical crashing of tributaries as they merge into the Wakonda Auga River.... The first little washes flashing ... forming branches ... the branches crashing into creeks, into streams. Finally ... the actual river.... (2)
I. THE OREGON WAY: THINGS LOOK DIFFERENT HERE (3)
The Wakonda Auga River, tumbling down out of the Oregon Coast Range to the Pacific Ocean, was a fictional river imagined by writer Ken Kesey, but his description brings to mind any number of real-life Oregon rivers--at least those on the wet, western side of the Coast and Cascade mountain ranges. Many rivers in the arid, eastern part of the state--and even the western rivers in the summer and fall--do not crash or tumble, but rather trickle or disappear altogether at times due to over-appropriation. Yet flowing rivers are still considered an integral part of Oregon's natural beauty and quality of life, part of what makes things look different here. (4)
Kesey, who described an iconic Oregon river and the human drama interwoven with its currents in his novel Sometimes a Great Notion, (5) is one of Oregon's favorite sons. He became (in)famous for his travels around the United States with the Merry Pranksters in "Furthur," an old school bus painted with psychedelic designs on the outside and loaded with psychedelic experiments on the inside. (6) Kesey was also respectably famous and commercially successful as an author. Sometimes a Great Notion (7) and an earlier novel, One Flew Over the Cuckoo's Nest, (8) earned him a place among the great American writers of the twentieth century. (9) In addition to his serious literary reputation and irreverent countercultural bent, Kesey was also just a regular Oregonian. Except for a few years in California and his travels with the Pranksters in "Furthur," he lived on his family's farm in Oregon's Willamette Valley until his death in 2001. Nearby, Kesey's brother and sister-in-law created a thriving business selling Nancy's Yogurt and other natural dairy products, and many customers assumed that Ken was also part of the business. (10)
Kesey was a beloved native son regardless of--or perhaps in part because of--his quirky complexities. (11) When Kesey died in 2001, the Eugene Register-Guard eulogized him as an "Oregon ... icon" who understood the state "better than most.... [A]s ff Kesey and Oregon were one, like saltwater and freshwater at a river's mouth, nothing to define where one started and the other ended but clearly part of one another. Kesey had to be from Oregon...." (12) Albeit with some hyperbole, this river-metaphor eulogy claims Kesey as a personification of the Oregon character. Kesey is considered an iconic Oregon character because of his independent spirit, his willingness to experiment and challenge authority, and his love of nature. As an author, Kesey was eloquent in bringing the state to life on the page:
Kesey considered both people and place actors on life's stage; to him, Oregon wasn't just a state in the union, it was a living, breathing character all its own. And so, then, were its trees, waters and weather.... In Kesey's Oregon, nature was alive.... Kesey's Oregon was much like Kesey himself: full of independence, rough-hewn realness and a brooding darkness known to explode, at winter's end, into Day-Glo delight. (13)
Ken Kesey? Brooding darkness and Day-Glo delight? What could any of this possibly have to do with instream flows? Lest the reader think this introduction is some Merry Prankster hallucination, bear with us while we draw the connection.
Kesey wrote lyrically about his home state's natural beauty, and about the circulatory system of rivers that nourish Oregon's beauty:
[T]he Wakonda has not always run this course.... Along its twenty miles numerous switchbacks and oxbows, sloughs and backwaters mark its old channel. (You want me to tell you a thing or two about rivers?) Some of these sloughs are kept clean by small currents from nearby streams, making them a chain of clear, deep, greenglass pools where great chubs lie on the bottom like sunken logs; in the winter the pools in these sloughs are nightly stopovers for chevrons of brant geese flying south down the coast; in the spring the pole willows along the banks arch long graceful limbs out over the water; when an angler breeze baits the tree, the leafy tips tickle the surface and tiny fingerling salmon and steelhead dart up to strike, sometimes shooting clear into the sunshine like little silver bullets fired from the depths. (14)
Oregon's rivers are not just captured in fiction, but figure in the state's statutes as well. In fact, the same experimental character that is embodied in the state's colorful citizens like Kesey is also manifested in a spectrum of social experiments codified in black and white in Oregon statutes. Among these innovative laws are a number of statutes designed to preserve the state's natural bounty, including those addressing rivers. (15) The state has pioneered instream flow protection, beginning in the early 1900s and continuing through to the present. Two innovative state statutes bookend the twentieth century: in the early 1900s, the state protected the scenic waterfalls in the Columbia River Gorge, (16) and in 1987, Oregon became the first state to codify recognition for full-blown instream water rights. (17) Between those two bookends, in 1955, the state overhauled its water code and built in protections for minimum streamflows and the fish and wildlife dependent on them. (18)
However, Oregon's legal treatment of its rivers is full of conflict and inconsistency, like Ken Kesey and the characters he wrote about. (19) Like all of the western states, Oregon's laws primarily encourage use of the rivers--for diversion and irrigation, for impoundments and hydroelectric turbines, for city and country living. These uses are embodied in water rights fiercely defended by the independent-minded Oregonians who hold them. Nonetheless, the state has sometimes had great notions to protect its rivers as rivers, with water flowing in them. In this regard, Oregon has often been held up as a model for the rest of the West. (20) Throughout the state's history, the two impulses of consumption and protection have pushed and pulled at the rivers. Which force is winning and what can other states learn from the tug-of-war? Those questions are the focus of this Article.
Part II briefly tells the story of Oregon's early instream flow protection laws during the first half of the twentieth century. Part III discusses the pioneering 1955 statutory overhaul, assessing the statute's promise and performance with regard to codifying streamflow protection. Part IV considers the most recent chapter of Oregon's expanded attempts at instream flow protection, growing out of scenic waterway designations and the 1987 Instream Water Rights Law. Part V concludes that the Oregon experiments are finally beginning to show results in keeping the state's rivers flowing and that the "sometimes great notions" are slowly spreading to other western states, improving the prospect for putting water back into the rivers of the West.
II. OREGON'S EARLY NOTIONS OF INSTREAM FLOW PROTECTION
Oregon became a state in 1859. During the first several decades of statehood, the state's courts and legislature recognized rights to use water under both riparian (21) and prior appropriation (22) legal schemes. Early in the twentieth century, with some 127 uncoordinated water use statutes on the books, growing conflicts between riparians and appropriators, and the resulting tremendous uncertainty about water rights, then-Governor George Chamberlain called for a "complete, concise, and definite code of law governing the use and distribution of water." (23) In response, the Oregon legislature enacted a comprehensive Water Code in 1909, declaring that all waters within the state belonged to the public and specifying procedures for obtaining water rights from that point forward. (24) The 1909 code eliminated unvested riparian rights and embraced prior appropriation as the governing doctrine for all water uses. (25) The code also adopted a state administrative permit system as the method for acquiring water rights. (26)
The code required the state engineer to approve a permit for beneficial use of water unless the proposed use conflicted with determined rights "or [was] a menace to the safety and welfare of the public"; in such a case, the application was to be referred to the Board of Control for decision and denial if "the public interest demands." (27) The law thus allowed for rejection of private consumptive use requests in favor of the public interest. Presumably, the public interest could include in situ or instream uses of water. However, the historical record does not reveal any administrative referrals relating to public concern for instream values. The state engineer's office began issuing water permits under the new code, and, by 1955, existing permits numbered approximately 24,000, all for consumptive purposes. (28)
Although the vague public interest provision in the 1909 law did not seem to slow the pace of issuing consumptive water rights, the Oregon legislature did withdraw some water sources from appropriation during those early years; however, the withdrawals were mostly for future municipal use and other consumptive purposes. (29) In 1915, the legislature used the withdrawal tool for a different purpose--notably, a non-consumptive purpose. As construction of the vaunted Columbia River Scenic Highway neared completion through the Columbia River Gorge, the legislature withdrew twenty-three streams and waterfalls along the highway in the Gorge from appropriation or diversion to protect their scenic attributes. (30) This withdrawal to preserve esthetic values established perhaps the earliest official instream protection in a state that embraced water use under prior appropriation. Over the years, the legislature occasionally enacted additional ad hoc withdrawals to protect fish and wildlife and recreational values. (31) Since legislative withdrawals prohibit any further applications for appropriation from the withdrawn water source, they can serve, to some degree, as serf-enforcing protections for instream flows. (32)
In addition to making direct statutory withdrawals, the legislature authorized the state engineer to perform administrative withdrawals. The 1913 provision allowed the engineer to "withdraw and withhold from appropriation any unappropriated water which may be required for project [sic] under investigation." (33) Over the next half century, a succession of state engineers made thirty-seven separate withdrawals for future storage and development, most in support of major reservoirs to be constructed by the Bureau of Reclamation to supply water for consumptive purposes. (34) The state engineer appears not to have used the administrative withdrawal mechanism to support instream flows or uses.
By mid-century, despite a few hopeful glimmers of legal protection for instream values, Oregon's streamflow protection effort was still mostly an unrealized notion. With only a few protected stream segments scattered throughout the state, business as usual meant primarily diversion for consumptive uses. Between 1945 and 1955, successive state engineers issued more permits on some Oregon streams than had been issued in the previous thirty-six years since the 1909 Water Code's adoption. (35) More importantly, successive state engineers issued permits for more water than was available on many Oregon streams, in some cases authorizing water diversions in amounts double the amount of minimum flows. (36) This untenable situation led to a significant overhaul of the Water Code, again placing Oregon on the cutting edge of streamflow protection.
III. THE STORY OF OREGON'S 1955 MINIMUM STREAMFLOW PROTECTIONS
A. Prologue: Federal Water Policy and the Pelton Dam Controversy
Federal water policy developments mid-century provide an important part of the back story for Oregon's overhaul of its water laws in 1955. In 1950, the Hoover Commission (chaired by former President Herbert Hoover) issued the first volume of its report, A Water Policy for the American People. (37) This particular commission is one of many federal commissions constituted to examine aspects of water policy over the nation's 200-plus-year history. (38) Federal water commissions reflect the "dominant thinking of their time" and at the same time often signal the "transition from one era to another" in terms of policy. (39) In that regard, the Hoover Commission reflected not only the then-dominant theme of large federal water development projects, but also recognized the emerging need to pay more attention to efficiency, conservation, and multiple uses of water. (40)
One story line weaves consistently through two centuries of federal water policy reports: the idea that the drainage basin is the best organizing unit for multiple-purpose water development and management. (41) This notion was a central theme in the 1950 report as well, which called for federal agencies to cooperate with each other and with the states to prepare multipurpose basin plans. Indeed, basin planning was well underway in the Columbia Basin at the time of the Hoover Commission's work, but federal agencies were proceeding independently rather than in coordination, and were not necessarily working cooperatively with the states. Both the United States Bureau of Reclamation (Bureau) and the Army Corps of Engineers (Corps) had already been active in planning for the Pacific Northwest....
NOTE: All illustrations and photos
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