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At the Confluence: Oregon’s Instream Water Rights Law in Theory and Practice

 

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Abstract

Water law has two important dimensions. The first is theoretical— in textbooks, treatises, statutes, administrative codes, and case law. Here, the law is portrayed as a technical system for the distribution and use of a scarce natural resource. More importantly though, water law is manifest in the rivers themselves where gravity, precipitation, and climate govern, ignoring the demands of legislators, judges, and bureaucrats. The practice of manipulating and distributing water in the real world is fraught with practical difficulties and tough policy choices. Understanding this dual existence is essential because the law as written often looks vastly different from the water it purports to distribute. Nowhere is the dichotomy more obvious than in the regulation of instream water rights. On paper, instream rights are the legal equal of any other right to use water in Oregon. In practice, however, applications to transfer consumptive uses instream are met with skepticism and are often held to a different standard. A deeper understanding of the context and origins of this skepticism, and of the standard itself are necessary to achieve greater streamflow protection without sacrificing respect for established water use. This Comment illustrates the confluence where the law of instream rights meets the realities of water regulation in Oregon. It explores both the challenges facing streamflow protection and creative solutions to address these challenges. As the first state in the country to enact positive law on instream water rights, Oregon is a model for other western states. With this in mind, a careful examination of Oregon’s experiences will help guide policy choices not only in Oregon but also throughout the West. 

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