Backgrounder
Oregon Department of Fish and Wildlife
OREGON
Fish & Wildlife
Instream Water Rights
Debate among Oregonians about water allocation, and
especially over-appropriation, dates back to the early
1900s...
The Issue
55,000 surface water diversions in Oregon
varying in size from less than 1 cubic foot
per second (cfs) -- perhaps for household
use -- to over 1,000 cfs used to water
croplands or produce hydroelectric power.
About 70 percent of all diversions are for
agricultural purposes; other uses include
municipal and industrial withdrawals,
power generation, livestock watering and
domestic consumption.
Concerns about the availability of
water for out-of-stream uses can be documented back to the early 1900s. By 1955,
the problem had become so pervasive that
the Oregon Legislature passed the Minimum Perennial Streamflow Act. This Act
authorized the Oregon Water Resources
Board (predecessor to the Water Resources
Commission and Water Resources Department) to establish minimum
W
hen most Oregonians talk about
water rights they usually mean
rights to remove water from a river or lake
for home, industrial or agricultural use. In
1987, these discussions expanded when a
new law created a different kind of water
right, one that would leave water in
streams and lakes for beneficial public
uses. The following information gives a
brief overview of the history, purpose and
process of instream water rights.
Instream Water Rights
L
ike most western states, Oregon water
law is based upon the “prior appropriation” doctrine, which allows water
withdrawal
from
streams and lakes for
beneficial purposes.
These rights obtain
seniority based on the
date they were acquired, a system often
described as “first in
time, first in right.”
There are currently over
Rev. 1/22/97
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streamflows sufficient to support aquatic
life and minimize pollution.
In the early 1960s, the Oregon State
Game Commission (a predecessor to the
Oregon Department of Fish and Wildlife)
studied and recommended instream flow
levels needed to support native fishes in
major streams. Over a period of about ten
years, the Game Commission reported the
results of these investigations to the Oregon Water Resources Board in a series of
19 Basin Environmental Investigation
Reports. These reports made recommendations for instream flows by month
needed to support anadromous salmonid
species present in those basins. These
recommendations were subsequently used
summer months when out-of-stream
demands for water are at their highest and
flows are most critical for fish.
In 1987, the Oregon Legislature
supplemented the perennial flow law with
SB 140 (the Instream Water Right Act).
Legislators sought to maintain water
levels that support public uses within
natural streams or lakes. The state Water
Resources Department holds these
instream water rights in trust to support
public uses such as recreation, pollution
abatement, navigation, and maintenance
and enhancement of fish and wildlife and
their habitats. Instream allocations may
be assigned in three ways:
• The Legislature directed Water Resources to convert most of the minimum perennial streamflows to instream
rights. These converted allocations
assumed the same priority date as the
original minimum flow.
• Three state agencies may apply for
instream water: Department of Environmental Quality, Parks and Recreation Department, and Department of
Fish and Wildlife.
• Water rights established for other uses,
such as irrigation, may be temporarily
leased or permanently transferred to
instream use on a voluntary basis.
Allocations for instream water cannot
take away or impair any legally established water right having an earlier priority date. As with all other water rights,
the application date becomes the tentative
priority date for the right.
Water Resources may approve new
out-of-stream water uses only when there
is more water in the stream than is already
allocated to existing water rights (both
out-of-stream and instream).
The Water Resources Commission may
allow other water right requests, such as
Allocations for instream
water cannot take away or
impair any legally established water right having an
earlier priority date.
by the Oregon Water Resources Board to
set minimum perennial streamflows
throughout Oregon by administrative rule.
Over time, the Act and the administratively set minimum perennial streamflows
proved to be inadequate. Because most of
the 547 minimum perennial streamflows
adopted under the Act were established on
major rivers and larger streams, smaller
streams were generally left with little or no
flow protection. In addition, many of the
flows adopted by the Oregon Water Resources Board were set at levels well
below those recommended by the Game
Commission Reports, especially during
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multi-purpose storage projects and municipal or hydroelectric uses to take precedence over an existing instream right. The
Act also allows any state agency to request
water reservation for future economic
development.
are less than the average flows, the
instream right is set at the requested flow
need. If the fish flow need is greater than
the average flow, the instream right is
limited to the average flow.
Current Status of Department
Instream Water Right Applications
Instream Flows for Public Use
T
he state has acknowledged that existing data gathered using the Oregon
Method offer a reliable tool to establish
instream flow objectives and to ensure
water in stream for the future while the
option is still available. In order to accomplish the Department's management
T
he Water Resources Department has
certified about 1,400 Department of
Fish and Wildlife instream water rights
applications. About 500 of these are previous minimum perennial streamflows
which have been converted into instream
water rights. The remainder are new
instream allocations requested by the
Department since 1987. Approximately
150 Department instream applications
remain pending with the Water Resources
Department.
The Department of Fish and
Wildlife has no legal authority to deny or accept a water
right application. The agency
cannot set flow levels or allocate water uses.
Frequently Asked Questions
About Instream Water Rights
Q: What is an instream water right?
objectives to maintain, restore and enhance fish populations for present and
future generations of Oregonians, instream
flows must be established at levels that
allow for growth and expansion of currently weakened fish populations.
The Department applies for
instream flows based on the water needed
each month for fish; therefore, the Department seeks streamflows above what is
currently needed to keep small, remnant
fish populations surviving. The Water
Resources Department reviews all applications for instream water rights and compares fish needs against average streamflows for each month. If fish flow needs
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A: Oregon law directs the state Water
Resources Commission and Department to
hold in trust instream water for the following uses:
• Recreation
• Pollution abatement
• Navigation
• Maintenance and enhancement of fish
and wildlife populations and their
habitats.
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Q: Will existing rights for water removal be
taken by more recent instream water rights
applications?
The Water Resources Department bases instream allocations on natural stream flow
as if no water came out for
other uses.
A: No. Instream rights are enforced like all
other water rights. By law, instream -- or
even out-of-stream -- applications cannot
take away or impair any legally established water use having an earlier priority
date.
Receipt date of the application at the
Water Resources Department becomes the
tentative priority date for the right.
streamflow as if no water came out for
other uses. Using such an approach may
have no immediate value for instream
needs, since the water may not really be
there at this time. Decades from now,
however, water supplies may increase
through such means as greater water
conservation, additional storage or changing land uses. Then, an established
instream right could ensure water for the
future – and preserving such options for
the future of Oregon's fish and wildlife is
the instream water right program goal.
Second, the methods used to determine
fish needs measure the amount of water
required for the physical structure of the
stream to make good fish habitat. Because
high flows have more influence on this
structure than low flows, the natural flows
during some times of the year are less than
what is needed to create good physical
habitat.
Q: What role does the Department of Fish and
Wildlife play in approval or denial of a water
right application?
A: Only the Water Resources Department
can accept or deny a water right application. Oregon Fish and Wildlife biologists
review applications and make comments
regarding potential impacts on fish. These
comments, however, are advisory only.
ODFW has no veto power. Final decisions
rest with the Water Resources Department
operating under guidance of the Water
Resources Commission.
Fish and wildlife protection comments
might include such recommendations as
screening fish out of withdrawal canals,
off-channel storage or modifying withdrawal timing. Again, these are recommendations, not requirements.
Water Resources administrative rules
label all such agency comments as "objections" even though most are not opposing
comments at all.
Q: Why do some instream water rights applications appear to request more water than is
available in the stream?
A: First, the Water Resources Department
bases instream allocations on natural
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