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• 1. [Article] Reviving Whychus Creek: Averting Collisions between the Endangered Species Act and Agricultural Water Use through Proactive Streamflow Restoration

  In the wake of policies catalyzing settlement through agrarian-based land ‘improvement’, private property rights absorbed water resources through Western water law. Consequently, these dominant user regimes ...

  Citation × Citation Citation Abstract Copy Title: Reviving Whychus Creek: Averting Collisions between the Endangered Species Act and Agricultural Water Use through Proactive Streamflow Restoration Author: Dengel, Jeff In the wake of policies catalyzing settlement through agrarian-based land ‘improvement’, private property rights absorbed water resources through Western water law. Consequently, these dominant user regimes and the doctrine of prior appropriation allocated nearly 80 percent of freshwater resources to agricultural use. Following enactment of the Endangered Species Act (ESA) in 1973 agricultural water users and the federal government were set on a collision course, as private property was now subject to regulatory imposition. Within Western states water bodies contiguous to private agrarian lands host the majority of aquatic species listed under the ESA. Of all the effects associated with agricultural water use, streamflow depletion constitutes the primary source of species imperilment. Customary irrigation practices often dewater streams completely or render aquatic habitat inhospitable. Consequently, curtailment of water use is increasingly sought during enforcement of ESA regulations. Encounters between ESA regulation and impositions upon agricultural water use are largely reactionary, litigious, and costly; this begs the question of remedy. Responses attending to the matter indicate collaborative and precautionary measures as prospective solutions. Within the context of streamflow-based habitat modification the answer consistently indicates transactional mechanisms reallocating water to instream use. Due to priority-based allocation developed through the doctrine of prior appropriation acquisition of senior water rights is imperative for streamflow restoration. Within Oregon's Whychus Creek agricultural water users employed a series of water right transactions serving to bolster instream flow to avert ESA regulation. Many of these transactions have been implemented through Oregon's Conserved Water Program; a unique statute providing benefits for the environment and agricultural water users alike. Through these transactions senior water rights have been reallocated to instream use and are being met, resulting in a robust presence of instream flow. Title: Reviving Whychus Creek: Averting Collisions between the Endangered Species Act and Agricultural Water Use through Proactive Streamflow Restoration Author: Dengel, Jeff In the wake of policies catalyzing settlement through agrarian-based land ‘improvement’, private property rights absorbed water resources through Western water law. Consequently, these dominant user regimes and the doctrine of prior appropriation allocated nearly 80 percent of freshwater resources to agricultural use. Following enactment of the Endangered Species Act (ESA) in 1973 agricultural water users and the federal government were set on a collision course, as private property was now subject to regulatory imposition. Within Western states water bodies contiguous to private agrarian lands host the majority of aquatic species listed under the ESA. Of all the effects associated with agricultural water use, streamflow depletion constitutes the primary source of species imperilment. Customary irrigation practices often dewater streams completely or render aquatic habitat inhospitable. Consequently, curtailment of water use is increasingly sought during enforcement of ESA regulations. Encounters between ESA regulation and impositions upon agricultural water use are largely reactionary, litigious, and costly; this begs the question of remedy. Responses attending to the matter indicate collaborative and precautionary measures as prospective solutions. Within the context of streamflow-based habitat modification the answer consistently indicates transactional mechanisms reallocating water to instream use. Due to priority-based allocation developed through the doctrine of prior appropriation acquisition of senior water rights is imperative for streamflow restoration. Within Oregon's Whychus Creek agricultural water users employed a series of water right transactions serving to bolster instream flow to avert ESA regulation. Many of these transactions have been implemented through Oregon's Conserved Water Program; a unique statute providing benefits for the environment and agricultural water users alike. Through these transactions senior water rights have been reallocated to instream use and are being met, resulting in a robust presence of instream flow. Close