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Abstract:
Markets of one sort or another have played a role in western water allocation for many decades, and this role is on the rise for a variety of reasons. In contrast, water markets have not played a significant part in water allocation east of the Great Plains states. Eastern markets have not developed for two main reasons. As long as there was plenty of water to go around, there was little pressure to move water from one use to another-- something that markets can help to accomplish. Also, because laws poorly defined riparian rights for so long and usually limited riparian water to use on riparian lands, Eastern water law did not readily define an interest subject to market transfers. However, now that statutory changes have begun to firm up the parameters of some water rights, while also loosening restrictions on the places of use, there is more room for eastern markets to develop. As the East looks to the West for help in managing an increasingly scarce resource, markets are one device attracting interest. This article offers one tool for consideration--using water markets to preserve instream flows. The article briefly describes the use of markets in the West, particularly streamflow markets, and addresses some of the pros and cons of water marketing. The article then considers the similarities and differences between eastern states and the western states where these markets are flourishing, and offers some thoughts on what a streamflow market might offer to an eastern state.

water market, water marketing, regulated riparianism, riparianism, prior appropriation, instream flows, streamflow market, instream water rights, streamflow restoration, Oregon Water Trust, water trusts, Georgia water law, Apalachicola River, Flint River, Chattahoochee River

Abstract:
Near the turn of the last century, many of the western states adopted the requirement of continuous beneficial use without waste in their water codes. These laws provided that unused water, or water that was used wastefully, would no longer be part of the user's water right and would be available for appropriation by others. Professor Neuman conducts a comprehensive critique of how well the beneficial use doctrine has performed since its universal adoption one hundred years ago, and assesses its potential for helping to meet the water demands of the next century. She reviews the slow evolution of the common law of beneficial use, highlighting the doctrine's ineffectiveness in curbing wasteful uses of water. She also explores legislative and administrative treatment of beneficial use and waste, again with attention to whether efficiency improvements have been obtained. Professor Neuman probes historical reasons for the failure of the beneficial use doctrine to foster greater efficiency, and she compares current needs to the purposes for adopting the doctrine in the first place. Professor Neuman further argues that contemporary water demands require a more systematic approach to improving efficiency in western water use. She outlines an agenda of proposed reforms for western courts, legislatures, and administrative agencies to make the beneficial use doctrine more responsive in order to stretch scarce western water resources to meet twenty-first century water needs.

beneficial use, waste, forfeiture, abandonment, western water, efficiency in water use, western water law, general stream adjudications, prior appropriation, irrigation, water duty, groundwater, conserved water, water markets, water law

Abstract:
Oregon has been a pioneer in adopting legislation to protect instream flows, beginning with waterfall protection statutes early in the twentieth century, followed by a mid-century water code overhaul designed to protect minimum streamflows, and culminating in explicit legislative recognition of instream water rights in 1987. Other states in the western United States have looked to Oregon as a model, even though Oregon's various experiments have not always achieved the goals of protecting and restoring flowing water. Recently, however, the experiments have begun to show tangible results - and more importantly, results that are being replicated outside of Oregon. This Article examines key events and statutory enactments in Oregon's streamflow protection history, evaluates their successes and failures, and explores how the most workable devices for protecting streamflows are spreading through the Pacific Northwest and beyond.

Instream flows, water law, protecting streamflows

Abstract:
The story of drought is common and old. Civilizations have come and gone in its wake. This is a story of survival, a story of rain. In many arid regions of the world, survival has long demanded an intricate relationship with and understanding of the rain. As the source of fresh water on Earth, rain is a crucial part of the natural cycle which sustains life. For millennia, across diverse cultures of the world, people employed rainwater harvesting methods as a means of providing for this most precious need.

As societies turn ever-increasingly to modern, highly engineered water projects characterized by large, bureaucratic governments, we have forgotten the rain. It has receded from our daily concern. In turn, we have overexploited other freshwater sources, threatening our rivers and aquifers and the ecosystems they support.

Fortunately, the human memory is resilient, and we have not forgotten the ancient understanding of rain. In countries as diverse as the United States and India, traditional water harvesting methods that sustained cultures in their most arid landscapes have re-emerged to play a vital role in community water management.

rainwater harvesting, rainwater capture, rain barrel, johad, Tarun Bharat Sangh, graywater

Abstract:
This paper uses the Tillamook State Forest as a case study to explore the potential for applying an ecosystem services model to future management of a forested watershed with numerous interested constituencies. Part II describes the richness of the Tillomook regional ecosystem, its importance far beyond the immediate vicinity, and the many resulting demands on the forest. Part III discusses the current management model, based on multiple uses competing in the political arena for short-term gain, and then considers an alternative model based on managing the Tillamook with the goal of producing a steady stream of ecosystem services over the long-term. Part IV concludes with a call for "re-reforestation" of the Tillamook State Forest and other similar lands by managing for long-term watershed and forest health.

ecosystem services, forest management, natural resources management, structure-based forest management, Tillamook State Forest

Abstract:
For the past ten years, I have been privileged to be the President of the Oregon Water Trust, a nonprofit corporation that opened its doors and its pocketbook in 1994 to buy water for streamflows. As the Trust celebrates its tenth anniversary in 2004, its portfolio contains eighty-seven current water rights deals. The portfolio includes a variety of transactions, including permanent purchases of water rights, short- and long-term leases, exchange and forbearance agreements, conserved water projects, and nongeneration agreements, altogether protecting a total of over 124 cubic feet per second of water in eleven basins across the state of Oregon.

This Article offers some observations about water markets derived from Professor Neuman's experience as the President of the Oregon Water Trust during the first decade of experience. The Article discusses both the positive and negative impacts of using the market to restore instream flows. Although the impacts of water markets vary widely, depending on the type and scope of transactions and the context in which they occur, some generalizations can be made. On balance, the experience of the Oregon Water Trust demonstrates that the positive impacts exceed the negative. The use of water markets is not a panacea for all that is ailing in water law, but marketing is certainly one useful tool among many for creating an economically rational, equitable, environmentally sound, and sustainable system of water use and management.

Part II describes the particular perspective that the Oregon Water Trust brings to the discussion of water markets, considering the types of transactions it undertakes, the legal context in which it operates, and its accomplishments to date. Part III examines the good, the bad, and the ugly in this particular water market, exploring both the positive and negative aspects of the Water Trust's experience. Part IV concludes that, on balance, the good outweighs the bad. Using the market to restore instream flows has proven itself to be a fair, effective, and efficient approach that can play an important role in future water use and management.

Oregon Water Trust, water market, water trust, water marketing, water transfer, instream water rights, streamflow restoration

Abstract:
The article addresses the tension between Indian law and the litigation finality doctrines of claim preclusion and issue preclusion. We argue that some litigants and courts have improperly resolved this tension, applying preclusion too freely and thus preventing Indian tribes from pursuing valid claims. Between 1946 and 1978, many Native American tribes submitted claims against the US government to the Indian Claims Commission, a special court created by Congress to allow the tribes to seek compensation for land takings, broken treaties, and other uncompensated wrongs. In spite of the Commission's resolution of hundreds of claims and congressional appropriation of millions of dollars to pay the ICC awards, tribal claims did not end when Congress terminated the ICC in 1978. Tribes continue to pursue claims against the federal government, states, and private parties. Often, the opposing parties meet tribal claims with a preclusion defense, arguing that if a tribe received an ICC award, further claims are precluded - either by the common law doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), or by statutory preclusion in the terms of the ICC statute itself. These arguments cannot be resolved by a simple "one bite of the apple" analysis. A more nuanced approach is required that looks carefully at the limited scope and purpose of the ICC process. Using the example of tribes with off-reservation treaty fishing rights, this article demonstrates the proper use of preclusion in the context of Indian Claims Commission decisions and cautions against overly-broad analysis that elevates finality over legitimate, unfulfilled tribal claims.

Indian Claims Commission, treaty fishing rights, off-reservation fishing rights, usual and accustomed fishing locations, claim preclusion, issue preclusion, res judicata, collateral estoppel, United States v. Dann

Abstract:
This Article reconsiders the value of age as a component of western water rights. In the arid west, many water rights are old enough to pre-date the various states' comprehensive water laws. Under the western doctrine of prior appropriation, older water rights enjoy priority over all later-acquired rights to water from the same source, thus seniority adds considerable value to property rights in water. But just how good should these oldest rights be - strong enough to be exempt from later-enacted statutory forfeiture provisions? Under pre-code water law, one could only lose a vested water right by common law abandonment, which required finding both relinquishment of the water and intent to give it up. In contrast, the water codes incorporated strict statutory forfeiture provisions under which non-use of the water for some specified - and usually short - period of time would result in the loss of the water right, without regard to intent. The water codes intended statutory forfeiture to be quick, clean, and predictable. This Article argues that senior rights, whether or not they predate a state's water code, should only be as good as their priority date and no better. Giving old rights special status by exempting them from statutory forfeiture, as a few states have tried, undermines the purposes behind codification of the prior appropriation doctrine, is contrary to the usufructuary nature of water rights, and deprives state water managers of a necessary management tool.

water rights