Claire Elmer
BEND, Ore. (KTVZ) — The battle over water is a tale as old as time. In Oregon, just how much time has passed since a water right was established can determine who gets water — and who goes dry.
“Mark Twain said, ‘Whiskey is for drinking and water is for fighting over’,” said Tumalo resident Jerry Kosman.
For Kosman, that familiar saying is no longer figurative.
He has lived in Tumalo for 60 years and said he never had trouble getting irrigation water from the nearby Deschutes River until this year, following the driest winter on record and amid severe drought.
“Out of the blue, we got smashed in the face with this: cease all water pumping out of this pump,” Kosman said. “No notice, no nothing. Walk down and that’s on our pump. I thought I had deeded water rights. And here I am in the middle of fighting for my water rights.”
Kosman believed the irrigation right serving his property dated to the early 1900s. After digging further into the property’s history, he learned its priority date was actually from the 1950s.
That difference proved decisive this year.
The Deschutes is flowing about 25% to 30% below historical levels, according to Deschutes River Basin Watermaster Jeremy Giffin. Water officials have curtailed rights dating back to 1900 — deeper than ever before.
“We’re cutting back deeper than we’ve ever cut back before,” Giffin said. “We’re back to 1900.”
“First in time, first in right”
The decisions are based on a system known as prior appropriation, often summarized as “first in time, first in right.”
To use water in Oregon, a person or entity must have a water right issued by the Oregon Water Resources Department. Each right carries a priority date that determines its place in line during a shortage.
“In times of shortage, such as now, we curtail the usage by priority date, shutting off the junior users — most recent users — first, and working our way down to senior users,” Giffin said.
The state does not decide based on whether the user is a homeowner, farmer, or large business.
“We don’t look at the type of use, but we look at the priority date,” Giffin said. “The priority date drives who gets the water and who does not get the water.”
The system dates to the settlement and development of the West, when access to land and water was used to encourage people to move into the region. More than a century later, those early claims still determine who is protected first when there is not enough water for everyone.
“We were already over-appropriated, maybe even in the 1800s,” Rep. Emerson Levy, D-Bend, said. “And so water rights have continued, but we’re out of water. There’s nothing left to appropriate, to assign.”
Emily Cureton Cook, a reporter and editor for Oregon Public Broadcasting who investigated the region’s water system with ProPublica, described prior appropriation as a bedrock concept of Western water law.
“When you own land with the oldest water rights attached to it, you are first in line to get that water in times of shortages,” Cook said. “And people who are behind you in line, if you have the senior water rights, they have to cut back to protect your share.”
For Kosman, being farther back in that line has meant being shut off completely. He said he is not asking for his full allotment — only an alternative that would allow junior users to share in the shortage.
“When they had drought, they would tell people, ‘We’re going to cut your water back. Start conserving,’” Kosman said. “Me, flat cut. Not even one day, four hours a day, one day a week — nothing.”
“Use it or lose it”
Oregon water law includes another longstanding principle: To retain a water right, the holder must put the water to “beneficial use” without waste.
That requirement is commonly called “use it or lose it.” Because water rights can increase a property’s value, critics say the rule can encourage landowners to use water even when they do not need it rather than risk losing the right.
“In order to keep your place in line, you have to put that water to beneficial use without waste,” Cook said. “What I didn’t know was that Oregon has almost never defined waste.”
Cook said the scarcity of water increasingly amplifies the value and influence of senior rights.
“In the West, water is power,” she said. “And as the climate changes, and there are more droughts, and there’s less water to go around, that power is increasingly consolidated in the people with senior water rights.”
Water protected in the river
Kosman also questions whether water once available to landowners is now being kept in the river for fish, wildlife and recreation.
Giffin said environmental protections have changed how water is managed in the basin. Historically, water that remained after out-of-stream rights were satisfied stayed in the river and supported habitat. In recent decades, more rights have been converted to legally protected instream uses.
Those protections are one reason some users who had never previously lost access are now being regulated, Giffin said, but they are not the only reason.
“We have a lot of water that’s protected in-stream for fish, wildlife, and recreation that we didn’t have 25 to 30 years ago,” Giffin said. “So that’s the reason that we’re starting to regulate off users that probably have never been regulated off before — that, and the prolonged drought bringing in these incredibly low flows.”
Where does the diverted water go?
The OPB and ProPublica investigation also examined how efficiently water diverted from the Deschutes is used.
The Central Oregon Irrigation District holds rights to more than half the river’s volume. Cook said the investigation, using state satellite data, found that only about one of every four gallons diverted by the district was absorbed by crops.
COID rejected that analysis, saying it did not trust the state satellite data used by the news organizations. Cook said she later found estimates in a state report of the amount of water COID’s crops require that aligned with the investigation’s finding.
Cook also emphasized that inefficient use is not necessarily illegal under the current system.
“I should be very clear that what I’m describing has the state’s blessing,” she said. “There are very few restrictions on what you can grow or how efficient you have to be, as long as you are within the letter of your water rights.”
COID points in part to open canals built through porous volcanic rock more than a century ago, where water is lost before reaching customers.
Piping those canals could conserve a significant amount of water, but Cook said the work could take 50 years and cost more than $700 million. Piping alone would also not address how much water is delivered to customers or what they use it to grow, she said.
“It won’t stop COID from delivering more water than its customers need, or from delivering a lot of water to residential properties that are mostly growing grass and pasture,” Cook said.
Could a water bank help?
Another proposed solution is the Deschutes River Water Bank, a pilot program intended to let some senior users temporarily lease water to others without permanently surrendering their rights.
Under Oregon law, a deeded water right is attached to the property. Levy said the water bank could create more flexibility within that structure.
“If that senior water right has enough water, they could lease that water,” Levy said. “You can lease that water for a certain amount of time, but it still is owned by that senior water right.”
The program is also intended to reduce the incentive to use water solely to protect a right.
“Through the water banking bill, they get to keep their beneficial use,” Levy said. “And so you can maintain your water right while still helping out your neighbor.”
Levy said any changes must protect the rights and financial value held by senior users while finding ways to get water to those farther downstream.
“The system we have is really archaic. It dates back to settling the West, but we’re still balanced with those original terms,” Levy said. “We need to make sure people downstream can get water. And we can do that through water banking and through water leasing. But it really will take collaboration from everyone in the various basin to do that.”
The Deschutes River Water Bank pilot went into effect January 1st, 2026, and sunsets in January 2034.
Piping, leasing, and better measurement could all help stretch the available supply, but none offers immediate relief to residents who have already been shut off.
For now, a system built around who got here first continues to decide who receives water. Time will tell whether new approaches are enough when what nature provides is too little.
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Image courtesy of the University of Missouri.
