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The Good, the Bad, the Ugly: The First Ten Years of the Oregon Water Trust

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.