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28 Harv. Envtl. L. Rev. 495 (2004)
Getting Our Feet Wet: An Introduction to Water Trusts

handle is hein.journals/helr28 and id is 501 raw text is: GETTING OUR FEET WET: AN INTRODUCTION TO WATER TRUSTS Mary Ann King* Water trusts, private organizations that acquire water rights for conser- vation, are emerging as important actors in instream flow protection in the western United States. Using the Oregon and Washington Water Trusts as case studies, this Article discusses water trusts within three contexts: their origin in land conservation, their adaptation from Oregon to Washington, and their operation among similar organizations enhancing streamflow. Water trusts have retained elements from land conservation, while pioneering tools and incen- tives to function within western water law and to complement and partner with state programs. This analysis of water trusts and their evolution has impli- cations for future public and private instream flow protection, and for the evolution of institutions and law for land and water conservation. I. INTRODUCTION Water trusts are private, nonprofit organizations that acquire water rights in order to enhance instream flow' for conservation purposes.' Recog- nizing that riverine habitat and species suffer as a result of the over-appro- priation of water to consumptive uses in arid and Mediterranean climates,3 water trusts rely upon market transactions to acquire and transfer water rights to instream uses. The model is emerging as a valuable tool for pro- tecting instream flows and promoting water conservation purposes such * M.S. Candidate, Environmental Science, Policy & Management, University of Cali- fornia, Berkeley; B.A., University of California, Berkeley, 2003. I am grateful to Professor Sally K. Fairfax, Professor Judith E. Gruber, Dan Guerra, Lauren Gwin, Laura Leets, Pro- fessor Janet Neuman, Gail Achterman, Chrysten Lambert, Angela Nicholson, Andrew Purkey, David Van't Hof, and Yolanka Wulff. My research would not have been possible without the support of the Summer Undergraduate Research Fellowship through the Col- lege of Letters and Science, University of California, Berkeley. I nstream flow refers to the precise quantity and timing of water flows necessary to sustain one or more specified instream uses of water. DAVID M. GILLILAN & THOMAS C. BROWN, INSTREAM FLOW PROTECTION: SEEKING A BALANCE IN WESTERN WATER USE 8 (1997). Used more generally, it means a nondiversionary, in-place use of water with little or no resulting consumptive use. James D. Crammond, Leasing Water Rights for Instream Flow Uses: A Survey of Water Transfer Policy, Practices, and Problems in the Pacific North- west, 26 ENVTL. L. 225, 226 (1996). Both the quantity and quality of instream flow are important. See TERRY L. ANDERSON & PAMELA SNYDER, WATER MARKETS: PRIMING THE INVISIBLE PUMP 111 (1997). 2 The following is a modified version of the Oregon Water Trust's self-definition: A private non-profit group that uses a voluntary, market-based approach to enhance stream flows by acquiring consumptive water rights to restore flows and streams in Oregon. ORE- GON WATER TRUST, DESCRIPTION, at http://www.owt.org/ (last visited Mar. 24, 2004) (on file with the Harvard Environmental Law Review). 3 Mediterranean climates are characterized by warm, dry summers with little or no rainfall and mild, wet winters. Seasonality and variability in rainfall is the principle at- tribute of the mediterranean-type climate. Avital Gasith & Vincent H. Resh, Streams in Mediterranean Climate Regions: Abiotic Influences & Biotic Responses to Predictable Seasonal Events, 30 ANN. REV. ECOLOGY & SYSTEMATICS 51, 53 (1999).

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