Lisa Brown: Fighting for Oregon’s Rivers

What’s it like to work at WaterWatch of Oregon, fighting on behalf of Oregon’s rivers, lakes, streams, aquifers and more?

There’s no better way to find out than to have one of our longtime attorneys tell you firsthand.

That’s why we interviewed Lisa Brown, WaterWatch staff attorney since 2004.  In a wide-ranging conversation, Lisa gave an insider’s perspective on what it’s like—and what it means—to carry out the complex but inspiring in-the-trenches work of a WaterWatch staff attorney.

Lisa has a long history of conservation work in the West. Both before and during her tenure at WaterWatch, she has worked with different conservation groups on watershed, aquatic habitat, and species protection projects. She’s also conducted aquatic research for the Pacific Northwest Research Station in Corvallis. At WaterWatch she’s earned the distinction of being tenacious, effective, and passionate but always quick to laugh, too. Her work at WaterWatch has crossed and touched the entire state.

Lisa earned her undergraduate degree in Environmental Science from Oregon State University with honors, and then graduated from Lewis and Clark Law School, cum laude, with a certificate in Environmental and Natural Resources Law. She is a member of the Oregon Bar.

The interview has been edited for clarity and concision.

Q:        How did you get interested in working on streamflow issues?

A:        I’ve spent a lot of my life both exploring and working to protect many amazing places in the West which gave me an appreciation of the way that streams and rivers tie everything together and are key to supporting fish and wildlife on many landscapes. As to the specifics of water law and policy, it was taking water law and policy classes with Janet Neuman while getting my law degree at Lewis and Clark Law School that got me interested. I had worked on aquatic habitat protection prior to law school and had done a lot of stream surveys across the Pacific Northwest, but that was mainly focused on forest and land management. I had a limited understanding of water rights and water law prior to those classes. Once I better understood those pieces and what it was that this sort of mysterious group WaterWatch was working on, I became intrigued about working on this critical aspect of river conservation. All the pieces of river conservation are important, but without water none of it can be effective.

Q:        You started working at WaterWatch in 2004. What has kept you here working on water issues?

A:        WaterWatch was the first group in the West to focus exclusively on restoring and protecting water instream. The organization’s work has resulted in stronger laws, better management and greater public awareness of the issues facing Oregon’s rivers, streams, and groundwater aquifers. This has translated into more water in our rivers for fish and wildlife, and people who enjoy and depend on these waterways. WaterWatch is an extremely effective organization and I feel it’s an honor to be able to do this work.

As to specifics, I think a key thing that keeps me—or probably anyone—doing this type of work is making a difference on the ground. Being able to help protect a much-loved river or lake, or a hardly known little stream or wetland, is really the core of it. That can come through working on specific water permit issues, securing better laws or rules, raising awareness so that others can help, or other mechanisms. Whether that protection is temporary or long-term, advancing tangible on-the-ground protections is always a great motivator.

I’d also say that one of the most inspiring things to me is working with people across the state who are trying to solve water issues, protect a stream or curb damaging new water permits. And even in cases where we don’t prevail in the short term, being able to speak up for these places and to advocate for improved water laws and water management—and to help others engage in the process in order to do so—is critical in the long run.

Also, water law is not dull. There’s always something new and interesting to work on. And as we are faced with a changing climate and resulting changes in the amounts and timing of streamflow, the issues change and get even more challenging. For example, because the surface water in streams has largely been overallocated across Oregon, we’ve seen a push for greater use of groundwater, which has highlighted deficiencies in how the state issues new groundwater permits—often doing so when there is no data to show that the use will be sustainable.  The result is falling groundwater levels in many parts of the state, which has added another layer to WaterWatch’s longstanding work to protect Oregon’s waters.

I would also add that because WaterWatch is a small organization, we each do a variety of things, which I like. At any given time we could be writing and delivering legislative testimony, working within a collaborative water planning process in Eastern Oregon, researching a new strategy to advance instream protections, drafting a Court of Appeals brief, or responding to an inquiry from someone trying to understand a water right or how to use the Oregon Water Resources Department’s website.

Finally, the staff and board of WaterWatch, and the people we get to work with across the state and beyond, are great to work with. As a conservation group working mostly within Western water law—which can be a bit challenging—I think it’s critical to have a fantastic team and to be able to have fun doing it. We have that.

Q:        What’s the best or most important tool to fight for water and the natural habitat?

A:        I don’t think you can pick just one. We absolutely need the legal and legislative components. We must be willing and able to oppose projects and water permit applications that would reduce streamflows below those needed to maintain healthy rivers or drain Oregon’s groundwater aquifers. At the same time, a strong presence at the Oregon Legislature is critical to prevent rollbacks of existing standards and to advance better water management and protection standards. But, ultimately, I think maintaining and improving protections for water in Oregon is dependent on people standing up for the rivers, streams, lakes, and springs that they love and appreciate. It’s hard to counter the economic forces that advocate taking water out of streams, but it’s impossible if people don’t speak up. None of us should take our amazing rivers for granted.

Q:        WaterWatch is always willing to challenge bad projects, and we are also willing to go to court to protect streamflows. How does that tool fit into your overall work?

A:        I think it’s important to first understand that the vast majority of litigation against the Oregon Water Resources Department is by water users, meaning people who want to divert water from streams or pump groundwater and are generally challenging the department’s denial, regulation or conditioning of a permit to do that. There is a context of constant litigation pressure on the state from those seeking to divert and pump more water.

WaterWatch’s role in strategically challenging decisions is vital to affording Oregon’s streams and groundwater aquifers the protections that are written into Oregon’s water code. To be sure, the water code falls short of protecting our streams in critical ways and needs modernization in that regard. That’s why we have a dual approach of working to improve the standards while also making sure that the protections in place are implemented.

There are countless places across Oregon that wouldn’t be what they are today without WaterWatch being willing to oppose a bad project. For a water permit decision that would harm a river, once we file an administrative challenge with the Oregon Water Resources Department there is often a way to work out a mutually agreeable solution that, for example, protects streamflows needed for fish while providing adequate water for a proposed out of stream use, without the issue proceeding to court. We strive to do that, but it’s not always successful. A good example is the Oregon Water Resources Department’s proposed issuance of a large new water permit to a private water company to divert 22 million gallons a day from the McKenzie River for what amounted to speculation in Oregon’s water, which belongs to the public. That permit would have been issued had WaterWatch not challenged it, then prevailed at the administrative trial and then defended the win at the Oregon Court of Appeals.

Q:        Can you talk about an issue you are working on right now and what it says about water in Oregon?

A:        I have been working within a state Placed Based Planning collaborative process in the Harney Basin, which is basically the watersheds that flow down into Malheur and Harney Lakes and the Malheur National Wildlife Refuge in Harney County. What happened there was that the state issued groundwater permits for irrigation that far exceeded the amount of groundwater available by 100,000 feet or more. Some areas of the basin have seen the groundwater levels decline by close to 100 feet already and those levels are not expected to recover in anyone’s lifetimes, and maybe not ever, because much of the water being pumped for irrigation is “paleo” water that is more than 10,000 years old. After WaterWatch helped highlight the issue both by filing challenges to issuance of new groundwater permits, and helping inform the Oregonian’s five part series “Draining Oregon,” the state essentially stopped issuing new groundwater rights there, while pursuing a joint USGS/OWRD groundwater study and establishing the currently ongoing place based planning process.

I hope what happened there is an extreme example, but I think it also demonstrates a couple of things that are going on more broadly. First, when surface water is not reliably available at times when it is typically diverted for agriculture—which is more and more the case with climate change—people increasingly apply for groundwater permits. Second, the state’s practice of not saying no to a groundwater permit request without thorough data on the aquifer, can lead to dramatic over-allocation of the resource. That’s bad for groundwater dependent ecosystems and existing water users—especially people who rely on wells for domestic water use. This situation highlights a critical need to improve how the state allocates and manages groundwater across Oregon as climate change increases the importance of groundwater both in supporting groundwater dependent ecosystems—such as springs, wetlands, and cold water inputs to rivers and streams—and as a resource that can buffer the impacts of drought if managed carefully.

This being one of four pilot projects for collaborative Place Based Planning, the Harney project is also a living experiment to see if those processes can come up with ideas for how to meet both instream and out of stream water demands. We have a lot of work left to do, but we’ve had a lot of great discussions and are working on quite a few ideas that could help alleviate the problem.

Q:        Is there a case or issue that stands out during your time at WaterWatch? And if so, why?

A:        One that stands out for me is what happened at a place called Rivers End Ranch, which is located along the Chewaucan River just upstream from where it flows into Lake Abert. Lake Abert is a terminal lake and it’s saline. Like other well-known saline lakes, such as the Great Salt Lake and Mono Lake, it’s a critical resource for birds migrating on the Pacific Flyway. In simple terms, because of its salinity and the fact that it’s not habitable for fish, it’s incredibly flush with brine shrimp and brine flies that birds feast on and really depend on for their long journeys. To support those resources, however, the lake needs a certain amount of freshwater inflow because it cannot do so if it achieves too much salinity. Lake Abert is an internationally significant and rare ecosystem recognized for its importance to birds.

But, in the early 1990’s, the U.S. Fish and Wildlife Service, various state agencies, Ducks Unlimited and others spearheaded a project using public money to build a channel spanning dam across the Chewaucan River, just upstream from where it flows into Lake Abert. Purportedly, the idea was to have a freshwater reservoir for birds. Oregon Department of Fish and Wildlife even allowed the ranch to submerge public land under this reservoir. Long story short: A bypass flow requirement that would have provided flow to Lake Abert was supposed to be added to the state water permits and an agreement with the U.S. Fish and Wildlife Service and a water quality certification issued by Oregon Department of Environmental Quality did include provisions to protect Lake Abert. But when it was discovered that the ranch had disturbed significant Native American Indian cultural resources when constructing the dam, all of the agencies just dropped the ball and abandoned the protections intended for Lake Abert, leaving behind this trail of destruction and leaving the ranch with the reservoir.

Basically, all of this public money was spent but instead of having a cooperatively managed public-private project that benefits wildlife, you have a private channel spanning dam across the Chewaucan River that creates a private reservoir lacking any bypass conditions to protect Lake Abert. To me, this long string of events where multiple state and federal agencies did not do their jobs of protecting tribal resources or Lake Abert is so bad that it would be unbelievable had it not actually occurred.

On the bright side, there are many fantastic people working on Lake Abert issues with a lot of great ideas and energy. So hopefully, collectively, we can generate significant positive change for this rare, internationally significant lake.

Q:        There is a lifetime of work left to do here. What do you look forward to pursuing? What things would you like to see accomplished in, say, the next 15 years?

A:        I would like to see Oregon’s water management system achieve a reasonable level of modernization. By that I mean that at a minimum, all water use should be measured and reported in real time to the state. A much more robust system of stream and lake level gauges should be implemented so we know how much water we have in our streams and lakes. The saying “you can’t manage what you don’t measure” means that Oregon can’t manage a lot of its water. It’s irresponsible—and absurd—that for water, which is critical for supporting life, the environment, and the economy, we largely do not require measurement of its use. Nor do we have adequate gauging and monitoring to know how much is in our streams, rivers, and lakes. It’s reckless that the Oregon Legislature and related agencies are not requiring and funding more responsible water management, even as the state continues to issue new water use permits. Our lack of basic data is just going to make things harder as we face water challenges from climate change.

Another priority would be progress on protecting and restoring inflows to Lake Abert in whatever form that may come in—probably a combination of things.

Improving how Oregon manages groundwater will also be key especially as climate change drives requests for new groundwater permits. For example, right now, if the state lacks the data to determine that a groundwater aquifer is over-allocated, it just continues to issue new groundwater permits. That needs to be changed to a default decision that denies new groundwater permits unless we know there is groundwater available to support that use. Otherwise, you will end up with more situations like the Harney Basin, where the state over-allocated the groundwater by more than 100,000 acre-feet.

Across the state, it’s critical to continue to see new instream water rights established and an increased ability through funding and other programs to ensure that streamflows identified in the instream rights are met. Instream water rights are held by the Oregon Water Resources Department in trust for all Oregonians. Instream water rights are basically the equivalent of public lands for water—they belong to all of us. I think we can and should be better at ensuring that all streams are protected by an instream water right.

Finally, related to the points above, we need to clean up the “money in politics” problems that we have in Oregon. I think we should all re-read the 2019 award-winning article “Polluted by Money” by Rob Davis of The Oregonian at least once a year as a refresher and motivator. I think the problem is woven into—one way or another—pretty much every aspect of state natural resource management. If we can’t fix it then we’ll have a heck of time holding the line, let alone advancing better water management and protections.