Some of the old methods of managing water are overdue for change, as declining snowpacks and aquifer levels are making increasingly apparent across the West.

For advocates of permaculture and other holistic approaches to agriculture, this predicament offers a chance to reshape the way farmers and ranchers think about water.

“What if we saw water as an abundant resource? Flipping the script may reveal all kinds of opportunities,” Don Tipping, a permaculture expert and seed farmer near Williams, Ore.

Regulators have effectively “promised out more water than actually exists” when irrigation demand is high in summer, creating an “atmosphere of scarcity,” Tipping said.

However, innovative strategies for farming with scarce water have been progressing for decades — people must simply be willing to use them imaginatively, he said.

“Usually, our limitation is just our creativity,” Tipping said.

‘Fewer straws,’ older laws

The West’s water doctrine was established when there were “fewer straws in the drink” and the resource was more plentiful during peak irrigation season, he said. “Basically, the laws have never evolved since they first cast them.”

Since a radical overhaul of Western water law is unlikely, given constitutional protections for property rights and due process, advocates expect new ways of thinking will have to be superimposed on existing legal strictures.

Tweaking the specifics of water law, if not its fundamental principles, may be necessary to apply novel methods on a larger scale, experts say.

Though such changes are bound to encounter resistance, the potential cost of inaction is high, Tipping said. “Water has led to the success or failure of every major empire on the planet. The way we’re doing it is leaning toward failure.”

Straightforward concept

Farmers have a multitude of ways to incorporate permaculture into their operations, but the concept’s underlying approach to water is straightforward.

“You’re slowing the flow of water down as much as possible so the water stays on the land as long as possible,” said Maud Powell, a small farms specialist with Oregon State University Extension.

While permaculture and related theories, such as keyline design, are often associated with organic, back-to-the-earth operations, the ideas can also help conventional farmers stretch their water supplies.

“That’s actually where some of the biggest lift can come from,” said Abel Kloster, whose company, Resilience Permaculture Design, helps farmers incorporate the concepts.

A minority of America’s 2 million farms are irrigated but they produce a disproportionate amount of the nation’s agricultural product value: The 465,000 irrigated farms in the U.S. generate about $227.5 billion of farm products, or more than 58% of the nation’s total, according the 2017 USDA Census.

Beyond using water efficiently, permaculture’s philosophy is meant to promote farming that supports and sustains wildlife habitat and the environment, Kloster said. “We work with anyone who wants to pursue these things.”

Earthmoving is a common tool, with farmers building berms or digging basins and swales — basically recessions in the ground — to prevent rapid runoff.

“What these structures are really doing is slowing the flow through the watershed and recharging groundwater tables,” said Andrew Millison, a permaculture instructor with OSU’s horticulture department.

Reducing tillage and growing cover crops offer a relatively undemanding way to help the ground soak up water, he said.

“More important than all those structures is having soil with a high organic matter content,” Millison said. “Absorbing organic matter into the soil is the first line of defense, and it doesn’t require the changing of any laws.”

Keyline practices

In keeping with keyline practices, growers deeply “rip” the ground each year with a special plow along topographical contour lines, which improves infiltration, said Tom Powell, Maud’s husband and a seed farmer near Jacksonville, Ore.

“Instead of taking the fastest route off the property, it’s being slowed down by these contour lines,” Tom Powell said.

Keyline design is named after the “key” contour line, where the landscape shifts from a steep to a gentler slope, around which the farm and its water system are designed, he said.

Above this keyline, the landscape is often more conducive to agroforestry and pastures rather than intensive crop production, said Kloster.

“Below it is where we start to look at more agricultural endeavors,” he said.

To implement permaculture and keyline concepts, farmers try to work with the natural geographic features — which can be tough where the landscape is fragmented along grid-like property lines, said Millison of OSU.

“Often, management happens in relation to the rectangle,” he said. “Your upstream neighbor can do a lot of things detrimental to you and there’s nothing you can do about it.”

The road system can create another problem if it harmfully alters the course of water, Millison said.

“A poorly placed road can be one of the most hydrologically damaging things on a landscape,” dehydrating the soils above it and flooding those below, he said.

Water right concerns

Apart from negotiating physical obstacles, farmers must ensure permaculture tools don’t conflict with water rights.

Theoretically, slowing water’s downhill flow benefits farmers and environmentalists alike by preventing erosion, which causes soil loss and stream pollution. Filtering water through the ground also removes impurities and lowers its temperature, enhancing fish habitat.

In practical terms, though, the Western doctrine of prior water appropriations complicates this dynamic.

Under that “first in time, first in right” doctrine, upstream earthmoving activities cannot reduce downstream flows to the detriment of senior irrigators with older water rights.

Reservoir trouble

In one famous case, a Southern Oregon landowner built several dams intended to collect water flowing over his land, claiming the state government lacked jurisdiction over rain and melting snow before it enters a defined stream.

State regulators said the reservoirs deprived a nearby creek of water and ordered them torn down. The government prevailed in court, ultimately leading to a monthlong jail sentence and $1,500 fine for the landowner.

Earlier this year, Sen. Dennis Linthicum, R-Klamath Falls, proposed broadening Oregon’s water rights exemption for storing snow and rainwater.

The exemption now applies to precipitation collected from “an artificial impervious surface,” such as a roof. Senate Bill 713 would have extended the exemption to water “diffused over the surface of the ground” before it’s “joined with other waters in a well-defined channel.”

The proposal eventually died in committee after meeting with opposition from agricultural and environmental representatives, who argued collection projects would endanger senior water rights.

“The bill allowed landowners to do that almost on an infinite scale,” said Stan Dean, advocacy committee chair for the Oregon Association of Conservation Districts. “You could really impact how much water reaches our streams.”

These objections ignored how expensive it would be to abuse the exemption, according to Linthicum, who believes the bill would more likely inspire affordable, small-scale reservoirs.

“Everybody assumed everybody else was a cutthroat,” he said. “To try to gather every last drop is inconceivable. It would be cost prohibitive to try to capture all that water and prevent it from leaving my landscape.”

Linthicum said he again plans to introduce the concept during next year’s legislative session, since small ponds can collectively improve storage while replenishing groundwater.

“My effort with this concept was to stop water from running into the salty Pacific and allow it to go back into the aquifer,” he said.

Is a permit needed?

Purposely storing water in this manner without a permit is currently impermissible, but some cases are more nuanced. For example, when does a flooded catchment basin become an unauthorized pond?

“It’s one thing to store water and another to slow it,” said Kimberley Priestley, senior policy analyst with the Waterwatch of Oregon environmental nonprofit.

Since most streams in Oregon are already over-appropriated for irrigation, projects that withhold water are concerning even if the storage is accidental, she said. “At a certain point, they are storing water and will require a water right, but that line is fuzzy.”

Water cannot be diverted without a permit but it’s up to the Oregon Water Resources Department to decide if a project has crossed the threshold from lawfully slowing water to illegally storing it, said Sarah Liljefelt, a water rights attorney who advises farmers and ranchers.

“There’s no bright line rule but there are circumstances where it’s evident the water is being used illegally without a permit,” she said. “There’s not a one-size-fits-all way to decide.”

That’s particularly true in Oregon, which has a varied topography and a wide range of microclimates across the state, said Jason Spriet, OWRD’s east region manager.

“Our criteria is: Is it stopping the flow of water or just slowing it?” Spriet said, adding that regional water availability plays into the calculation. “A structure in one area may cause an issue whereas in another it may not.”

Oregon law does shield well-meaning landowners if their land management practices are intended to “save soil and improve water quality by temporarily impeding or changing the natural flow of diffuse surface water.”

They shouldn’t expect that protection to be limitless, though.

“It’s not an open-ended exemption,” said Priestley of Waterwatch. “It’s tied to a purpose. It’s clear that storage cannot be the purpose.”

Farmers have leeway to reuse flows from water they’ve legally diverted for irrigation, but only as long as it stays on their property, said Spriet of OWRD. Runoff from neighboring landowners remains off-limits under this principle.

“Once they lose control, it’s basically the public’s water again and goes back into the system,” he said.

Guidance needed

Without a consistent rule of thumb, landowners should seek guidance from local regulators about any project they’re unsure about, Spriet said. “The best thing you can do is talk to your local watermaster and get their opinion.”

Even this advice comes with a caveat, because the opinion of a watermaster doesn’t carry the weight of black letter law, said Liljefelt, the agricultural water rights attorney. Informal approvals can be especially vulnerable if they occurred long ago, when “you had things that were a lot looser than they are today,” she said

In general, agency guidance is less reliable than actual regulations, which also aren’t set in stone, Liljefelt said.

“Agency policies can change over time,” she said. “The ways the agency views it now may not be the way the agency sees it forever.”

Despite the notorious difficulty of acquiring new water rights in a stream or river, other permit types are possible to obtain, said Kloster, the permaculture system designer. Such authorization can be worth the trouble, in light of the crucial role water storage plays in permaculture systems.

“We’re going for strategically placed ponds throughout the landscape,” he said.

Some of Kloster’s clients seek permits to store pumped groundwater, but off-channel seasonal flows — such as those from a winter spring — are another option, he said.

The legal constraints on such water rights often align with permaculture principles, Kloster said. The philosophy is averse to reservoirs that block waterways, which interfere with fish passage and are vulnerable to failure during floods.

“That actually overlaps well with what we are trying to do. We are working with that part of the landscape as well, not putting ponds in streams,” he said. “You’re wanting to take water that’s in surplus during the rainy season and hold that in the landscape for the dry season.”

Though new reservoirs are often viewed with suspicion due to potential water right impacts, stored water can help extend the irrigation season, according to permaculture advocates.

“That water is making its way to the stream, contributing to a more sustained stream flow instead of a flash during winter,” Millison said.

Legal revisions

Small-scale storage can be expanded with surgical legal revisions rather than turning Western water law on its head, permaculture experts say.

For example, farmers are currently allowed to enter into “split-season” leases, in which part of their water supply is devoted to in-stream environmental purposes after irrigation ends. A similar concept could encourage them to lease water to smaller farmers for storage.

Government incentives can foster cooperation among landowners and overcome the hurdles posed by a fragmented landscape, said Millison, who’s helped organize the Permaculture Land Users Group, or PLUG, to explore and advocate such ideas.

“What we’d like to see is full watershed-scale water systems,” he said.

While roadways can be destructive, they can also provide water solutions, said Tao Orion, who designs permaculture sites with her husband, Abel Kloster.

Harvesting and storing water from roads, including those made from gravel, could filter out pollutants while increasing irrigation supplies, Orion said.

“A lot of that water is contaminated and you don’t want it to go directly into the stream,” she said. “Most engineering is trying to get that water away as fast as possible. In permaculture, we’re trying to get it to stick around for longer.”

Permaculture and keyline systems often rely on a row of gravity-fed ponds that distribute irrigation water at various elevations and capture overflow from each other.

To reduce the burden on landowners, regulators could issue a single water right that encompasses the entire series of ponds, rather than require separate permits for each of them, Kloster said. Likewise, regulatory barriers could be lowered for reservoirs that serve an ecological purpose.

“If there was something more streamlined, it would lead to more adoption,” he said. “There are ways we can work with water that are not purely extractive.”