Appeals Court Delivers Victory for Clackamas River Salmon and Steelhead

For Immediate Release
December 31, 2014

Contact:
Lisa Brown, WaterWatch Staff Attorney: 503-295-4039 x4
John DeVoe, WaterWatch Executive Director: 503-295-4039 x1

Court of Appeals decision available here: http://www.publications.ojd.state.or.us/docs/A148870.pdf

Appeals Court Delivers Victory for Clackamas River Salmon and Steelhead
Opinion Requires State to Maintain Flows Needed for Imperiled Fish

Clackamas River by Erin Barnholdt

Clackamas River by Erin Barnholdt

Today the Oregon Court of Appeals delivered a victory for Clackamas River salmon and steelhead in an opinion determining that municipal water users must leave enough water in the Clackamas River for imperiled fish populations. The decision was also a win for WaterWatch of Oregon, the river conservation group which originally challenged a state decision to allow increased water diversions from the Clackamas despite the risks to struggling fish runs.

“This is a welcome decision for all those who value Oregon’s incredible rivers, salmon, and steelhead, and especially for those in the Portland metro area who regularly enjoy the Clackamas River,” said Lisa Brown, WaterWatch Staff Attorney.

The decision addresses the proper conditions needed on state-issued permits allowing withdrawals of 100 million gallons of water per day (150 cubic feet per second) from the lower Clackamas River. These permits are held by the City of Lake Oswego, the South Fork Water Board (which serves water to Oregon City and West Linn), and the North Clackamas County Water Commission (which serves areas including Damascus, Oak Lodge, Happy Valley and additional unincorporated areas of Clackamas County). The 100 million gallons of water per day at question would come on top of another 100 million gallons of water per day already allowed to be diverted from the lower Clackamas River for municipal uses. The Clackamas River flows into the Willamette River near Oregon City.

In 2008, WaterWatch filed protests against the orders issued by the Oregon Water Resources Department (OWRD), raising concerns that the fish protection conditions placed on the permits were inadequate. A 2005 state law requires undeveloped permits such as these be developed in a way that maintains the persistence of struggling fish populations listed under the state or federal Endangered Species Acts. The Oregon Department of Fish and Wildlife (ODFW) has identified five populations of fish in the lower Clackamas which qualify for such protections: cutthroat trout, winter steelhead, spring chinook, fall chinook, and coho salmon. Chum salmon would also qualify, but are considered extinct in the area.

The Court interpreted a law that many cities across Oregon are already successfully implementing. On rivers with imperiled fish, the law allows cities to meet their reasonable water needs and develop more water but in ways that allow imperiled fish to persist into the future. On the Clackamas, the cities argued that the law only required enough water to ensure that the listed fish species do not vanish altogether from the affected portion of the river. Thankfully, the court rejected this interpretation.

“There is plenty of water to go around in the Portland metro area without putting the Clackamas River and its fish at risk,” said John DeVoe, WaterWatch’s Executive Director. “For example, the Bull Run system is underutilized, and many other utilities are tapping into the Willamette River. The fact that the state allowed the Clackamas River—the Portland metro area’s backyard gem—to be put at risk when there are clearly other better solutions highlights the shortcomings of Oregon’s water planning requirements.”

Although the ODFW identified river flows needed for the fish, the Oregon Water Resources Department issued orders allowing the permits to be developed without protecting these streamflows.

“Even though the Oregon Department of Fish and Wildlife indicated that struggling fish would need 650 cubic feet per second of river flow in the summer, and 800 cfs in the fall for spawning salmon, OWRD’s permits set no limits on the new water diversions if river flows fell below these levels in the summer months, and inadequate controls during the rest of the year,” noted Brown.

The permits at issue tie up an amount of water clearly in excess of what the permit holders’ need, but under Oregon law this water can be sold to other municipalities. The City of Lake Oswego is doing just this, by allowing Tigard to use its water in exchange for Tigard footing a significant portion of the bill for Lake Oswego’s massive infrastructure upgrade currently under construction.

“The Clackamas may have the last run of self-sustaining wild coho salmon in the Columbia Basin,” said Lisa Brown, WaterWatch Staff Attorney. “We shouldn’t be sacrificing Clackamas fish populations when there are other, less risky options readily available.”

Select Quotes from the Decision:

“[OWRD’s] determination that the permits, as conditioned, will maintain the persistence of listed fish species in the affected waterway lacks both substantial evidence and substantial reason.” P. 2

“[OWRD] failed to adequately explain how its findings support its conclusion that the undeveloped portions of the permits, as conditioned, will maintain the persistence of the listed fish species when the conditions fail to ensure that diversion of the undeveloped portions of the permits will not contribute to long-term drops below persistence flows.” P. 2

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