Ruling affects Cottage Grove water
The city must develop a plan to protect salmon on the Row River and possibly restrict future draws
By Christian Wihtol
December 22, 2013
COTTAGE GROVE — The city must create a plan to reduce water wastage by the Cottage Grove municipal water system and its customers, and also develop a plan to protect threatened spring Chinook salmon on the Row River, the Oregon Court of Appeals has ruled.
The ruling is a victory for the nonprofit Portland advocacy group WaterWatch, whose goals include ensuring river flows are sufficient to protect fish. The group argued that Cottage Grove is drawing volumes of water from the river large enough to trigger state requirements for a plan to curb leakage and waste in the city’s water piping system, and for a study to ensure the increased water draws from the river don’t harm salmon.
Cottage Grove had argued that it applied for the necessary water permits from the state Department of Water Resources prior to enactment of a state law in 2005 that instituted the conservation and fish protection requirements. But the court ruled that the state and city handling of the application was deficient, and that the 2005 law applied to previously submitted, but incomplete, applications. So, Cottage Grove now must obey the 2005 law, the panel ruled.
The city has not decided whether to appeal, said city attorney Sean Kelly. The state agency, also a defendant in the case, declined to comment.
Cottage Grove has long-established rights to draw 2 million gallons a day from the Row River. WaterWatch isn’t contesting those rights.
But the city wants the legal right to draw an additional 2 million gallons a day. WaterWatch is contesting that increase.
Obeying the Appeals Court ruling would be expensive and could limit the water the city pulls from the river for its Row River Road purification plant, said city Public Works Director Jan Wellman. The city wants to make sure it has sufficient water to fight fires, he said.
“Our responsibility is to provide water to citizens and protect against fire. Anything that restricts your ability to do that is tough on the city,” he said.
WaterWatch said it’s too soon to say whether the city’s ability to draw water would be hampered.
First, the city must study whether the increased water draws harm the Chinook, said Lisa Brown, an attorney for WaterWatch.
One thing that is clear is that the city must create a conservation plan for its water distribution system and for its residents, Brown said.
The city must prepare “a plan detailing how it will implement basic, proven water conservation measures, such as fixing system leaks, installing a conservation-based rate system, and providing rebates for water efficient fixtures,” Brown said.
Plenty of water goes to waste in Cottage Grove, Wellman said.
Many older homes have toilets that use 7 gallons per flush, compared to the 1.5 gallons of a modern toilet, he said. Also, many of the distribution system’s pipes are old, some dating to the 1940s, he said. Some leak underground, he said, and it’s hard to find these persistent leaks.
Most municipal water systems, including Cottage Grove’s, have water leakage amounting to perhaps 10 percent of total usage, Wellman said. The best fix is to dig up and replace old pipes, he said.
The city has in its current budget $75,000 to $100,000 for a consultant to update Cottage Grove’s 16-year-old water management plan, Wellman said. After that, the city would need to agree on an upgrade plan, he said. The cost would fall on ratepayers.
The League of Oregon Cities, which filed a brief on behalf of the city in the case, said the ruling is important. Like Cottage Grove, many cities in Oregon applied for but did not fully secure state water permits prior to 2005. Those cities may now find themselves subject to the conservation and fish protection requirements, the said.
The state Department of Water Resources in 2010 granted Cottage Grove a permit for the additional 2 million gallons a day, saying water conservation and fish protection plans were not required because the agency at various points from 1977 to 1999 had given the city permission to delay its full application for that extra water.
But those delays were legally deficient, including for their lack of notification to the public, the appeals court ruled.
The amount of water the city draws from the river varies widely, Wellman said. In the winter, it draws as little as 1 million gallons a day, he said. In the summer, as residents turn on sprinklers and fill pools, it draws as much as 4 million gallons a day he said.
Wellman said he worries a salmon protection plan could require Row River’s flow to be kept at a rate that might bar the city at certain times from drawing the water it needs.
WaterWatch’s Brown agreed with the League of Oregon Cities that the ruling is important.
If the many cities in Oregon that hold uncompleted permits for large amounts of water were to begin drawing that water prior to evaluating the effect on imperilled fish, “that would detrimentally impact salmon, steelhead and other struggling fish populations,” she said.
The ruling “closes a loophole — created by the Oregon Water Resources Department — that allowed municipal water permit holders to avoid assessing impacts to fish as mandated by Oregon law,” she said.
“Every city should be implementing basic water conservation measures, which is a key part of using water resources wisely and ensuring safe drinking water supplies into the future,” she added.