By Lily Roby | Nov. 7, 2024 | Courthouse News
After more than two decades of fighting, the East Valley Water District appeared before the Oregon Supreme Court on Thursday to once again push for approval of a water permit for a proposed dam.
The district — which represents farmers between Silverton, Woodburn, and Molalla — has been a longtime proponent of the dam, stressing the dam and its reservoir would provide much-needed irrigation in an area with limited groundwater. The proposed 70-foot dam would be built on Drift Creek near Victor Point Elementary near Silverton, costing an estimated $84 million.
The district got a permit in 2013, but it was quickly appealed by those living in the affected area as well as conservation groups like WaterWatch of Oregon.
Critics say the proposed dam and reservoir would heavily impact stream flows, which native species like the cutthroat trout rely on for migration and spawning. Subsequent applications have been denied by the Oregon Water Resources Commission, which agrees that disrupted flows could harm trout.
That initial approval has been basically the only win for the district since 2013 — but the organization of more than 70 members hasn’t given up hope. Even with repeated rejection, it has already purchased 104 acres of land to be flooded if the dam is ever built.
Thursday’s hearing comes on appeal after the Oregon Court of Appeals once again blocked construction of the dam. In that court’s 2023 ruling, the commission determined “no modifications” would “comport with the public interest to allow for approval.”
The East Valley Water District spent much of Thursday’s hearing challenging the verbiage of Oregon law on public water rights.
Merissa Moeller, attorney for the East Valley Water District, insisted that Oregon water law has always been a quantity-based system, meaning that the state’s legal obligation to protect water rights starts and ends at simply ensuring water maintains the same rate over the course of its use. According to Moeller, the state has no “authority or discretion to protect the ‘purpose’ of a water right.”
“In your position … it seems like it comes down to the proposition that in enacting the Instream Water Rights Act, the legislature meant to do nothing more than ensure that a certain quantity of water is available in the stream,” said Justice Bronson James. “If we’re to find evidence in the record that legislators were concerned about something more than that, do you lose the case?”
Denying that the court would find that in the record, Moeller stated that there is “ample evidence” the legislation was enacted simply to address stream flows.
Moeller also stated that the OWRC, which refers to seven public interest factors when reviewing water rights applications, “may deny a new water right application by simply picking one of the public interest factors and asserting that it’s not satisfied.” She argued the commission had unfairly done so by repeatedly rejecting the East Valley Water District’s application.
Arguing on behalf of the OWRC and Oregon Water Resources Department, attorney Denise Fjordbeck said approving the application would destroy the ODFW’s senior water right and therefore be unprecedented.
Still, Justice Christopher Garrett grilled Fjordbeck on the legitimacy of the commissions’ procedures in approving applications. Arguing that the commission’s position was that it had multiple chances to exert different water rights, he said: “That seems like a strange way to run the system.”
Fjordbeck again pushed back. “I think the commission, frankly, could have relied on a number of other factors here,” she said. “But I don’t think there is any real dispute that putting a 70-foot dam halfway up the protected reach isn’t going to destroy the stream for the purpose set out in the water rights certificate.”
On behalf of WaterWatch of Oregon, attorney Thomas Christ also argued against approval of a water right for the district.
Besides quantity, he said the commission should also get to consider qualitative values when weighing water rights, including the environmental impacts on species like the cutthroat trout.
Christ also suggested that if the water right were approved, it could start a ripple effect in which organizations like ODFW must forfeit senior water rights to allow the construction of other dams. He painted a nightmarish picture of a dam constructed on Oregon’s Rogue River, nationally famous for its whitewater rafting — turning the voracious river to slack water.
“This is not simply about a few small fish in a creek that no one knows about,” Christ said. “This is about all of the water courses in Oregon.”
The Oregon Supreme Court did not indicate when it would rule.
This article originally appeared in Courthouse News on Nov. 7, 2024.