Nov. 2, 2023
FOR IMMEDIATE RELEASE
Oregon Court of Appeals Protects Drift Creek from New Dam, Strengthens Instream Water Rights
Also recognizes harm done to waterways by in-channel dams and reservoirs.
Salem, Oregon — In a major win for instream water rights, the Oregon Court of Appeals issued its opinion on Wednesday in the case of East Valley Water District v. Oregon Water Resources Commission. The Court unanimously held that the District’s proposal to flood Drift Creek, a tributary of the Pudding River in Marion County, for an on-channel reservoir would defeat the purpose of an existing instream water right on Drift Creek, and would conflict with the habitat needs of native fish in the creek intended to be protected by that instream water right.
Accordingly, the Court affirmed an earlier decision by the Oregon Water Resources Commission denying the permit for the reservoir sought by East Valley Water District.
The reservoir permit had previously been denied by the Oregon Water Resources Commission based on arguments presented by WaterWatch of Oregon. WaterWatch also was a party to the Court of Appeals matter and argued at the Court of Appeals to uphold the Commission’s decision.
“This is an important decision for protection of instream water rights in Oregon,” said Brian Posewitz, WaterWatch staff attorney. “We were happy to see the court recognize that Oregon water law protects the purpose of an instream right and not just a specific quantity of water.”
East Valley Water District, an irrigation district in the Mt. Angel area, formed for the purpose of securing a new 70-foot high dam (proposed without fish passage) and a 12,000-acre-foot reservoir covering 350 acres on Drift Creek. The proposed reservoir would have flooded out the stream in reaches where an instream water right protected streamflows that provided habitat for native fish species, including threatened steelhead, sensitive Pacific lamprey, coho salmon, and native coastal cutthroat trout.
“In finding that the record supported denial of the permit, the court also recognized the multiple harms that in-channel dams and reservoirs can do to a stream system,” said Posewitz.
The proposed reservoir would have also flooded the lands of several family farms that would not benefit from, and did not want, the reservoir on their property. If the project was permitted, the farmers would have been forced by the District’s power of eminent domain to allow the project.
The Court of Appeals based its decision primarily on impacts of the proposed dam and reservoir on an instream water right protecting substantially all of Drift Creek. The Court agreed that flooding a substantial portion of Drift Creek with a reservoir would conflict with the legally recognized beneficial use of water protected by the instream water right. The decision is a significant recognition that instream water rights protect streamflows throughout a reach of stream or river rather than just a quantity of water as measured at a point along the stream or river.
WaterWatch of Oregon is proud to have played a critical role in preserving the future of Drift Creek and the stability of the habitat and fish that depend on it.