Aug. 13, 2025
In a win for WaterWatch of Oregon and instream water rights, the Oregon Supreme Court last week upheld most of a 2023 Court of Appeals decision that affirmed a 2019 Oregon Water Resources Commission decision to deny a permit to construct a 70-foot high dam and 384-acre reservoir on Drift Creek, an 11-mile tributary of the Pudding River in Marion County that hosts cutthroat trout, coho and chinook salmon, Pacific lamprey, and winter steelhead.
The Supreme Court agreed that an instream water right on Drift Creek protects the “purpose of that right” — in this case the spawning, rearing and migration of cutthroat trout — not just a specific flow at the mouth of the stream. The court also let stand the Court of Appeals decision affirming the Commission’s finding that the proposed dam and reservoir would “conflict” with the purpose of the instream water right.
In addition to impairing fish habitat on the stream, the dam and reservoir proposed by the East Valley Water District would flood habitat for wildlife including elk, and land used by family farmers, who would have their property taken by the water district under its power of “eminent domain.”
Although the Supreme Court sent the matter back to the Water Resources Commission for further consideration on some issues, the court recognized broad protection for instream water rights, which WaterWatch championed into Oregon law in one of our earliest victories in 1987.
The court ruled that “a water right confers not just the right to a quantity of water, but also the right to continue the specified beneficial use of that water.” This means instream water rights protect the instream uses they are intended to serve, not just a specific quantity of water at a specific measuring point — an interpretation that will have significant benefits for rivers and fish in years to come.
WaterWatch was represented in the case by appellate specialist Tom Christ, who argued the case before the Supreme Court, and staff attorney Brian Posewitz.
As Brian noted in our statement to press on Friday, “We wish the Supreme Court had affirmed the Court of Appeals entirely and put a complete stop to this destructive proposal, but the Court’s decision on the nature of instream water rights is a major victory for WaterWatch and protection of the public values that benefit from preserving flows in Oregon’s rivers and streams.”
There will be more to come with this story as WaterWatch prepares to defend our earlier victories and argue before the Water Resources Commission for a second time against a dam on Drift Creek. In the meantime, we appreciate your ongoing support!
Read WaterWatch of Oregon’s corresponding press release on the Oregon Supreme Court decision.
For an archive of media, press, and WaterWatch statements on the Drift Creek case, please visit this link.
