By Kendra Chamberlain | Aug. 27, 2025 | Columbia Insight
A court decision has upheld existing instream water rights held by the state on Drift Creek, a tributary of the Pudding River.
A decision by the Oregon Supreme Court is being lauded as a win for fish, but could throw a wrench into future water rights development plans.
The ruling is part of the court’s Aug. 7th decision to send an application denial for a proposed new dam on Drift Creek back to the Oregon Water Resources Commission for reconsideration.
The case revolves around an existing instream water right held by the state on Drift Creek, a tributary of the Pudding River that runs from Silver Falls State Park to its mouth south of Silverton.
Instream water rights are used to ensure that some water remains in a river or stream for the benefit of both the public and wildlife that depend on the water.
Water rights typically ensure a specific amount of water be available to the rights holder at a specific point on a river or stream.
But the Oregon Supreme Court has affirmed that the purpose of the right — in this case, keeping water in the creek so cutthroat trout and other fish species can continue to use the river — is also protected within the right.
The East Valley Water District, representing a group of farmers located near Mount Angel about 50 miles south of Portland, applied in 2013 to build a 70-foot-tall dam and a 12,000-acre-foot reservoir on Drift Creek to store water the district’s members would use for irrigation in summer.
The Oregon Water Resources Commission initially approved the application. That decision was challenged by WaterWatch of Oregon.
The advocacy organization argued that the dam would threaten an existing senior instream water right on Drift Creek established in 1996 to protect cutthroat trout and other fish that use the creek for spawning and rearing. Coho and chinook salmon, Pacific lamprey and winter steelhead also use the creek.
The Oregon Water Resources Commission eventually agreed with WaterWatch of Oregon, and denied the application.
The water district appealed the decision, but the state’s Court of Appeals agreed that the dam and reservoir would threaten the existing instream water right. So the district took the matter to the Oregon Supreme Court.
The East Valley Water District argued to the court the instream water right was protected as long as the specific water quantity was present at the mouth of Drift Creek. In other words, the dam and reservoir would not interfere with the senior instream water right as long as the same amount of water made it to the bottom of the creek.
Columbia Insight has been unable to contact the East Valley Water District for comment.
WaterWatch of Oregon contended the instream water right protects water flows throughout the 11-mile stretch of creek, not just where it flows into Pudding River.
“The purpose of the flow — which is cutthroat trout — needs to be protected throughout the 11-mile reach,” Brian Posewitz, staff attorney at WaterWatch of Oregon, told Columbia Insight. “And the Supreme Court agreed with us and the Court of Appeals that if you put a big dam and a reservoir in the middle of that protected reach, you’re not protecting the beneficial use of the instream water right, which is for cutthroat trout spawning, rearing, migration, and so forth.”
That piece of the decision could prove significant for future water rights applications on waterways that have instream water rights. The ruling has some organizations worried.
The Oregon Association of Nurseries, whose members frequently apply for new water rights for nursery and farm operations, filed an amicus brief in the case in 2024, arguing the Commission’s decision, upheld by the Court of Appeals, threatens to end new appropriations “in any basin where an instream water right is present.”
OAN said it was participating in the case “out of concern the decision could ultimately be expanded to accord instream rights a sort of ‘super-protected status’ in water right transfers and water right regulation matters.”
Oregon passed its Instream Water Right Act in 1987. WaterWatch of Oregon helped craft the legislation. The law allows regulators to protect the state’s waterways by applying for instream water rights for the benefit of wildlife and the public.
“There are lots of instream water rights throughout the state that protect stream flow for the benefit of fish and wildlife and recreation,” said Posewitz. “What the Supreme Court said is that these instream water rights are entitled to robust protection, not just a specific quantity of water in a specific place, but they’re entitled to protection of the use of what that water is for.”
This article originally appeared on the Columbia Insight website on Aug. 27, 2025, and was later picked up by the Salem Herald on Aug. 28, 2025. Photo courtesy of Amanda Loman.