For Immediate Release
December 11, 2013
Contact:
Jim McCarthy, jmac@waterwatch.org, 541-708-0731
Lisa Brown, lisa@waterwatch.org, 503-295-4039 x4
Victory for Oregon’s Rivers in Court of Appeals Ruling on Cottage Grove Water Right
Precedent-setting decision closes harmful loophole, affirms protections for fish
Today, the Court of Appeals of the State of Oregon handed down a victory for the state’s irreplaceable rivers and fish populations, with a ruling overturning the City of Cottage Grove’s municipal water right certificate. WaterWatch staff attorney Lisa Brown successfully argued the case, maintaining that the Oregon Water Resources Department had improperly issued Cottage Grove’s certificate without first adding protective conditions for sensitive populations of salmon, steelhead, and other fish, as required under House Bill 3038 and enacted by the state legislature in 2005.
“This decision closes a loophole – created by the Oregon Water Resources Department – that had allowed municipal water permit holders to avoid important fish protection conditions mandated by Oregon law,” said WaterWatch’s Lisa Brown. “This is a significant precedent-setting decision that will benefit all Oregonians who value our state’s incredible rivers and fish populations.”
The Court found that the Oregon Water Resources Department’s “construction of the statute would thwart [its intent] by allowing municipalities to circumvent the requirements for fish protection and approval of a water management and conservation plan…” (p. 29)
The Department must now cancel Cottage Grove’s water right certificate and reconsider the city’s water permit extension request, taking into account the needs of listed fish and requiring water conservation measures.
As a result, Cottage Grove – and other municipalities in similar situations around the state – will receive permit conditions that comply with the law and require diversion reductions or other actions to protect rivers and streams at key times of the year. These conditions will then become a permanent part of any water right certificate once these municipal water rights are perfected.
Since 1985, WaterWatch has tracked the actions of the Oregon Water Resources Commission and the Oregon Water Resources Department to ensure legal compliance and agency accountability. Where necessary, WaterWatch challenges water allocation decisions that undermine existing laws and policies, would create poor precedents, or degrade sensitive waterways. No other conservation organization monitors all of the individual water allocation decisions across Oregon for compliance with the law and potential negative effects on the state’s rivers.
Click here to view a copy of the ruling.
Selected Quotes from the Appeals Court Ruling
Pp. 23-24
“…respondents contend that the statutory scheme does not prohibit a city from taking action, such as applying water to a beneficial use, after the expiration of development deadlines in the permit–only that it cannot ‘perfect’ its right under those circumstances–and that it can essentially ‘cure’ an expired development deadline by applying for an extension of time under ORS 537.230(2) before obtaining a water-right certificate. Respectfully, that misses the point. The question is not whether a city can take such action, but whether that action constitutes development of the permit. We agree with petitioner that it does not.”
P. 29
“… the legislative history of [HB 3038] is clear that its purpose is to allow municipal users additional time–beyond that specified in the permit or a previous extension–to perfect their water right, while at the same time ensuring the protection of public resources and meaningful public participation in extension proceedings. The [Oregon Water Resources Department]’s construction of the statute would thwart that purpose by allowing municipalities to circumvent the requirements for fish protection and approval of a water management and conservation plan…”
Pp. 31-32
“The text, context, and legislative history of ORS 537.230(2) indicate that the ‘undeveloped portion of the permit’ is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the development deadline in the permit or last-issued extension. Thus, the [Oregon Water Resources Department]’s interpretation of ORS 537.230(2)–and consequent failure to condition the permit extension as required in ORS 537.230(2)(b) and (c)–is inconsistent with the legislature’s intention. Accordingly, we reverse and remand with instructions to the department to vacate the city’s water-right certificate and to reconsider the city’s permit-extension request in accordance with this opinion.”