Oregon Court Reverses Orders for Extensions To Perfect Clackamas River Water Rights

Jan. 6 — State orders allowing an Oregon city and two municipal water agencies more time to complete projects that will allow them to perfect—or develop—their rights to divert water from the Clackamas River were reversed by a state intermediate appellate court.

The state's Water Resources Department had issued three orders to the city of Lake Oswego, the South Fork Water Board and the North Clackamas County Water Commission extending the time they have to perfect their eight separate water-right permits to divert water from the lower 3.1 miles of the Clackamas River for municipal use.

In a Dec. 31 opinion, Judge Lynn R. Nakamoto of the Oregon Court of Appeals concluded the department's determination that the permits will allow for enough water to ensure protections of listed fish species in the Clackamas River “lacks both substantial evidence and substantial reason.”

The appeals court remanded each of the final orders in these cases for further consideration by the department.

State law requires the holder of a municipal use permit to complete construction of any project within 20 years of obtaining its water right permit and put the water right to use within a time frame contained in the permit. The department may allow an extension of time to complete construction or to perfect a water right beyond the time specified when three conditions are met.

At issue in this case is the third condition for an extension, found in Or. Rev. State. § 537.230(2)(c), which states that the department may only issue an extension if it finds that the undeveloped portion of the water rights permit will “maintain…the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.”

WaterWatch of Oregon challenged three orders granted by the department to the city of Lake Oswego, the South Fork Water Board and the North Clackamas County Water Commission to extend the time to perfect their water right permits to divert Clackamas River water.

The undeveloped portions of the water rights permits for both Lake Oswego and the North Clackamas County Water Commissions amount to about 34 cubic feet per second each. The undeveloped portions of South Fork Water Board's permits amount to roughly 80 cfs.

Minimum Flow Levels Recommended

The department issued proposed final orders in November 2007, which, based on recommendations from the Oregon Department of Fish and Wildlife, included minimum flow levels by season to maintain fish persistence.

With the exception of the modification of a yearly meeting condition, an administrative law judge upheld the orders after a contested case hearing.

In January 2011, the department issued amended proposed orders, noting that it may deviate from Fish and Wildlife's advice if it “requires restrictions on water use greater than the existing data demonstrates is necessary to maintain the persistence of listed fish species.”

The department finalized the proposed orders, along with 35 additional findings of fact, in April of that year.

WaterWatch filed this petition for judicial review of the department's orders.

Court—Determination Lacks Evidence, Reason

The court of appeals agreed with WaterWatch's argument that based on Department of Fish and Wildlife's advice, the Water Resources Department “set the persistence flows as target levels used to trigger actions required by the permit conditions, and not as hard numbers that must be met at all times.”

The court found that the department did not support three of its additional factual findings with substantial evidence. Specifically, it did not explain what a “short-term drop“ is in terms of fish persistence or why the flows predicted by its expert, which are not set out in the order, fall within that category.

The court also agreed with WaterWatch's argument that the department's determination that permits will maintain fish persistence lacks substantial reason because the department did not explain the connection between its streamflow findings and conditions in the permits.

The court concluded that the “department failed to connect the dots between its finding of what is necessary to maintain fish persistence—long-term meeting of persistence flows—with how the conditions ensure that the diversion of the undeveloped portions of the municipal parties' permits do not contribute to the long-term failure to meet persistence flows.”

Attorneys from WaterWatch represent the group.

Ring Bender McKown & Castillo LLLP represents the city of Lake Oswego and North Clackamas County Water Commission.

Beery, Elsner & Hammond LLP, Portland, represents South Fork Water Board.

The Oregon Attorney General represents the Water Resources Department.