A state agency’s decision to let Lake Oswego and other municipalities renew their water rights on the Clackamas River lacks the teeth necessary to protect threatened salmon and steelhead runs, an attorney argued before the Oregon Court of Appeals this month.
The environmental organization WaterWatch wants the Oregon Water Resource Department’s decision reversed and remanded to correct what it sees as errors in the orders allowing Lake Oswego and others to extend water rights they haven’t yet fully tapped on the river.
WaterWatch attorney Lisa Brown said the department’s orders “aren’t supported by substantial evidence.”
And while they identify river levels necessary to protect fish, they don’t require permit holders to take action when water levels drop below those targets in the summer months, Brown said. She said water levels would be inadequate in other seasons, too — running counter to fish protections required under a state law approved in 2005. Permit conditions wouldn’t be reviewed for decades.
“This is it for fish,” Brown said during oral arguments in Salem on Nov. 15. “This is the one time to get it right, and the state hasn’t done that here.”
The case has made its way from the Oregon Water Resources Department and an administrative law judge to the Oregon Court of Appeals, where attorneys made their arguments before Judges Rex Armstrong, James C. Egan and Lynn R. Nakamoto.
Defendants include the Oregon Water Resources Department, which administers water rights permits; the South Fork Water Board, which serves Oregon City and West Linn; and a group of municipal water providers that includes Lake Oswego, with Tigard signed on as an intervener.
Because these permits are the first to come up for renewal since fish protections became a required part of the process, the court’s decision now could set the stage for how similar cases are handled in the future on rivers across Oregon.
Under a law approved by the 2005 Legislature, the Oregon Department of Fish and Wildlife gives advice on how to maintain “fish persistence,” or how to protect species on rivers, before water rights for utilities are approved. The Oregon Water Resources Department can restrict water rights based on ODFW’s input. Before 2005, fish persistence wasn’t a required factor in the process.
The standards apply to new water rights as well as unused portions of longstanding water rights up for renewal. Because water providers consider projected population growth when applying for permits, they typically don’t use all of the water they’re allotted.
Environmental groups have argued that if all of the utilities with rights on the Clackamas River took the entire 100 million gallons they’re allowed each day, there might not be enough left to support the habitat needed by threatened and endangered fish when water demand is highest.
Lake Oswego needs to renew its water rights to upgrade and expand its facilities to share drinking water resources with Tigard. The city plans to fully develop its rights on the Clackamas River, taking up to 38 million gallons each day.
Attorney Jeff Ring represents the joint municipal water providers, including Lake Oswego and Tigard. The cities joined forces in 2008; Lake Oswego, in exchange for sharing its water, has a partner to take on some of the burden of planned facility upgrades. Tigard, meanwhile, will no longer have to rely on Portland for its water.
Ring said the final water resources department’s orders imposed multiple limits on the cities’ water use: Municipalities are limited in how much water they can take, they must monitor flow levels and, if the seven-day average flow falls shy of targets, they have to reduce how much water is drawn. Those limits all aim to keep enough water in the river for fish.
“That’s mandatory,” Ring said. “It’s not discretionary.”
Another condition requires an annual meeting with ODFW “to devise a strategy” for ensuring fish runs are protected. The strategy would go beyond water agencies scaling back their withdrawals from the river to include summer “augmentation” through releases from Timothy Lake, a body of water located near Mount Hood that is managed by Portland General Electric and feeds into the Clackamas River.
If the involved parties couldn’t agree on a strategy for managing water levels, it would be up to ODFW to determine the best approach. But it’s unclear whether ODFW would have the leverage needed to make sure the strategy was implemented.
In that case, WaterWatch contends, action to boost river levels to protect fish would essentially be voluntary for the municipal water providers.
Judge Armstrong questioned whether a condition requiring the groups to settle on a strategy and implement it was different than one that would only be implemented if all of the groups agreed.
“It has kind of a hollow quality,” Armstrong said.
Denise Fjordbeck, representing the water resources department, acknowledged there might be years when Timothy Lake doesn’t have enough water to share. She contended that the hot summer months, when Timothy Lake might be looked to as a source to supplement river flows, aren’t ideal for salmon in the Clackamas River anyway.
“Those are months when water in that section of the river would be warm, and the fish would not use it,” Fjordbeck said.
What would the fish do instead? “They go somewhere else.”
In that case, she said, falling below target flows “would not be a biological problem.”
The Oregon Court of Appeals decision is expected in one to two years.
Meanwhile, the Lake Oswego-Tigard Water Partnership faces additional legal challenges with a project in West Linn, where residents have challenged approval of a new, bigger water treatment plant.
Construction has already started on some of the partnership’s projects, which are estimated to cost more than $200 million and span four cities. They include a new intake building on the Clackamas River in Gladstone, the new plant in West Linn, a reservoir in Lake Oswego, a pump station in Tigard and pipelines running between the facilities. The system is expected to be serving Tigard by 2016.