Protect and Restore Free Flowing Oregon Rivers

Thanks in part to WaterWatch of Oregon—and the supporters who help make our work possible—efforts to build a new dam on a tributary to the Pudding River near Silverton hit a major roadblock.

On Nov. 22, an application by the East Valley Water District (EVWD) to build a new 70-foot dam with an accompanying 12,000-acre-foot reservoir on Drift Creek was denied by Oregon Water Resources Commission. The unanimous vote, which safeguards habitat for several fish species, including threatened steelhead, sensitive Pacific lamprey, coho salmon, and native coastal cutthroat trout, reversed a decision by the Water Resources Department (Department) in response to a challenge filed by WaterWatch. The decision reaffirms a core WaterWatch principle: Putting new dams in the channels of streams with important fish habitat should rarely be an option for meeting Oregon’s future water needs.

Still, the roughly five-year battle, which included a two-week trial before an administrative law judge, isn’t over. In late January, EVWD appealed the decision to the Oregon Court of Appeals. WaterWatch now joins the State of Oregon in defending the November decision. WaterWatch also filed its own appeal to present additional grounds for denying the permit if needed.

“We were happy to see the Water Resources Commission make the right decision on this,” says WaterWatch staff attorney Brian Posewitz, who represented WaterWatch in the administrative trial and before the Commission. “We know it wasn't easy given the Department's previous decision and the powerful interests behind the proposal. We look forward to helping defend the Commission's decision on appeal.”

WaterWatch was joined in opposition to EVWD's proposal by a group of farmers, represented by attorney Janet Neuman, who stood to lose parts of their property through condemnation by EVWD to make way for the reservoir.

Formed in 2000, EVWD is an irrigation district made up of farmers in and around the Mt. Angel area. Although the farmers have existing water rights to irrigate crops, they claim to need another source of water based primarily on speculative fear of future government regulation. They turned to Drift Creek, which was not identified as a practical source of irrigation water in earlier studies, only after another plan fell through. Even taking EVWD’s speculative claims at face value, WaterWatch believes that EVWD has better alternatives that are less harmful for fish and cheaper over time than building this dam.

In 2013, EVWD formally applied to the Water Resources Department for the right to store water on Drift Creek. The next several years witnessed a flurry of activity involving WaterWatch: The Department issued a proposed final order that recommended approval of the dam. WaterWatch and the farmers filed protests. The Department referred the case to the Office of Administrative Hearings and the parties conducted extensive investigation and preparation for their cases. After the two-week trial in June 2018, the administrative judge issued a proposed order recommending approval of EVWD's proposal with modifications. WaterWatch filed arguments against the proposed order (called "exceptions") but the Department nevertheless adopted most of the hearings officer's recommendations.

Building the dam thus seemed a “done deal”—until a subcommittee of the Commission, which reviewed exceptions filed by WaterWatch and the farmers to the Department's order, announced in November a recommendation to deny the application based primarily on the impacts the dam and reservoir would have on an instream water right for the benefit of cutthroat trout. WaterWatch and the farmers buttressed their arguments at a hearing before the Commission in late November and the entire Commission then voted to support the subcommittee's recommendation.

WaterWatch is now preparing for the next round on appeals.

Stay tuned.

Links:

• Statesman Journal article on Drift Creek

Since 2008, WaterWatch of Oregon has been involved in a fascinating and compelling case to stop the excessive withdrawal of water on Oregon’s lower Clackamas River, a backyard river in Portland that still supports imperiled runs of salmon and steelhead. At stake: The future of four runs of already imperiled fish in the river which would be further affected by the amount of water being proposed for withdrawal.

The background of this ongoing case: Municipalities (including Lake Oswego and Tigard) are seeking entitlements to withdraw water at a rate of flow of 160 cubic feet per second from the lower Clackamas River through eight water permits. This is in addition to the similar amount they already withdraw. If approved, in total, these municipalities would be allowed to take about half of the dry season flow of the lower Clackamas. WaterWatch challenged Oregon’s proposed approval in January of 2008 on the grounds that such a withdrawal would endanger the lives of fish and wildlife and not comply with the law.

In 2014, the Oregon Court of Appeals ruled in WaterWatch’s favor that Oregon’s proposed approval lacked substantial evidence and substantial reason demonstrating that imperiled fish could continue to persist in the lower Clackamas if so much water was removed. The Oregon Water Resources Department (WRD) was tasked to either provide evidence to support its decision to allow cities to withdraw so much water or, alternatively, come up with a new plan.

A second appeal was filed by WaterWatch in December 2018 after WRD drew up a new plan that we believe still puts the fish in peril. In late October 2019, WaterWatch prepared and filed its opening brief as regards this most recent legal development. Please stay tuned for more developments as this case moves forward!