It may come as a surprise that people fight over water in soggy Oregon and Washington. To be sure, we have not experienced the same level of conflict over competing water needs as our neighbors in the southwest, but in fact the conflicts are there and the stakes are high.
Most senior water rights in the Pacific Northwest are held by agriculture, whereas the growth in demand for water is occurring in the municipal and industrial sectors . . . and at last check, fish still need flowing streams. Add to that dynamic a declining hydrograph due to climate change, and the table is set for confrontation.
Two recent cases out of the Oregon Court of Appeals and one out of the Washington Supreme Court addressing municipal water rights illustrate the point. A more complete discussion of these cases can be found in the attached article appearing in the current issue of The Water Report.
The Oregon cases arise from a 2005 law providing special rules for extensions of time to complete development of municipal water supplies. The caption for both is WaterWatch of Oregon v. Water Resources Department, but one involves the City of Cottage Grove and the other a group of Clackamas River water providers. The 2005 law provides that for the first municipal extension granted after enactment of the statute, “fish persistence” conditions must be applied to the undeveloped portion of the city’s water system.
By the time Cottage Grove’s extension application was considered, the city had completed work on its water system. The Oregon Water Resources Department found no "undeveloped portion" and therefore imposed no fish persistence requirements. The court overturned the extension, finding that the fish conditions must relate back to the previous extension in 1999.
The Oregon Supreme Court initially accepted review of the case, then without explanation declared that review was “improvidently” granted and dismissed it. Thus, the case stands; legislative corrections may be forthcoming. For the moment, Cottage Grove and other similarly situated public water providers may have less water than they thought due to fish flow curtailments and may incur unbudgeted additional public expense.
In the Clackamas case, the court found the “fish persistence” conditions were inadequate because OWRD failed to articulate how the conditions were actually protective of fish. The case is now back before OWRD for further proceedings.
In Cornelius v. Washington State University, the Supreme Court came to a happier conclusion for public water providers. The issue was whether university groundwater rights identified as for “domestic” purposes were entitled to special protections afforded only to municipal purposes. The Court unequivocally held they are.
The economies of our region depend on the courts getting it right with respect to municipal water supplies. Washington public water providers can rest easier than their counterparts in Oregon after their state courts’ recent pronouncements.