Water
rights group appeals refuge permit
By MITCH LIES Oregon Staff Writer 4/28/05
mlies@capitalpress.com
SALEM – A water rights advocacy group last
week filed an appeal contesting an off-season
water right granted by the state to a federal
agency for use on the Malheur National
Wildlife Refuge.
Water For Life Executive Director Emilie Wolff
said the water right application did not
comport with Oregon water law’s standards on
beneficial use and over-appropriation and sets
an unsettling precedent.
“We definitely think the precedent is scary
for the rest of Oregon,” she said.
The group April 11 asked the Oregon Court of
Appeals to review the permit, which was
granted in February to the U.S. Fish and
Wildlife Service.
Among the claims advanced in the appeal, Water
For Life claims that the state relaxed water
permit standards when it granted the 820.4
cubic feet per second water right in the
Donner und Blitzen River Basin and stripped
the state of its ability to allocate for
future uses in the basin.
“They took an off-season right for every drop
of water that will ever run through that
basin,” Wolff said. “Eight-hundred and twenty
cfs is a gigantic amount of water. It’s a
basin at full capacity of flood stage.”
Wolff said the group wasn’t overly concerned
over the potential of injury to existing water
right holders – the refuge’s new rights are
the most junior in the basin and others would
have priority in the case of conflict – but
the group is very concerned over the
precedent.
Wolff said water permit applicants typically
explain in detail what they plan to do with
their water. In this case, however, officials
from the U.S. Fish and Wildlife Service
stipulated only that they would use the right
for wildlife refuge management.
“They’ve given the agency a right in a way
they would never give to a rancher,” she said.
“It’s definitely precedent-setting. We
definitely think that the department is
overstepping its statutory bounds.”
Adam Sussman of the Oregon Water Resources
Department said he believes that the USFWS
satisfied Oregon water law standards in its
permit application. He added that the
department met with affected stakeholders
several times and resolved concerns with all
parties involved in the basin except the
concerns of Water For Life.
“The conclusion ultimately that we have to
find is if the water is for a beneficial use
without waste, will it not injure existing
water users and is it consistent with the laws
that outline how a water right can be granted,
including determining if it is in the public
interest,” he said “We think this permit has
met all of those tests.”
Sussman added that managing a wildlife refuge
is far different than managing a farm or
ranch.
“They have a complex water-management regime
that is very unique to a wildlife refuge,” he
said.
Sussman said the permit carries several
conditions, including one that allows for
additional storage to supersede the refuge’s
ability to get water; a condition requiring
the refuge to annually designate irrigated
acreage; a requirement for the refuge to
measure its water use; and a condition
limiting the total volume of water that can be
used under the right.
“They have a right to divert up to 820 cfs if
it’s available,” Sussman said. “Lots of water
rights go ‘up to’ a certain amount, but that
amount of water may not be there every day.”
The USFWS applied for the permit in 1999.
Mitch Lies is based in Salem. His e-mail
address is mlies@capitalpress.com.
|
