May 2005

U.S. Water News Online

SALEM, Ore. -- The Oregon state Court of Appeals has tossed out state rules on groundwater pumping rights in the Deschutes River Basin, saying the regulations don't comply with required stream protection under the state's waterway law.

The ruling by a three-judge panel unanimously overturned groundwater use permit rules adopted by the state Water Resources Commission in 2002.

The Deschutes is among the rivers protected under the scenic waterway law passed by voters 35 years ago.

The law says those rivers' free-flowing characteristics must be "maintained in quantities necessary for recreation, fish and wildlife uses."

An environmental coalition headed by WaterWatch of Oregon challenged the commission's rules for issuing permits to pump groundwater, contending that the regulations don't adequately protect flows in the Deschutes.

John Devoe, WaterWatch executive director, said he believed the ruling is the first of its kind under the waterways law and is a significant reinforcement of its protections.

"The Deschutes Basin is seeing some of fastest growth in the state," he said. "We need to protect one of the crown jewels of our natural heritage as the state grows."

The state commission, for example, adopted rules for issuing permits to farmers who want to drill wells and pump irrigation water.

The rules require mitigation, meaning finding ways to replace whatever water is removed. An example would be for an irrigator to run water through canals during offseasons so the water would percolate back into the groundwater.

But the Court of Appeals said the mitigation steps fall short by only moderating effects of groundwater pumping on river flows.

"Moderation of impacts does not satisfy the statutory requirement that stream flows be maintained," the appeals court said.

The court also said that because the state commission doesn't know how and when a groundwater use will impact stream flows, the rules don't "provide a mechanism to sufficiently ensure" the goals of the law are being met.