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Court of Appeals Requires More Evidence that Clackamas River Withdrawals Will Not Threaten the Persistence of Listed Fish

January 9, 2015

On December 31, 2014, the Oregon Court of Appeals issued a decision addressing the “fish persistence standard” designed to protect listed fish species when extensions of permits to divert water for municipal use are granted. This ruling was the result of WaterWatch of Oregon’s challenge of several orders by the Water Resources Department granting the City of Lake Oswego and other municipalities additional time to build structures and divert water from the Clackamas River for municipal use. The court held that the Department’s permit extension orders were not properly conditioned to maintain the persistence of ESA-listed fish species.

The municipal withdrawals and the obligation to meet the fish persistence standard. The City of Lake Oswego, the South Fork Water Board, and the North Clackamas County Water Commission hold water right permits to divert water from the lower section of the Clackamas River for municipal use. State law provides municipalities 20 years from obtaining a water right permit to complete construction of the project. Like many municipalities, only a portion of the water rights granted have been put to use. As a result, the municipalities sought extensions of time to “perfect” the water rights by building structures to divert and use the water. In granting such extensions, the Department is required to condition the “undeveloped portion” of the municipal permits to maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

The Court’s interpretation of the fish persistence standard focuses on long-term preservation. The court spent some time interpreting the fish persistence standard, concluding that the legislature “focused on the long-term preservation or endurance of fish population health in the affected waterway.” The standard is not intended to “express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.”

The court finds that the Department’s determination that conditions for the extensions will maintain the persistence of listed fish species in affected waterways lacked “substantial evidence and substantial reason.” Although the court found that the Department correctly interpreted the standard, it remanded the final orders to the Department to revisit its fish-persistence findings and conclusions. The court found that the Department “failed to connect the dots between its findings of what is necessary to maintain fish persistence—long-term meeting of persistence flows—with how the conditions ensure that the diversion of the undeveloped portions of the municipal parties’ permits do not contribute to the long-term failure to meet persistence flows.” Ultimately, it is possible that the court would agree to similar conditions, but not without better evidence and explanation from the Department as to why these conditions do not threaten persistence. Although the ultimate resolution of the extension orders is still uncertain, this decision will be helpful to understanding the fish persistence standard in the future.

Implications of the decision. Any time the Department grants a municipal permit extension, the permit holders should expect the Department’s decision to be challenged for failure to explain and support the decision with evidence. As it grants future extensions, the Department is likely to more carefully explain how conditions will protect the long-term persistence of fish. With the standard clarified, this may facilitate the Department’s ability to demonstrate compliance.

If you have any questions, please contact the author of this article, Kate Moore, at KMoore@dunncarney.com. Kate Moore specializes in natural resource, water, and environmental law.

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