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Oregon finds that floods are a good thing: how the state is trying to protect peak and ecological flows by Joshua Daily

Posted by: | March 30, 2011 Comments Off on Oregon finds that floods are a good thing: how the state is trying to protect peak and ecological flows by Joshua Daily |

In 2009, Oregon lawmakers passed legislation, HB 3369, which took the unprecedented step of requiring water developers to make assurances that certain environmental benefits of elevated river flows will be protected before the developer can obtain state financing.[1]  These elevated river flows are high pulses of water called ecological flows which act as biological triggers that signal fish species such as salmon to migrate or spawn.[2]  The new law also calls for the protection of peak flows, which include both bankfull and overbank flows that rework river channels, move sediment, and clear vegetation.[3]  These peak flood flows maintain channel habitat to the benefit of sensitive species.[4]  Peak flows are the highest flows that maintain habitat in river channels, while ecological flows are lower elevated flows that signal species to perform important biological functions.

The new law requires applicants for state grants and loans to demonstrate to the Oregon Water Resource Department that their projects protect peak and ecological flows.[5]  The new requirements are most meaningful for municipalities which rely on state financing for development of water storage projects in anticipation of dramatic population increases forecast for the next two decades.[6]  Storage projects include any improvements made to store water in existing reservoirs, feasibility studies and pumps for aquifer storage, or construction of new water impoundments.

Development of municipal water rights has taken on special urgency since the Oregon Court of Appeals ruled in 2004 that a municipality forfeited their permit for failure to use their water right within the statutorily mandated five years.[7]  Under statute a permit holder must develop and actually use their water right in a set period of time to perfect it.[8]  If the permitee does not take reasonable steps during the provisional time period to construct the water diversion then the water right is lost.  The state legislature reacted to the appeals court decision by creating an exemption for administratively approved municipal water permits from failure to develop challenges.[9]  The Oregon Supreme Court on appeal cited the new legislation to vacate and remand the lower court decision.[10]  However, it is clear that cities and towns going forward are no longer confident to sit on large blocks of claimed but unused water rights under the protection of the common law “growing cities doctrine” they had relied on to shield them from the statutory development requirements.[11]  The growing cities doctrine has historically allowed cities to claim more water than they use because of the expectation that in the future they would need the water.  Even given the favorable 2005 legislation it appears imperative for municipal water providers to develop their claimed rights in order to assure that they can retain those claimed rights to accommodate growth.

Water law in the western United States, including Oregon, was originally designed to provide water users with a clear system of priority among competing uses; the law gives priority of use to those who take water out of stream first and use the water for some beneficial purpose.  This property rights system encourages a race to use up or “fully appropriate” the resource because a right is only limited by how much water can be beneficially used.  Municipal water providers must be diligent to develop and protect their seniority against competing users even on the wetter western side of the Cascades and the Willamette Valley, which is both agriculturally important and growing in population.

Beginning in the 1950s, the ecological and scenic value of water staying within the confines of its banks was first recognized by the legislature when it began to allow instream flow rights to be recognized.[12]  Instream rights, as the name implies, entitles the holder of the right to leave a given quantity of the holder’s water right within the confines of the stream and unavailable for more junior right holders to appropriate.  Instream flows provide ecological subsistence protection for fish and game at the minimum level they need to survive.[13]  Under the modern regulatory framework, concerned Oregon water users can even lease their water right to instream use without worry that their right to divert in the future will be forfeited.[14]

Instream flows rights are most important during the high demand summer months when farmers draw heavily from state streams for irrigation and streams run their lowest because of seasonal precipitation variations.  Summer subsistence flows can be protected by establishing instream water rights; however, winter peak flows that perform biological triggering functions or channel maintenance that species need to “flourish” in the words of HB 3369 are not protected by instream flow rights.[15]  Instream flows protect a minimum water level but provide no protection from the reduction of these important high flows.  The diversion of water for storage occurs in the winter months when there is more precipitation, rivers have greater flows, and withdrawals are not being made for irrigation.[16]  Water developers can divert large quantities of water during the storage season to ensure its availability to them during the dry summer months, which can jeopardize or severely limit peak flows.  The legislature advanced the new protections for peak and ecological flows attached to state funds for water development projects in an effort to address the lack of consideration of these deleterious effects in the storage permitting process.

Under current guidelines, water is available for storage when, after all in and out of stream rights are subtracted, there is still water left in excess of the flow that occurs 50% of the time.  The Oregon Water Resource Department, in association with the Oregon Department of Fish and Wildlife, convened a technical advisory group to suggest a scientific approach for rulemaking to implement the law, which published its recommendations for implementation of HB 3369 in December 2010.[17]  The recommendations are the first step in an administrative rulemaking process that will codify the procedures that water developers will have to follow to get state financing.[18]

The advisory group’s recommendations include limiting storage permits to only 5-10% of the quantity of the average 2 year peak flow, allowing flows to bypass storage projects at a rate at least equal to the minimum instream flow rights, and limiting the storage season to November to April.[19]  The recommendations, as estimated by the technical advisory group, may cost $5,000 to $100,000 per reach to applicants to hire consultants to do the scientific research to assure the Department of Water Resources that peak and ecological flows would be protected.[20]  The cost would include field work and stream modeling to characterize the stream where the storage project is proposed.  But there is no promise that the project will be ultimately approved.  One peer reviewer of the technical advisory group’s recommendations suggested that this cost estimate was a gross underestimate, and hypothesized that most water developers would have to seek alternative financing or delay needed projects.[21]

It remains to be seen whether the new requirements will sufficiently preserve winter flows or simply result in extra administrative costs and increase the burden to cities and towns struggling to keep water resources on pace with population increases.  The Water Resource Department could presumably hold cities to a low standard to protect elevated flows recognizing the high cost that implementing the statute could exact on cash strapped cities.  Storage projects completed with private financing do not have to abide by the requirements nor do existing storage projects.  Cities could presumably resort to private financing alternatives or purchase and transfer already perfected storage rights from others.  But those projects that are completed with state grants and loans must incorporate the requirements of the upcoming rulemaking.  And water rights issued under the new law will likely be conditioned so that storage projects cannot divert more than small percentage of the average two year flood flow. 

The peak and ecological flow protections represent a sharp departure with past practices, and give the Oregon Water Resource Department broad authority to approve or deny storage applications.  But the requirements will also make growing cities take a long look at what effects their planning and growth will have on sensitive species which require pulses of high winter flows.  At the minimum it should encourage cities to consider more carefully the ecological sustainability of their water supply in planning for future growth.

[1] Full text of the bill can be found online at: http://www.leg.state.or.us/09reg/measpdf/hb3300.dir/hb3369.intro.pdf

[2] White Paper: Peak and Ecological Flow; a Scientific Framework for implementing Oregon HB 3369, prepared December 2010 by the Peak and Ecological Flow Technical Advisory Committee and the Oregon Water Resources Department; Phil Ward, Director, p. 6, can be found online at: http://www1.wrd.state.or.us/pdfs/EFTAG_Final.pdf

[3] Id. at 7.

[4] Id.

[5] Id. at 1.

[6] The preamble to HB 3369 states that “an additional one million people [are expected] in Oregon before 2030.”

[7] Water Watch or Oregon, Inc. v. Water Resources Com’n, 193 Or. App. 87, 88 P.3d 327 (2004).

[8] ORS 537.230(2) (amended in 2005 to change period in which development must occur from 5 years to 20 years)

[9] Id.

[10] Water Watch of Oregon, Inc. v. Water Resources Com’n, 339 Or. 275, 119 P.3d 221 (2005).

[11] See Janis E. Carpenter, Symposium on Northwest Water Law: water for growing communities: refining tradition in the Pacific Northwest, 27 Envtl. 127 (1997) (for a full discussion of the history of the growing communities doctrine).

[12] Janet Neuman, Sometimes a great notion: Oregon’s Instream Flow Experiments, 36 Envtl. L. 1125, 1140 (2006) (there were some initial instream flow protections for water falls in the Columbia River Gorge as far back as the early  1900s).

[13] Id. at 1138.

[14] Oregon Water Resource Department instream lease details can be found online at: http://www.wrd.state.or.us/OWRD/mgmt_leases.shtml, accessed January 27, 2010.

[15] White Paper, at 4.

[16] Id.

[17] Id.

[18] A complete summary of the Ecological Flow Technical Advisory Group’s recommendations can be found online at http://www.martenlaw.com/newsletter/20110120-oregon-water-law-new-world.

[19] White Paper, at 21.

[20] White Paper, at 17.

[21] Dr. Richard Shepard, President of Applied Ecosystem Services, Inc., Peer Review Comments, White Paper at 86.

under: Natural Resources

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