Fish Persistence and Municipal Water: Oregon SB 712

By Derek Bradley

Most municipalities have water use permits reserved for their current needs and projected future growth, typically in the form of one or more municipal water rights of use or permits. These water use permits have timelines for the cities to fully develop the beneficial use entitlement. Based on current population and use, cities may not be able to apply the full volume of water to beneficial use by the timeline allowed in the water permit. In order to retain the volume allowed and priority of the water use permit, a municipality may request an extension of time from the Oregon Water Resources Department (OWRD) for additional time to develop the volume of water allowed in their permit.

The Oregon Senate is currently considering Senate Bill 712 (SB712) that could impact how much of the permitted but undeveloped portion is available for future development by Oregon municipalities.  This bill concerns municipal water permits requiring extensions for development that currently are subject to fish persistence conditions, or restrictions on water use to maintain stream flows for wildlife.

SB712 is in response to a 2013 Oregon Court of Appeals ruling, WaterWatch of Oregon v. OWRD, 259 Or. App. 717, decided on December 11, 2013.  In this case, the Court held that the reference to “undeveloped portion of the permit” in ORS 537.230(2), which was passed in 2005 as House Bill 3038,  “is to be measured by reference to the maximum rate of water applied to beneficial use before the expiration of the document deadline in the permit or last-issued extension.” Id. at 742.  The Court’s holding required the fish persistence condition to apply to all water use  not yet  put to beneficial use when the municipality’s previous permit terms or extension expired. For example, if a city held a water right of use by permit to 10 cubic feet per second (cfs) and can demonstrate use of 3 cfs at the time the permit condition expired for development, a condition in granting an extension of time would require fish persistence conditions attached to the remaining 7 cfs.

If the legislature passes SB712, this extension system will change so that the undeveloped portion of the water right permit will be considered to be the volume of water being used by either December 11, 2013, or the time specified to complete construction to perfect the water right in the permit or last approved extension. This alters the quantity of water subject to fish persistence conditions to a specific set date for all municipality extension applicants which would hopefully limit the current unending rounds of litigation that the municipal extensions are currently requiring. This change would also eliminate the large backlog of permit extension applications presently pending with OWRD.  Without this change many cities will have conditions placed on water use they have already begun putting to beneficial use because of the large lag time between expiration of the permit terms and granting of the extension application.  This bill would keep municipalities from the retroactive application of fish persistence conditions being applied to water use presently in use, with some of that usage dating back to the 90s.

Some groups focused on fish habitat view this bill as an attempt to change the terms of the 2005 compromise bill.  However, the intervening litigation since passage of the 2005 act illustrates that the “fish persistence” requirement is procedurally unworkable.  In the meantime, the Oregon courts continue to refuse to adopt the “growing communities” doctrine that would have mitigated the issues presented by the “fish persistence” ideals of fish habitat advocates.

Of course, municipalities are interested in having as much water available for development for their future growth as possible. In addition, the large investment municipalities must make require them to experience as little disruption as possible. This bill seems particularly fair to smaller municipalities that have limited resources to litigate the nuances of the “fish persistence” requirement and need their dollars to invest in water infrastructure with their less flexible water supplies and interconnects to other municipalities and sources.

While it is easy to see the concern of groups opposing SB712, (as it can take well over a decade for an extension to be approved and a municipality can increase their water usage substantially in that time), passage of SB712 will ultimately affect only a small amount of Oregon’s surface source waters.  Once all the current applications are processed by OWRD, all undeveloped municipal permits will have at least a portion of their permitted volumes subject to fish persistence conditions.  With a substantial backlog in extension applications (some cases extending over a decade and a half in water investments already made by some municipalities), SB712 will provide certainty for this state’s towns and cities as they plan how to manage their water use and development for future growth.