The Oregon Water Resources Department (OWRD) changed its procedure for accepting alternative (small) reservoir applications based on the judicial decision Deborah Noble and David Hillison v. Oregon Water Resources Department (Hillison). Clackamas County Circuit Court, CV-10-01-0159, General Judgment entered January 25, 2011.
The Hillison court determined that ORS 537.409, which governs the permitting process for alternative reservoirs required, as a prerequisite, that applicants show that the reservoir meets the following criteria:
- Has a storage capacity of less than 9.2 acre-feet or a dam or impoundment structure less than 10 feet in height;
- Does not injure any existing water right;
- Does not pose a significant detrimental impact to existing fishery resources as determined on the basis of information submitted by the State Department of Fish and Wildlife; and
- Is not prohibited under ORS 390.835.
The “old” procedure required applicants to submit an application that requested information about the applicant, the location and source of the water to be impounded, the intended use of the water, property ownership, environmental impacts and land uses. The application did not require applicants to submit information relevant to criteria 2 through 4 above. Instead, once the application was submitted, OWRD would consult with the local watermaster, the Department of Environmental Quality and the Oregon Department of Fish and Wildlife in order to obtain the necessary information.
The Hillison case came about after OWRD approved the application of Robert Lytle based on the “old” procedure. Deborah Noble and David Hillison brought suit in state court to challenge OWRD’s approval. The Hillison court ruled that OWRD’s “old” procedure for accepting applications was contrary to the enabling legislation, and thus OWRD could not issue permits on that basis any longer.
As a result of the Hillison decision, OWRD’s permitting of alternative reservoir applications was stalled for about 6 months, until late July, 2011. In order to get permitting moving again, OWRD has implemented a new permitting process. Now an applicant must set up meetings with their local planning department, their local watermaster, and the Oregon Department of Fish and Wildlife to sign off on their proposed reservoir project prior to submitting the application to OWRD.
The main consequence is that a heavier burden is placed on alternative reservoir applicants to do the “leg work” prior to submitting an application. The days of a relatively easy process for applicants to obtain alternative reservoir permit are at an end. Finally, more work may be created for attorneys becasue each agency decision on the application will likely result in a final order that may be contested and reviewable.
For a more complete summary of the Hillison case, visit the Oregon State Bar’s Environmental and Natural Resources Section’s E-Outlook update at: http://osbenviro.homestead.com/Newsletters/11_EOutlook_Issue6_WaterRights.pdf. The website provides a summary of the case drafted by Sarah Liljefelt, Associate Attorney at Schroeder Law Offices, P.C.
Schroeder Law Offices routinely assists clients with water right permitting. Be sure to stay tuned to the Water Law Blog for current information about your water!
