Boeing Protest

Negotiated Water Rights Settlement for Agricultural Project Draws Protests from Environmental Groups (July, 1999)

Submitted by Steven L. Shropshire
as edited by Laura A. Schroeder

On May 28, 1999, a coalition of environmental groups filed formal protests with the Oregon Water Resources Department (OWRD) challenging several proposed orders issued by the OWRD. The proposed orders extend the diligence period for six water right permits allowing diversions from the Columbia River for irrigation use. The protests claim, among other things, that the proposed orders disregard federal laws protecting threatened or endangered salmon and steelhead trout in the Columbia River and its tributaries.

Background

In the early 1970s, the Boeing Agricultural Industrial Company (BAIC) applied for nine water right permits to appropriate water from the Columbia River for use on a 99,000 acre tract of land adjacent to the Columbia River in north central Oregon which it leases from the State of Oregon. BAIC subleases a portion of the property for agricultural purposes to Inland Land Company, LLC, and R.D. Offut Company–NW, which irrigate and farm this BAIC property (the three parties are collectively referred to as the Permittees). The state routinely granted permit extensions to the Permittees until several environmental groups challenged a 1995 OWRD extension order. A 1995 legal challenge by these groups was dismissed for lack of standing in Water Watch of Oregon, Inc. v. Boeing Agri-Industrial Company, 155 Or.App. 381, 963 P.2d 744 (Or.App. 1998).

Proposed Orders

When the Permittees required a further extension in late 1998, the Permittees began participating in mediated settlement negotiations with OWRD, the Oregon Department of Fish and Wildlife, the Governor’s Office, WaterWatch, and Oregon Trout in an effort to resolve the disputes associated with this further request. These negotiations continued through February 1999 when the Permittees and the state agencies reached a settlement which requires the Permittees to provide mitigation in exchange for the permit extensions. The terms of the settlement are incorporated in the proposed orders issued by OWRD in April 1999.

In addition to other mitigation measures, the orders call for the Permittees to: 1) significantly reduce the rate (46% reduction) and volume (32% reduction) of diversions originally allowed under the permits; 2) reduce the total proposed irrigated acreage under the permits from 30,621.55 acres to 15,107.00 acres; 3) reduce the amount of water diverted for currently irrigated acreage; and 4) contribute at least $2 million to a fund that will be used to acquire water rights along the Columbia or its tributaries for the purpose of dedication to enhancement of instream flows that benefit listed fish.

Protests

A coalition of seven environmental groups, including those participating in the 1998-99 negotiations, have now filed protests to the proposed orders. The protests assert, among other things, that the orders disregard federal laws protecting the threatened or endangered salmon and steelhead trout in the Columbia River and its tributaries. Specifically, the protestants claim that the conditions imposed by the orders fail to meet the “zero net impact” standard imposed by the National Marine Fisheries Service in a May 1997 biological opinion. See 3 Western Water Law & Policy Reporter 161 (April 1999). To meet that standard, the biological opinion indicated that Inland Land Company would need to obtain replacement water to offset, drop-for-drop, any Columbia River flow reductions caused by Inland’s proposed diversions.

The protest period closed on May 28, 1999. Due to the significant issues raised by the protests, the Director of the Water Resources Department will likely schedule a contested case hearing to receive formal testimony and evidence on the proposed orders.

Related Action

In a related action, on May 26, 1999, the Oregon Legislature passed a bill that would allow a water right permit holder to transfer water rights to noncontiguous land, provided that such change is in furtherance of mitigation or conservation efforts undertaken for the purpose of benefiting a species listed as sensitive, threatened, or endangered under state or federal law. This bill would change current state law restricting such transfers only to contiguous lands. The bill is currently on Governor Kitzhaber’s desk awaiting his signature. At the time of publication, the bill text was available at http://www.owrc.org/issues/orleg/HB3620.pdf(requires Adobe Acrobat™ reader).

References: Administrative Procedure; Endangered Species Act: Water Diversions