U.S. Water News Online
SALEM, Ore. -- The Oregon state Court of Appeals has tossed
out state rules on groundwater pumping rights in the Deschutes River
Basin, saying the regulations don't comply with required stream
protection under the state's waterway law.
The ruling by a three-judge panel unanimously overturned
groundwater use permit rules adopted by the state Water Resources
Commission in 2002.
The Deschutes is among the rivers protected under the scenic
waterway law passed by voters 35 years ago.
The law says those rivers' free-flowing characteristics must be
"maintained in quantities necessary for recreation, fish and wildlife
An environmental coalition headed by WaterWatch of Oregon
challenged the commission's rules for issuing permits to pump
groundwater, contending that the regulations don't adequately protect
flows in the Deschutes.
John Devoe, WaterWatch executive director, said he believed the
ruling is the first of its kind under the waterways law and is a
significant reinforcement of its protections.
"The Deschutes Basin is seeing some of fastest growth in the
state," he said. "We need to protect one of the crown jewels of our
natural heritage as the state grows."
The state commission, for example, adopted rules for issuing
permits to farmers who want to drill wells and pump irrigation water.
The rules require mitigation, meaning finding ways to replace
whatever water is removed. An example would be for an irrigator to
run water through canals during offseasons so the water would
percolate back into the groundwater.
But the Court of Appeals said the mitigation steps fall short by
only moderating effects of groundwater pumping on river flows.
"Moderation of impacts does not satisfy the statutory requirement
that stream flows be maintained," the appeals court said.
The court also said that because the state commission doesn't know
how and when a groundwater use will impact stream flows, the rules
don't "provide a mechanism to sufficiently ensure" the goals of the
law are being met.
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