WaterWatch of Oregon, Inc. v. Water Resources Dept.

Under ORS 537.230(2) the measuring point for determining the portion of a permit that is "undeveloped" for purposes of ORS 537.230(2)c, and the "maximum rate diverted for beneficial use before the extension" for the purposes of ORS 537.230(2)b, is the expiration of the development deadline in the permit or last-issued extension.

WaterWatch sought review of a final order issued by the Water Resource Department (the Department) granting the City of Cottage Grove (the City) an extension of time to perfect its water rights under a permit issued in 1977. The City held a permit to build a water treatment plant to divert water from the Row River for municipal use. Over the years the City has been given extensions to build the treatment plant. The most recent extension was granted by the final order in dispute here. Shortly after receiving this extension the City was issued a "Certificate of Water Right". WaterWatch appealed the order for extension. Waterwatch argued that the department erred in granting the extension without conditioning perfection on the protection of certain fish species and on the development of a water management and conservation plan. The City argued that the case was moot because they had already perfected their water rights and a certificate was issued without objection from WaterWatch. First, the Court held that the Department's issuance of the certificate did not preclude them from reviewing the order for an extension of time because WaterWatch filed a timely request for review. Next, the Court held that under ORS 537.230(2) the measuring point for determining the portion of a permit that is "undeveloped" for purposes of ORS 537.230(2)c, and the "maximum rate diverted for beneficial use before the extension" for the purposes of ORS 537.230(2)b, is the expiration of the development deadline in the permit or last-issued extension. Based on this holding, the Court found that the Department erred in failing to condition the permit extension as argued by WaterWatch. Reversed and remanded.