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

Under ORS 537.230(2)(c), the Water Resources Department must find that undeveloped portions of permits are subject to conditions that preserve from decline the continued existence, or endurance, of listed fish species in the affected waterway.

Waterwatch of Oregon, Inc. (Waterwatch) challenged three final orders of the Water Resources Department (WRD) which granted extensions of time to perfect water rights with diversions in the lower Clackamas River to the City of Lake Oswego, the South Fork Water Board, and the North Clackamas Water Commission. Waterwatch argued that the WRD misapplied ORS 537.230(2)(c), which states WRD must find the “undeveloped portion of the permit is conditioned to maintain… the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.” Waterwatch further argued that WRD’s conclusions about fish persistence were not supported by substantial evidence or reason. The Court held that, while WRD applied a correct interpretation of the statute, the determination that the permits would maintain the persistence of listed fish lacked both substantial evidence and substantial reason. The Court found WRD failed to explain how its findings supported its conclusions that undeveloped portions of the permits would maintain the persistence of the listed fish species when the conditions fail to ensure that the diversions of would not contribute to long-term drops below persistence flows. All three cases reversed and remanded.