Limited river water may pit fish against utilities
A state law prompting higher water levels in the Clackamas River may one day force water users to trade their green lawns for the survival of endangered species.
Those water users include Lake Oswegans and much of urban Clackamas County, where four water utilities draw drinking water from a gradually strained Clackamas River.
Projections show those utilities can't continue to draw water at current levels, shoulder growth in the region and still leave enough water for endangered fish. In the Clackamas River, fall and spring Chinook salmon, Coho salmon and winter steelhead are protected.
With a 2005 law putting fish first, the stage is set for a Klamath-style battle over water rights in Clackamas County unless proper planning staves it off.
But this time it won't be farmers fighting for water for crops, as is the case on the Klamath River.
On the Clackamas River, residents in cities like Lake Oswego will be fighting fish protections for drinking water if planning doesn't force them to balance consumption with wildlife needs.
On the Clackamas River, water providers are nervous.
On the river's path from the rain-filled Timothy Lake near Mount Hood to the Willamette River, four utilities tap water serving 250,000 customers.
With growth projections forecasting another 500,000 to 700,000 people in Clackamas County by 2040, the demand for drinking water on the Clackamas will exceed the river's ability to support fish in the next two decades, according to Joel Komarek, city engineer for Lake Oswego who oversees the city's water utility.
Under a new law, approved by the Oregon Legislature in 2005, the Oregon Department of Fish and Wildlife now gives advice on how to 'maintain persistence,' or protect, fish species on rivers before water rights for utilities are approved. The Oregon Water Resources Department, which used to renew water rights by postcard, can restrict water rights based on ODFW's advice.
On the Clackamas River, 'They're going to be pushing for higher flows than what has been thought of as necessary to support fish. Those increased flows are going to create conflict between sensitive species and drinking water supplies,' Komarek said.
A review of applications for new water rights on the Clackamas recently caused ODFW to recommend a 62 percent increase in flows needed to support fish during the summer. A 25 percent increase was suggested for winter. County utilities, when they heard the news, put pending applications for water on hold.
They sought a model of the recommended flows from Portland State University, which predicts problems.
The model shows that the water required to support fish, particularly during migration periods, has already fallen shy of targets on some hot weather days. If the new flow targets are implemented, the study shows, water customers will be forced to save water for fish.
'We're going to potentially have to restrict access for up to 16 percent, potentially for 43 days,' Komarek said, if the suggested flows become conditions.
Some call the new regulations 'a catastrophe.' Others say there is no impact to drinking water, just a question as to whether peak summer uses like lawn watering should trump a species' right to survival.
If the recommendations become rule, Lake Oswego would share its impacts with three other utilities.
The South Fork Water Board, which serves West Linn and Oregon City and Clackamas River Water, a county utility, both draw water from the Clackamas River.
The North Clackamas County Water Commission also draws water from the river, supplying the Oak Lodge Water District and the Sunrise Water Authority, which serve Damascus, Milwaukie and the Mount Scott Water District.
If conflicts over water emerge, those with the most recent water rights would be tapped to reduce consumption, not those who use the most water.
In terms of consumption, Lake Oswego is a heavyweight, consuming hundreds of gallons more water per capita than neighbors, according to a recent study of the utility.
Yet, 'whoever was there first and recorded a permit for development of the water of the state … has priority,' according to Komarek.
The South Fork Water Board has the most senior water rights in Clackamas County followed by Clackamas River Water. The North Clackamas County Water Commission would fall behind Lake Oswego, regardless of how much water is used here.
NCCWC Manager Dan Bradley called the brewing impacts of the 2005 law 'a catastrophe.'
'It's definitely more perilous for the junior water right holder,' Bradley said, referring to his utility's mostly secondary rights to water.
Farmers, which account for about 30 percent of water rights on the Clacka-mas River, are exempt from the law.
'That's one of the reasons we don't think its very fair. It is fish recovery on the backs of municipalities,' Bradley said.
'I think it's headed for being a catastrophe and I think the only way to make it workable is to take the 'maintaining persistence' language out of the bill.'
A toe in the water
That bill, called House Bill 3038, passed the Legislature in 2005 as a compromise between municipal water utilities and an environmental group called WaterWatch, a 22-year-old water policy watchdog with offices in Portland and Medford.
Early successes in court put WaterWatch in a bargaining position. A ruling in the group's favor by the Oregon Court of Appeals was already offering stricter protections for fish in the legal arena because the group's challenge of a water right on a defunct paper mill in Coos Bay found footing in a state statute that said water rights must be developed within five years.
'The cities didn't like that because they thought it called into question these dormant water rights that they've essentially been squatting on for years,' said John DeVoe, executive director of WaterWatch.
HB3038, a compromise between the utilities and WaterWatch, allowed the utilities to hang onto unused water rights for 20 years. In exchange, they had to show that endangered and sensitive fish species 'maintained persistence,' or were protected, before developing unused rights.
NCCWC's Bradley, who was active in talks about HB3038 when it was being drafted, said discussion about 'maintaining persistence' in 2005 differed sharply from the conditions he's so far seen emerge from the new law.
He said currently Clackamas County utilities are watching a pending request for water rights on the Willamette River to see how HB3038 might affect the neighboring Tualatin Valley Water District before going forward with applications of their own.
As the law takes hold, Bradley said an effort to scale it back seems inevitable for utilities.
'They're all watching to see what happens to us on the Clackamas River. We sort of volunteered to be the guinea pig,' said Bradley, in part because WaterWatch has named fish survival on the Clackamas River as a top priority.
'It depends on how HB3038 is interpreted and how 'maintaining persistence' is interpreted by ODFW,' what the response from utilities might be.
He said some utility managers talk of attacking the 'maintaining persistence' language during the next legislative session. Others think court battles will come before then, laying the groundwork for new law.
Meanwhile, Bradley said he doesn't see the need for sudden and radical change in water law and that suggested flow levels in the Clackamas River seem arbitrary.
In the past, he said, 'Every year the Water Resources Department would send us a card and say, 'Do you want to renew it?' and we'd say 'yes' and send it back. That's how water rights have been done since 1909.'
Planning would avert clash
For WaterWatch's DeVoe, postcard renewal is part of the problem.
In the past, he said, the Oregon Water Resource Department did not subtract unused water rights from stream flows before approving new rights.
'On many streams, they've given away this water more than once,' he said.
In Clackamas County, DeVoe said, 'The river just doesn't have that much more to give.'
'The question is are we just going to do what we've always done and go back to the river and ask it to provide more water? … The Clackamas may have the last run of self-sustaining wild Coho salmon in the Columbia Basin. Is that something we have to give up or not? We say no. We shouldn't be putting that at risk.'
He says conservation needs to be taken seriously and, if it is, no real conflict exists between drinking water and water for fish.
Pointing to the six-week gap between suggested fish flows and summer water use, DeVoe said, 'What we're really talking about is not drinking water at all, it's lawn watering.'
In Lake Oswego, Komarek sees potential for conservation.
'There will have to be some restrictions. We will have to make a quantum leap in conservation relative to what we do today. Lake Oswego will have to develop and initiate a number of programs to limit consumption, particularly during those high-use periods,' he said.
City officials are currently at work on a plan that could include pricing water differently in the summer, offering rebates for water-saving plumbing, restricting lawn watering during droughts, offering water-saving kits to residents and other conservation measures.
The plan is based, in part, on an effective conservation program in Tigard, where water is costly, purchased wholesale from Portland because the city has no utility of its own.
A potential water partnership with Tigard is also being discussed. In the exchange, Lake Oswego would get more capital funding for its system and Tigard would pay less for water.
The arrangement would also give Lake Oswego a catalyst to connect to water sources to the west, which could help the city stave off problems if clashes over water play out on the Clackamas River.
'It's not an issue right now, but it will become an issue as growth continues to occur,' said Komarek. 'It is all a function of how quickly these 500,000 people come into the Portland Metropolitan area.
'It's going to be incumbent upon us, in terms of planning, to start thinking about that day.'
• Statewide, agriculture accounts for about roughly 75 percent of water rights.
• Farmers account for an estimated 30 percent of water users on the Clackamas River.
• WaterWatch considers the Clackamas, Rogue, McKenzie, Chetco and Coquille rivers, as well as sensitive streams on the Oregon coast, most at risk for loss of wildlife if municipal water rights are extended indiscriminately.
• Statewide, utilities are pursuing more than 100 undeveloped water rights.