Complaints filed to try to scuttle water pact with Tigard

As Lake Oswego and Tigard officials refine an agreement to feed long-term water demand for both cities, nearly doubling the water drawn from the Clackamas River under Lake Oswego's water rights, two groups are hoping to stick a plug in the proposal.

The first is called the South Fork Water Board, a wholesale supplier that provides water to West Linn and Oregon City. South Fork is arguing the extension of Lake Oswego's water right could infringe on a senior right held by them.

WaterWatch, an advocacy group that says it promotes wildlife and responsible growth near rivers, also filed a formal complaint against the action with the state Water Resources Department in January. The group believes an expansion of Lake Oswgo's water right could endanger fish and wants more regional options for water explored, like water available in less sensitive systems like Bull Run.

Whether the actions will curtail a speedy effort by Tigard and Lake Oswego to hammer out a joint agreement that would see construction of $135 million in infrastructure to pipe water to the cities is in question.

Tigard would shoulder $82 million of the initial costs, more than Lake Oswego's initial outlay of $53 million, but less than the total cost to the city from other water options.

Draft versions of the proposed agreement are already being reviewed. A final version is expected to be ready by July, followed by approval in October if the cities hold to that course.

Joel Komarek, city engineer for Lake Oswego, said he doesn't think the protests will waylay an agreement between the cities.

'It's a wrinkle that we have to deal with and we'll go through the process to deal with it but I don't think it will hold up an agreement,' he said.

Both groups - WaterWatch and the South Fork Water Board - filed separate protests in January with the Oregon Water Resources Department based on the state agency's intention to extend Lake Oswego's water rights on the Clackamas River out to 2040.

Under Oregon's water law, a system built on prior appropriation that applies for most states west of the Mississippi River, there is a use-it-or-lose-it component built in to the water right - if Lake Oswego doesn't figure out a way to use its full 38 million gallons per day, opponents to the extension say the city should have its right scaled back to reflect current need.

John DeVoe, executive director for WaterWatch, said this is one of the big gripes his agency has with the extension.

For instance, Lake Oswego only uses around half of its water rights on the Clackamas now. Without adding other cities, such as Tigard, DeVoe believes the state should reduce Lake Oswego's water right. Cities that hold water rights will frequently add other agencies, said DeVoe, in order to bump up projected demand and, hence, a larger water right. Right now, Tigard is a prospective client on four options, each of which include demand from the city in its planning process.

Without a final agreement between the cities, Tigard could pull out after the right is granted to Lake Oswego and instead go with one of the other three water options it's still exploring, leaving Lake Oswego with a cushy water right all to itself, DeVoe said.

That, he said, is a disincentive to conservation, a concept that has been sorely absent in Lake Oswego, which has a per capita use 1.5 times higher than Tigard residents.

'What you have to recognize is that municipalities often like to have multiple irons in the fire when it comes to water, and that's part of the problem,' he said.

Dwight French, the administrator for water rights and the adjudication administratior for the state Water Resources Board, said cities have the flexibility to fully develop any particular water right.

'The use-it-or-lose-it is really focused on non-use,' French said. 'Where, for example, a city is slowly developing their use over time, the use-it-or-lose-it really doesn't apply.'

Komarek said as Lake Oswego incrementally develops its water rights, it must first plan conservation programs and mangament systems that prove waste is controlled.

The city faces regulatory hurdles every step of the way, said Komarek, but will need to eventually develop more water rights, even without Tigard as a partner.

But whether developing a water right includes selling off pieces of it to other municipalities frames the heart of WaterWatch's protest. Especially, DeVoe said, on the Clackamas River, where habitat sensitivity is at a premium.

'They are actively pursing water from a river that has sensitive species and species listed under the Endangered Species Act,' he said. He added that water supplies, such as the Portland option and Bull Run, are available to the regional cities that would place less of a habitat strain on other rivers.'

Reporter Lee van der Voo contributed to this story.

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