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Appeals Court ruling could impact Tigard water deal with Lake Oswego

Photo Credit: FILE PHOTO - Construction crews install a pipe along Highway 43 as part of the Tigard-Lake Oswego Water Partnership. The Oregon Court of Appeals ruled last week that the project may draw too much water from the Clackamas River

Cities and water districts must limit the amount of water they draw from the lower Clackamas River, the Oregon Court of Appeals ruled last week.

The court ruled Dec. 31 that Oregon's Water Resources Department threatened endangered salmon and steelhead in the Clackamas River by failing to set proper limits for cities and water districts. Lake Oswego, which is working with Tigard to draw water from the Clackamas River as part of its quarter-billion-dollar water partnership, is one of several municipalities included in the ruling.

Lake Oswego, the South Fork Water Board — which serves Oregon City and West Linn — and the North Clackamas County Water Commission all hold water permits to draw water from the river. Those permits, which are issued by the Oregon Water Resources Department, now will be sent back to the state for re-evaluation.

Under the terms of the permits, Lake Oswego is allowed to draw up to 59 cubic feet of water per second from the river. The city currently draws 28 cubic feet per second. Plans were made for the remaining 31 cubic feet per second to be shared with Tigard as part of the Lake Oswego Tigard Water Partnership.

The partnership — a $254 million project to upgrade and increase the capacity of Lake Oswego's water system — would give Tigard access to water for the first time in its history. The city has had to purchase water wholesale from Portland since its inception.

Project leaders announced this week that the project had reached its halfway point on budget and was on schedule. Construction crews have laid five miles of pipe for the project, including a 3,900-foot pipe under the Willamette River.

Project Director Joel Komarek said Tuesday that taps are expected to begin running Tigard-Lake Oswego water in summer 2016.

“We don’t believe the decision from the Court of Appeals will impact the Lake Oswego Tigard Water Partnership project or our planning for a sustainable regional water supply," he said.

WaterWatch victory

According to the court, the amount of water the state allowed cities and water districts to draw from the river threatened several species of fish.

“We conclude that the department’s determination that the permits, as conditioned, will maintain the persistence of listed fish species in the affected waterway lacks both substantial evidence and substantial reason,” the court wrote in its 45-page ruling.

WaterWatch of Oregon, a conservation group in Portland, brought the lawsuit against the state, saying that if the cities draw too much water from the river, there wouldn’t be enough left for struggling salmon and steelhead.

The court denied four other issues raised by WaterWatch.

“The Clackamas may have the last run of self-sustaining wild coho salmon in the Columbia Basin,” said Lisa Brown, an attorney with WaterWatch. “We shouldn’t be sacrificing Clackamas fish populations when there are other, less risky options readily available” such as the Bull Run system and the Willamette River.

Under state law, cities and water districts have to leave enough water in the river for struggling or protected fish. Five species of fish in the lower Clackamas qualify for protection, according to the Oregon Department of Fish and Wildlife: cutthroat trout, winter steelhead, spring and fall Chinook, and Coho salmon.

On rivers with imperiled fish, the law allows cities to meet their reasonable water needs and develop more water, but in ways that allow imperiled fish to persist into the future. On the Clackamas, the cities argued that the law only required enough water to ensure that the listed fish species do not vanish altogether from the affected portion of the river.

The appeals court disagreed.

WaterWatch originally filed protests against the OWRD permits in 2008, the same year that Tigard and Lake Oswego agreed to construct the new water system. Since then, the partnership has installed a 3,900-foot pipe under the Willamette River, laid nearly five miles of pipe and poured more than 330 cubic yards of concrete to complete the roof on the Waluga Reservoir 2. In addition, a River Intake Pump Station on the Clackamas River is scheduled for startup in February.

“Even though the Oregon Department of Fish and Wildlife indicated that struggling fish would need 650 cubic feet per second of river flow in the summer, and 800 cubic feet per second in the fall for spawning salmon, OWRD’s permits set no limits on the new water diversions if river flows fell below these levels in the summer months, and inadequate controls during the rest of the year,” Brown said.

Tigard leaders have said for years that the Lake Oswego project is the cheapest and best option for the city after years of purchasing its water from Portland.

City leaders even agreed to take on a larger share of the project last year, raising water rates in Tigard to pay for it.

“There is plenty of water to go around in the Portland metro area without putting the Clackamas River and its fish at risk,” said WaterWatch Executive Director John DeVoe. “For example, the Bull Run system is underutilized, and many other utilities are tapping into the Willamette River. The fact that the state allowed the Clackamas River — the Portland metro area’s backyard gem — to be put at risk when there are clearly other better solutions highlights the shortcomings of Oregon’s water planning requirements.”

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