Irrigators set back in Little Creek water rights case
By TAM MOORE
The finding, sent to parties in the case on Nov. 25, upholds a transfer to Oregon Water Trust approved by the state Water Resources Department and appealed by eight water users.
Little Creek, on the outskirts of the town of Union in northeast Oregon, has been wrapped in water right disputes for over four years. If the proposed order of Administrative Law Judge Paul Vincent survives certain appeals, it will set precedent for Oregon’s law that allows conversion of historic irrigation rights to instream flows benefiting fish and recreational water users.
Little Creek Water Users Association protested the transfer, arguing that more water will be left instream than had historically been diverted, and that historically irrigators only applied water early in the season when it was naturally available.
“This case,” said Laura Schroeder, attorney for the users, “is about whether there is water available at the point of diversion for the season of use.”
Earlier this year a Union County circuit court judge deferred to the state, dismissing the water user’s claim that creating an instream right runs counter to the original decree. The decree sets Little Creek water rights and describes a system where irrigators rotate available water to share a flow that declines markedly during most irrigation seasons.
Vincent writes that impact of the transfer isn’t a “legal injury” to adjoining water rights holders.
“Instead, the record demonstrates that the transfer can be effected without legal injury to existing water rights,” he said in the proposed order.
The contested transfer began in August 1998 when developer Michael Becker assigned 1863 rights on the Dobbin Ditch to Oregon Water Trust as part of the trust’s drive to improve fishery flows on Little and Catherine creeks, both tributaries of the Grand Ronde River. There are 24.8 acres involved in the transfer, part of Becker’s Little Creek Addition, a six-lot rural subdivision just north of Union city limits.
“The potential that protestants will suffer economic harm by being ‘regulated off’ from water is simply not injury under Oregon law. The fact that a junior water right holder will be lawfully regulated more often as a result of a water right transfer is not considered injury,” said Vincent.
Schroeder said Vincent sidestepped water supply issues and focused on the injury issue, using a much broader definition than is found in Oregon law governing instream water rights.
Oregon’s Water Resources Department is expected to endorse Vincent’s proposal, asking for final administrative action by the Oregon Water Resources Commission. Schroeder said she will raise several issues when the case comes to the commission.
Andrew Purkey, Oregon Water Trust’s executive director, says Vincent’s proposed order clearly shows that current state law means transfers start with the “paper” water right, not historic or actual use of the stream or spring.
It also shows, by a 1-foot-high stack of Little Creek papers accumulated on Purkey’s desk over four years, that Oregon’s water transfer process is cumbersome.
It’s in the interest of water users and the state, says Purkey, that “all folks out there get together in some forum and take a look at the system.”
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