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VOLUME 90, NUMBER 48
WWW.CAPITALPRESS.COM
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Photo by Geoff McMichael
Adult fall Chinook salmon in the Priest Rapids Hatchery.
More water
for the fish
The idea was simple: Take water from the aquifer at the end of irrigation season and pump it several
hundred feet to where it could help fish survive the low stream flows in late summer and early fall.
Area in
detail
By DON JENKINS
Capital Press
Water rights legal theory
unnerves Oregon irrigators
Environmental lawsuit dismissed, but argument could be revived
By MATEUSZ PERKOWSKI
Capital Press
Time has run out for en-
vironmentalists to appeal a
ruling with implications for
Oregon water rights, but irri-
gators remain nervous about
their underlying legal theory.
In 2013, Central Oregon
Landwatch and Waterwatch
of Oregon filed a complaint
against the U.S. Forest Ser-
vice for approving the re-
placement of a water intake
in the Deschutes National
Forest.
The environmental groups
argued the Forest Service in-
adequately studied the impacts
of diverting water from Tuma-
lo Creek, among other allega-
tions.
Although the lawsuit tar-
geted water consumed by the
City of Bend, irrigators and
other water users intervened
in the case because they feared
it could set a dangerous prece-
dent regarding water rights on
federal land.
Specifically, the plaintiffs
claimed the Forest Service
shouldn’t allow the creek to
fall below the minimum flow
level established under in-
stream water rights owned by
the state government.
Under Oregon water law,
instream water rights function
according to the policy of “first
in time, first in right,” meaning
they are subordinate to old-
er water rights established by
many irrigators.
However, if the minimum
flow levels cited in Oregon’s
instream water rights became a
mandatory requirement for the
Forest Service, it would effec-
tively elevate those instream
rights above senior users, said
Richard Glick, a water rights
attorney with the Davis Wright
Tremaine law firm.
Turn to RIGHTS, Page 12
WASH.
7
ra
s er R i v er
Bertrand Creek
joins Nooksack
River here
11
Abbotsford
1
British Columbia
Sumas
Wash.
546
9
Lynden
5
544
Ferndale
Turn to FISH, Page 12
539
c
ksa
Noo
Don Jenkins/Capital Press
Whatcom County, Wash., raspberry grower Marty Maberry watches Oct.
18 as groundwater flows into Bertrand Creek. The experiment by farmers
increased the stream flow to help fish.
The Washington Supreme Court
has been extremely protective of
these minimum flows. For exam-
ple, earlier this year in the Hirst
decision, justices even stopped the
drilling of any household well that
might impair a nearby stream’s min-
imum flow.
Meanwhile, Native American
tribal treaty rights continue to be lit-
igated in federal court. A case pend-
ing before the U.S. Supreme Court,
ostensibly over how fast Washing-
ton state will replace fish-blocking
culverts under roads, will test how
far states must go to protect fish.
Since stream flows for the ben-
efit of fish are the issue, farmers in
F
L
YNDEN, Wash. —
Farmers in the northwest
corner of Washington of-
ten tap the groundwater
to irrigate their berry and
potato crops during the dry season.
But when that irrigation season end-
ed last summer, they did something
that’s never been done before in the
state.
They used the water to “irrigate”
the fish in a nearby creek.
Although Whatcom County re-
ceives about 50 inches of rain a
year, summers are usually dry. By
fall, streams and rivers, including
Bertrand Creek, are often below the
minimum flows for fish that were
set by the Washington Department
of Ecology.
9
k
542
Ri
ve r
Lake
Whatcom
Bellingham
539
N
Belingham
Bay
5
5 miles
Alan Kenaga/Capital Press
Solar developments could
prompt new land regulations
By MATEUSZ PERKOWSKI
Capital Press
PORTLAND — Solar
power development on farm-
land is increasingly raising
alarm, potentially leading to
new land use restrictions in
two Oregon counties.
A growing “cluster” of
solar energy sites in Or-
egon’s Willamette Valley
has prompted Yamhill and
Marion county governments
to consider barring such
development on several
higher-quality farmland soil
classes, said Jim Johnson,
land use specialist with the
Oregon Department of Ag-
riculture.
The restrictions would go
beyond the current rules es-
tablished by Oregon’s Land
Conservation and Develop-
ment Commission, which
limit solar development on
prime farmland to 12 acres.
“We’ve got enough con-
cern for two counties to take
this on their own and not
wait for LCDC,” Johnson
said during a Nov. 28 meet-
ing of the Oregon Board of
Agriculture, which advises
ODA.
New statewide rules for
solar development on farm-
land are also being consid-
ered by LCDC, though the
agency is reluctant to an-
nounce a time frame for tak-
ing action, he said.
If LCDC set a deadline
to enact stricter regulations
for solar power facilities on
farmland, it could result in
a “land rush” among devel-
opers to seek new sites un-
der the more lenient current
rules, Johnson said.
With the upcoming 2018
legislative session, the agen-
cy also likely feels that it
can’t devote resources to
new solar rules in the short
term, he said.
Wetlands on farmland are
also controversial in Oregon
agriculture, with Tillamook
County considering a new
regulatory approach to such
developments.
Turn to SOLAR, Page 12