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 Chelsea StoneWaterWatch of OregonRe: Comments of WaterWatch of Oregon IR for G-17641 (1.0 cfs, Malheur Lake Basin, Harney County) To Whom It May Concern: WaterWatch is becoming increasingly concerned about the number and sizes of new groundwater permits that OWRD is issuing in Harney and Malheur Counties. For example, in the past month of public notices, ten applications have been published with tentatively favorable results in these counties alone. Specific Comments (1) Under “Ground Water Availability Considerations, OAR 690-310-130, 400-010, and 410-0070” on the Public Interest Review for Ground Water Applications, the assessor marked, Based upon available data, I have determined that ground water* for the proposed use: cannot be determined to be over appropriated during any period of proposed use [original emphases]. *This finding is limited to the ground water portion of the over-appropriation determination as prescribed in OAR 690-310-130.” Mike Zwart to Water Rights Section, June 20, 2013, “Application G-17641,” page 2. This is in contrast to the other two available responses, which state the groundwater for the proposed use is over appropriate or is not over appropriated. WaterWatch contends that allowing this kind determination, that, essentially, the Department doesn’t have enough information to deny the applicant, does not adequately implement the statute. The Department has a statutory presumption that a proposed use will ensure the preservation of the public welfare, safety, and health, as described in ORS 537.525. ORS 537.621(2). The Department shall make the presumption if: 1) the proposed use is allowed in the applicable basin program or given a preference, 2) if water is available, 3) if the proposed use will not injure other water rights, and 4) if the proposed use complies with the rules of the Water Resources Commission. Id. This is a rebuttable presumption that may be overcome by a preponderance of evidence that, inter alia, one or more of the criteria for establishing the presumption are not satisfied. ORS 537.621(2)(a). The fact that WRD is unable to determine whether the resource is over-appropriated is not satisfactory to establish that water is available and that the use will not injure other water rights. The statute does not say “if water might be available,” or “if the proposed use probably won’t injure other water rights.” The statute says “is” and “will not.” The statute requires the Department to make a determination of fact which it has failed to do. If WRD does not have adequate information to make the determination, it should either require the applicant to provide that information, or deny the application because it is not in the public interest. (2) The proposed condition specifying, “The water user shall discontinue use of, or reduce the rate or volume of withdrawal from, the well(s) if any of the following events occur…” does not seem to meet OWRD statutory and rule based requirements for protecting Oregon’s groundwater. Kerry Kavanagh to Applicant, September 13, 2013, “File G-17641,” page 3. First, it fails to specify to what extent a user would need to “reduce” the withdrawal if one of the triggers were met. Second, those triggers appear to be set at points where, once met, the use is out of compliance with the statutory and rule requirements. In other words, they are not protective enough. This proposed condition does not adequately protect the resource, particularly when OWRD is issuing new groundwater permits in areas of known declines and problems. (3) Although WaterWatch appreciates the existence of the aforementioned condition in Comment 2, we would like to suggest that the Department also begin including a clear reopener clause on groundwater applications in Malheur Basin and Malheur Lake Basin. These are sensitive areas for groundwater, and there have been a large number of permit applications within them. In the event the Department discovers that the over-issuance of groundwater permits is drying up surface water, a clear reopener clause would allow the Department to come back and condition rights at a more stringent level. (4) This application is only eleven miles northwest of a part of the Malheur Lake Basin, just north of Crane, which has been the subject of concern about the groundwater resources by local water users for several years. Theoretically in an effort to investigate these concerns and monitor the use of those groundwater resources, the Department selected several wells in that area for quarterly water-level monitoring. The Ground Water Review memo for this application states, “Most of those wells are clearly displaying year-to-year water-level declines [emphasis added].” Mike Zwart, page 2. Despite this, the assessor made a positive finding, based on the distance from that area of the basin and the lack of local water-level data with an adequate period of record to conclude whether or not water levels are stable. This seems to be a common decision on behalf of the assessor. See Chelsea Stone to Oregon Water Resources Department, October 9, 2013, “Comments of WaterWatch of Oregon, IR for G-17688 (2.0 cfs, Malheur Lake Basin, Harney County),” pages 1-2; Chelsea Stone to Oregon Water Resources Department, October 17, 2013, “Comments of WaterWatch of Oregon, IR for G-17649 (1.3 cfs, Malheur Lake Basin, Harney Count),” pages 1-2. Given that the documented water-level declines elsewhere in the basin, and the fact that several nearby permitted groundwater rights are not yet developed, it is distinctly possible the proposed use here, in combination with other nearby permitted uses, will result in water level declines that may exceed one or more of the triggers in the measurement condition that is being recommended—a fact the assessor concedes. Mike Zwart, page 2. Furthermore, this application is for additional acres of irrigation from the same well authorized under Permit G-16434. Since 2008, when that file was reviewed, there has been considerable development of groundwater in the Malheur Lake Basin for irrigation. The evidence indicates a lack of water availability, and the Department’s disregard of this fails to meet OWRD statutory and rule based requirements for protecting Oregon’s groundwater. Issuing a permit for a water use that is initially known to be likely to exceed measurement conditions triggers—essentially, known to be out of compliance with the statutory and rule requirements—is counter to the Department’s purpose and statutory authorization. WaterWatch requests an explanation as to why the OWRD believes that issuing a groundwater permit in this circumstance meets its statutory (ORS 537.621 and ORS 537.525) and rule (OAR Division 9) standards. (5) OWRD is not adequately considering the cumulative effects of new permit issuance. We are concerned that the Department is creating an untenable groundwater situation in this part of the state. Consider, as of September 18, thirty-three of the seventy-four groundwater applications through the initial review stage were in this part of the state, specifically Malheur and Harney counties. There are five permits in these counties in initial review, including this one, with comment deadlines today. We suggest that the Department should be considering all of these applications together, given their close physical proximity and the sensitive nature of the basins in Malheur and Harney County (specifically the Malheur Basin and the Malheur Lake Basin). Together, these five applications ask for a total of 7.1117 cfs from six wells. We look forward to the requested explanation in Comment 4. Thank you for your time. Sincerely, Chelsea Stone Legal Intern