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 Chelsea StoneWaterWatch of OregonRe: Comments of WaterWatch of Oregon IR for G-17681 (0.97 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, August 14, 2013, “Application G-17681,” page 2. This is in contrast to the other two available responses, which state the groundwater for the proposed use is over-appropriated 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 IR’s determination that “water will likely be available within the capacity of the resource” is not supported by the record. OWRD found that “…ground water* for the proposed use: cannot be determined to be over appropriated during any period of proposed use [original emphases].” Mike Zwart to Water Rights Section, August 14, 2013, “Application G-17681,” page 2. OWRD has no basis to find that water will likely be available within the capacity of the resource if it cannot determine whether or not the resource is over appropriated. The IR is in error. (3) 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 201, 2013, “File G-17681,” 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. (4) Although WaterWatch appreciates the existence of the aforementioned condition in Comment 3, 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. (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. In addition to this permit application, five permits in these counties in initial review had comment deadlines just last week, and two permits in these counties in initial review have comment deadlines next week. 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). Thank you for your time. Sincerely, Chelsea Stone Legal Intern