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 Chelsea StoneWaterWatch of OregonWaterWatch of Oregon Attn.: Chelsea Stone 213 SW Ash St., Ste. 208 Portland, OR 97204 December 5, 2013 Oregon Water Resources Department 725 Summer St. NE, Ste. A Salem, OR 97301 Re: Comments of WaterWatch of Oregon IR for G-17709 (5.0 cfs, Powder Basin, Baker County) To Whom It May Concern: WaterWatch is becoming increasingly concerned about the OWRD’s treatment of groundwater applications, particularly the methods of determining groundwater over-appropriation. Specific Comments (1) Under “Ground Water Availability Considerations, OAR 690-310-130, 400-010, and 410-0070” on the Public Interest Review (“PIR”), 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, “Application G-17709,” September 4, 2013, 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, essentially, that 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 initial review determination that “water will likely be available within the capacity of the resource” is not supported by the record. Mary Rohling to Applicant, “File G-17709,” November 1, 2013, page 1. WRD 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, page 2. WRD 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 determination 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. Mary Rohling, 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) 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. In the last month, five groundwater applications in Baker County have been tentatively approved in initial review (for a total of 21.27 cfs—see also G-17647, G-17718, G-17712, and G-17721). We suggest that the Department should be considering all of these applications together, given their close physical proximity. Thank you for your time. Sincerely, Chelsea Stone Legal Intern