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02/18/2014Chelsea StoneWaterWatch of OregonWaterWatch of Oregon Attn.: Chelsea Stone 213 SW Ash St., Ste. 208 Portland, OR 97204 February 18, 2014 Oregon Water Resources Department 725 Summer St. NE, Ste. A Salem, OR 97301 Re: Comments of WaterWatch of Oregon IR for G-17731 (2.02 cfs, North Coast Basin, Columbia 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) OAR 690-310-0040(1)(a) (implementing statutes ORS 390.835, ORS 537.140, and ORS 537.615) requires “each application for a permit to appropriate water shall be made to the Department on a form prescribed by the Department and shall set forth [emphasis added]” a specific set of conditions. See, generally, OAR 690-310-004(1)(a)(A)-(R) and, for groundwater applications, OAR 690-310-004(1)(b)(A)-(G)). These conditions are reflected on the Public Interest Review for Ground Water Applications (“PIR”) form an assessor completes and submits to the Water Rights Section. Under “A. General Information,” the assessor transmits, inter alia, the well construction data from the application to the PIR form. This application is for one well. In the Comments section, the assessor has noted, “Site specific data or construction details not provided with application.” Jen Woody to Water Rights Section, November 8, 2013, “Application G-17731,” page 1. Applicants are required to submit information on the construction of their proposed well(s), as indicated by the “shall” language in the rules implementing the statute. Oregon courts strongly adhere to the general rule that “shall” denotes mandatory action, while “may” denotes permissive or discretionary action. See State ex rel. Stewart v. City of Salem, 241 Or. App. 528, 534 (2011) (“Use of the word ‘shall’ in a statute generally indicates that something is mandatory”); Doyle v. City of Medford, 347 Or. 564, 570-571 (2010) (“Ordinarily, use of the word ‘shall’ implies that the legislature intended to create an obligation”). Moreover, the OWRD’s statutory authority has a specific procedure laid out for when an application is incomplete. ORS 537.620 (handily titled “Determination of completeness of application…”) states, Within 15 days of receiving the application, the department shall determine whether the application contains the information listed under ORS 537.615 (2) and is complete and not defective…. If the department determines that the application is incomplete or defective…the department shall return the fees paid and the application to remedy the defect. ORS 537.620(2). An incomplete application should be rejected as such. Here, the Department has simply noted the missing information. WaterWatch requests an explanation as to why the OWRD believes that issuing a groundwater permit in this circumstance meets its statutory (ORS 537.615) and rule (OAR 690-310-0040) standards. (2) 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. Jen Woody, 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. (3) The initial review determination that “water will likely be available within the capacity of the resource” is not supported by the record. Kim French-Gorski to Applicant, “File G-17731,” January 24, 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].” Jen Woody, 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. Thank you for your time. Sincerely, Chelsea Stone Legal Intern