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DateNameCompanyComment
 Holli Kingsbury Today, I am writing you as President of the Crook County Stock Growers Association, in opposition of the BOR’s application to change their existing right from storage to using water. We are very concerned with what this change of water right can do to our county, our producers, and our landscape. Our community is built on the natural resources around us and we do not take that lightly. Our lives, business, families depend on us managing the land responsibly to ensure we are able to keep the landscape as natural as possible. We have the knowledge and skill to do it and have been for hundreds of years. With the major change in water use, our ability to keep managing as we have been, can and will destroy our ability to manage the landscape as it should be. It is my understanding that with the 2014 legislation and what the BOR and USFW have been doing currently has been benefiting the fish and other wildlife that they have been concerned about. If this is true, why is there the need for more. Give things time to continue to recover if that is their goal. Roam was not built in a day. The reservoir is already struggling to fill regularly between the increased release of water during storage months and weather patterns. While the reservoir was not built for recreation, it has become a huge economic avenue for our county, like most other’s have. It is again, a big concern that if the water right is change and they choose to release more water and the reservoir will struggle every year to recover its water storage. Once this happens the recreationalists will have to go else ware and that will have a big economic impact on our community. Another, huge concern to water right holders above the dam being asked to release stored water to ensure the BOR’s water right is fulfilled. The 1914 water right allows them seniority over most of the upper water rights in place and if asked to release their water, the farmers and ranchers will perish. I think Klamath Fall’s is a prime example of what you can expect to see. I realize it may not be the BOR’s intentions to do this, but eventually it will happen and when it does, it will begin happen on a regular basis. Once again, I am urging you to deny the BOR their water right application. There must be a better way to get the results we all want, working together rather than taking without discussion. Thank you for considering my comments and we are anxiously awaiting your decision. Holli Kingsbury Crook County Stock Growers Association President
 Todd SpringerCow Creek Canyon Ranch, LLC To whom it may concern: This letter is written in opposition to the Bureau of Reclamation’s Application S-89128, as it would negatively impact our ranch, the animals that inhabit the land, and the ranching industry of Central Oregon. Cow Creek Canyon Ranch supports a wide range of wildlife year-round and has cattle grazing the property all summer that are dependent on the current water supplies. The ranch's primary purpose is hunting and fishing; the land is home to majestic big game, including elk, deer, and antelope. All of these animals depend on our water resources to support their habitat. In recent years we have seen herd populations decline; passage of this application would further negatively impact the livelihood of these animals, by limiting access to their most vital resources necessary for survival. Central Oregon is in the midst of a drought and this change would exacerbate our current shortfalls in water resources critical to our land. By challenging and changing our water supplies, the ranch will be more susceptible to wildfires with fewer natural resources available to fight them. Last summer, we dealt with fire on a neighboring ranch and without local reservoirs to aid in fighting the fire it could have been much worse than it was. We need our water reserves to be adequately prepared for fire in order to protect our lands and the animals that roam them. Cow Creek also supports grazing cattle in the summer as current water supplies allow for grassy flood irrigated fields and flowing streams. The cattle business is critical to Central Oregon’s rural economy and this application has potential to significantly harm the wellbeing of cattle owners across rural Oregon. This measure would create a snowball effect on multiple other components of the cattle and ranching industry as a whole. We are very concerned about the implications of this application for our ranch and many others in the region, and strongly oppose it’s passage. Thank you for your time and consideration. Sincerely, Todd Springer Cow Creek Canyon Ranch, LLC 25405 SE Bear Creek RD Prineville, OR
 Dennis ` LinthicumAslan EnterprisesAugust 12, 2021 Director Tom Byler Oregon Water Resource Department 725 Summer Street NE, Suite A Salem, Oregon 97301 RE: Application S-89128 Director Byler, I write today, first, in opposition to the original application S-89128, submitted by the U. S. Bureau of Reclamation. Secondly, I write in opposition to any moves to expedite the methodological process. Expediting the process and rushing to conclusions regarding this application would only serve to truncate the deliberative nature of the application process and its associated commentary. The farmers and ranchers in the Upper Crooked River region have worked hard to promote the diligent conservation and efficient utilization of Oregon’s precious water resources. Flora, fauna, farmers, and ranchers have all benefit from these men and women who are seeking the best advantages for their families, businesses, stakeholders, and the surrounding communities. These people and community participants will certainly face the potential jeopardy of having water rights called and businesses destroyed. Without water resources, the productive landscape will dry-up along with significant community investments. The creation of the Prineville Reservoir for irrigation purposes also provided water for upland wildlife and has enhanced riparian and local vegetation with the reservoir boundary. Additionally, this water storage reservoir provides source for wildfire suppression resources, habitat for fish stock and a myriad of economic benefits associated with water sports and outdoor recreation. The region has hugely benefited from the extended, well-managed use of the Prineville Reservoir. The stark reality is all the afore mentioned benefits, along with other unmentioned benefits, will all severely take a hit if this application is approved. As recently as 2014, former Congressman Walden re-negotiated the terms for the appropriate water uses of water stored within the Prineville Reservoir. However, ongoing water right issues have placed undue burdens on ranchers and farmers as they strive to defend their vested interest in water rights. Additionally, I echo the points addressed in the letter dated July 7, 2021, from the Crook County Commissioners in denying this application. Please review the details with the thoroughness they deserve and slow the process down so that legitimate concerns reviewed with appropriate due diligence. I thank you for your engagement and consideration of openness, transparency, and accessibility. Respectfully, Dennis Linthicum OR State Senate – District 28
 Peter LickwarU.S. Fish and Wildlife ServiceThe U.S. Fish and Wildlife Service (Service) has reviewed the Bureau of Reclamation’s (Reclamation) June 8, 2021, water rights application to the Oregon Department of Water Resources (OWRD). The application is for secondary instream use of up to 78,887 acre-feet of water stored in Prineville Reservoir as instream flow for fish and wildlife in the Crooked River downstream of Bowman Dam. On July 13, 2021, the OWRD issued a public notice of Reclamation’s application and requested that any comments be filed by August 12, 2021. The OWRD’s public notice (OWRD S-89128) states that if the application’s proposed use occurs in an area where endangered, threatened, or sensitive species are located, appropriate State agencies will recommend conditions to achieve no loss of essential habitat for these species. The Crooked River provides habitat for an Endangered Species Act listed species administered by the Service, which is the threatened bull trout (Salvelinus confluentus). On December 31, 2020, the Service finalized the Deschutes River Basin Habitat Conservation Plan (HCP) and Biological Opinion which address effects to bull trout associated with both Reclamation storage and flow release activities, as well as the North Unit Irrigation District pumping plant mentioned in the application. Obtaining a secondary instream water right for the benefit of fish and wildlife enhances the HCP and has been a priority for the Service since passage of the Crooked River Collaborative Water Security and Jobs Act of 2014 (Public Law 13–244). The Service has no additional conditions to recommend regarding the proposed application’s effects to the bull trout. The Service noted extraneous information in the “remarks” section of the application, which we don’t believe affect the application, and therefore we have no objections to Reclamation’s application for a secondary water right. This action will provide important protection for fish and wildlife instream flows released from Bowman Dam. We greatly appreciate the OWRD’s efforts to protect flows and habitat for fish and wildlife in the Crooked River basin. Please contact Peter Lickwar on my staff at 541-382-6146 if you have any questions or would like to discuss this issue. Sincerely, Bridget Moran Field Supervisor
 Vikki Breese IversonState of Oregon, House District 55 August 11, 2021 Director Tom Byler?Oregon Water Resource Department?725 Summer Street NE, Suite A ??Salem, Oregon 97301 RE: Application S-89128 Director Byler, Please accept this letter as my official opposition to application and any expedited process of application S-89128. On behalf of my constituents of Oregon House District 55, I oppose application S-89128 submitted by the ?U. S. Bureau of Reclamation. The farmers and ranchers in the Upper Crooked River region have worked diligently to conserve and utilize water to the best advantage of all stakeholders. Those same users will now be in jeopardy of having their water rights called, ultimately rendering their land worthless. The creation of the Prineville Reservoir for irrigation purposes created upland wildlife and vegetation growth as well as creating fire suppression water, stock dam fish growth and a domino of economic benefits through recreation. The region has hugely benefited from the extended, well-managed use of the Prineville Reservoir. The stark reality is all the afore mentioned benefits, along with other unmentioned benefits, will all severely take a hit if this application is approved. As recently as 2014, Congressman Walden renegotiated the water uses of the Prineville Reservoir. Ongoing water right issues put a burden on ranchers and farmers to defend their vested interest in water rights. Additionally, I echo the points addressed in the letter dated July 7, 2021, from the Crook County Commissioners in denying this application. Not only do I encourage a larger consideration of this issue, any expedited process will only result in future litigation. Please slow down the process and take a larger, wholistic approach to our region. Respectfully, Representative Vikki Breese Iverson HD55
 Nathan RietmannRietmann Law PCRe: McCormack Ranch, LLC Comments on USBR Application for Secondary Use Permit (S-89128) Director Byler: On behalf of McCormack Ranch, LLC, we are writing to provide comments on the United States Bureau of Reclamation’s (“USBR”) application for a new secondary permit to use stored water in Prineville Reservoir for instream and irrigation purposes. I. INTRODUCTION McCormack Ranch, LLC is a highly progressive natural food producer that depends on water rights upstream of the Prineville Reservoir. Established in 1943, the ranching operation is entirely family owned and operated, currently supporting multiple generations of the McCormack family. Each year, McCormack Ranch, LLC runs approximately 1,200 head of cattle to support our nation’s food supply. The cattle are raised without antibiotics, growth enhancers, or added hormones. During the spring and summer, the McCormack’s graze their cattle on their land located above Prineville Reservoir in a rotational manner designed to ensure native grasses can reseed and flourish season after season. To further minimize impact on soil and plants, the McCormack’s grow meadow hay, alfalfa, grass, and grain to feed the cattle in the wintertime. The McCormack’s crops and cattle depend on twenty (20) water rights in Antelope Flat Reservoir, Houston Reservoir, Klutchman Creek, Bear Creek, Dry Creek, Faught Creek, Soldier Creek, Fergueson Creek, the Dry River, and Cow Creek. Over the years, the McCormack’s have joined together with other like-minded agricultural producers to supply consumers with more environmentally sustainable and healthful protein options. For example, the McCormack’s were one of fourteen (14) producers who originally joined together to form Oregon Country Beef. Today, Oregon Country Beef is one of the nation’s leaders in natural beef production and is supported by more than 100 cattle producers, all of whom produce their cattle without hormones, antibiotics, or GMO’s. Oregon County Beef and other ventures in which the McCormack’s are engaged have increased both supply and demand for food produced through sustainable and environmentally friendly practices, benefiting not only the Oregon economy but society at large. USBR’s application for a new secondary water right to divert an additional 68,887 acre-feet of water from Prineville Reservoir would substantially increase water rights demands on Prineville Reservoir. This will in turn increase demand on the surface water sources on which Prineville Reservoir depends. To meet these increased demands, USBR would likely need to call on upstream water rights with priority dates junior to April 8, 1914. For the McCormack’s, this would mean the potential loss fourteen (14) of the twenty (20) vested water rights on which their family ranching operation depends. Curtailing 70% of the McCormack’s existing water rights would imperil their longstanding family ranching operation and have similar deleterious effects on other neighboring agricultural producers with existing water rights upstream of Prineville Reservoir. It would also adversely affect deer, antelope, migratory birds, and numerous other forms of wildlife living on that depend on the exercise of the McCormack’s water rights. Currently, there is little water available for wildlife in the forest and ranges, except in places where there are wells, reservoirs, or troughs. Curtailing the upstream water rights of the McCormack’s and others would eliminate these few remaining sources of water on which the resident wildlife depends. USBR’s application should be summarily denied because OWRD does not have authority to issue an instream water right to USBR. For over 100-years, the Oregon Legislature has very carefully legislated on how water may be protected instream. This carefully crafted legislation does not grant OWRD the authority to issue USBR a new instream water right. While other means of protecting water instream are available, it is facially apparent USBR is seeking a water right OWRD does not have statutory authority to grant and the application should be summarily denied for such reason. If the application is not simply denied, OWRD should treat the application “as an application under ORS 537.150 and perform the public interest review required by ORS 537.153(2).” ORS 537.147(3). Such consideration is required because expedited review pursuant to ORS 537.147 is unavailable due to the presence of public interest issues identified in ORS 537.170(8). See, ORS 537.147(3). The public interest issues raised by USBR’s application include lack of water availability, injury to the exercise of existing water rights, and an array of other issues identified herein and in other comments. 2. ANALYSIS A. Application Should Be Summarily Denied Because OWRD Lacks Statutory Authority to Grant it OWRD only maintains those powers granted to it by the legislature. As the Oregon Supreme Court has clearly stated: A statute which creates an administrative agency and invests it with its powers restricts it to the power granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect according to its own ideas of the public welfare. Gouge v. David, 185 Or. 437,459,202 P.2d 489, 498 (1949) For more than 100-years, the Oregon Legislature has been very specific about how instream waters are to be protected. In 1915, Oregon became one of the first states in the nation to protect water instream when it enacted legislation removing stream feeding waterfalls in the Columbia River Gorge from appropriation. 1915 Or. Laws 49 (ORS 538.200). In 1955, the Oregon Legislature provided for the protection of water instream through the adoption of minimum perennial stream flows. 1955 Or. Laws 924 (ORS 536.235). Subsequently, in 1987, the Oregon Legislature enacted the Instream Water Rights Act, ORS 537.332 et seq. The Instream Water Rights Act recognized instream flows as a beneficial use and authorized the OWRD to issue instream water rights. However, the legislation very clearly provides that all such rights must be “held in trust by [OWRD] for the benefit of the people of the state of Oregon.” ORS 537.332(3); see also, ORS 537.341. The law also plainly provides that instream water rights may be supplied from stored water, as in the circumstance here. ORS 537.336(4). Although the Instream Water Rights Act provides mechanisms by which private parties may lease or transfer their existing water rights instream (e.g., ORS 537.348), the law does not authorize issuance of instream water rights certificates to parties other than OWRD. USBR’s application clearly seeks an instream water right. The application specifically states USBR is seeking to “[p]rotect up to 68,887 AF instream for fish and wildlife use from Prineville Reservoir to Lake Billy Chinook.” App. Pg. 5. If USBR were seeking to lease existing secondary water rights in Prineville Reservoir instream, this would be facially permissible (assuming other legal requirements were satisfied). However, Oregon law simply does not authorize issuance of a water right to USBR for the purpose of protecting water instream, as USBR is requesting here. Because Oregon law does not authorize OWRD to issue USBR an instream water right as it is requesting, its application should be summarily denied. While USBR will invariably encourage OWRD to engage in mental gymnastics and come up with some type of rational for why the right USBR is requesting is not an instream water right, the courts are unlikely to be deceived by semantics or concocted rationales. As the old cliché goes: if it quacks like a duck and acts like a duck – it’s a duck. This is particularly true where, as here, granting USBR an instream water right would fundamentally undermin
 Nathan RietmannRietmann Law PCRe: McCormack Ranch, LLC Comments on USBR Application for Secondary Use Permit (S-89128) Director Byler: On behalf of McCormack Ranch, LLC, we are writing to provide comments on the United States Bureau of Reclamation’s (“USBR”) application for a new secondary permit to use stored water in Prineville Reservoir for instream and irrigation purposes. I. INTRODUCTION McCormack Ranch, LLC is a highly progressive natural food producer that depends on water rights upstream of the Prineville Reservoir. Established in 1943, the ranching operation is entirely family owned and operated, currently supporting multiple generations of the McCormack family. Each year, McCormack Ranch, LLC runs approximately 1,200 head of cattle to support our nation’s food supply. The cattle are raised without antibiotics, growth enhancers, or added hormones. During the spring and summer, the McCormack’s graze their cattle on their land located above Prineville Reservoir in a rotational manner designed to ensure native grasses can reseed and flourish season after season. To further minimize impact on soil and plants, the McCormack’s grow meadow hay, alfalfa, grass, and grain to feed the cattle in the wintertime. The McCormack’s crops and cattle depend on twenty (20) water rights in Antelope Flat Reservoir, Houston Reservoir, Klutchman Creek, Bear Creek, Dry Creek, Faught Creek, Soldier Creek, Fergueson Creek, the Dry River, and Cow Creek. Over the years, the McCormack’s have joined together with other like-minded agricultural producers to supply consumers with more environmentally sustainable and healthful protein options. For example, the McCormack’s were one of fourteen (14) producers who originally joined together to form Oregon Country Beef. Today, Oregon Country Beef is one of the nation’s leaders in natural beef production and is supported by more than 100 cattle producers, all of whom produce their cattle without hormones, antibiotics, or GMO’s. Oregon County Beef and other ventures in which the McCormack’s are engaged have increased both supply and demand for food produced through sustainable and environmentally friendly practices, benefiting not only the Oregon economy but society at large. USBR’s application for a new secondary water right to divert an additional 68,887 acre-feet of water from Prineville Reservoir would substantially increase water rights demands on Prineville Reservoir. This will in turn increase demand on the surface water sources on which Prineville Reservoir depends. To meet these increased demands, USBR would likely need to call on upstream water rights with priority dates junior to April 8, 1914. For the McCormack’s, this would mean the potential loss fourteen (14) of the twenty (20) vested water rights on which their family ranching operation depends. Curtailing 70% of the McCormack’s existing water rights would imperil their longstanding family ranching operation and have similar deleterious effects on other neighboring agricultural producers with existing water rights upstream of Prineville Reservoir. It would also adversely affect deer, antelope, migratory birds, and numerous other forms of wildlife living on that depend on the exercise of the McCormack’s water rights. Currently, there is little water available for wildlife in the forest and ranges, except in places where there are wells, reservoirs, or troughs. Curtailing the upstream water rights of the McCormack’s and others would eliminate these few remaining sources of water on which the resident wildlife depends. USBR’s application should be summarily denied because OWRD does not have authority to issue an instream water right to USBR. For over 100-years, the Oregon Legislature has very carefully legislated on how water may be protected instream. This carefully crafted legislation does not grant OWRD the authority to issue USBR a new instream water right. While other means of protecting water instream are available, it is facially apparent USBR is seeking a water right OWRD does not have statutory authority to grant and the application should be summarily denied for such reason. If the application is not simply denied, OWRD should treat the application “as an application under ORS 537.150 and perform the public interest review required by ORS 537.153(2).” ORS 537.147(3). Such consideration is required because expedited review pursuant to ORS 537.147 is unavailable due to the presence of public interest issues identified in ORS 537.170(8). See, ORS 537.147(3). The public interest issues raised by USBR’s application include lack of water availability, injury to the exercise of existing water rights, and an array of other issues identified herein and in other comments. 2. ANALYSIS A. Application Should Be Summarily Denied Because OWRD Lacks Statutory Authority to Grant it OWRD only maintains those powers granted to it by the legislature. As the Oregon Supreme Court has clearly stated: A statute which creates an administrative agency and invests it with its powers restricts it to the power granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect according to its own ideas of the public welfare. Gouge v. David, 185 Or. 437,459,202 P.2d 489, 498 (1949) For more than 100-years, the Oregon Legislature has been very specific about how instream waters are to be protected. In 1915, Oregon became one of the first states in the nation to protect water instream when it enacted legislation removing stream feeding waterfalls in the Columbia River Gorge from appropriation. 1915 Or. Laws 49 (ORS 538.200). In 1955, the Oregon Legislature provided for the protection of water instream through the adoption of minimum perennial stream flows. 1955 Or. Laws 924 (ORS 536.235). Subsequently, in 1987, the Oregon Legislature enacted the Instream Water Rights Act, ORS 537.332 et seq. The Instream Water Rights Act recognized instream flows as a beneficial use and authorized the OWRD to issue instream water rights. However, the legislation very clearly provides that all such rights must be “held in trust by [OWRD] for the benefit of the people of the state of Oregon.” ORS 537.332(3); see also, ORS 537.341. The law also plainly provides that instream water rights may be supplied from stored water, as in the circumstance here. ORS 537.336(4). Although the Instream Water Rights Act provides mechanisms by which private parties may lease or transfer their existing water rights instream (e.g., ORS 537.348), the law does not authorize issuance of instream water rights certificates to parties other than OWRD. USBR’s application clearly seeks an instream water right. The application specifically states USBR is seeking to “[p]rotect up to 68,887 AF instream for fish and wildlife use from Prineville Reservoir to Lake Billy Chinook.” App. Pg. 5. If USBR were seeking to lease existing secondary water rights in Prineville Reservoir instream, this would be facially permissible (assuming other legal requirements were satisfied). However, Oregon law simply does not authorize issuance of a water right to USBR for the purpose of protecting water instream, as USBR is requesting here. Because Oregon law does not authorize OWRD to issue USBR an instream water right as it is requesting, its application should be summarily denied. While USBR will invariably encourage OWRD to engage in mental gymnastics and come up with some type of rational for why the right USBR is requesting is not an instream water right, the courts are unlikely to be deceived by semantics or concocted rationales. As the old cliché goes: if it quacks like a duck and acts like a duck – it’s a duck. This is particularly true where, as here, granting USBR an instream water right would fundamentally undermin
 Nathan RietmannRietmann Law PCRe: McCormack Ranch, LLC Comments on USBR Application for Secondary Use Permit (S-89128) Director Byler: On behalf of McCormack Ranch, LLC, we are writing to provide comments on the United States Bureau of Reclamation’s (“USBR”) application for a new secondary permit to use stored water in Prineville Reservoir for instream and irrigation purposes. I. INTRODUCTION McCormack Ranch, LLC is a highly progressive natural food producer that depends on water rights upstream of the Prineville Reservoir. Established in 1943, the ranching operation is entirely family owned and operated, currently supporting multiple generations of the McCormack family. Each year, McCormack Ranch, LLC runs approximately 1,200 head of cattle to support our nation’s food supply. The cattle are raised without antibiotics, growth enhancers, or added hormones. During the spring and summer, the McCormack’s graze their cattle on their land located above Prineville Reservoir in a rotational manner designed to ensure native grasses can reseed and flourish season after season. To further minimize impact on soil and plants, the McCormack’s grow meadow hay, alfalfa, grass, and grain to feed the cattle in the wintertime. The McCormack’s crops and cattle depend on twenty (20) water rights in Antelope Flat Reservoir, Houston Reservoir, Klutchman Creek, Bear Creek, Dry Creek, Faught Creek, Soldier Creek, Fergueson Creek, the Dry River, and Cow Creek. Over the years, the McCormack’s have joined together with other like-minded agricultural producers to supply consumers with more environmentally sustainable and healthful protein options. For example, the McCormack’s were one of fourteen (14) producers who originally joined together to form Oregon Country Beef. Today, Oregon Country Beef is one of the nation’s leaders in natural beef production and is supported by more than 100 cattle producers, all of whom produce their cattle without hormones, antibiotics, or GMO’s. Oregon County Beef and other ventures in which the McCormack’s are engaged have increased both supply and demand for food produced through sustainable and environmentally friendly practices, benefiting not only the Oregon economy but society at large. USBR’s application for a new secondary water right to divert an additional 68,887 acre-feet of water from Prineville Reservoir would substantially increase water rights demands on Prineville Reservoir. This will in turn increase demand on the surface water sources on which Prineville Reservoir depends. To meet these increased demands, USBR would likely need to call on upstream water rights with priority dates junior to April 8, 1914. For the McCormack’s, this would mean the potential loss fourteen (14) of the twenty (20) vested water rights on which their family ranching operation depends. Curtailing 70% of the McCormack’s existing water rights would imperil their longstanding family ranching operation and have similar deleterious effects on other neighboring agricultural producers with existing water rights upstream of Prineville Reservoir. It would also adversely affect deer, antelope, migratory birds, and numerous other forms of wildlife living on that depend on the exercise of the McCormack’s water rights. Currently, there is little water available for wildlife in the forest and ranges, except in places where there are wells, reservoirs, or troughs. Curtailing the upstream water rights of the McCormack’s and others would eliminate these few remaining sources of water on which the resident wildlife depends. USBR’s application should be summarily denied because OWRD does not have authority to issue an instream water right to USBR. For over 100-years, the Oregon Legislature has very carefully legislated on how water may be protected instream. This carefully crafted legislation does not grant OWRD the authority to issue USBR a new instream water right. While other means of protecting water instream are available, it is facially apparent USBR is seeking a water right OWRD does not have statutory authority to grant and the application should be summarily denied for such reason. If the application is not simply denied, OWRD should treat the application “as an application under ORS 537.150 and perform the public interest review required by ORS 537.153(2).” ORS 537.147(3). Such consideration is required because expedited review pursuant to ORS 537.147 is unavailable due to the presence of public interest issues identified in ORS 537.170(8). See, ORS 537.147(3). The public interest issues raised by USBR’s application include lack of water availability, injury to the exercise of existing water rights, and an array of other issues identified herein and in other comments. 2. ANALYSIS A. Application Should Be Summarily Denied Because OWRD Lacks Statutory Authority to Grant it OWRD only maintains those powers granted to it by the legislature. As the Oregon Supreme Court has clearly stated: A statute which creates an administrative agency and invests it with its powers restricts it to the power granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect according to its own ideas of the public welfare. Gouge v. David, 185 Or. 437,459,202 P.2d 489, 498 (1949) For more than 100-years, the Oregon Legislature has been very specific about how instream waters are to be protected. In 1915, Oregon became one of the first states in the nation to protect water instream when it enacted legislation removing stream feeding waterfalls in the Columbia River Gorge from appropriation. 1915 Or. Laws 49 (ORS 538.200). In 1955, the Oregon Legislature provided for the protection of water instream through the adoption of minimum perennial stream flows. 1955 Or. Laws 924 (ORS 536.235). Subsequently, in 1987, the Oregon Legislature enacted the Instream Water Rights Act, ORS 537.332 et seq. The Instream Water Rights Act recognized instream flows as a beneficial use and authorized the OWRD to issue instream water rights. However, the legislation very clearly provides that all such rights must be “held in trust by [OWRD] for the benefit of the people of the state of Oregon.” ORS 537.332(3); see also, ORS 537.341. The law also plainly provides that instream water rights may be supplied from stored water, as in the circumstance here. ORS 537.336(4). Although the Instream Water Rights Act provides mechanisms by which private parties may lease or transfer their existing water rights instream (e.g., ORS 537.348), the law does not authorize issuance of instream water rights certificates to parties other than OWRD. USBR’s application clearly seeks an instream water right. The application specifically states USBR is seeking to “[p]rotect up to 68,887 AF instream for fish and wildlife use from Prineville Reservoir to Lake Billy Chinook.” App. Pg. 5. If USBR were seeking to lease existing secondary water rights in Prineville Reservoir instream, this would be facially permissible (assuming other legal requirements were satisfied). However, Oregon law simply does not authorize issuance of a water right to USBR for the purpose of protecting water instream, as USBR is requesting here. Because Oregon law does not authorize OWRD to issue USBR an instream water right as it is requesting, its application should be summarily denied. While USBR will invariably encourage OWRD to engage in mental gymnastics and come up with some type of rational for why the right USBR is requesting is not an instream water right, the courts are unlikely to be deceived by semantics or concocted rationales. As the old cliché goes: if it quacks like a duck and acts like a duck – it’s a duck. This is particularly true where, as here, granting USBR an instream water right would fundamentally undermin
  Oregon Ranching Company, dba Twin Buttes RanchTo Whom It May Concern: Schroeder Law Offices, P.C. represents Oregon Ranching Company, dba Twin Buttes Ranch (“Twin Buttes”) and submits these comments on its behalf in opposition to Application S-89128 in the name of the United States Bureau of Reclamation (“BOR”). Twin Buttes is a water right holder who will be adversely impacted by Application S-89128. On May 5, 1913, the United States and Oregon entered into an agreement to reserve certain quantities of water for BOR to consider for development of irrigation storage projects under the Reclamation Act. Water from the Crooked River in Oregon was reserved or withdrawn in 1914, but it was not until over four decades later that Congress approved the Crooked River Project on August 6, 1956. Prineville Reservoir was not constructed and filled until 1961. In the intervening years between 1914 and 1956, numerous landowners settled and obtained water rights from the Crooked River basin upstream from Prineville Reservoir. These landowners constructed diversion and irrigation works and placed water to beneficial use before the federal government made any plans or commitments related to the Crooked River Project. However, BOR’s right to store water in Prineville Reservoir obtained a 1914 priority date based on the reservation/withdrawal many decades earlier. The reservation/withdrawal of water and artificially early priority date associated with water stored in Prineville Reservoir is at the root of the widespread injury Application S-89128 will cause. Many water rights upstream from Prineville Reservoir were established in the over four decades between the 1914 date of the Crooked River reservation and the 1956 authorization for the Crooked River Project. Thus, the federal government’s speculation of water resources caused inequity for upstream water users who had their priority dates denigrated and made inferior to the later-in-time Prineville Reservoir. This injustice has not caused widespread injury to date only because approximately half of the water authorized to be stored in Prineville Reservoir has remained uncontracted and not permitted for use under secondary water right permits. The uncontracted/unpermitted nature of the stored water means that holders of secondary water rights from Prineville Reservoir have not been making calls on the water that would require the Oregon Water Resources Department (“OWRD”) to investigate shortfalls and regulate junior upstream water users. Application S-89128 seeks to appropriate the remaining water authorized to be stored in Prineville Reservoir. If permitted, the proposed use of water will necessarily result in regulation of upstream water users whose water uses are in fact senior to storage in Prineville Reservoir, but who have later priority dates for their water rights due to BOR’s water speculation and reservation. The result is inequitable and unconscionable, and will result in injury to other water rights and water users. Further, Application S-89128 is one of the last steps of a longer process that excluded participation from landowners and water right holders upstream from Prineville Reservoir. The ironically named Crooked River Collaborative Water Security and Jobs Act of 2014 was enacted by Congress without local community involvement from persons and businesses upstream from Prineville Reservoir, and authorized BOR to change the purpose of storage in Prineville Reservoir from irrigation to approximately half for in-stream purposes for fish and wildlife. Those upstream landowners and water right holders are now positioned to be substantially injured by their exclusion from such processes. Twin Buttes holds water rights that will be injured by Application S-89128. Several of Twin Buttes’ water rights were issued between the time of the 1914 reservation and the 1956 approval for the Crooked River Project, and were therefore developed and put to beneficial use (perfected) before Prineville Reservoir was constructed. Specifically, these water rights include Certificate 5065, Certificate 91449, and Certificate 88565. Twin Buttes also holds pre-1909 water rights that were adjudicated and decreed in the Crooked River Decree, including Certificate 518, Certificate 545, Certificate 575, Certificate 688, Certificate 80616, Certificate 89036, Certificate 89037, and Certificate 75212. Even though these decreed water rights are senior to the storage right in Prineville Reservoir, Twin Buttes will be injured by lesser amounts of storage in the upper basin in favor of storage in Prineville Reservoir, meaning less water will be available in the upper basin later in the season to satisfy Twin Buttes’ senior water rights, as further explained below. Finally, Twin Buttes holds post-1956 priority water rights authorizing storage and groundwater use, including Certificate 91309, Certificate 91533, Certificate 65238, Certificate 89359, Certificate 89360, Certificate 89528, and Certificate 89796. These water rights will be injured by Application S-89128, which application is junior to these water rights, but will force additional calls on the Prineville Reservoir storage rights to meet the demand created by Application S-89128. Application S-89128 is an application for a permit to use stored water from Prineville Reservoir, and OWRD is processing the application under the expedited procedure provided by ORS 537.147. However, if public interest issues identified in ORS 537.170(8) are raised, OWRD must treat the application as a standard surface water application under ORS 537.150, perform the public interest review required by ORS 537.153(2), and issue a proposed final order that allows the opportunity for protests and a contested case hearing. Application S-89128 is fraught with public interest issues, and therefore OWRD must remove the application from the expedited process and conduct further public interest review. Under ORS 537.170(8) Subsection (a), OWRD must consider conservation of the highest use of the water for all purposes “including irrigation, domestic use, municipal water supply, power development, public recreation, protection of commercial and game fishing and wildlife, fire protection, mining, industrial purposes, navigation, scenic attraction or any other beneficial use to which the water may be applied for which it may have a special value to the public.” Application S-89128 proposes to use 68,887 acre-feet (“AF”) for in-stream fish and wildlife, and 10,000 AF for in-stream fish and wildlife or irrigation use. Thus, the Application proposes to use over half the water stored in Prineville Reservoir for in-stream purposes for fish and wildlife to the detriment of all other current and potential uses of water in the region. The proposal is not in the best interests of the public to promote the highest and best use of the water, and completely flies in the face of the original water reservation/withdrawal for irrigation purposes. The only reason water stored in the Prineville Reservoir has a 1914 priority date is due to the reservation to establish storage for irrigation, and the 2014 Act does not change the purpose of the reservation. Application S-89128 is not in the public’s best interest and creates substantial inequity and injury to other existing water users. Under ORS 537.170(8) Subsection (b), OWRD must consider the maximum economic development of the waters involved. Here, Application S-89128 provides for potential economic development of up to 10,000 AF for irrigation. However, the majority of the proposed water use is completely at odds with economic development. Instead, Application S-89128 proposes to completely halt all further economic development of the water resources. Further, the result of the Application will be to hinder existing water use upstream from Prineville Reservoir, hampering the local economy and devastating agricultural production in the region. As such, Application S-89128 is not in the public i
  Hamilton Ranch, LLC, dba Sabre Ridge RanchTo Whom It May Concern: Schroeder Law Offices, P.C. represents Hamilton Ranch, LLC, dba Sabre Ridge Ranch (“Sabre Ridge”) and submits these comments on its behalf in opposition to Application S-89128 in the name of the United States Bureau of Reclamation (“BOR”). Sabre Ridge is a water right holder who will be adversely impacted by Application S-89128. On May 5, 1913, the United States and Oregon entered into an agreement to reserve certain quantities of water for BOR to consider for development of irrigation storage projects under the Reclamation Act. Water from the Crooked River in Oregon was reserved or withdrawn in 1914, but it was not until over four decades later that Congress approved the Crooked River Project on August 6, 1956. Prineville Reservoir was not constructed and filled until 1961. In the intervening years between 1914 and 1956, numerous landowners settled and obtained water rights from the Crooked River basin upstream from Prineville Reservoir. These landowners constructed diversion and irrigation works and placed water to beneficial use before the federal government made any plans or commitments related to the Crooked River Project. However, BOR’s right to store water in Prineville Reservoir obtained a 1914 priority date based on the reservation/withdrawal many decades earlier. The reservation/withdrawal of water and artificially early priority date associated with water stored in Prineville Reservoir is at the root of the widespread injury Application S-89128 will cause. Many water rights upstream from Prineville Reservoir were established in the over four decades between the 1914 date of the Crooked River reservation and the 1956 authorization for the Crooked River Project. Thus, the federal government’s speculation of water resources caused inequity for upstream water users who had their priority dates denigrated and made inferior to the later-in-time Prineville Reservoir. This injustice has not caused widespread injury to date only because approximately half of the water authorized to be stored in Prineville Reservoir has remained uncontracted and not permitted for use under secondary water right permits. The uncontracted/unpermitted nature of the stored water means that holders of secondary water rights from Prineville Reservoir have not been making calls on the water that would require the Oregon Water Resources Department (“OWRD”) to investigate shortfalls and regulate junior upstream water users. Application S-89128 seeks to appropriate the remaining water authorized to be stored in Prineville Reservoir. If permitted, the proposed use of water will necessarily result in regulation of upstream water users whose water uses are in fact senior to storage in Prineville Reservoir, but who have later priority dates for their water rights due to BOR’s water speculation and reservation. The result is inequitable and unconscionable, and will result in injury to other water rights and water users. Further, Application S-89128 is one of the last steps of a longer process that excluded participation from landowners and water right holders upstream from Prineville Reservoir. The ironically named Crooked River Collaborative Water Security and Jobs Act of 2014 was enacted by Congress without local community involvement from persons and businesses upstream from Prineville Reservoir, and authorized BOR to change the purpose of storage in Prineville Reservoir from irrigation to approximately half for in-stream purposes for fish and wildlife. Those upstream landowners and water right holders are now positioned to be substantially injured by their exclusion from such processes. Sabre Ridge holds water rights that will be injured by Application S-89128. Sabre Ridge holds water rights that were issued between the time of the 1914 reservation and the 1956 approval for the Crooked River Project, and were therefore developed and put to beneficial use (perfected) before Prineville Reservoir was constructed. Specifically, these water rights include Certificate 5285, Certificate 3876, Certificate 21725, Certificate 83299, and Certificate 94106. Sabre Ridge also holds a priority water right that precedes the 1914 reservation, Certificate 1933. Even though this water right is senior to the storage right in Prineville Reservoir, Sabre Ridge will be injured by lesser amounts of storage in the upper basin in favor of storage in Prineville Reservoir, meaning less water will be available in the upper basin later in the season to satisfy Sabre Ridge’s senior water right, as further explained below. Finally, Sabre Ridge holds post-1956 priority water rights authorizing storage and irrigation from surface water and groundwater, including Certificate 83298, Certificate 94105, Certificate 48790, Certificate 48791, Certificate 35822, Certificate 86219, Certificate 86220, Certificate 48788, , Certificate 87438, Certificate 48785, Certificate 48786, Certificate 48787, Certificate 84100, Certificate 89953, Permit G-12657, Permit G-15078, Permit G-15598, Permit G-16508, Permit G-16774, Permit G-16604, Permit G-17526, and Certificate 90827. These water rights will be injured by Application S-89128, which application is junior to these water rights, but will force additional calls on the Prineville Reservoir storage rights to meet the demand created by Application S-89128. Application S-89128 is an application for a permit to use stored water from Prineville Reservoir, and OWRD is processing the application under the expedited procedure provided by ORS 537.147. However, if public interest issues identified in ORS 537.170(8) are raised, OWRD must treat the application as a standard surface water application under ORS 537.150, perform the public interest review required by ORS 537.153(2), and issue a proposed final order that allows the opportunity for protests and a contested case hearing. Application S-89128 is fraught with public interest issues, and therefore OWRD must remove the application from the expedited process and conduct further public interest review. Under ORS 537.170(8) Subsection (a), OWRD must consider conservation of the highest use of the water for all purposes “including irrigation, domestic use, municipal water supply, power development, public recreation, protection of commercial and game fishing and wildlife, fire protection, mining, industrial purposes, navigation, scenic attraction or any other beneficial use to which the water may be applied for which it may have a special value to the public.” Application S-89128 proposes to use 68,887 acre-feet (“AF”) for in-stream fish and wildlife, and 10,000 AF for in-stream fish and wildlife or irrigation use. Thus, the Application proposes to use over half the water stored in Prineville Reservoir for in-stream purposes for fish and wildlife to the detriment of all other current and potential uses of water in the region. The proposal is not in the best interests of the public to promote the highest and best use of the water, and completely flies in the face of the original water reservation/withdrawal for irrigation purposes. The only reason water stored in the Prineville Reservoir has a 1914 priority date is due to the reservation to establish storage for irrigation, and the 2014 Act does not change the purpose of the reservation. Application S-89128 is not in the public’s best interest and creates substantial inequity and injury to other existing water users. Under ORS 537.170(8) Subsection (b), OWRD must consider the maximum economic development of the waters involved. Here, Application S-89128 provides for potential economic development of up to 10,000 AF for irrigation. However, the majority of the proposed water use is completely at odds with economic development. Instead, Application S-89128 proposes to completely halt all further economic development of the water resources. Further, the result of the Application will be to hinder existing water use upstream from Prine
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