Water Rights: Background

Frequently Asked Questions: Water Source, Rights and Supply
The City of Lake Oswego was granted rights, by the State of Oregon, to use water from the Clackamas River for municipal purposes. Those rights are documented in two water right permits, one issued in 1967 for 32 million gallons per day (mgd) and one issued in 1973 for 6 mgd. Half of the 1967 water right is certificated – meaning Lake Oswego has demonstrated beneficial use of the water and has completed the state required claim process. Once certificated, a water right is considered a property right which cannot be revoked. The undeveloped portions of the permits will remain in permit status until the City can demonstrate beneficial use and completes a second claim process.

A third permit on the Willamette River allowing use of up to 3.88 mgd was secured for emergency purposes only and is not expected to be used for the foreseeable future.

Q. How much water will Lake Oswego and Tigard withdraw from the Clackamas River?
The new water supply system was designed for the ultimate supply of up to 38 million gallons per day (mgd), but currently is limited to a maximum delivery capacity of 32 mgd. Combined demands of the two cities during a typical summer season is anticipated to be 20-26 mgd.

Lake Oswego's Clackamas River water rights provide enough water to meet Lake Oswego's needs for the foreseeable future and Tigard's needs for the next 20 years.

Q. What is a water permit extension?
In 2003, Lake Oswego applied to the Oregon Water Resources Department (WRD) for an extension of time to fully develop the remaining undeveloped portions of its 1967 and 1973 Clackamas River water permits. The water rights involved in this permit extension process are not new water rights.

The permit extension process allows Lake Oswego more time to complete construction of facilities necessary to beneficially use the undeveloped portions of its permits. The ability of municipalities to extend the time available to develop their water rights is vital to their ability to engage in long term planning to meet the projected needs of their growing populations.

Q. What is the background and current status of the water permit extension?
In April 2011, the Oregon Water Resources Department (WRD) issued Final Orders approving Lake Oswego's application for an extension of time to fully use the water authorized by the city's water rights. Those Final Orders were challenged by Oregon WaterWatch. In June 2011, WaterWatch petitioned the Oregon Court of Appeals for a judicial review of the Final Orders. A hearing before the Court of Appeals occurred in November 2013.

On December 31, 2014, the Oregon Court of Appeals issued its decision regarding the Final Orders.

The Court's opinion rejected all of WaterWatch's challenges to WRD's interpretation and application of the fish persistence statute. In addition, the Court's opinion upheld all but one of the City's and WRD's findings of fact. In the lone exception, the Court found that WRD's Final Orders contained a finding of fact that was not sufficiently supported by substantial evidence. The Court remanded the Final Order's back to WRD to provide a more thorough explanation of how the conditions, as drafted in the Final Orders, would protect fish.

A hearing was held at the Office of Administrative Hearings in July and October 2016. An administrative law judge received oral and written testimony from experts and witnesses from both parties. No decision was rendered during the hearing proceedings. The judicial decision is expected to be issued by mid-2017. Once the decision is issued, revised Final Orders would be prepared and re-issued by the WRD. 

Q. If the extension decision is still pending, what risk does this pose for supplying water to Lake Oswego and Tigard? What is being done to mitigate any risk?
The extension process does not restrict or reduce Lake Oswego from withdrawing its full permit limit of 38 million gallons per day (mgd). The court's decision simply requires that the Oregon Water Resources Department (WRD) provide further evidence and reasoning to support its finding that granting the extensions will not harm protected fish species.

The City of Lake Oswego has made a request to the WRD for approval of a limited license to ensure it can supply both cities' summer water demands. The limited license is considered a supplemental water use authorization. It does not expand the total amount of water that can be withdrawn from the Clackamas River by the City of Lake Oswego. The limited license can only be exercised if all other permitted uses of water from the river can be satisfied first.

Q. What fish protection conditions exist for the current water permits?
To ensure stream flows and protect fish, the Partnership is required to reduce their withdrawals during certain months of the year, if natural stream flows fall below certain levels.

The Oregon Water Resource Department's conditions establish a method to calculate the reductions. In the event reduced withdrawals are required, Lake Oswego and Tigard have backup plans in place and can rely on more than 450 million gallons of water stored in underground and above ground reservoirs, to supply water to Lake Oswego and Tigard residents.

Q. How is the Partnership protecting fish and water quality in the Clackamas? 
Lake Oswego and Tigard are committed to preserving, protecting and enhancing water quality and fish habitat in the Clackamas River. Both cities continue to implement their robust, state-approved water management and conservation plans which, along with water rates, have already reduced historic consumption and peak per-capita water demand by almost 20 percent.

These plans are intended to reduce water use and to maintain flows for fish passage, particularly during summer periods of low stream flows and drought. Reducing demands during the summer means the Partnership can rely on use of water stored in underground and above ground reservoirs and minimize withdrawals from the Clackamas River.

As members of the Clackamas River Water Providers (CRWP), and in partnership with the Clackamas River Basin Council, US Geological Survey, PGE, and Clackamas County Water Environment Services, Lake Oswego and Tigard are actively making a difference in watershed conditions. Over the last decade, Lake Oswego has contributed more than $500,000 dollars to improve water quality and fish habitat within the Clackamas River basin. Tigard is also a member of the CRWP and contributes toward these same efforts.

Q. I've heard the Partnership's increased withdrawals will "dry up the river." Is this true?
No. To comply with the federal Endangered Species Act, the Partnership undertook a rigorous scientific study of historic river flows and their relationship to fish habitat in the lower three miles of the river. This study, which the National Marine Fisheries Service agreed with, found that during low streamflow periods, the Partnership's maximum water withdrawal of 38 million gallons per day would reduce water depth below the intake by less than one inch.


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