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Settlement ends long battle for water
By Drew Atkins, Staff Writer
Tuesday, May 09, 2006 | No comments posted.
The 16-year legal battle over Tenmile Creek's water effectively came to an end May 2, when the Coos Bay-North Bend Water Board voted to settle with WaterWatch, a nonprofit river conservation group that charged the board with failing to develop water rights for the creek.
Under the terms of the settlement, the water board agreeing to pay WaterWatch $20,000 in compensation for legal fees and made concessions as to the conditions under which they would be permitted to draw water from Tenmile Creek.
“For all practical purposes, this case is resolved,” said Water Watch attorney Brian Posewitz.
The battle for Tenmile Creek's water right dates back to 1990, when the Water Board applied for a water right for the creek. The city of Lakeside opposed the application, as they claimed taking water from the creek would be detrimental to the town's plans for growth.
Despite Lakeside's opposition, the Water Board was issued a permit for the creek's water rights, giving the board the authority to divert a total of 23.2 cubic feet of water per second.
The issue came up again in 2004, when WaterWatch took issue with the Water Board's failure to develop water rights for the creek.
“The problem we had was that the Water Board had this water and wasn't doing anything about it,” said Posewitz. “Our problem was more with the policy than the Water Board itself. In theory, it meant they could tie up the water for decades without having to demonstrate whether it was in the public interest.”
In April 2004, the Oregon Court of Appeals ruled in favor of WaterWatch, and repealed the board's water right for the creek, citing its failure to take advantage of the water flows within five years of being granted the permit. The Water Board appealed to the state Supreme Court.
The higher court referred the case back to the Court of Appeals for further consideration. In the meantime, the Oregon House passed legislation that would extend the time municipal bodies are allowed to complete water development projects, from five years to 20.
“We raised this policy issue, and it got addressed by the House, though not entirely to our satisfaction,” said Posewitz. “With that settled, (WaterWatch) didn't see much reason to follow through and take it to the Court of Appeals again. We decided it was time to settle.”
According to the settlement draft the board approved, the Water Board will be allowed to draw water from the creek only when 75 cfwps is flowing in the creek, up from the original permitted level of 50 cfwps. In addition, the Water Board will be required to leave enough water in the creek to allow fish passage, as determined by the Oregon Department of Fish and Wildlife. Furthermore, the Water Board will be permitted to take water from the creek only between Nov. 1 and March 31.
According to Rob Schab, general manager of the Water Board, the settlement will increase the role weather plays in its ability to use the creek.
“Because of the limitations (set by the settlement), the use of water from that water right will be dictated by weather more than other water rights we hold,” said Schab. “The amount of water available to us will depend largely on rainfall.”
Schab said that development on the water right would currently have to take place by 2010, though he said the Water Board may ask for an extension before then.
Jim Brown, a member of the Lakeside City Council when the fight with the Water Board began, said that he believed the settlement between the Water Board and WaterWorks would likely hurt the city's ability to develop lakefront property.
“We wish the Coos Bay-North Bend Water Board would stay in Coos Bay and North Bend, in their own territory, but that's past history,” said Brown. “I don't give a damn anymore. It's all over now.”
Under the terms of the settlement, the water board agreeing to pay WaterWatch $20,000 in compensation for legal fees and made concessions as to the conditions under which they would be permitted to draw water from Tenmile Creek.
“For all practical purposes, this case is resolved,” said Water Watch attorney Brian Posewitz.
The battle for Tenmile Creek's water right dates back to 1990, when the Water Board applied for a water right for the creek. The city of Lakeside opposed the application, as they claimed taking water from the creek would be detrimental to the town's plans for growth.
Despite Lakeside's opposition, the Water Board was issued a permit for the creek's water rights, giving the board the authority to divert a total of 23.2 cubic feet of water per second.
The issue came up again in 2004, when WaterWatch took issue with the Water Board's failure to develop water rights for the creek.
“The problem we had was that the Water Board had this water and wasn't doing anything about it,” said Posewitz. “Our problem was more with the policy than the Water Board itself. In theory, it meant they could tie up the water for decades without having to demonstrate whether it was in the public interest.”
In April 2004, the Oregon Court of Appeals ruled in favor of WaterWatch, and repealed the board's water right for the creek, citing its failure to take advantage of the water flows within five years of being granted the permit. The Water Board appealed to the state Supreme Court.
The higher court referred the case back to the Court of Appeals for further consideration. In the meantime, the Oregon House passed legislation that would extend the time municipal bodies are allowed to complete water development projects, from five years to 20.
“We raised this policy issue, and it got addressed by the House, though not entirely to our satisfaction,” said Posewitz. “With that settled, (WaterWatch) didn't see much reason to follow through and take it to the Court of Appeals again. We decided it was time to settle.”
According to the settlement draft the board approved, the Water Board will be allowed to draw water from the creek only when 75 cfwps is flowing in the creek, up from the original permitted level of 50 cfwps. In addition, the Water Board will be required to leave enough water in the creek to allow fish passage, as determined by the Oregon Department of Fish and Wildlife. Furthermore, the Water Board will be permitted to take water from the creek only between Nov. 1 and March 31.
According to Rob Schab, general manager of the Water Board, the settlement will increase the role weather plays in its ability to use the creek.
“Because of the limitations (set by the settlement), the use of water from that water right will be dictated by weather more than other water rights we hold,” said Schab. “The amount of water available to us will depend largely on rainfall.”
Schab said that development on the water right would currently have to take place by 2010, though he said the Water Board may ask for an extension before then.
Jim Brown, a member of the Lakeside City Council when the fight with the Water Board began, said that he believed the settlement between the Water Board and WaterWorks would likely hurt the city's ability to develop lakefront property.
“We wish the Coos Bay-North Bend Water Board would stay in Coos Bay and North Bend, in their own territory, but that's past history,” said Brown. “I don't give a damn anymore. It's all over now.”
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