December 11, 2010 - Bend Bulletin - Bend to review WaterWatch's allegations of waste

Bend to review WaterWatch’s allegations of waste

By Nick Grube / The Bulletin

Published: December 11. 2010 4:00AM PST

When WaterWatch of Oregon filed a complaint with the state this week alleging the city of Bend’s Bridge Creek water system was operating illegally, the thrust of the argument was that the city wasn’t putting all the water it diverted to a “beneficial use.”

This term is commonly found in Oregon’s water rights laws, and it can have different meanings depending on the situation and the type of water rights an entity owns.

It’s also one of the key aspects of the Oregon Water Resources Department’s investigation of the city’s water system that’s expected to begin next week as a result of WaterWatch’s complaint.

Fact-finding mission

If this happened, the city would still have enough groundwater capacity available to meet demands.

City officials said they will continue operating the Bridge Creek water system the way they always have unless they are forced to make a change. They also said the city’s attorneys still need to review WaterWatch’s complaint.

Mike Ladd, the acting field service division manager for the Water Resources Department, said his agency will have to undertake a fact-finding mission to see if there is any veracity to WaterWatch’s allegations.

That process, he said, will include an analysis of the city’s water rights as well as a visit to its facilities to see if the water it takes from Bridge is being put to beneficial use.

“The beneficial use is going to depend on the type of water rights you have,” Ladd said. “For the City of Bend, as a municipality, the beneficial use is a broad range of uses versus, say, a farmer who has a water right for irrigation.”

Under state rules, beneficial use is an umbrella term that is defined as a “reasonably efficient use of water without waste for a purpose consistent with the laws, rules and the best interests of the people of the state.”

But that beneficial use becomes more narrowly defined depending on the type of water right someone holds and whether it’s for a farmer who needs water for irrigation, someone running a hydro-electric dam or a city that needs to provide water for everything from consumption to firefighting to street washing.

“For the most part, municipal use is undoubtedly our broadest use category as far as the various types of uses,” Ladd said. “Basically, it includes anything under the sun that they use for a beneficial use.”

Other examples of municipal water uses in the Oregon Administrative Rules include irrigation of lawns and gardens, commercial and industrial water use, and water used for parks and recreational facilities.

Those rules also note that a use is anything that is “usual or ordinary” for municipal water systems.

Need for full amount need not be constant

Peter Mohr, a Portland-based water rights attorney of Tonkon Torp LLP, had his own take on WaterWatch’s complaint.

He said that while Bend might be diverting more than it needs day to day, opponents can’t mount a successful argument over the efficiency of the system as long as the city can prove that it sometimes needs the full amount of water it diverts from Bridge Creek.

“If they use the amount of water as authorized under their (water rights) certificate, then they’re operating within the four corners of the law,” Mohr said. “If they need that water at its maximum, I would say WaterWatch would have a tough row to hoe to get that curbed back. A water right certificate is a water right certificate.”

There’s no timeline for when the Water Resources Department will finish its investigation into the city’s water system and whether its operations are in violation of state law.

Kyle Gorman, the agency’s regional manager for south central Oregon, said meetings are scheduled with city officials next week to discuss the system. Gorman said it’s unlikely the Water Resources Department would have the city shut down its Bridge Creek supply. And while fines are possible, he said that usually is a last resort.

“We’re going to review the water system and discuss the options with the city,” Gorman said. “I think what we would like to do is find something that would be mutually acceptable to us and to them.”

Nick Grube can be reached at 541-633-2160 or at ngrube@bendbulletin.com.

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