This article was published on: 12/15/10 12:00 AM

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.

Tumalo Creek diversion

By taking more water than it needs from Bridge Creek and dumping the rest into Tumalo Creek after it was rerouted through a pipeline for about 10 miles, WaterWatch claims the city has essentially been wasting the water it diverts as far as state law is concerned. The group wants the Water Resources Department to shut down the city’s surface system until a fix is found.

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.

‘Not well-defined’

Wyatt Rolfe, an associate attorney for Schroeder Law Offices in Portland who specializes in water rights law, said the idea of beneficial use is something that has existed for a long time and is at the heart of water rights law.

“Beneficial use is a vague and somewhat abstract term,” Rolfe said. “It’s not well-defined in the Western United States, including in Oregon.”

He said part of what the state will likely use in its determination will be whether the amount of water the city diverts from Bridge Creek is actually needed to realize its beneficial use.

For instance, if a municipality has the demand for 5 million gallons of water in a day, it might need 7 million gallons of water to pressurize its system to get the 5 million gallons to those who need it. In effect, this means that the municipality would need 2 million gallons of extra water just to be able to provide the 5 million gallons of water for beneficial use.

How this would apply to Bend, however, would be open to interpretation. The city doesn’t have any mechanism to limit how much water it diverts from Bridge Creek, which results in about 11 million gallons of water being diverted from the stream every day regardless of whether there is enough demand. This means that even if the city only needs 5 million gallons a day, it has to pipe the full 11 million gallons to get that water.

“I don’t think there’s anything that’s either a slam dunk or home run on either side, at this point,” Rolfe said.

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.

Published Daily in Bend Oregon by Western Communications, Inc. © 2010

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