WaterWatch of Oregon, Inc. v. Water Resources Department

The Oregon Court of Appeals rejected a challenge to the Oregon Water Resources Department’s order allowing extensions of time for three municipal parties to perfect water rights for diversion of water from the Clackamas River. One issue raised on appeal was whether the Department lacked substantial evidence for its deletion of an administrative law judge’s (ALJ’s) recommendation that, due to uncertainty regarding future effects of climate change, summer months include a “curtailment provision” to ensure sufficient flow for fish persistence. The court found that the ALJ’s recommendation was “merely a suggestion based on future uncertainty” and that substantial evidence in the record supported the Department’s findings that lower flows and higher temperatures due to climate change would have little effect on listed fish species. The court also rejected the petitioner’s more general argument that the assumptions on which the Department’s fish-persistence determination was based did not account for usage changes due to climate change. The court described the petitioner’s assertions as “merely speculative statements about possible future conditions.”