THE SCENIC WATERWAY ACT: A TYPE OF INSTREAM FLOW REQUIREMENT — CASE STUDY OF OREGON'S GRAND RONDE RIVER BASIN

摘要

In the wake of ever increasing environmental rules and regulations, the effects can be far reaching with unexpected consequences. In the Grande Ronde Basin and other parts of Oregon, the Oregon State Scenic Waterway Act ("SWA") affects the ability tosuccessfully secure new ground water appropriations. The SWA (following the federal Wild and Scenic Rivers Act) was enacted by Oregon in 1970. Today most scenic waterways are established by statute; however the designations can also be made by the Governor. The SWA declares that the highest and best uses of waters within the scenic waterways are recreation, fish and wildlife uses. The extent of the protected flows are generally established by word of mouth from the local, self-interested fisherman and rafters along these designated waterways—not scientists or sophisticated computer modeling! The areas protected under the SWA itself are those related adjacent lands which include !4 mile to 1 mile from the bank along the scenic stretch. The Oregon courts decided that the statutory protection was not enough, and with judicial activism engaged, Oregon case law established in the late 1980's that the reach of the SWA would extend to any new water diversions that are within or above a scenic waterway. This"within or above" language is now interpreted to mean that any new well drilled 25 miles above the designated scenic waterway within a hydrologically connected aquifer will be evaluated under the SWA! In the Grande Ronde, the cumulative impact thresholdwas reached against the SWA designated stretch as determined by Oregon Water Resources Department ("OWRD") in January 2006. With an OWRD finding that the shallow alluvial aquifer in the Grande Ronde basin was hydraulically connected to the Grande RondeRiver, all new ground water applications that attempt to withdraw water from the alluvial "connected" aquifer are being denied during the OWRD's evaluation process. This topic will consider and discuss how the SWA affects ground water through hydraulic connection, and thus affects new and/or existing water appropriations.