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OWRC upholds ruling on Oxbow water right

Nestlé water bottling project inches forward

Oxbow springs is a source of pristine water gushing from the base of steep cliff walls that dominate the Cascade Locks skyline. The spring, seen here near the Oxbow Fish Hatchery, is at the center of a continuing controversy, as the interests of environmental groups clash with potential economic development.

Photo by Adam Lapierre.
Oxbow springs is a source of pristine water gushing from the base of steep cliff walls that dominate the Cascade Locks skyline. The spring, seen here near the Oxbow Fish Hatchery, is at the center of a continuing controversy, as the interests of environmental groups clash with potential economic development.

A proposal to build a Nestlé water bottling plant in the Gorge took a small step forward on Thursday when a state commission ruled that a water right the corporation needed for the bottling plant should not be canceled despite the concerns of environmental groups.

The Oregon Water Resources Commission met Thursday in Hood River at the Best Western Inn to discuss, among other things, a request by environmental groups for the partial cancelation of water right held by the Oregon Department of Fish and Wildlife’s Oxbow Hatchery located in Cascade Locks.

ODFW is currently in the process of setting up an exchange with the city of Cascade Locks that would allow a gallon-per-gallon trade of a portion of the hatchery’s water from the nearby Oxbow Springs for a portion of Cascade Locks well water, which ODFW would use to enhance fish-rearing during low-flow periods. Nestlé would then purchase the Oxbow Springs water from the city of Cascade Locks and bottle it and ship it from a 250,000-square-foot bottling plant proposed for location in the city.

Environmental groups BARK and Food & Water Watch have expressed concerns with the plant for a number of reasons, citing the waste produced by plastic bottles and the “consequences of giving away what is currently public water to a private corporation.”

The two groups took legal action in 2012, asking the Oregon Water Resources Department, which oversees water rights in the state, to partially cancel Oxbow Hatchery’s water right due to alleged non-use. A state administrative law judge issued a proposed order in December of last year that the hatchery’s water right should not be partially cancelled and that the proponents’ arguments were “without merit.”

BARK and Food & Water Watch subsequently filed exceptions to the order early this year, and while some were upheld, they did not change the outcome of the proposed order. The groups then filed exceptions to the proposed order, which were the subject of Thursday’s meeting.

The seven-member commission did not deliberate on the issue and listened to a report primarily from Jesse Ratcliffe, assistant attorney general with the Oregon Department of Justice/Natural Resources Section, who gave background on the case.

Ratcliffe told commissioners that only one of the groups’ handful of exceptions was deemed valid by the Office of Administrative Hearings — a dispute over whether the administrative law judge met the standard of “clear and convincing” evidence when determining one of the findings of fact in the case.

Though the exception was validated, it was not enough to affect the outcome of the case. OWRD recommended the commission approve the draft final order, leaving the water right intact. The commission obliged, voting unanimously to approve the draft final order.

Public comment was allowed on the issue at the conclusion of the meeting. Only one individual spoke: Roberta Lapp, who identified herself as a resident of Hood River. Lapp said she was concerned over how the salmon at the hatchery would be affected by the change from spring water to well water at certain points of the year. She testified that a sign at the hatchery states that “only the salmon have legal rights to this water” and that she “would like to see that sign stay there.”

Dave Palais, natural resources manager for Nestlé Waters North America, said the result of the hearing was good news for Nestlé, even though they weren’t officially parties to the dispute.

“Obviously we’re pleased to see the process move forward,” he said. “All the public agencies are continuing to move forward in their due diligence.”

BARK and Food & Water Watch did not respond to requests for comment by press time, although in a previous story the groups stated they would continue to mount legal challenges regardless of the outcome of Thursday’s hearing. Those challenges are not expected to be resolved until late 2015.

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