Doherty v. Oregon Water Resources Director
| Decision Date | 30 November 1989 |
| Citation | 308 Or. 543,783 P.2d 519 |
| Parties | William J. DOHERTY and Mary Doherty; Taylor Bros. Farms, Inc.; Boardman Farms, Inc.; and Frank Mader, Petitioners on Review, v. OREGON WATER RESOURCES DIRECTOR and Oregon Water Resources Commission, Respondents on Review. CA A40087; SC S35460. |
| Court | Oregon Supreme Court |
Philip Schradle, Asst. Atty. Gen., Salem, argued the cause for respondents on review. With him on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
This is a judicial review of the state Water Resources Director's amended order, entered in 1986, declaring 274 square miles in Umatilla and Morrow counties a critical ground water area. Several agricultural irrigators challenge the order which can lead to controls on volume of water pumped from area wells. The Court of Appeals upheld the declaration of the Butter Creek Critical Ground Water Area with subareas, as well as the order that no new applications be accepted to appropriate ground water or to expand or change existing uses. Doherty v. Oregon Water Resources Director, 92 Or.App. 22, 758 P.2d 865, modified 93 Or.App. 354, 762 P.2d 330 (1988).
We allowed the petition for review to determine whether the director made insufficient findings and provided insufficient justification of his order.
Because we believe that certain statutory terms--relating to excessive decline of ground water levels and overdrawing of the available ground water in an area--are inexact terms, which the director correctly interpreted to advance the legislative policy by preventing rapid depletion of an underground water reservoir, and because the director properly applied statutory policy to the facts in the administrative record before him by sufficient findings and connective reasoning, we affirm the decision of the Court of Appeals.
Petitioners contend that one statutory policy standard,--providing that "depletion of ground water supplies below economic levels * * * be prevented or controlled within practicable limits"--should be interpreted to permit, not restrict, use of water whenever that use results in profitable agriculture. In short, they assert that holders of water right certificates or registrations have the right to pump a reservoir dry so long as the holders may profitably irrigate crops. Their contentions are presented, however, in terms of administrative law errors which, they allege, the director committed in the process of finding facts and stating conclusions as the foundations for his order establishing the critical ground water area.
The director's authority, and the policy standards involved in this case, flow from the Ground Water Act of 1955 codified in ORS 537.505 to 537.795. ORS 537.525 provided in part:
Elected representatives enacted statutory law stating what they wanted done and why. ORS 537.730 and ORS 537.735 authorized the director to establish a critical ground water area if the available supply is "being or about to be overdrawn," water levels "are declining or have declined excessively," or if wells "interfere substantially with one another." The director entered an order establishing the Butter Creek critical area. On review the court considers the director's order pursuant to ORS 183.482(8) and determines whether the order is one which the ground water statutes authorize the director to make.
In Diack v. City of Portland, 306 Or. 287, 301, 759 P.2d 1070 (1988), this court stated that an agency order, to pass muster, must "adequately explain how the Commission applied the public interest criteria set out in [the statute involved] * * * pointing to the facts that * * * permit it to make the * * * findings and the conclusions it draws from them." Such findings must also be "sufficiently explicit * * * to allow meaningful judicial review." Id. In this case, the petitioners ask the court to overturn the order because, they assert, the director's findings are based on an inaccurate or insufficient understanding of the purposes of the statute and because the order fails to explain sufficiently how the director's findings and conclusions constitute an authorized application of the statutory words and purposes.
In ancient times many different lava flows occurred in the present area of the Columbia River, including Umatilla and Morrow counties. The lava flows generally tip downhill from the Blue Mountains on the south toward the Columbia River on the north. These flows, separated by varying centuries in time, contain irregular spaces between them in which water may collect and move.
The dense center of each flow restricts vertical movement of ground water as if the water were in pipes running laterally between the separate flows. However, some saturated zones are interconnected vertically by natural fractures or by wells.
The Umatilla Structural Basin consists of more than 2,200 square miles wherein these lava flows are present. In that basin, between 1965 and 1980, declines in underground water level of over 20 feet occurred in 862 square miles, declines of over 50 feet took place in over 600 square miles, and 13 cubic miles of the basalt aquifer were totally dewatered. All municipalities in the Umatilla basin rely on underground water, and all have experienced declines in well water levels. The Butter Creek Critical Ground Water Area, consisting of 274 square miles, is geologically a part of the Umatilla Structural Basin. Some locations in the Butter Creek area show declines in water level of more than 150 feet during the director's 15-year study (1965-80). The director extended his study of declining water levels within the Butter Creek area from the beginning of well level records through 1983. Five wells declined more than 200 feet, three wells declined more than 300 feet and 19 wells have declined over 100 feet but less than 200 feet during the period of record for those wells.
The director also conducted experimental pumping of various adjacent wells within the Butter Creek area. The results show interference on occasion, consistent with a number of separate, interconnected sub-pools within the aquifer. This subterranean subdivision of the aquifer is also evidenced by a difference of more than 250 feet in the pre-pumping static water levels of certain neighboring wells, whereas no such difference exists between other neighboring wells. Carbon-14 dating of the underground water now being withdrawn indicates various well water sources were last exposed to the atmosphere over a range of time from the present day to the distant past, but predominantly from 2,570 to 27,290 years ago.
An underlying but unstated premise fact used in the director's reasoning is that water is part of a natural, physically interconnected system of our planet which migrates and changes in form, but which is not created or destroyed in nature, and that nature determines when, where, and in what amount rain and snow will fall. Annual water loss by surface evaporation, measured during recent times at Hermiston, is 31 inches. Annual precipitation, averaged over 75 years, is less than 10 inches.
The decline in well water level has occurred continuously over the years and is caused by pumping for irrigation, even when a current year's pumping is less than in previous years. The decline correlates roughly to the amount pumped.
In October 1984, the Oregon Water Resources Director gave notice of a continued public hearing on December 5, 1984, for the determination of a critical ground water area in the Butter Creek area in Morrow and Umatilla counties. 1 The notice, which initiated a contested case proceeding under ORS 537.730, mentions the director's belief, based on data collected, that ground water levels in the area in question were declining or had declined excessively, thereby fulfilling the statutory predicate for the director's initiation of the proceeding. ORS 537.730(1). The statute provides that, after hearing, the director "shall" by order declare an area to be a...
To continue reading
Request your trial
-
Friends of the Col. Gorge v. Columbia River
...administrative order must include findings that are adequate for meaningful judicial review, see, e.g., Doherty v. Oregon Water Resources Director, 308 Or. 543, 547, 783 P.2d 519 (1989) (so stating); Diack v. City of Portland, 306 Or. 287, 301, 759 P.2d 1070 (1988) (same), we conclude that ......
-
Colclasure v. Washington County School Dist. No. 48-J
...determination of fact, is the absence of a reviewable record. Such a record is required. See, e.g., Doherty v. Oregon Water Resources Director, 308 Or. 543, 547, 783 P.2d 519 (1989) (agency order must adequately explain how agency applied criteria set out in applicable statute by pointing t......
-
Waterwatch of Oregon, Inc. v. Oregon Water Resources Dept.
...of the statutory policies that we conclude is consistent with them and that we will not disturb. See Doherty v. Oregon Water Resources Director, 308 Or. 543, 545, 559, 783 P.2d 519 (1989). Petitioner relies extensively on Doherty. Notwithstanding the language in that opinion that petitioner......