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Court: state permits endangered salmon

The Oregon Court of Appeals has ruled that the state Water Resources Department failed to limit the amount of water cities and water districts can draw from the lower Clackamas River so that there would be enough water left in the river for threatened and endangered salmon.

The ruling handed down last week says the withdrawals permitted by the department were not supported by "substantial evidence or substantial reason" that they would not harm protected fish.

The court sent the permits back to the department to be revised.

The permits are held by the city of Lake Oswego and water districts serving people in Oregon City, West Linn and northern Clackamas County.

Attorney Lisa Brown of the conservation group WaterWatch, which brought the lawsuit, says there is plenty of water to draw on in the area without threatening salmon in the Clackamas River, where so much money and effort have been spent on restoring salmon.

Department spokeswoman Racquel Rancier said the agency was still evaluating the ruling and had no further comment.

At issue are undeveloped water rights under old withdrawal permits, some dating to the early 20th century, which were granted before the potential harm to salmon was a consideration.

Extensions of deadlines for developing those water rights are routinely granted. But under a 2005 law, the department must set conditions to assure "the persistence" of protected fish.

The conditions are supposed to be based on advice from the Oregon Department of Fish and Wildlife, which in this case recommended target flows as well as ways to increase flows during the low summer months.

Specifically, the court found that the department failed to justify how it had come to the conclusion that allowing river flows to drop below levels recommended by Fish and Wildlife did not harm salmon, putting it in violation of the law.

Water Resources argued that Fish and Wildlife had said that protected salmon had persisted during low-water conditions below the target flows, and the target flows were what was needed on a long-term basis, and did not have to be followed in the short term. Water Resources added that the movement of fish from the lower 3.1 miles of the Clackamas and the deaths of some fish would not threaten the persistence of the species in the river.

Protected species in the lower Clackamas include cutthroat trout, winter steelhead, spring chinook, fall chinook and coho salmon. Chum salmon are considered extinct.