CL City Council approves water rights transfer for Nestlé plant

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.

Cascade Locks took another step forward this week to bring Nestlé to the city by approving an application for a transfer of water rights that will ultimately help supply spring water for a proposed water bottling plant.

With four members voting, a unanimous decision was made by the Cascade Locks City Council Monday night to move forward with a water rights cross transfer application that the city will submit to the Oregon Water Resources Department. The application would involve the permanent transfer of 0.5 cubic feet per second of the city’s ground water right for 0.5 cfs of Oregon Department of Fish and Wildlife’s water right to Oxbow Spring, located just south of the Oxbow Hatchery on the east side of Cascade Locks. The spring water would then be sold by the city to Nestlé for bottling at the yet-to-be-built plant.

However, ODFW also has to submit their own application for the cross transfer along with the city and so far, have not fully committed to doing so.

“They’ve suggested this alternative, however, we’re still thinking about it. We’re doing our due diligence on it,” explained Rick Kepler, water quality/quantity manager for ODFW. “We haven’t made any decisions on it. We have to have more internal discussions.”

Cascade Locks has been trying to get the Nestlé plant up and running for several years — a project seen by city officials both past and present as a potential boon for the local economy by providing jobs and tax revenue. However, the proposal has been tied up for the past few years due to legal challenges from environmental groups such as BARK and Food and Water Watch who view the proposal as harmful to the Gorge.

Originally, the city and ODFW had planned to do a gallon-per-gallon “water exchange” without touching their respective water rights. However, due to the ongoing legal challenges, both the city and Nestlé began looking for a way to expedite the process.

Dave Palais, natural resource manager for Nestlé Waters North America, said the corporation has been working with Martha Pagel, a former director of both the Department of State Lands and the Oregon Water Resources Department who now specializes in water rights law as an attorney for the Portland firm Schwabe, Williamson and Wyatt. Palais said Pagel “identified the cross transfer as a potential alternative regulatory approach,” after which Nestlé brought it to the attention of the city and ODFW “as a possible way to reduce staff time and resources currently being spent by these and other agencies on the water exchange, owing to the administrative challenges posed by opponents of our company.”

According to a staff report from the city of Cascade Locks, the cross tranfer is projected to be quicker than the exchange, now taking an anticipated two years instead of four. The report notes that despite the changes “this process continues to allow for public input.”

However, Julia DeGraw, Northwest organizer for Food and Water Watch, says that while the public can still comment on the application, by proposing a water exchange instead of a water rights cross transfer, the city and ODFW applications no longer have to go through something called a public interest review, which according to Kepler, requires the application to pass more “tests” before it is approved. DeGraw criticized the cross transfer of water rights as a way for the city of Cascade Locks and ODFW to circumvent that process.

“Our initial reaction is that we’re disappointed,” she said. “It really looks like they are trying to evade the public interest review. It discounts the thousands of Oregonians that have already weighed in on the (water) exchange.”

Racquel Rancier, senior policy coordinator for the Oregon Water Resources Department, was contacted to discuss the public interest review process, but was unable to be reached by press time.

When asked if her group planned to file a formal protest against the cross transfer, DeGraw said Food and Water Watch was still reviewing its options.

“We don’t know exactly what the process looks like, but we’ll weigh in wherever we can,” she noted and added that “You can anticipate we’re going to (protest) it again if there is any kind of legal standing we can have.”

And if that does happen, Kepler acknowledged that a successful protest would be more difficult to mount due to the different approval standards for a cross transfer than an exchange.

“To protest a transfer you have to show an injury to a water right,” he explained. “At least in the current transfer, that’s hard to do because it’s all taking place on our property and there is no intervening water right.”

Kepler also confirmed that the cross transfer would not be subject to a public interest review and said “whether we should be cutting that out or not” was one of the aspects of the cross transfer that ODFW was currently examining. And although the city of Cascade Locks has filed an application for a “permanent” water right transfer, Kepler added ODFW has examined establishing an agreement with the city that would allow for the transfer to be undone if necessary, as well as creating a stipulation that would prevent ODFW from having to pay the costs of piping the water to and from the city.

“We want to make sure that we’re held whole, essentially,” he said.

Kepler explained the transfer would be beneficial to the fish hatchery because it would allow the facility to keep the sockeye salmon it raises there for a longer period. Currently, when the hatchery does not have enough water during low flow periods, the fish have to be shipped to other hatcheries, which involves extra transportation costs for ODFW.

However, Kepler noted that the fish were never the prime focus for the water swap, which he said had been championed by former Governor Ted Kulongoski as a way to boost the economy of Cascade Locks.

“This has always been about economic development for Cascade Locks,” Kepler said. “That’s the major impetus for this, not ‘ODFW thinks this is a good idea to do this.’”

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