STATE OF OREGON
BEFORE THE HEARING OFFICER PANEL
THE OREGON WATER RESOURCES COMMISSION
In the Matter of Water Right Application )
S-85259 in the Name of Larry R. Phillips and ) PROPOSED ORDER
Ellen J. Phillips )
Applicants and Protestants ) WRD Case no. S-85259
HISTORY OF THE CASE
On February 14, 2003, pursuant to a referral to the Hearing Officer Panel by the Oregon Water
Resources Department (OWRD), a prehearing conference was conducted by telephone. As a
result of that conference, a Prehearing Order was issued February 25, 2003, setting the issues and
establishing a schedule of proceedings. Under that order, Motions for Summary Judgment were
required to be filed on or before March 14, 2003, and all briefing was to be completed April 18,
On March 6, 2003, Applicants and Protestants Larry R. Phillips and Ellen J. Phillips filed a
Motion for Summary Judgment. On March 13, 2003, OWRD filed a Motion for Ruling on Legal
Issues. No responses or replies were filed to either motion. On April 25, 2003, an Order on
Motions for Summary Judgment and For a Ruling on Legal Issues was issued, denying
Applicants' Motion for Summary Judgment, and granting OWRD's Motion for Ruling on Legal
Issues. That Order resolved all the outstanding issues in this case.
1. Whether the Department must issue the Protestants a permit because the spring has been
developed and used for a long period of time.
2. Whether the status of the source at issue as a tributary of the Little Deschutes River
is properly at issue in this case.
The record consists of Applicant's Motion for Summary Judgment, OWRD's Motion for Ruling
on Legal Issues, including the exhibits attached thereto, the Prehearing Order of February 25,
2003, and the record of the Prehearing Conference of February 14, 2003.
FINDINGS OF FACT
1. Applicants filed an application in this case on August 5, 2002, for a water right permit for
0.067 Cubic Feet Per Second for irrigation of 1.8 acres from a spring, a tributary of Little
Deschutes River, for application on land within Section 30, Township 20 S, Range 11 E W.M.
PROPOSED ORDER, S-85259 – Page 1
2. On September 20, 2002, OWRD mailed the Applicants notice of its Initial Review,
determining that "the use of 0.045 cubic foot per second of water from a spring, tributary of
Little Deschutes River, for irrigation of 1.8 acres is not allowable, and it appears unlikely that
you will be issued a permit." The applicants did not notify the Department to stop processing the
application within 14 days of that date.
3. On October 8, 2002, OWRD gave public notice of the application in its weekly notice. The
public notice included a request for comments and information for interested persons about both
obtaining future notices and a copy of the proposed final order. No written comments were
4. Senior water rights exist respecting the subject of this application.
5. Water is not available for further appropriation from the source of water subject to this
CONCLUSIONS OF LAW
1. The Department may not issue the Protestants a permit solely because the spring
has been developed and used for a long period of time.
2. The status of the source at issue as a tributary of the Little Deschutes River is not
properly at issue in this case.
All issues presented in this case were resolved in the Order on Motions for Summary Judgment
and Ruling on Legal Issues. There being no issues pending in this case, it is appropriate to issue
a proposed order on the merits, in conformity with the decision on the Motions.
I propose that the following order be issued:
The application, S-85259 is denied.
________________________________________ Date: May 1, 2003
Maurice L. Russell II, Administrative Law Judge
Hearing Officer Panel
This Proposed Order is issued by the Hearing Officer pursuant to OAR 690-002-0175 and OAR
137-003-0645. Exceptions to this Proposed Order may be filed with the Water Resources
PROPOSED ORDER, S-85259 – Page 2
Department by any party to this proceeding. The exceptions must be in writing and received at
the office of the Water Resources Department no later than the 20th day after the issuance of this
Exceptions are legal or factual arguments illustrating legal or factual errors in the proposed
order, as demonstrated by the record. Evidence not in the record may not be offered in
exceptions. Exceptions must clearly and concisely identify the portions of the proposed order
excepted to, and cite to appropriate portions of the record or to Commission policies to which
modifications are sought in the exceptions.
If exceptions are filed, an opportunity may be provided for making additional written or oral
argument to the Commission, at the Commission’s determination and discretion. After
reviewing the record, the exceptions and any additional argument, the Commission will issue the
Final Order. The Commission may issue a Final Order that differs from the Proposed Order, or
it may affirm the Proposed Order.
If exceptions and arguments are not filed within the allowed period, a final order will issue.
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