Oregon water regulators deny they violated state water law by approving a permit allowing federal officials to release water from the Prineville Reservoir to help fish.

Last year, irrigators upstream of the reservoir filed a lawsuit claiming the Oregon Water Resources Department impermissibly granted an in-stream water right permit to the U.S. Bureau of Reclamation.

The irrigators claim the federal agency wasn’t eligible for the permit and fear they’ll be deprived of water that’ll be used to refill the reservoir after releases occur.

In a motion to dismiss, OWRD claims the lawsuit lacks merit because the Bureau of Reclamation’s permit to send stored water downstream isn’t technically an “in-stream water right.”

In-stream water rights were created by lawmakers in 1987 to preserve flows for fish habitat, but may only be owned by several state agencies, such as the Oregon Department of Fish and Wildlife.

However, OWRD argues it wasn’t prohibited from granting the permit to the Bureau of Reclamation because in-stream water rights are only used to “maintain natural flows.”

In contrast, the permit approved for the federal agency involves the release of stored water and doesn’t count as an in-stream water right, according to OWRD.

“Petitioners have therefore alleged no facts to support an assertion that the Bureau’s application was for a right to hold water in trust for the people of the State or that the Final Order grants the Bureau such a right,” the motion to dismiss said.

The state government’s arguments are backed up by the WaterWatch of Oregon nonprofit, which has intervened in the case to defend the Bureau of Reclamation’s permit.

Apart from releasing nearly 70,000 acre-feet of water to improve fish habitat, the Bureau of Reclamation’s permit allows it to send another 10,000 acre-feet to downstream irrigators.

Because the stored water was reserved for the federal government in 1914, the Bureau of Reclamation’s “priority” to use the water is older than the rights held by many irrigators in the region.

Under the West’s “prior appropriations doctrine” of water law, holders of senior water rights can shut down diversions by junior users to preserve their water supplies.

Shotgun Creek Ranch, joined by the Upper Crooked River Conservationists nonprofit, filed the complaint because they worry the releases will prompt the federal agency to “call” on junior water rights to refill the reservoir, reducing the water available upstream.

Roughly a decade ago, Congress directed the Bureau of Reclamation to release more water for fish under a broader water management bill, but the plaintiffs claim the permit nonetheless violates state water law.

The plaintiffs allege that both natural flows and stored water can be protected under an in-stream water right, which the Bureau of Reclamation has unlawfully obtained under its permit for fish and wildlife uses.

“This is because the proposed use of water is intended to benefit the public at large, rather than the Bureau itself,” the plaintiffs say. “This type of public water use is only authorized under the provisions of the Instream Water Rights Act.”

The OWRD also argues the plaintiffs lack the legal standing to pursue the litigation because they won’t be legally harmed by the permit’s approval.

The permit obtained by the Bureau of Reclamation “makes no mention of regulating Shotgun Creek Ranch or any other water users,” while any potential injury they suffer would be inflicted by the federal agency rather than OWRD, the state government claims.

The plaintiffs counter that it’s “disingenuous” to claim they won’t suffer a legal injury from the permit, as they’re “directly impacted by appropriation of water from Prineville Reservoir.”

The OWRD hasn’t objected to Waterwatch’s legal “organizational standing” in similar cases to the lawsuit being pursued by Upper Crooked River Conservationists, while “Shotgun Creek Ranch’s loss of use of water is a natural, expected, and intended result of granting the Permit,” the plaintiffs said.