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<br />001182
<br />
<br />1957]
<br />
<br />THE PELTON DECISION
<br />
<br />245
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<br />to diminish stream flow, and the re-regulating dam will ensure stability,
<br />That conclusion is probably correct, since there is to be a small reser-
<br />voir, and the re-regulating dam will make it possible to maintain a
<br />steady flow below the two dams, But what will be the effect upstream?
<br />While it appears that the flows in the Deschutes have been stable,
<br />there are short years and short seasons. The state engineer has, on
<br />numerous occasions, allocated flow, on a basis of a minimum number of
<br />cubic feet per second, for the purpose of power generation,8" During
<br />a dry cycle, such as occurred during the 1930's, the Deschutes does not
<br />develop enough water, including stored and direct-flow waters, to satis-
<br />fy all existing irrigation uses.83 Thus the establishment of any right at
<br />the Pelton damsite for a minimum flow for power purposes will neces-
<br />sarily impinge on storage necessities on the upper river. Vested up-
<br />stream rights are "protected" under terms of the license. But, although
<br />the licensee proposes to use 4,200 second feet (cubic feet per second),
<br />which is the average flow near the Pelton site, the original application
<br />for appropriation contained the figure of 10,350 cubic feet per second as
<br />necessary to operate the turbines. In case of difficulty, who will de-
<br />termine the needs of upstream claimants as against the demands of the
<br />power plant for a greater flow? There is no recognition in the terms of
<br />the license of any rights or powers of the state. There is no machinery
<br />set up to adjust differences, The commission has been given no such
<br />authority, Presumably the parties will be compelled to resort to court
<br />action, the result of which can be, in due course, a determination by '1
<br />Federal court of the waters properly allocable to the various users on
<br />the riveL That there have been court determinations in the past, and that
<br />valuable investments in property and municipal plants have been built
<br />up on the strength of such determinations, will no doubt count for little,
<br />since now the Federal court will be faced with the contention that some
<br />sort of paramount right inheres in a Federal licensee, Or the decision
<br />may result in a new determination of priorities, perhaps a feasible one,
<br />But, if so, again, who will administer the priorities? Will the state ad-
<br />ministrative system be permitted to function by indulgence of the Fed-
<br />eral court? By indulgence of the Federal Power Commission? Where
<br />will the prospective purchaser of lands served by one of the various
<br />irrigation districts on the Deschutes look for a recital of his water rights?
<br />As indicated previously, the matter of the threat to a valuable sports
<br />
<br />8" Under the water code of 1909, water rights are adjudicated finally in the
<br />courts, See. for example, In re Waters of Deschutes River, 134 Or. 623, 681-85,
<br />286 Pac, 562, 581-82, 294 Pac. 1049 (1930) (use by Cline Falls Power Co. and
<br />others) ,
<br />83 There were water shortages, i.e., insufficient water to satisfy existing ap-
<br />propriations, for eighteen of the twenty-six years in the period 1925-51. The
<br />average annual shortage on the Deschutes is 50,800 acre-fecI. U, S. BUREAU OF
<br />RECLAMATION, DESCHUTES PROJECT, SUPPLEMENTAL STORAGE, BENHAM FALLS
<br />DAM, OREGON, p. 53 (1955),
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