OAG 40-52.

• Case Date: September 05, 1940
• Court: Oregon

Oregon Attorney General Opinions 1940. OAG 40-52. 62OPINION NO. 40-52[20 Or. Op. Atty. Gen. 62]In distributing the waters of Malheur river to those parties who protested the right of the United States bureau of reclamation to change the point of use of water stored in the agency reservoir in Malheur county it is not necessary to estimate the amount of return flow and seepage that would have been available to such protestants had the reservoir not been constructed, because the amount of water that such protestants are entitled to have by-passed through such agency reservoir is fixed by the terms of a stipulation between the parties. Under such stipulation the protestants have the right to use the agency reservoir for their own storage purposes only in those years when the natural supply of water is insufficient to fill the reservoir to capacity. The United States bureau of reclamation cannot deprive protestants of the right to use the agency reservoir for storage purposes by adding the natural supply of water in a given year to a supply held over from a previous year in order to fill the reservoir to capacity. This opinion supplementary to an opinion issued on May 8, 1940, to state engineer.September 5, 1940.Mr. Chas. E. Stricklin,State Engineer. Dear Mr. Stricklin: On May 8, 1940, I gave you my opinion on the question of the proper interpretation of a stipulation which was embodied in and made a part of an order issued by you on the 6th day of March, 1935. The order referred to granted the right to the United States bureau of reclamation to change the point of use of water stored in the agency reservoir in Malheur county, upon condition that it would perform its covenants with the protestants set forth in such stipulation. In a letter bearing date August 28, 1940, you have asked me to amplify such former opinion for your further guidance in properly and legally distributing the waters of Malheur river, including those stored in such agency reservoir. You inquire first, whether or not, in distributing water to those parties who protested the right of the bureau of reclamation to change the place of use, you should estimate the amount of return flow and seepage that would have been available to them had the agency reservoir not been constructed. The answer to the question depends entirely upon the agreement or stipulation...