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RACC debates removing 'contractually protected' phrase from rules; members seek consistent definitions
Summary
Committee members flagged inconsistent uses of 'contractually protected' versus 'legally protected' in the draft rules and agreed to retain or harmonize the term across definitions and application materials to avoid unintended gaps for water-use agreements and OWRD instruments.
RACC members spent substantial time on whether to delete references to "contractually protected" in the draft purpose and definitions sections. Caitlin (Kaylin) Barter, attorney with Colton Kelly LLP representing Environmental Defense Fund, warned that partially striking "contractually protected" would create ambiguities about whether water-use agreements qualify as protected in-stream flow. "It's fine if we completely strike contractually, but because contractually protected remains in the rules, it's the incomplete striking, causes a situation ..." she said.
Brian Walcott said staff searched the draft and replaced several instances of "contractually" with "legally" but acknowledged a few remnants remained. The group generally agreed that if the word is removed it must be removed everywhere, or it should remain to preserve clarity about water-use agreements as an alternate pathway to protection. Several members asked staff to review definitions and the application form to ensure terminology is consistent across the rule set and guidance.
