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Last weekend, the Oregon Water Resources Department
(OWRD) began
issuing orders to shut off irrigation wells in Klamath
County’s Sprague River Valley. The shut-off orders were issued in order to
enforce a Klamath
Tribal "call" for in-stream water. The “call” aims
to protect Tribal claims for minimum river flows in the Sprague River and its
tributaries.
It is our understanding that the local water master
has issued written notices to 25 Upper Sprague River irrigators ordering them
to immediately stop using their irrigation wells. At this time, as many as 41
wells will be affected by the OWRD’s notices.
The notices are allegedly issued in response to the Tribal
call to protect their in-stream water right claims. Those claims were granted
to the Tribes under OWRD’s Finding
of Fact and Order of Determination in the administrative
phase of the Klamath River adjudication.
OWRD’s notices are legally “final administrative
orders.” The shut-off orders represent an administrative “taking” of the use of
certificated ground water rights. Whether that “taking” is legally justified
depends upon whether the use of the wells is actually causing substantial and
timely interference with the priority Tribal claim.
The Oregon
Supreme Court has ruled in
multiple decisions that water rights are private property
rights. Because no private property should be taken solely by administrative
actions, Oregon
law allows each well owner to file for a judicial review of the
administrative order to cease using their irrigation wells.
State law provides for an automatic stay of the
shut-off order as soon as that request for review is filed. The well owners may
immediately begin to use their irrigation wells again and lawfully continue to
use their wells until the courts decide whether the order is legally justified.
OWRD claims the wells are drawing water from the
streams that are protected by the Tribal “call.” However, Oregon law requires OWRD
to demonstrate that the use of a well is causing substantial and timely
interference with one or more priority water rights before it can regulate the
use of the well.
Current state law also places
the burden of proof on OWRD. That agency must
establish, by a preponderance of evidence, that a well is causing substantial
and timely interference before it is legally authorized to regulate the well.
OWRD staff has repeatedly stated in legislative
testimony that the agency cannot measure the surface water effects of most
individual wells. However, OWRD staff claims their agency’s ground water
“computer models” show that the cumulative effect of several wells is
sufficient to justify the shut-off orders. To my knowledge, OWRD has not
claimed any level of statistical confidence in its computer modeled data.
I question OWRD’s power to regulate groundwater use in
this manner because I am unable to identify specific Oregon statutory authority
to regulate individual wells based upon the cumulative effects of several
wells. To my knowledge, OWRD has not performed standard hydrogeology testing on
any of the Sprague River area wells it intends to regulate. OWRD’s apparent
lack of desire to create empirical data to establish statistical confidence in its
computerized data is troubling at best.
Nevertheless, the agency appears to believe its
computer models rise to the level of proof required to force the well owners to
shut-down their irrigation wells.
OWRD’s allegation effectively shifts the burden of
proof, as well as the cost of establishing that proof, to the well owner.
According to OWRD, it is now the responsibility of well owners to develop data
to show their individual wells are not causing substantial and timely
interference.
In anticipation of shut-off notices, several of the
Sprague River well owners have paid several thousands of dollars for well tests
to be conducted by private hydrogeologists. The City of Klamath Falls has also
employed a hydrogeologist firm to evaluate one or more of its municipal wells
that OWRD alleges interferes with priority claims to water in Upper Klamath
Lake.
The purpose of the tests are to determine whether
their wells measurably and timely interfere with Tribal claims for nearby
stream flows and lake levels. To my knowledge, none of these private well-tests
have demonstrated a measurable level of interference.
It will be up to the courts to decide who is correct.
The judges will review:
·
Relevant Oregon laws,
·
The Agency’s final administrative orders,
·
Evaluate the soundness of the Agency’s
claims and
·
Consider the validity of the well owners’
well tests.
The court will then issue a binding order. That order
may be appealed to a higher court by either OWRD or the well owner. Until that process is completed, or the
courts rule otherwise, the well owners may continue to use their irrigation
wells.
It is my understanding OWRD will soon begin issuing
shut-off notices to irrigators who divert water from the Sprague River and its
tributaries. Those administrative orders will first affect irrigators with
surface water rights issued after 1905. Those orders are likely to be followed
by orders to cease using all surface water rights subject to the Tribal time
immemorial priority date. These orders also are subject to judicial review.
The combined effects of the groundwater and surface
water shut-off orders will effectively deprive many of these Sprague River
farmers and ranchers of all irrigation water.
I strongly believe in the Western water law “first-in-time,
first-in-right” allocation of the use of water for irrigation. Water rights
must be appropriately enforced when water use by a junior priority water user
is causing substantial and timely reductions in water availability to a senior
priority water user.
However, the law says that OWRD must prove substantial
and timely interference before it can regulate water use by the junior priority
water user. In this situation, I believe OWRD has greatly overstepped its
authority in its regulation of the Sprague River irrigation wells largely based
upon its ground water computer modelling.
Representative Whitsett and I co-sponsored
a bill during the 2014 legislative session designed to
require OWRD to employ at least minimal industry hydrogeology standards in
establishing its proof of substantial and timely interference by an irrigation
well. Although strongly supported by the
Klamath
County Board of Commissioners, Oregon
Cattlemen Association and the Langell
Valley Irrigation District, the bill mysteriously died after a single public hearing. No reason
was provided for its death by the Majority leadership.
Ultimately, it will now be up to the courts to decide
whether the OWRD’s computer modelling has established sufficient evidence to
regulate the upper basin irrigation wells. A court decision to accept the
computer modelling as sufficient evidence of interference under the law would
be a major “game changer.”
OWRD could employ similar computer modelling
technology to force the shut-off of irrigation wells across the state. Each
affected well owner would then have the choice of incurring the expense of
proving their wells do not interfere, or cease using their well for irrigation.
As you can see, this should be cause for concern for people all throughout Oregon.
Please remember--if we do not stand up for rural Oregon, no one will.
Best Regards,
Doug
Senate District 28
Email: Sen.DougWhitsett@state.or.us I Phone: 503-986-1728
Address: 900 Court St NE, S-311, Salem, OR 97301
Website: http://www.oregonlegislature.gov/whitsett
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