A judge has ruled Oregon’s water regulators exceeded their
authority by shutting off wells within 500 feet of waterways in
the Upper Klamath Basin last year.
Marion County Circuit Judge Claudia Burton has also ruled the
Oregon Water Resources Department violated the due process
rights of irrigators Troy and Tracy Brooks, who filed a lawsuit
opposing the agency’s enforcement action.
“They basically came up with these rules and gave nobody due
process,” said Dominic Carollo, attorney for the plaintiffs.
It’s likely the ruling will set a precedent preventing OWRD from
taking the same approach to stop groundwater pumping — not only
in the Upper Klamath Basin, but elsewhere in Oregon the agency
alleges wells are interfering with surface waters, he said.
“This decision suggests the department can’t do that,” Carollo
said. “They can’t start shutting down wells without going
through the process.”
Racquel Rancier, OWRD’s senior policy coordinator, said the
agency will not be enforcing its rule allowing wells within 500
feet of a waterway to be regulated off at the request of a
senior water rights holder.
That regulation is set to expire next year, before the Oregon
Court of Appeals would likely hear a challenge to the judge’s
ruling, she said. Instead, OWRD plans to take another regulatory
tack in the region.
“This ruling suggests to the department that a critical
groundwater designation is necessary in order to manage
groundwater for senior surface water rights within the Klamath
Basin,” Rancier said in an email, adding that the agency does
yet not have a schedule for this action.
The controversy relates the agency’s finding in 2013 that
Klamath Tribes hold the oldest “time immemorial” water rights in
the area, which allows them to request water be shut off to
junior irrigators.
In 2018, OWRD established a rule that wells within one mile of a
waterway in the Upper Klamath Basin will substantially interfere
with surface waters and thus can be regulated off at the tribes’
request.
That regulation was scaled back last year to wells within 500
feet of a waterway, which reduced the number of affected wells
from 140 to 7, including one owned by the plaintiffs.
The judge has now agreed with the plaintiffs’ argument that
Oregon’s water law doesn’t allow for such a restriction without
OWRD going through the formal process of establishing a critical
groundwater area.
In that process, the plaintiffs would be provided with a
contested case hearing during which they could challenge the
OWRD’s determination.
Without that opportunity, the agency unconstitutionally deprived
them of property rights without due process, the judge said.
Specifically, the agency would have to show that wells are
substantially interfering with surface waters and determine how
much water irrigators can sustainably withdraw from the aquifer
each year, said Carollo, the plaintiffs’ attorney.
In accordance with Title 17 U.S.C.
section 107, any copyrighted material
herein is distributed without profit or
payment to those who have expressed a
prior interest in receiving this
information for non-profit research and
educational purposes only. For more
information go to:
http://www.law.cornell.edu/uscode/17/107.shtml
