Scaled-back Klamath groundwater regulation debated

< The Oregon Water Resources Department organized a meeting in Klamath Falls on Jan. 28 to discuss a proposed change to groundwater rules.

KLAMATH FALLS, Ore. — Oregon water regulators may scale back the number of wells subject to pumping shutdowns in the Upper Klamath Basin but some irrigators remain uneasy about the proposal.

Under existing rules, groundwater irrigators within one mile of surface waters can be “regulated off” by senior water users who claim the wells are affecting their water rights.

The Oregon Water Resources Department is now considering a change to the rules, which would limit regulation to wells within 500 feet of surface waters in the basin, effectively reducing the number of wells subject to shutdowns from 140 to seven.

The agency expects to finalize the interim rules in mid-April until more permanent regulations are enacted in 2021 “so the bar quits moving for people down here,” said Ivan Gall, administrator of OWRD’s field services division.

Several irrigators in the Upper Klamath basin have filed lawsuits challenging the OWRD’s shutdown of their wells in recent years, alleging the agency didn’t have adequate proof that groundwater pumping was reducing flows in waterways.

Litigation costs over Klamath Basin water disputes ended up exceeding the agency’s legal budget in the 2017-2019 biennium, prompting OWRD to ask lawmakers for additional funds.

While the agency doesn’t relish such legal battles, they can be a “necessary means to an end,” Gall said during a Jan. 28 meeting about the rules in Klamath Falls, Ore.

“We are not trying to do this interim rule process to avoid litigation costs,” he said, noting that the proposed rules are intended to provide OWRD with more time to study water management and well regulation.

Several irrigators who sit on the agency’s “rules advisory committee” for the proposal said they appreciate that the regulatory reach was cut from one mile to within 500 feet of surface water, but they’re still disappointed with certain aspects of the interim rules.

Specifically, irrigators said they’re unhappy with the presumption that wells within that distance will necessarily affect surface waters, as well as OWRD’s conclusion that groundwater and surface waters were hydrologically connected throughout the basin.

“We still don’t like your editorializing on science,” said Roger Nicholson, an irrigator on the committee. “We don’t think non-peer-reviewed science has any room in the temporary rule.”

Tom Mallams, who represented the Oregon Cattlemen’s Association on the committee, said the agency’s statement about the connection between ground and surface waters was unproven and “erroneous.”

“It’s a slap in the face for everyone in the Klamath Basin,” he said, adding that OWRD’s reasoning could be applied to basins elsewhere in the state.

The agency should have relied more on the expertise and data of private sector specialists in hydrology, Mallams said. “It appears they were totally ignored.”

Bruce Topham, a groundwater user on the committee, said it’s unreasonable to require irrigators whose wells are within 500 feet of surface waters to demonstrate they’re not reducing stream flows.

“That’s the equivalent of guilty until proven innocent,” he said. “They’ve asked us to prove a negative and you can’t do that.”

Gall, of OWRD, said that a hydrologic connection exists if water can move between groundwater aquifers and surface waters, unless it’s blocked by an impermeable barrier — which the agency has been unable to find in the region.

The geology of the basin contains large fault blocks of rock that tend to be permeable and allow water deep under ground to discharge into surface waters, Gall said.

During public comments, one participant criticized the OWRD for being quick to compromise with irrigation interests and assembling a rules advisory committee that’s designed to “crowd out the tribal voice.”

Don Gentry, tribal chairman of the Klamath Tribes, said courts have affirmed that tribal water rights date back to time immemorial and they need to be protected.

In the past, water calls by the Klamath Tribes have resulted in OWRD requiring junior water rights holders to stop irrigating.

“We sometimes feel like the lone ranger or the enemy in the community, but we have senior water rights,” Gentry said.

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