Judge rejects claims of Klamath Basin irrigators

Herald and News 9/8/17, also in The Capital Press 9/6/17 by Mateusz Perkowski

An Oregon judge has rejected claims by several Klamath Basin irrigators that state regulators wrongly shut down their groundwater wells based on faulty scientific analysis.

The Capital Press reported Thursday that Marion County Circuit Court Judge Channing Bennett ruled the Oregon Water Resources Department properly relied on “substantial evidence” to halt pumping from the four wells because they were interfering with surface water rights in the Sprague River.

Attorneys for the groundwater irrigators say the case is troubling because the state regulators’ reasoning effectively expands the agency’s jurisdiction over wells not only in the Klamath Basin but elsewhere in Oregon.

The dispute also pits groundwater irrigators against Klamath Basin farmers who use surface water.

The four groundwater wells are less than one mile from the Sprague River.

“We think this is the best result to protect senior water users,” said Richard Deitchman, attorney for the Tulelake Irrigation District, which intervened in the case.

The four groundwater wells in question are within less than one mile of the Sprague River, which opens them up to regulatory scrutiny for potentially affecting surface water.

After OWRD ordered pumping from the wells to stop in 2015 and 2016, a lawsuit against the agency was brought by their owners, Stanley and Dolores Stonier and Larry and Joan Sees, as well as Garrett and Cameron Duncan, who lease property from the Sees.

The plaintiffs argued their wells were drilled into a confined aquifer that’s separated from the Sprague River by layers of rock and clay, as well as a shallower alluvial aquifer.

Shutting down the wells isn’t allowed because OWRD only has jurisdiction over wells drilled into an aquifer “adjacent” to the surface water, the plaintiffs argued.

However, the judge said he couldn’t determine that those layers were of such low permeability as to hinder water flowing from the confined aquifer into the Sprague River.

Effectively, the decision accepts OWRD’s argument that it can regulate a broader “aquifer system,” even if a well isn’t drilled into an aquifer directly adjacent to a river, said Laura Schroeder, an attorney representing the groundwater irrigators.

“There’s nothing to stop Oregon Water Resources from regulating every aquifer in a basin (within a mile of surface waters) and calling it an aquifer system,” she said.

The groundwater irrigators fault OWRD for wrongly concluding that groundwater contributes to surface water flows along the portion of the Sprague River in question.

The agency improperly applied a scientific model by overestimating the ability of groundwater from the confined aquifer to eventually flow into the river, they claimed.

If used correctly, the model would have showed that water from the confined aquifer didn’t affect the surface water to a degree that would warrant regulation, according to the plaintiffs.

The judge’s decision is disappointing because he sided with OWRD without explaining how the trial evidence affected his rationale, said Sarah Liljefelt, an attorney for the groundwater irrigators.

“He really didn’t make any decision about the science,” she said. “You’re in a difficult position in which there’s a ruling against you without any real reason why.”

Richard Deitchman, attorney for the Tulelake Irrigation District, disagreed with this characterization of the ruling.

The judge must decide whether the OWRD’s actions were reasonable based on the evidence, rather than choose whose scientific theories were more convincing, he said.

“You have experts on both sides,” Deithcman said. “The judge’s role isn’t to play hydrogeologist himself. It’s to determine if there’s substantial evidence for the decision, which is what he determined here.”

The groundwater irrigators have until Sept. 25 to decide whether to appeal the judge’s opinion. They also have another case pending against OWRD related to its 2017 decision to shut down the wells.

A spokesperson for OWRD did not respond to requests for comment as of press time.

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