dozens of sprague river wells shut down by klamath tribes 072816

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Dozens of Sprague River wells shut down by Klamath Tribal call on irrigation water

Water Issues Could Be Cause For Concern

NEWS from Oregon State Senator Doug Whitsett 7/28/16

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 modeling.

Representative Whitsett and I co-ponsored 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 Phone: 503-986-1728
Address: 900 Court St NE, S-311, Salem, OR 97301

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