Water wars continue over Klamath wells

Cattle and Beef Industry News
Feb 17, 2014

The ongoing issues of the Klamath Basin water wars have run head on with the increasing drought the West Coast is experiencing. In the face of less water and conflicts over water rights, official efforts to shut down private wells have surfaced. A pair of bills, however, seek to ensure the state does its due diligence regarding sound science prior to shutting down or limiting the use of wells.

The first week of February brought two bills to the Oregon state House of Representatives, HB 4046 and HB 4044. The bills’ sponsor, who presented them to the Oregon state Agriculture and Natural Resources Committee, was Oregon state House Representative Gail Whitsett (R-56, Klamath Falls). She described the need for the bills as follows:

“The genesis of these bills is that in December of 2013 we were told by the Oregon Water Resources Department (ORWD) that over 100 of the farms and ranches whose irrigation surface water was cut off by the OWRD non-judicial branch adjudication of the area above upper Klamath Lake last year would now have their remaining ground water irrigation wells shut off perhaps as soon as April 1, 2014.

“The concept behind shutting off all water to these farms and ranches is that the OWRD perceives there may be ground water interference with surface waters in these wells. They propose to cut off the wells as a group and thus destroy the livelihoods of hundreds of people based on a computer model of the ground water. This is an untenable proposition to me.”

The Klamath Basin area is, of course, one beleaguered by water issues in the past few years. As Whitsett mentioned, last year saw the almost total shutoffs of surface water use for irrigation when it was ruled the local tribe had rights immemorial over other water rights holders.

The proposed well shutoff is based on a computer model that suggests the involved wells’ draws on area ground water would negatively affect surface water within a one mile radius, which would in turn infringe upon the senior water rights holders of that surface water.

Two members of the U.S. Geological Survey (USGS) at the hearing discussed the creation and accuracy of the model and the necessity of computer models as decision-making tools. Along this line of discussion, it was asserted that all pumping of wells will impact surface flow, though the individual impact of a specific well is nearly impossible to gauge accurately, given the difference in rate of flow between wells and surface water-like streams.

Following the presentation by the USGS members, Whitsett opined that the data presented was based on large regional data and was not sufficient to claim the shut-off of each well was necessary. Whitsett pointed out that she is a “multi-degreed geologist” with experience working in the oil industry. She also opined that, if an individual well is proven to negatively impact surface waters, they should be shut down, but the determination must be made on an individual-well basis.

Sen. Doug Whitsett (R- 28)—husband to Rep. Whitsett—characterized the well shutdown as having the potential to economically devastate the area as it would drive all agricultural interests in the area out of business.

The bills

Effectively copies of each other, the pair of bills brought in response to the OWRD computer model seeks to establish certain requirements before privately held water rights can be affected.

In situations where an action may “adversely affec[t] or aggriev[e]” a water right holder—which it defines as rejecting or terminating a water right, and/or limiting or placing conditions on the water right that might negatively impact its value—the bills create the following requirements of the Oregon Water Resources Department (OWRD):

• Measure distances between existing or proposed wells and surface water which might be affected by use;

• Issue a written notice to the water right holder of the planned action along with all “facts, grounds and legal theories relied upon by the department to support the proposed order” and include “detailed findings” based on “convincing evidence” that the use of the well would negatively affect surface water;

• Provide “clear and convincing evidence” that the action to limit or otherwise negatively affect the water right will have “a substantial and quantifiable effect” on the surface water or other superior water right involved in the decision; and • Actions and the aforementioned notices and evidence must be compiled by a “qualified hydrologist.”

“In short, the proposal is to clarify what we believe is currently already required in Oregon law,” summarized Sen. Whitsett during the hearing. Curtis Martin, Past President and Water Resources Committee Chair of the Oregon’s Cattlemen’s Association (OCA), reiterated this position in talking to WLJ.

“We are not challenging existing water code by any means,” he told WLJ, explaining that the bills would prevent the OWRD from affecting private water rights “in one fell swoop.” He added that the OCA supports the bills as in the interests of Oregon ranchers.

Not everyone is pleased with the bills’ goals, however. Opponents have said the additional effort OWRD will have to go through to determine the impacts of each individual well, as well as providing evidence to that effect and allow for challenges by the water rights holders will prevent the department from doing its job in a timely manner. This perspective was voiced by Mark Stuntebeck, Manager of the Klamath Irrigation District, in a letter opposing the bills.

“It requires unachievable scientific burdens put on the department, which would all but prevent its ability to regulate water in the Klamath Basin, if not the rest of the state,” he said.

The bill would not stop OWRD from shutting down private wells. It would simply increase the required research and evidence to the individual well level when OWRD is proposing action that would limit or shut down water rights.

Though the bills are basically identical, HB 4046 is the only one with listed sponsors. It was introduced by Rep. Whitsett and cosponsored by Reps. Jason Conger (R-54), Sal Esquivel (R-6), John E Huffman (R- 59), Bob Jenson (R-58), Mark Johnson (R-52), Wayne Krieger (R-1), Andy Olson (R-15), Sherrie Sprenger (R-17), Jim Thompson (R-23), Jim Weidner (R-24), Gene Whisnant (R-53) and Senators Herman Baertschiger (R-2), Brian Boquist (R-12), Ted Ferrioli (R-30), Betsy Johnson (D-16), Alan Olsen (R- 20), and Whitsett.

Both bills are currently in committee with the Oregon House Agriculture and Natural Resources Committee. — Kerry Halladay, WLJ Editor