Writings and observations

From an August 1 newsletter by state Representative Doug Whitsett, R-Klamath Falls.

It has become increasingly evident, over the past several years, that the Oregon Water Resources Department is no longer a friend of agriculture.

Perhaps their position was best demonstrated by the lack of support for the Department’s budget. On the day their budget was to be voted on the Senate floor, the only letter of support was from the Oregon Conservation Network. There was no letter of support from any farm, ranch, nursery, groundwater or industrial water users….. NONE!

A companion Department fee bill, HB 2259, was returned to the Senate Rules Committee from the Senate floor because there were not enough votes to pass the bill. The Committee significantly reduced the requested fee increases. Our bipartisan coalition forced that nearly unprecedented action, because we believed the fee increases were absurdly excessive and the purpose of many of the fee increases were counterproductive to Oregon’s economy.

The Oregon Conservation Network is a coalition of more than 40 mostly extreme environmentalist organizations. Some of the Networks stated priorities for the recently concluded legislative session included:

 To promote a tax on each water right in order to support more stringent water regulation.
 To manage Oregon waters to encourage more transfers from agricultural use to in stream flows for the benefit of fish.
 To create a ban on suction dredge gold mining in Oregon.
 And, to expand Oregon Scenic Rivers to include not only rivers but creeks and small tributaries.

Most of the Network’s legislative agenda was either introduced or supported by the Oregon Water Resources Department. The Department actively promoted a mosaic of legislation that, in its entirety, would have significantly changed existing Oregon water law.

Virtually all proposed bills would have either further regulated out of stream water use or enhanced the Department’s ability to authorize transfers of existing irrigation water rights to in stream flows. Several attempts were introduced to provide the Department authority to buy and sell water rights through contracts with little regard for priority dates or potential injury to other water right holders.

The Department’s efforts to increase their revenue included new and increased fees for services, a substantial new fee to change the name on a water right certificate or permit, and a new annual $100 tax on all water rights. They explained that they needed the extra money to help implement their proposed changes.

It appears that the Conservation Network’s primary purpose for supporting the expansion of scenic rivers is to restrict the use of private land and water resources.

Current law provides that all uses of private land within a quarter of a mile of a scenic river are strictly regulated. No new surface water diversions are allowed from any Oregon Scenic River. No new wells for irrigation are allowed, without bucket for bucket mitigation in the event that the groundwater aquifer is considered to be connected to the scenic waterway.

In fact, any existing well may be ruled-off if the well is constructed within a mile of the scenic river or a tributary of the scenic river. The Department has the legal authority to shut down any such well, regardless of the priority date of the well.

With the current drought conditions in Southern Oregon, and the Klamath River adjudication being implemented, you may not have noticed that the Oregon Water Resources Department is already doing these things in the Klamath River Basin. The Department has refused to permit or delayed the permitting of a number of new wells that were constructed in the upper basin during the past four years.
At the same time, the Department was working on a modeled analysis of the regional aquifer in the upper basin. That four year modeling study has recently been completed. To no ones’ great surprise, the Department has concluded, from the model, the aquifer is connected with the scenic Klamath River.

The Department now believes they have established the legal authority to refuse to permit those existing new irrigation wells. They also appear to have no intention of permitting any future irrigation wells in the Upper Klamath River Basin.

Moreover, the Department is now contemplating shutting down any number of existing irrigation wells that are constructed within a mile of the scenic Klamath River, or any tributary to that scenic river. This action will essentially complete the dewatering of virtually all irrigated land in the Sprague, Williamson and Wood River watersheds.

The Department’s final determination and implementation of the Klamath River Adjudication is also telling.
Following the direction of the Ninth Circuit Court of Appeals, the Department rightfully determined the state has authority to adjudicate Tribal and federal reserved water rights. They also followed the Ninth Circuit’s direction determining the Tribes hold a water right adequate to support their retained treaty rights to hunt, fish and gather, on their former reservation lands. That Tribal water right is the most senior priority water right possible, dated to “time immemorial”.

However, the Department inexplicably ignored another major part of the Ninth Circuit Court’s order. That Court ruled that the amount of the water provided to the Tribe’s in their time immemorial water right must be the amount that they formerly used to maintain a moderate living standard. No more and no less!

Instead of following the Ninth Circuit Court’s order and direction, the Department’s final determination in the adjudication gave essentially all the water tributary to Upper Klamath Lake to the Klamath Tribes. Further, they gave the Tribes the right to force the maintenance of an Upper Klamath Lake level that, arguably, could not be achieved without the storage capacity enabled by the Link River Dam.

Less than four months later, the Tribes exercised their newly determined “time immemorial” water rights. They issued a call for virtually all of the water currently used for irrigation in the Sprague, Williamson and Wood River watersheds.

The Department has nearly finished enforcing that call, effectively shutting off all surface irrigation. They have, in effect, transferred all the water to in stream flow for the benefit of maintaining riparian and aquatic habitat to support the Tribal rights to hunt, fish and gather. More than 250 water users holding Allottee and Walton water rights dating to 1864 are being forced to turn off their irrigation water.

Unfortunately, the same result is most likely to occur in any future year, even with normal amounts of precipitation and normal stream flows. The Department’s final determination gave the Tribes such a huge amount of water that virtually no additional water will be available for irrigation in a normal year.

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