Court petition halts district water shutoff

Court petition halts district water shutoff
Irrigator group appeals; continues pumping water
by Lacey Jarrell
Herald & News

September 6, 2014

Owners of a Klamath Project diversion canal, who were ordered to cease water deliveries, have filed a petition against the state and are still drawing irrigation water off the Klamath River.

The Klamath Drainage District (KDD) filed the petition for judicial review Aug. 21 in the Klamath County Circuit Court. In the petition, KDD claims that Oregon Water Resources Department (OWRD) has no authority over the district’s North Canal because “no part of the North Canal is, or ever has been, owned by the Bureau of Reclamation.

“KDD fully owns the right of way to the Klamath River, the concrete intake structure and the headgates, and the entire stretch of the North Canal, either by easement or in fee.”

The district can continue diverting water from the Klamath River because, according to Oregon law, filing a petition for judicial review halts enforcement of an OWRD shut-off order unless the department determines that public harm will result if the order is halted.

Land in the 27,500-acre district is owned by about a dozen landowners, whose primary crops are organic potatoes, organic cereal grains and pasture and several conventional crops.

Nearly 7,000 acres of the Lower Klamath Wildlife Refuge is within KDD boundaries, according to district board president Tim O’Connor. The Bureau of Reclamation manages water deliveries to the refuge, O’Connor said.

According to the claim, KDD is located entirely within the area of historic Lower Klamath Lake, has always received water from two diversions — the Ady and North canals — directly from the Klamath River, at locations between Midland and Keno.

Midland District Improvement and Klamath Hills Irrigation District also are receiving water from the North Canal diversion, according to O’Connor.

The district ceased Ady Canal diversion after it received a state notice July 3. KDD filed the petition for review after it received a shut off notice for the 14-mile North Canal on July 30.

According to the letter, the BOR “made a request to the OWRD to protect their delivery of stored water from Upper Klamath Lake in accordance with their Limited Use License.” The notice ordered the district to shut off pumps and close headgates.

The limited license, which the BOR applied for in April, requests that “water currently stored in Upper Klamath Lake under existing water rights held by the United States … will be used for augmenting flows in the Link River, Lake Ewauna and the Klamath River in support of instream resources.”

According to Sheryl Franklin, BOR Klamath Basin Area Office Area manager, in-stream resources are federally listed species, such as coho salmon, that are protected under the Endangered Species Act and that can potentially be impacted by the BOR’s Klamath Project operations.

The request goes on to state that the limited license will not have “priority over any water right … and shall be subordinate to all other authorized uses that rely upon the same source.”

“We feel the limited license is being used to subordinate our private property rights,” said KDD board member Luther Horsely. “We wouldn’t have taken the action if we didn’t feel strongly about it.”

KDD’s claim maintains that the shut-off order denies the district of its lawful water rights entitlement as owners of the North Canal. The petition for review states that shutting off North Canal diversions will cause KDD landowners to suffer irreparable harm from crop loss, damage to pasture lands and/or damage to stock from the lack of irrigation water.

Respondents listed on the petition are the Water Resources Department of the State of Oregon, Tom J. Paul, acting director of the Water Resources Department, and Scott White, District 17 watermaster.

OWRD respondents and spokespersons declined to comment on the petition.