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