Oregon courts

The Oregon Supreme Court building in Salem, Ore., where the state’s Court of Appeals heard oral arguments over shutting down groundwater pumping in aquifers “adjacent” to surface waters. The case, which affected irrigators in the Upper Klamath Basin, has been dismissed.

The Oregon Court of Appeals won’t resolve a dispute over the impact of Klamath basin wells on surface waters due to newly imposed regulations in the area.

The appellate court has dismissed the case because it’s moot and unworthy of review after the Oregon water regulators adopted different rules governing surface water interference from wells in the Upper Klamath basin earlier this year.

The lawsuit was filed by several irrigators in the region whose wells were shut down in 2015 and 2016 by the Oregon Water Resources Department, which determined that groundwater pumping was reducing flows in the Sprague River to the detriment of senior water rights holders.

Sarah Liljefelt, attorney for the plaintiffs, said the dismissal is disappointing because the agency’s repeated rule changes have effectively denied the irrigators a ruling on the merits of their case.

“It seemed like an effort to cut off these legal challenges that were still pending,” she said. “We can’t get resolution to these cases because the department keeps changing the rules.”

Capital Press was unable to reach an attorney or representative of OWRD as of press time.

Richard Deitchman, an attorney for irrigation districts with senior water rights who sided with the agency in the dispute, said his clients consider the dismissal a “win.”

“We agree with the court that it would be speculative to determine what will happen in the future,” he said.

During oral arguments over the summer, much of the focus was on whether the wells were truly in an “adjacent” aquifer to the river and whether OWRD’s modeling accurately demonstrated an adverse impact to surface water from wells.

The plaintiffs argued they shouldn’t have been “regulated off” from pumping because their wells tap into deeper sources of groundwater than the alluvial aquifer that’s actually “adjacent” to the river.

“My clients’ argument is the regulation means what it says,” said Liljefelt, attorney for the groundwater irrigators, during the August oral arguments in Salem.

The state agency’s modeling also incorrectly assumed more groundwater was able to pass through the stream bed and affect surface flows than is actually possible, she said. For the reason, its decisions weren’t based on substantial evidence as required.

“What we’ve argued is the Oregon Water Resources Department omitted an entire factor from their modeling,” Liljefelt said.

The OWRD and several irrigation districts with senior water rights countered that the agency’s calculations used the best available information and that its definition of “adjacent aquifer” is legally plausible under water law.

“It is the prior appropriations system in action,” said Deitchman, attorney for the irrigation districts, referring the “first in time, first in right” system of irrigation priority under Western water law.

Irrigators with older, senior rights can request that regulators shut down withdrawals by junior users if they’re sufficiently reducing water supplies.

These points of disagreement ultimately didn’t influence the Court of Appeals’ decision to dismiss the case, which was based on new OWRD regulations adopted in April.

Under these regulations, which will expire in March 2021, wells farther than 500 feet from surface waters in the Upper Klamath Basin won’t be subject to regulation — down from 1 mile at the time the lawsuit was filed.

In effect, that means the number of wells in the region subject to similar shutdowns has declined from 140 to 7.

A trial judge had allowed the lawsuit to proceed even though the orders shutting down irrigation in 2015 and 2016 had expired, since the situation was “capable of repetition” yet “likely to evade judicial review.”

However, the Court of Appeals has now determined there’s too much “uncertainty” that the previous rules will “ever affect appellants again,” which “weighs heavily against” deciding the case on its merits.

Though it’s possible the old rules will be reinstated in 2021, it would require “speculation” for the court to assume that OWRD will not instead extend the interim regulations or adopt new ones, the ruling said.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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