A judge has ruled Oregon’s water regulators exceeded their authority by shutting off wells within 500 feet of waterways in the Upper Klamath Basin last year.

Marion County Circuit Judge Claudia Burton has also ruled the Oregon Water Resources Department violated the due process rights of irrigators Troy and Tracy Brooks, who filed a lawsuit opposing the agency’s enforcement action.

“They basically came up with these rules and gave nobody due process,” said Dominic Carollo, attorney for the plaintiffs.

It’s likely the ruling will set a precedent preventing OWRD from taking the same approach to stop groundwater pumping — not only in the Upper Klamath Basin, but elsewhere in Oregon the agency alleges wells are interfering with surface waters, he said.

“This decision suggests the department can’t do that,” Carollo said. “They can’t start shutting down wells without going through the process.”

Racquel Rancier, OWRD’s senior policy coordinator, said the agency will not be enforcing its rule allowing wells within 500 feet of a waterway to be regulated off at the request of a senior water rights holder.

That regulation is set to expire next year, before the Oregon Court of Appeals would likely hear a challenge to the judge’s ruling, she said. Instead, OWRD plans to take another regulatory tack in the region.

“This ruling suggests to the department that a critical groundwater designation is necessary in order to manage groundwater for senior surface water rights within the Klamath Basin,” Rancier said in an email, adding that the agency does yet not have a schedule for this action.

The controversy relates the agency’s finding in 2013 that Klamath Tribes hold the oldest “time immemorial” water rights in the area, which allows them to request water be shut off to junior irrigators.

In 2018, OWRD established a rule that wells within one mile of a waterway in the Upper Klamath Basin will substantially interfere with surface waters and thus can be regulated off at the tribes’ request.

That regulation was scaled back last year to wells within 500 feet of a waterway, which reduced the number of affected wells from 140 to 7, including one owned by the plaintiffs.

The judge has now agreed with the plaintiffs’ argument that Oregon’s water law doesn’t allow for such a restriction without OWRD going through the formal process of establishing a critical groundwater area.

In that process, the plaintiffs would be provided with a contested case hearing during which they could challenge the OWRD’s determination.

Without that opportunity, the agency unconstitutionally deprived them of property rights without due process, the judge said.

Specifically, the agency would have to show that wells are substantially interfering with surface waters and determine how much water irrigators can sustainably withdraw from the aquifer each year, said Carollo, the plaintiffs’ attorney.

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

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