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Klamath Basin Regulation: Oregon Trial Court Affirms Regulation of Junior Groundwater Rights in Response to Downstream Seniors’ Call

On August 22, 2017, the Marion County Circuit Court in Salem, Oregon entered a judgment affirming the Oregon Water Resources Department’s (OWRD) 2015 and 2016 regulation of several irrigation wells in response to calls made by senior surface water right holders, including irrigation districts in the Klamath Project and the Klamath Tribes.  In upholding the rule of priority, the Court found that OWRD’s regulation orders, including its findings of connection between the wells and surface water and stream relief from curtailment of pumping, are supported by substantial evidence.  The ruling is significant in the history of water rights determination and regulation in the Klamath Basin in Oregon.  Oregon conjunctively manages surface and groundwater and Oregon law provides for the regulation of groundwater in response to a surface water call.  OWRD completed the administrative phase of the Klamath Basin Adjudication in March 2013, and its administrative order is of record for current regulation in the basin.  OWRD first regulated groundwater in response to senior surface water right calls in the Klamath Basin in 2015.  The Court’s ruling is the first to uphold groundwater regulation favoring senior surface rights.

The judgment in Larry J. Sees et al. v. Water Resources Department et al., Marion County Circuit Court Case No. 15CV18272, followed a six-day trial in March 2017 on the issue of whether OWRD properly regulated the junior wells pursuant to procedures required by Oregon law.  Specifically, Oregon law requires that OWRD find that pumping of a well causes “substantial interference” with surface water flow, and that regulation of the well will provide “timely and effective” relief to the senior user.  In other words, OWRD must find that the pumping of the well depletes nearby surface water and that turning off the well will provide actual, near-term relief to the downstream senior user.  Several irrigation districts that hold senior surface rights intervened in the case as defendants, in support of OWRD’s orders.  At trial, the groundwater users, OWRD, and the senior irrigation districts presented evidence, including expert testimony relating to OWRD’s determination that use of the subject wells depletes surface water flow.  Under Oregon’s Administrative Procedures Act, OWRD’s regulation orders are presumptively correct.  The test a court applies is whether the evidence would permit a reasonable person to make the determination the agency made.  Based on the record developed at trial, the Court determined that OWRD’s findings of hydraulic connection and stream relief, from the regulation of the subject wells, were supported by substantial evidence.  As a result, the Court affirmed OWRD’s orders.

The groundwater users have until the end of September to decide whether to appeal the Court’s ruling.  In the meantime, several other petitions relating to regulation of junior groundwater use in response to senior users’ calls are pending in Marion County Circuit Court.  The recent ruling is part of the new normal of water rights regulation in the Klamath Basin stemming from completion of the administrative phase of the surface water adjudication.

Somach Simmons & Dunn represented Tulelake Irrigation District, one of the intervenor-defendants in Larry J. Sees et al. v. Water Resources Department et al.  For more information on this case and Oregon water law, please contact Richard S. Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

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