State power grab to extend control of water in Oregon

Sen Doug Whitsett

by Sen. Doug Whitsett

It is becoming more abundantly clear, with each passing year, that state and federal governments are attempting to establish control of all of the land by controlling the use of the water.

The Oregon Water Resources Department is proposing new administrative rules for the use of water during Governor declared droughts in Klamath County. The rules propose to create a preference for the use of surface and ground water for stock and human consumption, regardless of the date of priority of the water right.

Human consumption purposes include drinking, cooking, and sanitation, which are essential to maintaining basic human health. Stock watering includes the use of water for consumption by animals held in captivity, a necessity for animal welfare.

The alleged need for the new rule is to replace an existing emergency rule that establishes preference for the use of surface water for stock and human consumption purposes. The Department alleges that the proposed rules would allow the continued use of water, for stock watering and human consumption purposes, by junior water right holders in Klamath County, during a declared drought. These junior water right holders would otherwise be regulated off, in order to meet the call of senior surface-water rights, such as for the Klamath Project and for the Klamath Tribes’ in-stream flows.

What the Department is not making clear to the public is that their proposed permanent rules make substantial and critical changes to the existing emergency rule. The rule being proposed extends the Department’s authority beyond its regulation of surface-water, to include the regulation of groundwater under the preferential use of water for human and stock-water during drought.

This rule appears to be another attempt by the Department to use its rule making powers to extend its authority to regulate surface water under the Klamath River Adjudication, to include the regulation of groundwater. The Agency currently has the authority to regulate groundwater when its use impairs or interferes with a surface water right with earlier priority date. However, the Department bears the burden of proof that a well is causing timely and quantifiable interference before it can be regulated or shut off, for any well that is constructed more than a quarter of a mile from a surface water source.

The Department is alleging that this burden of proof has generally been met by regional and local computerized groundwater models. Using this allegation, the Agency is attempting to shift the burden of proof to the well owner to show that his well does not interfere, even though staff has testified that it is usually unable to determine the amount of interference caused by and individual irrigation, municipal, or industrial well.

Further, the Department’s proposed rules only apply to Klamath County. A total of nine Oregon counties are currently under Governor declared droughts. At best, it is unclear why only Klamath County is to be subjected to this extension of the Department’s regulatory authority to groundwater.

The Klamath County Board of Commissioners has responded with this letter to OWRD.

Finally, the proposed rule requires water right holders, exercising the human consumption or stock water preferences, to assure that no water is used for any purpose not related to that preference. This provision may be construed to prohibit the use of water for irrigation when a well is being used for human or stock water purposes. It would certainly prohibit the use of water from a municipal well for anything other than human and stock water consumption.

Further, the rule would impose the responsibility on the city of Klamath Falls to ensure that none of its municipal or industrial patrons used the water for anything but human and stock water purposes. In order to comply, the city would need to read all of its 14,000 water meters on a daily basis to determine if any of its patrons are using water for other than the preferential purposes.

The city has also responded by sending a letter to the agency.

The Oregon Water Resources Department filed notice of the rulemaking in the Oregon Bulletin, published by the Secretary of State, on July 1, 2014. A public hearing was held at the Olympic Inn, at seven in the evening on July 24th. Public comment was closed on July 29th. The Agency’s stated intention was to ask the Oregon Water Resources Commission to adopt the permanent rule at their August 22nd meeting. The Department’s justification for the very short six-week timeline, from proposal to adoption of the rule, is the impending expiration of the emergency rule.

The agency apparently made no attempt to publicize this important hearing, other than its legal obligation to file notice in the Oregon Bulletin. Had Klamath County Commissioner Tom Mallums and I not alerted the city, and other water users, virtually no one would have attended the July 24th Commission hearing in Klamath Falls.

At the hearing, we questioned the Agency’s apparent lack of effort to alert the public to the time and place of the hearing.  We further questioned the purpose of the proposed critical changes to the existing rule. We requested an extension of the public comment period to allow more time for public participation.

The Department is now considering comments made at the hearing. The Agency has stated that the Water Resources Commission will not be considering the proposed changes at their August 22nd meeting.

The Department’s attempt to change the rules, to include the regulation of groundwater, is a big deal. If the Agency is successful in extending its power to regulate groundwater, subject to the Klamath River Adjudication, it may establish the authority, and arguably the obligation, to regulate irrigation wells that are constructed within a mile of a surface water body, by their priority dates.

This authority may obligate the Department to regulate, or rule-off each irrigation well that it determines to be subject to a call for water under the Adjudication, before they regulate virtually any surface water right.

In my opinion, the Oregon Water Resources Department is on a mission to expand its regulatory authority over every drop of surface and groundwater in Oregon. Rules and regulatory authorities adopted in Klamath County may soon be expected to be applied statewide.

It is becoming more abundantly clear, with each passing year, that state and federal governments are attempting to establish control of all of the land by controlling the use of the water. Our agricultural and municipal communities must stand together in opposition to this coordinated effort to seize our water resources. The alternative is to succumb individually and sequentially to the effects of government-created drought.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls