Irrigation canals in Central Oregon: friction over ownership

Nov 09, 2015

Bend Bulletin

Irrigation canals in Central Oregon: friction over ownership

Private property owners continue to oppose piping canals in some cases

By Ted Shorack / The Bulletin

Irrigation canals draw and distribute water on Central Oregon land with a complicated history of ownership that started more than a century ago.

Canal piping projects have brought this complexity to the forefront as some private property owners have sought to stop them.

The latest wrinkle has been the National Park Service’s decision to not recognize the Central Oregon Irrigation District as an owner of the Pilot Butte Canal, which it operates, drawing water from the Deschutes River.

That means the irrigation district cannot formally object to listing a 1½ -mile section of the canal on the National Register of Historic Places, which is being sought by property owners near Juniper Ridge.

Craig Horrell, manager of the irrigation district, said the Park Service isn’t the authority to judge ownership of the canals and the decision won’t set a precedent. The Park Service is the keeper of the historic register.

The district doesn’t want the section of canal added to the register because it would potentially block piping and other changes to the canal structure. The district had sought to pipe the same stretch that’s up for nomination to the national register, but that piping project is on the back burner for now.

Irrigation districts in the Deschutes River Basin are piping their canals to conserve water.

The issue has ended up in court more than once, and more litigation could occur before piping projects are completed.

The ownership situation is oddly a direct result of canals being created in Central Oregon. Federal land was divided and turned into private property because the irrigation canals could provide water for farming and ranching.

“It was a condition of letting the property become private,” said Marc Thalacker, manager of the Three Sisters Irrigation District. “It’s what made the West. Everybody forgets that’s why we’re here.”

The canals were created at the turn of the 20th century by blasting rock and digging. The districts formed under the Carey Act to use the canals to divert water for irrigation. They were granted continued access to the canals by the Right of Way Act.

“Both of them clearly state and support ownership and right of ways to the canals to be maintained by the districts,” Horrell said.

Private property lines were platted to include chunks of land where the water crosses. Those boundaries have been hotly contested over the last decade.

Property owners fought the Swalley Irrigation District over its decision to pipe the district’s main canal in northeast Bend.

The district sought and won a declaration from a federal judge in 2008 allowing it to pipe the canal. The outcome was based on the district’s access granted by the Right of Way Act, which includes “the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side.”

Property owners opposed to piping don’t view irrigation districts as having rights to the canal because their property taxes are based on land that includes where water crosses. Owners feel in many cases that the piping will diminish their property values.

Joette Storm is part of the group trying to get the Pilot Butte Canal section listed on the national register. Although her property line doesn’t include the canal itself, she is within the overall historic district that would be included in the potential listing.

“Their deeds say they own to the centerline of the canal, and they pay property taxes on that land,” Storm said about her neighbors.

Pilot Butte Canal began supplying water right holders in 1904. The Oregon State Historic Preservation Office is now set to review a revised nomination. More information was requested from the Park Service. The Central Oregon Irrigation District has argued for its ownership rights through the nomination process.

David Filippi, the district’s attorney, submitted a letter to the state historic preservation office detailing the issue of ownership. He wrote, “A ditch or canal used to carry water is real property that can be owned separately from the underlying real property across which the ditch or canal passes.”

However, Paul Loether, chief of the National Register of Historic Places, wrote in an email to the preservation office that the Park Service would only recognize an owner as one who holds an “absolute interest in the property.”

For other irrigation districts, the piping and ownership issues haven’t been as contentious. The Tumalo Irrigation District, which diverts water from Tumalo Creek and as a supplement from the Deschutes River, is about to begin another phase of piping in December.

Ken Rieck, manager of the district, said piping of the canals was initially voted down by water users. There was also some friction from property owners when the first section was piped at the intake from Tumalo Creek.

“We have got to recognize it’s their backyard,” Rieck said about private property owners. “We need to treat them with respect.”

Rieck said overall the piping has worked out well. The next phase to be piped will be up to 3,400 feet of the Tumalo Feed Canal.

“Our ultimate plan is we want to keep all these ranches green,” Rieck said about the district’s members.

The push toward piping has come from multiple directions, including an opportunity to generate electricity for some districts and make the canals safer. It’s also been touted for its ability to help with fish and wildlife by not drawing as much water from the Deschutes River Basin.

The Three Sisters Irrigation District has piped about 50 of its 63 miles of canal and plans to finish the rest in the next couple of years. The district diverts water from Whychus Creek.

“It was the only way we could restore Whychus Creek for steelhead and bull trout,” Thalacker said about piping.

Horrell, with the Central Oregon Irrigation District, said the Swalley Irrigation District case in 2008 resolved the issue and districts have the “absolute right to pipe canals based on granted right of way.”

Meanwhile, COID has taken a step back from its piping plans. It withdrew an application seeking a change in Deschutes County code so that it could pipe the Pilot Butte Canal without a permitting process.

“We’re trying to look at this holistically because we’re committed to working with the county, the patrons and the homeowners,” Horrell said.

— Reporter: 541-617-7820,

tshorack@bendbulletin.com

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