Oregon irrigation pipeline opponents unlikely to prevail, judge rules

November 17, 2020
Oregon irrigation pipeline opponents unlikely to prevail, judge rules

A temporary restraining order against a Central Oregon irrigation pipeline isn’t justified because a lawsuit against the project probably won’t succeed, according to a federal judge.

During recent oral arguments in the case, U.S. District Judge Michael McShane told opponents he was unlikely to grant their requested injunction against replacing the Tumalo Irrigation District’s open canals with a pipeline.

While his denial isn’t a surprise, McShane has now explained why he’s refused to preserve property values next to the irrigation canals by blocking the pipeline.

Opponents claim the USDA should have more thoroughly analyzed on-farm irrigation equipment improvements as an alternative to the pipeline before granting $30 million for the canal replacement project, which is intended to save water by eliminating seepage.

However, McShane has ruled that USDA’s Natural Resources Conservation Service didn’t violate the National Environmental Policy Act by rejecting this option as unrealistic.

On-farm equipment upgrades wouldn’t have made water deliveries more reliable or increased public safety, while the irrigation district lacks the authority to implement such improvements without changing water law, the judge said.

“Ultimately, while plaintiffs are particularly aggrieved with NRCS’s decision not to implement the on-farm efficiency alternative, the agency adequately considered this alternative,” McShane said.

The agency properly weighed the pipeline’s benefits to river water quantity and quality against the loss of “artificial wetlands” created by seepage, which landowners fear will cause vegetation near canals to die, the judge said.

“While plaintiffs may disagree with how the NRCS assessed the cumulative effects to vegetation on their property, the court finds that NRCS review was neither arbitrary nor capricious,” he said.

McShane rejected arguments that USDA wrongly concluded that negative recreational impacts would be “negligible” and failed to conduct a cost-benefit analysis of the project.

The agency properly considered the reduced drowning risk of replacing open canals with an underground pipeline, which opponents called a “sham,” he said.

Allegations that the pipeline will create an unlawful nuisance aren’t likely to succeed either, since landowners don’t have a water right to the seepage from open canals, the judge said. “While plaintiffs could certainly claim that seepage was harming their property, they cannot argue the inverse that the removal of water seepage entitles them to compensation.”

Installing a pipeline doesn’t violate the easements across the opponents’ properties, since it is “reasonably necessary” to the goal of delivering irrigation water, McShane said.

Although the judge said the “unquestionable devaluation of their properties” is an “irreparable harm” to the landowners, they face a “minimal” hardship compared to the irrigation district if the project was blocked, he said.

The public is likely to benefit from the project, since it will enhance safety and habitats for imperiled species, McShane said. “In the end, plaintiffs private interests are outweighed by the community’s interest in having a safe and efficient irrigation system in the Deschutes Basin.”

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