Upper Klamath irrigators challenge water transfer to wildlife refuge

September 23, 2021
Upper Klamath irrigators challenge water transfer to wildlife refuge

A lawsuit claims Oregon water regulators have authorized a water transfer to a wildlife refuge without properly analyzing the impacts on Upper Klamath irrigators.

Last month, the state’s Water Resources Department approved a transfer of 3,750 acre-feet of water from the Wood River and Crooked Creek in the Upper Klamath Basin to the Lower Klamath Wildlife Refuge for five years.

The California Waterfowl nonprofit had bought the water from a ranch in the Upper Klamath Basin in Oregon to convey to the national refuge in California to benefit bird habitat under threat from the drought.

However, the Fort Klamath Critical Habitat Landowners nonprofit and several irrigators in the Upper Klamath Basin have filed a petition for judicial review challenging the decision, which has the effective of automatically blocking it under Oregon water law.

Racquel Rancier, senior water policy coordinator with OWRD, said the agency will review the petition but “generally does not comment on matters of pending litigation.”

The petitioners argue that OWRD failed to account for return flows from irrigation, since much of the diverted water would normally flow back into the waterways and contribute to the stream flows.

By sending the water out of the Upper Klamath Basin, the transfer will lower streamflows and potentially reduce water available for diversion by the irrigators by 50% or more, the lawsuit said.

“The severe curtailment of petitioners' ability to irrigate and/or stockwater reduces the amount of forage that petitioners and/or their lessees can grow and the number of livestock petitioners and/or their lessees can feed and/or threatens the lease value of the petitioners’ real property,” the lawsuit said.

OWRD also exceeded its authority by approving the transfer, since the water will ultimately be delivered beyond its jurisdiction in California, the lawsuit claims. Even if the agency did have jurisdiction, the petitioners claim it didn’t follow the right laws and regulations for the transfer.

The transfer will also cause a “gross waste of water” contrary to law because the water is to be conveyed through irrigation canals and will likely be lost to evaporation and seepage, the lawsuit said.

The department didn’t “substantively address” the concerns about injury to other water rights from the transfer, which means it’s not supported by “substantial evidence” contrary to water law, the lawsuit said.

“Rather than analyzing or addressing the potential for injury, the Final Order blatantly ignored it, deferring it for possible future assessment but without providing affected water rights holders like petitioners any legal recourse,” the petitioners claim.

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