This article was published on: 03/14/20 12:00 AM
By Mateusz Perkowski
Two Deschutes County landowners have filed a lawsuit seeking to block the Tumalo Irrigation District from replacing open canals with underground pipes to conserve water.
The plaintiffs, Matthew James Smith and Paul Callen, have asked a federal judge to enjoin the piping project and overturn the United States Department of Agriculture’s approval of it.
Smith and Callen claim the piping project will cause them to “suffer significant economic devaluation” because the open canal supports century-old ponderosa pine trees, riparian vegetation and wildlife that would be harmed by its removal.
In 2018, the USDA’s Natural Resources Conservation Service agreed to shoulder nearly $30 million, or about 69%, of the piping project’s total $43 million cost. The remainder will be funded by the irrigation district and state grants and loans.
According to the complaint, the federal agency “failed to adequately consider and analyze the cost of property devaluation, loss of public recreational benefit, loss of trees, effects on groundwater, increased fire risks, the carbon cost of lost vegetation, detriments to the general local populace, detriments to the public, and the risk of unsecured funding.”
The plaintiffs claim the USDA’s environmental assessment of the project violated the National Environmental Policy Act, or NEPA, because it contained “sham justifications” and “improperly rejected” reasonable alternatives to piping, such as improving the efficiency of water users.
The analysis also ignored or failed to adequately consider cumulative impacts, such as “desertification and loss of water-dependent vegetation,” caused by this piping project and similar ones in the region, the complaint said.
Aside from alleging violations of NEPA, the lawsuit claims the piping project is a “private nuisance” that unlawfully modifies the original purpose of the easement that runs across the plaintiffs’ properties.
As an alternative to stopping the project and overturning the USDA’s approval, the complaint seeks $250,000 in financial damages from the federal agency and the irrigation district. The lawsuit also requests reimbursement of the plaintiffs’ litigation costs under the Equal Access to Justice Act.
The Tumalo Irrigation District has historically lost about 50% of the water it diverts to leakage and evaporation, said Ken Rieck, the district’s manager.
Replacing open canals with pipes allows the district to continue serving irrigators while helping federally threatened species, including fish and the Oregon Spotted frog, he said.
“We’re taking that conserved water and putting it in-stream,” Rieck said.
Since 2000, the irrigation district has piped about 11 miles of its main canal and 13 miles of lateral canals, but it must still pipe about 58 miles of lateral canals, he said.
Crescent Lake, from which the district draws water, is experiencing declining storage levels and could be empty in three years, he said.
Without piping open canals, the irrigation district won’t be able to continue serving irrigators while preserving water for protected species, Rieck said.
“We’re not going to exist if we don’t,” he said. “They’re going to shut us off.”
Rieck said he’s not sure of the threat posed by the lawsuit, which was filed unexpectedly late, since the funding was approved in 2018.
“Our goal is, as always, to deliver water to the farm and we have no problem helping fish and wildlife on the way,” he said.