Americans live in a society of law and order—or at least we like to think we do. But what if those who apply the laws neither understand them nor utilize them consistently?
A pair of Oregon ranch families may have been living that possibility for years now.
Joan and Larry Sees, and Dolores and Stan Stonier—groundwater rights holders in the Sprague River Basin within the Klamath system—have seen their irrigation wells shut off every irrigation season since 2015 by the Oregon Water Resources Department (OWRD) based on water models. These models reportedly show that wells within a mile of the Sprague River contribute to its depletion.
However, the Sees’ and Stoniers’ attorneys and a pair of geologic engineers believe the OWRD is not using the models correctly nor consistently. In March 2017, they sued the OWRD as a result, but lost. Now they are appealing, fearing the lower court’s decision might encourage the OWRD to continue misusing the models to shut off groundwater rights in the future.
“The little picture is that our clients are getting regulated off incorrectly,” Sarah Liljefelt, attorney for the Sees and Stoniers, told WLJ.
“But the big picture is in how the department is applying these models across the state. Here, [OWRD is] doing it incredibly wrong, and I would guess that similar, if not the same things, are happening all over.”
Technical details
It goes without saying that water law is complex and changes from state to state, so a little historical context is needed.
In the 2013 water rights adjudication in the Klamath Basin, the Klamath tribes were granted “rights immemorial” to the major tributaries to the Upper Klamath Lake, including the Klamath River and its tributaries. This gives the tribes senior surface water rights over all others in the area.
“When those surface water calls are made … [the OWRD] looks upstream and they shut off junior users,” explained Liljefelt.
“But, because Oregon has a code that manages surface water and groundwater conjunctively, they also look for hydrologically-connected groundwater users to also shut off when there’s a downstream call for water.”
This is where the Sees’ and the Stoniers’ wells come in; they are within one mile of the Sprague River, a tributary to the Klamath River. This would generally put the aquifers the wells draw from under the jurisdiction of the OWRD. But hydrology is far more complex than lines on a map. An aquifer that is relatively close to a river may not necessarily be hydrologically connected to it.
Liljefelt and a pair of engineers from the consultant group Geosyntec assert the aquifer the Sees’ and the Stoniers’ wells tap is such an aquifer and is not connected to the Sprague River.
“They pump water from their deep, confined aquifer,” Liljefelt told WLJ. A confined aquifer is one with an impermeable layer of dirt or rock that prevents water from moving into or out of the aquifer into other aquifers or bodies of water easily.
“Here you’ve got numerous layers of aquifers and their aquifer is most definitely not adjacent to the Sprague River. So, there’s that legal question about whether the Water Resources Department is overreaching its regulation to begin with.”
“Even if [OWRD is] allowed to regulate the water use from this deep, confined aquifer, how they’re determining whether it’s hydraulically connected in an amount that would affect surface water is very incorrect from a scientific perspective,” Liljefelt continued.
Model morass
According to WLJ’s conversation with Liljefelt and information from an email sent by Joan Sees, the OWRD used the so-called “Hunt model” for stream depletion in making its decision to shut off the Sees’ and the Stoniers’ wells.
Models, in this case, are a series of assumptions about existing hydrological conditions. Different models come with different assumptions, however, making it important to apply the most appropriate model to any given situation. As with any decision-making tool, it is also important to apply the model consistently and correctly.
According to a technical review of the situation by Geosyntec engineers, the Hunt model assumes an aquifer system with two vertical layers. However, the Klamath Basin Groundwater Model (KBGM)—another model used by the OWRD—assumes an aquifer system with three vertical layers.
“The KBGM is limited to large spatial scale simulations and it is inappropriate for local scale simulations, such as is necessary to determine stream depletion from a single well,” reported the Geosyntec review, conducted after the March 2017 suit.
“OWRD chose to use layer 1 of the KBGM as the aquitard (top layer) and group layers 2 and 3 as the aquifer layer (bottom layer) in the Hunt 2003 model.”
More simply, the OWRD mixed elements from different models, one of which was not intended for small-scale situations, to make its determination about the Sees’ and Stoniers’ specific wells.
“Whenever you use a model, it’s a gross oversimplification of the real world, but that’s something we all have to deal with because the law lets them use models,” explained Liljefelt. She also asserted the OWRD does not have experts in modeling on staff nor does it reach out to available experts.
“They could reach out to a lot of different experts for how to apply these models. But they don’t and then they apply them wrong and shut off people who, if they applied the model correctly, would not fall within the threshold for regulating them under the laws. That’s what’s happened here.”
Appeal aspirations
The Sees and the Stoniers, together with their attorneys Liljefelt and Laura Schroeder of the Schroeder Law Offices, have appealed the decision from the March 2017 case.
“When the department gets a judgement that says, ‘you’re doing it fine, you’re alright,’ that just empowers them to keep … regulating users off based on their faulty application of these models,” Liljefelt explained of the appeal motivation.
“When you have employees who don’t have any experience [with using models]—who don’t have any oversight with anyone with experience—you end up with horrible decisions by the agency that the average citizen doesn’t know enough to challenge, or have the money to challenge.”
There is no definitive timeline for the appeal case yet, but Liljefelt was hopeful.
“Under the Oregon Administrative Procedures Act, the agency has to have substantial evidence to support their decisions. Here, factually, they’re not applying the model correctly and so there’s a lack of substantial evidence for them to have regulated off our clients’ water use.” — Kerry Halladay, WLJ editor
