Nanny State Alert: Man goes to jail for drinking rain water

Okay, here is a lot of other information on the case at a site supporting Harrington’s case, and it appears pretty thorough as far as I’ve read it.

The impression, though, left by narrowing the argument in this post to Harrington just wanting to collect water for drinking and household uses is wildly misleading. That said, the government’s case and the judgment against Harrington does look to be a miscarriage of justice.

Dusty on August 10, 2012 at 12:02 PM

And that is exactly what this is, a miscarriage of justice and abuse of authority on the part of Medford Org. Here in San Diego County (Southern California) I have a father-in-law and several friends who own property and maintain reservoirs of exactly the same kind as Harrington does.

Those reservoirs derive their water in exactly the same manner as Harrington’s dose. The permitting issues here in San Diego, where water rights are very extensively regulated are predicated on tributary diversion and potential public safety issues.

Harrington’s reservoirs do not constitute a public safety issue and do not divert water from any existing tributaries. The issue’s regarding the Harrington case are derived from residents in his area complaining at a bare minimum 20 years after the creation of his reservoirs.

This is a case of the City of Medford abusing existing statutes and nothing more.

SWalker on August 10, 2012 at 12:16 PM

Ah, that’s better. The charge must have been based on those allegations. A conviction means someone reviewed the evidence and decided the charges were supported beyond a reasonable doubt.

In most states, you’re not allowed to divert water from streams, even if you collect an amount equal to runoff. It’s different if you have collectors on your downspouts or a retention pond off parking lots or driveways.

As with all criminal cases, the facts are really important. And by facts, I mean evidence adduced at a trial, not unsupported claims.

EconomicNeocon on August 10, 2012 at 12:16 PM

The charges were based on complaints from Harrington’s neighbors and the assertion that Harrington was diverting water from tributaries was used to justify those complaints, it does not mean that Harrington was in fact diverting water from any tributary.

Nor does the conviction mean that any unbiased review took place.

SWalker on August 10, 2012 at 12:21 PM

I despise the nanny state, but this is not that situation. Water rights are incredibly important out west and it looks like the guy needed a jail sentence here.

EconomicNeocon on August 10, 2012 at 2:03 PM

Try again.

Supporting Documents

In light of the vast emotional controversy over the rain water rights belonging to the Citizen property owners, we want everyone to take the time to read this synopsis, view the evidence and determine for themselves what is right and wrong here. After all, we are governed by our consent.

If, after reading and listening to all that is on this site, anyone can show an incorrect fact or law that contradicts what we are saying here or in what is said as expert legal opinions given by licensed attorneys herein…then email us with the appropriate law, case or other information to present the relevant change suggested. This is too important to get wrong. We all need to understand what happened here so that we can grow as a country and learn how to make sure what just happened to Gary….never happens again… to any of us.

The Expose of what happened to Gary Harringtion
We are attempting to show you as much of the evidence as we can in Gary’s case, and specifically what the Jury was denied hearing or was unable to hear! It is blatant evidence which clearly proves beyond a Shadow of Doubt, in our opinion, that Gary is innocent, and that illegal actions were taken against him in his stand for his rights, and his Civil Rights were violated on multiple accounts and in multiple occasions.

1. The Statutes the State applied to Gary ….did not apply to him….and the State and Judge knew it, but refused to acknowledge it or let the Jury see it. (See the expert legal opinions, legal sites and definitions below)

2. Gary did not misuse the water, nor was he infringing on anyone else’s water rights. His water was only used publicly to suppress Fires multiple times by multiple fire districts, and is clearly wanted to be kept as a resource for such by them. (see the letters from the Fire district personnel)

3. It was the OWRD who broke the law, and not Gary.

4. There was no injured party in the case, nor could there be by definition…except for Gary, his family, and those who may be harmed because of the lack of water in Gary’s ponds available to fight fires with. (Referenced in the expert legal opinion)

5. Gary tried everything possible to get a peaceful resolution to the issue that any prudent person would do. (see his permit apps, legislative attempts and work with Senator Doug Whitsett)

6. Gary was denied his Due Process rights on multiple occasions. (see the numerous events listed below)

7. Gary was not given Equal Protection Under the Law. He was Selectively targeted and Selectively and prejudicially abused (See the expert legal opinion)

8. He was falsely and wrongfully accused of a crime. (Listed as his charges)

9. He was in the middle of a Civil action while an unknown Criminal charge on the same issue was being made and acted on against him. (Evidence used in his ongoing defense currently)

10. Gary was falsely and selectively targeted and prosecuted. (See the expert legal opinion)

11. He was not given a fair trial. (anyone can see this…just read what is below)

12. He was tried on a Null and Void charging instrument (evidence on record and shown in the transcript of pre trial on the day of trial)

13. He was denied Counsel of his choosing, and thereby denied help during his trial. (Again, on record and evidenced in the transcript)

14. He was rushed into judgment and disallowed to tell the whole truth about his case. (read the transcript of pre trial and trial…it is blatantly obvious)

15. He did not have an impartial Judge. (again blatantly obvious by the actions of the Judge as shown in the transcripts and repeated favor towards the Prosecution on motions)

16. The jury was denied hearing or unable to hear Gary’s full testimony and the testimony of others in his favor. (again, read the trial transcripts)

17. Gary’s property values and that of hundreds, if not thousands, of other land owners in Oregon have been devalued unjustly, and the land owners with ponds like Gary’s are in for legal battles that are fraudulent as well. (obvious, but we will discuss it further at the end)

18. Wildlife and other natural habitat, such as wetlands, are harmed and put at further risk by this governmental abuse and other related unconstitutional actions. (again, obvious, and will be discussed further below)

19. Water tables and the natural course of water flood prevention are compromised. (again, obvious, and will be discussed further below)

Be an Informed Juror and determine for yourself:

First, we are going to show you blatant evidence, with correctly interpreted case law, expert legal opinion….and pure common sense…that:

1. Gary was exempt from the regulations and therefore could not have committed any crime suggested.

2. The Oregon Water Resources Department (OWRD) not only broke the law and more than one of its entrusted fiduciary responsibilities to the Citizens of Oregon, it Selectively, Fraudulently and Prejudicially instigated and participated in a sham prosecution of Gary. We believe it did so to establish further control of the Citizens water, and for a deeper purpose.

A little history to begin with:

Gary Harrington’s ponds are located within the Big Butte Creek basin in Southern Oregon. However, water impounded within the ponds is not diverted from a defined watercourse, tributary or spring that feeds Big Butte Creek. Rather, the ponds are filled by diffuse surface water that moves across the Harrington land as a result of precipitation and snow melt. Mr. Harrington does not have a permit to store water in any of his ponds, and by definition of the water source filling those ponds….does not need a permit. He could not even apply for one to get the requested “water certificate” he was told he needed to have by the Agricultural Department of Soil and Reclamation to help to pay for the construction of his first pond.

In one of the documents listed on this site, you will see this:

In 1973, Gary and his brother Michael went to the Watermaster in office at the time, Mr. Hedrick, to see if they could get a “water certificate”. Mr. Hedrick correctly explained to them that Garydid not need to get a permit to build his ponds. He explained to them that Gary’s pond and many of the other ponds in the area called the Big Butte Watershed were filled each winter with what they called “winter run off water” derived from rain and snow melt, and that those sources of water were not under any permit requirement as they were not subject to the law of appropriation. Mr. Hedrick further explained that because no permit was needed, no “water certificate”…which is the second part of getting a permit…could be issued. Mr. Hedrick accurately described the correct and original OWRD determination of the Statutes. Further, the fact that other ponds were built and filled with winter run off water from rain and snow…and what was also called “diffused water” in the Big Butte Watershed at that time, and that they too, were not required to have any permits, nor could their owners apply for a “water certificate” clearly demonstrated the understanding and position taken on this matter by the OWRD.

The Jury was denied hearing this evidence.

More History and Background:

City of Medford Water Supply.

Springs located at the head of Big Butte Creek serve as the major water source for the City of Medford. In 1925, the Oregon Legislature closed the Big Butte Creek water basin to future appropriations of water.

Under the 1925 Act, the City of Medford “is granted the exclusive right to use for municipal purposes all the waters of Big Butte Creek, a tributary of Rogue River situated in JacksonCounty, and of the springs at the head which form the creek, and of its tributaries. The City of Medford, any of its officers, and others on its behalf may appropriate all the waters….”3

In 1925, the City of Medford submitted application S-10120 to the State Water Board shortly after enactment of the withdrawal statute. Application S-10120 predictably sought to appropriate “[a]ll of the waters of said Big Butte Creek, its said tributaries and the said springs.” On September 18, 1925, the State Engineer issued Permit 6884 granting the City of Medford “the exclusive right to the use of the waters of Big Butte Creek and of the springs at the head of and which form said stream, and of the tributaries of said stream, for municipal purposes, as provided in Chapter 166, Laws of Oregon for 1925.” Permit 6884 carries a priority date of “May 28, 1925, the date upon which the law providing for this appropriation became effective.”

Note that even back then, they were careful to change the wording on the application to include all the waters of said streams….this new wording was more expansive than the first definition. If the wording was not restrictive, then why was there the need to expand it?

Now let’s get into some fundamental basics:

Did the Statute apply to Gary in the first place?

Statutes must be strictly construed. This is a fundamental premise of law.

Under rules of interpretation, “When the Statute states something, it’s to the exclusion of everything else. If the Statute specifically states something, it’s to the exclusion of anything else.”

It is vital that we understand this, as this is what is called a “limiting factor”. We, as Citizens, did not give to the State, unlimited powers. Conversely, we only gave limited powers to the State, and only in a fiduciary capacity, with the charge to use those powers responsibly for the protection and general welfare of the Public. What was not expressly given to the State, remained with the Citizen.

So, here is what the pertinent part of the base Statute applied to Gary says:

ORS 538.430 Medford and Eagle Point Irrigation District; right to waters of Big Butte Creek; generation, sale and distribution of electric energy by irrigation district. (1) Subject to water rights existing on May 29, 1925, the City of Medford, in Jackson County, is granted the exclusive right to use for municipal purposes all the waters of Big Butte Creek, a tributary of Rogue River situated in Jackson County, and of the springs at the head which form the creek, and of its tributaries.

Rules of Interpretation or Construction for Statutes and/or Regulations.

The rules of statutory interpretation are governed in accordance with the textual canon “expressio unius est exclusio alterius”; or the express mention of one thing excludes all others.

“A local rule may not be inconsistent with the Constitution, a statute of the United States, or with a national rule governing the conduct of litigation in the United States courts.” United States v. Claros, 17 F.3d 1041, 1044-45.”

There is no case law on point in Gary’s case, so..…

The courts generally interpret statutes in the context of the common law. Royal Air Properties, Inc. v. Smith, 312 F.2d 210.

Gary did nothing to abridge some ones rights….There was no injured party in this case. He had fish in his ponds and fishing poles, boats and docks on his ponds…and he had every right to.

So long that (citizens) don’t act dishonestly or deceitfully and so long as they don’t violate some specific law citizens living in our society are still free to conduct their affairs any which way they please. U.S. v. Caldwell, 989 F.2d 1056.”

So what is a Tributary? And is it different than “diffuse surface water” or what is commonly called “run off” water?

Tributary: n. pl. trib·u·tar·ies

A stream that flows into a larger stream or other body of water.

According to expert legal opinion

The common law defines “diffuse surface water” as:

[water] diffuse over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does flow with other waters.

There is at least one legal treatise in Oregon that concludes that such diffused surface water run-off is not part of a defined “watercourse”, and thus not subject to appropriation requirements at all. Survey of Oregon’s Water Laws, C. Clark, 1973-83 Supplement, 117-118. On page 117, Professor Clark explains:

“Diffused surface water is water derived from falling rain and melting snows which is diffused over the surface of the earth in no defined channel. Once such waters reach some well-defined channel they cease to be surface water and become part of a watercourse. At this point they become public waters subject to the law of appropriation.”

Notice the clear distinction between when diffused (also called diffuse) surface water and water that is part of a “water course.” Quite clearly, in Gary’s case, under this analysis, no water right would be required for any ponds that were constructed outside of the channel of a defined watercourse, and that did not otherwise require diversion of water from a defined watercourse. Therefore Gary was never under the statutory requirement to get the permit, nor could any penalty related to that Statute therefore be imposed on him…… as none of the water in his ponds came from tributaries or “well defined channels, ” watercourses or any other term used in the Statute. No water right was infringed upon, as all of the water ending up in any pond on Gary’s property is not subject to the law of appropriation.

Also, According to the water law expert legal opinion given by one of the most regarded water law attorneys in the 4 Northwest States, Laura A. Schroeder, Gary was not under OWRD jurisdiction or this Statute at all:

“It is my professional opinion that Harrington’s ponds are outside the Department’s jurisdiction. Under Oregon common law, Harrington may collect and hold diffuse surface water run-off in his ponds without a storage permit from the Department. At common law, the collection of diffuse surface water upon one’s land does not constitute an “appropriation” because the water is not part of a defined water course.”

We will reference parts of this legal opinion many times in this overview, and the complete report will be provided below. This is part of the evidence that Gary was prohibited from using in his defense because the Judge, blatantly displayed his Partiality against Gary and sided with the Prosecution saying this expert legal opinion might prejudice the Jury against the State…… So who is the State supposed to be protecting in its fiduciary role? This is pure bias and censorship by the Judge in our opinion.

Who was the Injured Party?

It is imperative to understand that Gary never imposed on or took any other person’s rights….the water rights belonged to him. He never injured anyone…there was no injured party making a claim, and as you will see…

In a worst case scenario….it would have had to be the City of Medford that brought a claim, as the rights in question could only be contested by them.

According to the Expert Legal Opinion:

“The City of Medford, to my knowledge, has never deemed the Harrington ponds to be injurious to its water rights.”

Now let’s look at a key U.S. Supreme Court Case:

“He owes nothing to the public so long as he does not trespass upon their rights.” Hale v. Henkel, 201 U.S. 43 at 47 (1905).

We know that Hale vs. Henkel was decided in 1905 in the U.S. Supreme Court. Since it was the Supreme Court, the case is binding on all courts of the land, until another Supreme Court case says it isn’t. Since 1905, the Supreme Court has cited Hale vs. Henkel a total of 144 times. A fact more astounding is that since 1905, Hale vs. Henkel has been cited by all of the federal and state appellate court systems a total of at least 1600 times. None of the various issues of this case has ever been overruled. One of those other issues is this:

“His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution”

Well, “Due process of law” involves procedures and safeguards such as trial by jury. “Trial by jury” means, inter alia, the jury judges both law and fact.

How does that compare with the other Supreme Court cases? Although a complete study has not been made, initial observations indicate that no other case surpasses Hale vs. Henkel in the number of times it has been cited.

So lets go back to the Expert Legal Opinion and see more of what the Jury was prohibited from seeing or hearing:

Continuing on….

ORS chapter 537 governs the “Appropriation of Water Generally,” and requires a permit “to make [an] appropriation” of water. ORS 537.130(1). No statute defines the term “appropriate.” Hence, the court should look to the prior appropriation doctrine, which preceded the Oregon statute that forms the basis of Oregon’s Water Code to determine the meaning of “appropriate.” See Coley v. Morrow, 183 Or App 426, 432, 52 P3d 1090, 1093 (2002) (stating that the statutory language must be considered in light of the statutory framework into which it was enacted, as well as the preexisting common law). Under the prior appropriation doctrine, a water user acquired a water right by making an appropriation of water. See In re Water Rights in Silvies River, 115 Or 27, 237 P2d 322 (1925). In Silvies River, the Oregon Supreme Court stated that:

As a general rule, to constitute a valid appropriation of water, three elements must exist: (1) an intent to apply it to a beneficial use, existing at the time or contemplated in the future; (2) a diversion from the natural channel by means of a ditch, canal, or other structure; and (3) an application of it within a reasonable time to some useful industry.

Id,, 115 Or at 64-65, 237 P. at 336. Thus, a key component of a valid appropriation is a diversion from a natural channel by means of an artificial device or structure.

The common law defines diffuse surface water as:

[water] diffuse over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does flow with other waters.

Wellman v. Kelley, 197 Or 553, 560, 252 P.2d 816, 820 (1953). In addition, the late Dean Chapin Clark in Survey of Oregon’s Water Laws, 1973-83 Supplement, 117-18, defined diffuse surface water as:

[W]ater derived from falling rain and melting snows that is diffuse over the surface of the earth in no defined channel. Once such waters reach some well-defined channel, they cease to be surface water and become part of the water course. At this point, they become public waters subject to the law of appropriation. (App-3).

According to this common law definition, then, diffuse surface waters are not subject to the law of appropriation until they become part of a defined water course. Under common law,general rule is that diffuse waters resulting directly from rain and melting snow may be collected, captured, impounded, and put to reasonable beneficial use by the owner of the land on which they occur, so long as the water remains on such owner’s land. Doney v. Beatty, 220 P2d 77 (Mont. 1950); Franklin Cub River Pumping Co. v. W.D. Le Fevre, 311, P2d 763 (Idaho 1957) (holding that a party owns and is entitled to “recapture the natural precipitation falling on his own land so long as he applied it to beneficial use”); see also Eastern Oregon Live Stock Co. v. Keller, 108 Or 256, 216 P. 556 (1923) (upholding landowner diversions of diffuse surface waters over the claims of downstream appropriators because the waters were held to be outside the state appropriation system).

Diffuse surface water – water that is derived from falling rains or melting snows and diffuse over the surface of the earth in no defined channel – is not subject to Oregon’s laws of appropriation. This conclusion conforms to the common law recognition that diffuse surface water is not subject to the law of prior appropriation until it reaches a defined water channel.Thus, the collection of diffuse surface waters does not trigger the Department’s permitting requirements because no “appropriation” occurs.

The overall statutory scheme of Oregon’s Water Code supports that a permit is required only for appropriations of water from delineated or defined water sources rather than diffuse surface waters. For example, ORS 537.140 lists the information that must be included in any application for a permit to appropriate water. ORS 537.140(l)(a)(B) requires that each application must list “[t]he source of water supply including the name and mailing address of any owner of the land upon which the source of the water supply is located[.]” Similarly, the statutes that govern reservoir permits require an indication of the source of water used to fill the reservoir. See ORS 537.400 to 537.409. These statutes contemplate a requirement that a pond or reservoir be filled by a source water body, and that if a pond or reservoir is filled by diffuse surface water, permitting requirements do not apply.

In my professional opinion, diffuse surface waters are not subject to Oregon’s appropriation law. Oregon statutes do not define the term “appropriation;” therefore, the courts must look to the prior appropriation doctrine to determine the definition. Under common law and the prior appropriation doctrine, a valid appropriation of water requires “a diversion from the natural channel by means of a ditch, canal, or other structure.” In re Water Rights in Silvies River, 115 Or 27, 237 P2d 322 (1925). Diffuse surface water, however, is not diverted from a defined natural channel and thus cannot constitute a valid appropriation. Diffuse surface water may be collected, impounded, and put to reasonable beneficial use by the owner of the land on which it occurs, so long as the water remains on the owner’s land. It follows then that ponds filled with diffuse surface water are not subject to the statutory requirements for appropriation. These common law concepts are not altered by Oregon’s statutory scheme governing water appropriation.

B. The City of Medford and Medford Water Commission have primary jurisdiction over the unappropriated waters of the Big Butte Creek basin.

Oregon law declares all water to be public (9) and subject to appropriation for beneficial use, as provided in the Water Rights Act.” (10) Certain waters are recognized as “private” and not subject to public appropriation. (11) Similarly, various water sources are deemed to be withdrawn from appropriation by the public. (12) The Legislature has plenary power to control the water of the State. (13)

The Big Butte Creek basin is an exception to the general rule that “all waters within Oregon may be appropriated for beneficial use, as provided in the Water Rights Act.” (14) Under ORS 538.430, this basin is legislatively withdrawn from appropriation. (15) However, the Big Butte Creek withdrawal is distinguishable from other legislative withdrawals. The statute simultaneously grantsMedford an exclusive right to use all previously unappropriated water in the basin for municipal purposes. Next, ORS 538.430 lists permissive alternatives by which Medford may effectuate the grant:

1) The City “may appropriate all the waters for these purposes;”

2) The City “may divert such waters from their watershed and convey them to the city and elsewhere for use by it for municipal purposes, either within or without the city limits”;

3) An application “may be made for the benefit of the city, either by it in its own name, or by any of its officers or by any other person on its behalf.”

Finally, the statute prohibits OWRD from issuing any permits other than municipal and for the benefit of Medford.

The statute operates as a legislative conferral of a water right to the City of Medford. (16) Like other water rights, this right to use water constitutes a vested property interest. (17) In effect, and through ORS 538.430 the Legislature removed the remaining unappropriated waters of Big Butte Creek from the public domain. This reasoning supports why the statute, together with the water right conferred, is omitted from the scope of the Water Rights Act. (18) The resulting property interest was exclusively granted to the City of Medford.

So, who had the rights to the unappropriated water in Gary’s area, the Big Butte Watershed?……. The City of Medford or the OWRD? Lets continue:

Although not required, in 1925 the City of Medford did submit an application to appropriate “all of the waters of said Big Butte Creek, its said tributaries and the said springs” which hadnot yet been appropriated to other uses as of the effective date of the law (Permit No . 6884, issued to the City of Medford September 18, 1925.) In doing so, the City of Medford erased any doubt with respect to its entitlement to all the unappropriated water in the basin.

Based upon the foregoing, it is my opinion that ORS 538.430 divests the Water Resources Department of primary jurisdiction over the waters of Big Butte Creek basin, placing it in the hands of the City of Medford. The City of Medford, through the Medford Water Commission, is the sole entity with the right to divert water from the Big Butte Creek basin for new uses. It is the City that is empowered to seek curtailment of adverse water uses in its basin which threaten the real property interest granted to the City by the Legislature. While ORS 538.430 prohibits OWRD from issuing permits adverse to the City’s interest, the statute does not prescribe OWRD with the affirmative duty of administering the Water Rights Act on behalf of the Medford Water Commission.As indicated under ORS 537.010, the scope of the Water Rights Act does not reach the withdrawn waters of Big Butte Creek basin.

In summary, to the extent Harrington’s ponds may constitute an “appropriation,” the use is adverse to Medford’s use of water, not the public generally. ORS 538.430 withdraws the Big Butte Creek basin from appropriation while simultaneously vesting the City of Medford with a usufructuary vested property right to utilize all the withdrawn water for municipal purposes. The statute and grant were enacted in 1925 – a date later in time than the Water Rights Act. The grant was conferred by the Legislative Assembly which has plenary control over the unappropriated water of the State. The statute does not require Medford to seek a permit in order to divert water from the basin. The statute prohibits OWRD from issuing any permits other than for municipal purposes of Medford.Finally, the statute and grant to Medford are not defined as part of the Water Rights Act. In my opinion, it does not follow that the Water Rights Act can serve as the basis for criminal proceedings against Harrington. To the extent Harrington’s ponds are injurious to the City of Medford, it is the City that must act.

So, was Gary singled out and given Selective Prosecution? And, how could the OWRD issue exemption, sign off on permits, and allow uses of pond and water for other uses apart from the City of Medford, and apart from the uses for municipal purposes….Isn’t that illegal?! Let’s continue:

C. Regulation of Harrington is contrary to the Department’s standard practice toward similarly situated small ponds.

In my opinion, the Department’s regulation of Harrington cannot be reconciled with its approach to other ponds in the Big Butte Creek basin and elsewhere in the State of Oregon. Over the last twenty years of representing water users, my experience with small, unregistered ponds is as follows:

• Within a basin withdrawn from appropriation (such as Big Butte Creek), OWRD’s unwritten policy is to not regulate and not commence enforcement proceedings against landowners with undocumented small ponds.

• Conversely, OWRD will not grant new storage permits for such ponds.

It is my belief that OWRD’s “no-regulation” policy stems from the vast number of unregistered ponds in existence and various legal and factual uncertainties that surround small ponds of this nature. Among others, these include: 1) whether the retention of water in a pond even constitutes a storage “appropriation” where no water is diverted from a discernible source; 2) whether certain ponds are natural or man-made; 3) the legal status of ponds constructed before Oregon’s 1909 water code; and 4) uncertainly as to the legal status of a pond filled with seepage or spring water that is exempt from permitting under ORS 537.800.

So here are 2 very important points: 1. Did the OWRD issue permits to others against the law? And, 2. Did they Discriminatorily and Selectively prosecute Gary? Pay close attention….

While defending against prior criminal and administrative proceedings, Harrington conducted considerable research into the proliferation of unregulated ponds within the Big Butte Creek Basin. (19)Research by Harrington revealed that the Department recognizes a substantial number of ponds constructed after 1925 as legitimate. The Department does not regulate ponds registered with OWRD under HB 2153 (1993) and HB 2376 (1995). (20) If Harrington’s ponds constitute an impermissible appropriation of water in violation of ORS 538.430, it is my opinion that the same must hold true for other ponds constructed following enactment of the 1925 Act. Under the Department’s rationale for denying Harrington’s permit applications, water should likewise not be available for other ponds constructed after the 1925 Act. Despite this, OWRD has registered and validated multiple post-1925 ponds while simultaneously declaring it withdrawn from appropriation for the benefit of Medford.

In addition to ponds registered under HB 2153 and HB 2376, numerous unregistered ponds continue to exist in the Big Butte Creek basin free of any regulation or interference by the Department. Under HB 2376, (ORS 537.405), the status of these ponds is unclear. ORS 537.405(1) expressly declares small ponds such as Harrington’s to be exempt from regulation. It states:

Reservoirs in existence on or before January 1, 1995, that store less than 9.2 acre-feet of water or with a dam or impoundment structure less than 10 feet in height, are found to be a beneficial use of the water resources of this state. Except as provided in subsection (4) of this section, such reservoirs are exempt from regulation by the Water Resources Commission and the Water Resources Department and are not required to obtain a permit or certificate under ORS 537.140 to 537.252.

Section (2) of the statute requires pond owners to submit notification of the pond prior to January 31, 1997. (21) However, qualifying for the pond exemption is not expressly conditioned upon filing the notice required by subsection (2). The Department has interpreted otherwise. Yet, the Department could just as easily have interpreted Subsection (2) to only subject the water user to a potential penalty under ORS 537.990 or ORS 537.992 in the event the January 31, 1997 deadline was not met. This latter interpretation would give effect to the entire statute by not overturning the Legislature’s declaration in Subsection (1) that small ponds are exempt.

Other than Harrington, I am not aware of the Department pursuing criminal charges against other similarly situated pond owners. In my experience, for the Department to seek criminal sanctions against any water user is rare, especially when no discernible “injury” is claimed by another water user and regulatory jurisdiction is questionable. Based upon my experience representing water users in Oregon, the Department’s pursuit of charges against Harrington is out of the ordinary.

Conclusion

It is my opinion that the Department has improperly concluded that precipitation and snow melt on Harrington’s land constitutes water that is subject to appropriation, thus requiring a permit for its impoundment. This interpretation is in conflict with the common law prior appropriation doctrine, yet neither the Oregon Water Code nor Department rules define “diffused surface water” or “appropriation” in a manner that expressly refutes the common law approach to diffused surface water. The Department’s interpretation nullifies a water use historically viewed as part and parcel of the land. In my experience, I have never witnessed the Department target an individual in the manner it has with Harrington. The lack of clear law with respect to ponds like Harrington’s in combination with the Department’s inconsistent, if not virtually nonexistent, regulation of such ponds largely renders my firm incapable of advising a landowner such as Harrington as to whether his actions are illegal.

Very truly yours,

SCHROEDER LAW OFFICES, P.C.

SWalker on August 10, 2012 at 2:07 PM