Farmers fear they’ll be forced to curtail irrigation due to planned water releases from Oregon’s Prineville Reservoir intended to improve fish habitat.

A group of irrigators upstream of the reservoir has filed a lawsuit against Oregon water regulators for approving the in-stream water rights required for the plan.

In-stream water rights

The U.S. Bureau of Reclamation, which built the reservoir’s dam, obtained an in-stream water rights permit this autumn to annually release up to 79,000 acre-feet of water into the Crooked River.

About 87% would be dedicated to fish and wildlife purposes while the remainder would be available for downstream irrigation.

Critics worry the federal agency will eventually need to enforce its senior water rights to refill the reservoir, resulting in irrigation shutdowns upstream.

“If Prineville Reservoir doesn’t have the proper amount of fill to exercise their rights, they can call on all junior water upstream of the reservoir,” said Kevin Perry, who owns Shotgun Creek Ranch near Post, Ore. “It’s their water. If it’s not in the reservoir, they need to acquire it from people upstream.”

The ranch has joined Upper Crooked River Conservationists, a nonprofit representing affected water users, in filing a petition for judicial review that alleges the Oregon Water Resources Department authorized the permit unlawfully.

Farmers and ranchers upstream of the reservoir, who primarily irrigate pastures, alfalfa and grass hay, opposed the federal agency’s application for in-stream water rights but the OWRD ignored their comments, Perry said.

‘This could be devastating’

“They were basically disregarded whole hog,” he said. “This could be devastating. This could put a lot of ranches potentially out of business upstream of the reservoir.”

Nearly a decade ago, Congress directed the Bureau of Reclamation to release water from the reservoir that wasn’t under contract to benefit fish under a broader bill that re-allocated water in the region.

Irrigators upstream of the reservoir had no influence over that legislation nor were they a party to negotiations over the in-stream rights, though OWRD claimed they wouldn’t be adversely affected by the plan, Perry said.

“It was basically a straight-up lie,” he said.

Neither the OWRD nor Bureau of Reclamation responded to requests for comment as of press time.

In its application, the federal agency said the released water will “provide a fish and wildlife benefit from Prineville Reservoir to Lake Billy Chinook during periods when flows are not sufficient to provide sufficient usable habitat or when water temperatures are limiting.”

Final order issued

The OWRD issued a final order approving the in-stream releases as “authorized uses under the water right permit, certificate or decree that allows the storage of water.”

Though 34 public comments were submitted about the proposal, OWRD determined none raised sufficient “public interest issues” to block the permit’s approval under state law.

The opponents can’t do much about an Act of Congress, but their lawsuit contends the OWRD lacked the legal authority to grant in-stream water rights to the Bureau of Reclamation, Perry said.

According to their petition, only the state departments of Fish and Wildlife, Environmental Quality and Parks and Recreation can have such in-stream water rights, which precluded the federal agency’s permit.

The legislation that directed the reservoir to release water expressly did not override state water law and didn’t authorize the federal agency to own such in-stream rights, according to the lawsuit.

“We are challenging the legality of the Bureau of Rec to even hold the water right,” Perry said.

While the federal agency obtained the in-stream water rights in 2023, through a vagary of state water law, it ended up with a priority date that’s senior to many other users.

‘First in time’

Under the West’s “first in time, first in right” doctrine of prior appropriations, junior water users can be “regulated off” to protect senior water rights.

Water in the Crooked River was reserved for storage by the federal agency nearly 110 years ago, before the Prineville reservoir was even created, resulting in a 1914 priority date.

That priority date was extended to the secondary right that permitted stored water to be used in-stream this year.

“It’s a very old priority date as far as water rights go,” Perry said. “They were given seniority over practically all the upstream water users.”

Apart from objecting to the in-stream rights, the lawsuit claims OWRD expedited the approval process without sufficiently reviewing the public interest, as required by state law.

Irrigation isn’t the only water use that will potentially be injured, as the plan will leave less water for fish and wildlife upstream of the reservoir and deplete private ponds that help fight wildfires, Perry said.

“The water benefits far more than just the cattle, so to speak,” he said.