Opponents of replacing open canals with pipelines in Oregon’s Tumalo Irrigation District want a federal appeals court to overturn legal victories allowing the project to proceed.

A group of neighbors who believe the loss of open canals will diminish their property values have asked the 9th U.S. Circuit Court of Appeals to rule the piping project was approved in violation of federal and state laws.

Specifically, the plaintiffs claim that a federal judge incorrectly determined the irrigation district’s easement allowed canals to be replaced with pipelines.

Contrary to Oregon easement law, the piping project will unreasonably interfere with the property of landowners, and it isn’t needed to deliver irrigation water, said Esack Grueskin, attorney for the plaintiffs.

“The conversion of canals to underground piping is not necessary based on the facts that were presented,” Grueskin said during recent oral arguments. “The purpose of the canal is not for giving any specific allotment to the district’s patrons or promoting specific conservation benefits.”

The plaintiffs argue the irrigation district could’ve chosen an alternative method to piping, such as requiring on-farm efficiency investments, without depriving the surrounding vegetation of water or the landowners of their property values.

“More convenience, more efficiency, better use of the water and conserving the 50% lost to seepage and evaporation doesn’t show reasonable necessity,” Grueskin said. “The district has chosen the most destructive, most invasive, most deleterious to the plaintiffs’ rights option that they could have chosen.”

Apart from harming property values, the pipelines exceed the easement’s “geographic scope” because they’re buried beneath the existing bottom of the canals, contrary to the terms under which it was established, the plaintiffs allege.

“The pipe can’t be five feet or six feet or even three feet below where the canal or the lateral was,” Grueskin said.

The Tumalo Irrigation District countered that it was entirely necessary to replace the “open earthen dangerous canal” with pipelines, which has prevented water losses and drownings while meeting Endangered Species Act requirements.

“You have to remember, this is an artificial canal built through the desert. At any time, the irrigation district could fold or decide to do something different or decide not to run water through their property,” said Mark Reinecke, the district’s attorney. “There’s no obligation — you can’t force somebody to deliver water to seep into the ground for their personal enjoyment.”

Over the past 25 years, the irrigation district has installed piping along 46 miles out of 68 miles of open canals, as seepage and evaporation prevent farmers from receiving the full allocation of water to which they’re entitled, Reinecke said.

“You have to do something to alleviate that,” he said.

The terms of the easement clearly allow for the piping project, even if it means excavating below the original canal, as the district is allowed to work in 50 feet in each and every direction — vertically as well as horizontally, Reinecke said.

“Each means all sides, not either side,” he said. “It doesn’t mean two sides, which either does.”

The USDA also defended against claims that it wrongly awarded $30 million to the district even though the project lacked sufficient analysis under the National Environmental Policy Act.

The plaintiffs allege the USDA didn’t adequately study alternatives to installing pipelines and failed to fully consider the cumulative effects on riparian areas from the loss of canal seepage.

However, the USDA argued it was reasonable to conclude the project’s cumulative effects were minimal, especially since the piping will conserve water and increase stream flows for the Oregon spotted frog, a threatened species, said Sean Martin, the government’s attorney.

Meanwhile, the riparian areas that depend on the open canals have no regulatory protections, as they’re inhabited by plant species that have adapted to the urban environment, Martin said.

“They don’t rise to the level of being regulated wetlands by the state of Oregon or the federal government. They’re created as a result of seepage,” he said. “No environmental groups raised concerns about cumulative effects or wetlands, either.”