What sounds like an incredible story is happening right here in our midst. And no one is more aware of it than Eagle Point resident Gary Harrington.
The state and the courts are telling Harrington to dump water stored behind three ponds on his Crowfoot road property because he doesn’t have permits for those impoundments. The story started long ago.
According to Harrington, he built ponds on his property more than 40years ago. What’s happened since then, is that he has been cited, granted permits, had the permits rescinded, payed fines, faced a jury and now faces imprisonment.
The trouble began around 2002. The state water master and an enforcement officer with the State Police told Harrington that he had illegal ponds on his property that would have to be drained. He says they cited him for 9 counts of illegally storing water but told him that if he would plead guilty to just one of the counts, they would help him obtain the proper permits for the three ponds on his property. So he pleaded guilty to one of the charges and paid a modest fine. He then applied to have the ponds permitted and was granted the permits. It was just a short time after receiving those permits that he received notice that they had been rescinded. This was after spending nearly $11,000 on engineering to bring the system up to specifications.
The Big Butte Creek is considered a “closed system,” meaning that no water can be diverted within the drainage after the city of Medford filed on the entire basin for water rights back in 1925. Only one time during the last twelve years or so had the ponds been drained, that being two years ago, and just for a short time to do maintenance. During their existence, Oregon Department of forestry has used the ponds for fire fighting, as they have other “illegal” ponds within the watershed.
According to Harrington, there are 53 ponds belonging to neighbors that have received an exemption, 17 of those are filled with diverted water (something Harrington has been told is illegal) and there are 103 ponds without permits.
When Harrington went to trial, the jury was denied hearing his side of the case. He says the judge ruled that the 1925 ruling prevents any water being stored by anyone on the creek. His argument is that this is not diverted water, but merely rain water and therefore not subject to the 1925 ruling. His appeal will also include the fact that the jury was not allowed to hear any of his arguments nor were they apprised of the facts of the case.
Without speaking to the merits of the case, Medford water master, Larry Menteer, quoted the following as the governing law concerning the Harrington case: (ORS 538.430) 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. The City of Medford, any of its officers, and others on its behalf may appropriate all the waters for these purposes and an application therefor 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. No person shall appropriate or be granted a permit to use any of the waters except as provided in this section, and for the use and benefit of the city. But the City of Medford may, under this grant, 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. All of such waters are withdrawn from future appropriation, except for such use and benefit of the City of Medford; provided however, that the Eagle Point Irrigation District may establish and use an additional point of diversion below the diversion point in use on April 1, 1953, under its permit number 6396 which authorizes the appropriation of not to exceed 100 cubic feet per second.
Harrington feels he is well within his rights to use the water, and is appealing the decision, “all the way to the Oregon Supreme Court.” Harrington referred the Independent to empoweringthejury.org which has a considerable amount of information on this controversy.