For the past 12 years, Gary Harrington has been battling to save three ponds on his Crowfoot Road property. Harrington built the three, and was then told that he couldn’t store water in them. The watermaster says that the Big Butte Creek is considered a “closed system,” meaning that there was a cut-off date after which any “new” water rights in the watershed were prohibited.
Harrington was cited with 6 violations of Oregon Water Law. He attempted to “work within the system” to get permits and was told at the time that he could have a permit if he would agree to plead guilty to just one of the charges. He did that and the water resources department issued the permit. He said they returned in about 30 days and pulled his permit, saying they didn’t have authority to issue the permits in the first place. It should be noted that he does not divert any water from the creek, but captures rainwater falling on his property.
His reason for building the ponds should be obvious: the area where he lives is an extremely dry area with explosive fire potential. Over these several years, different agencies have worked with the Harringtons to install the correct fixtures so their tanker trucks can hook up and draw water during fire events. Oregon Department of Forestry has used the ponds to dip water with their helicopters for fighting fires because it was a close and reliable source. Agencies have also given Harrington engineering help in constructing the spillways to prevent erosion.
The Butte Falls Fire Department wrote a letter to the presiding judge, requesting that the pond be allowed to remain. Evidently that request fell on deaf ears. Harrington says he didn’t build the ponds for any personal gain, but to have water for fighting fires and as enjoyment for kids who came to swim.
According to the Harrington’s, there is much more at stake in this issue than just the right to collect rainwater. Harrington feels he has been singled out but is baffled as to the reason why. Along that stretch of Crowfoot Road, Harrington says are more than 100 ponds that collect rainwater, just as he has done. He doesn’t feel that he has affected stream flows in the creek any more than any of the other 100 or so who have ponds. Once the ponds are full, which occurs during winter months, the excess spills over the dam and continues on down to the ocean.
For his refusal to follow a court order, Harrington spent 30 days in jail—the first time, then was sentenced for a parole violation and ordered to spend another 90 days in jail. This time he was released and remanded to home custody before the 90 days were up.
All this time, Harrington just wanted to get before a jury and tell his story about what has happened. However, that didn’t happen. The prosecuting attorney filed for a motion of Liminae, not allowing the Harringtons any chance to present any defense. So without any chance of presenting their case, the Harringtons were at the mercy of the court. They hope to change that through an appeal, but for now, that is what they are stuck with.
Home detention is the course now, Harrington had a bracelet around his ankle following 50 days of solitary confinement. He feels what he has been through even hardened criminals do not receive. His bracelet was removed on July 5.
During this ordeal, Harrington says he has a healthy distrust of government. He feels that the ponds are actually beneficial to the watershed and especially to firefighting efforts. He has appealed, but the appeal process is, by nature, slow.
The issue is not whether he can get a water right, the system is closed, meaning that no new rights could be issued after a certain date nearly a century ago. But Harrington is seeking a permit to store water, not to have a water right. This is a battle that has taken a good deal from him, but he continues to fight, because he believes he is right. The case is under appeal at the moment.