Klamath County Commissioner Tom Mallams defied notices sent to him in July and August to stop pumping groundwater to irrigate his upper Basin farm.
His case has been referred to the Oregon Water Resources Department (OWRD) Formal Enforcement Section.
Mallams admits that water officials attempted to deliver multiple shutoff notices, and then notices of violation, to him in July and August.
Mallams also admits he violated water rules approved by the Oregon Water Resources Commission but he doesn’t believe he broke the law.
“By legal definition, I would say I’m at least breaking the administrative rule. Whether I will accept that as law, that’s something else. If there are repercussions and I’m wrong, I’ll suffer the consequences,” he said.
According to the Oregon Secretary of State website, administrative rules have the “force of law in the state of Oregon.”
“That doesn’t bother me. If I’m breaking the law, then I will stand by it,” he told the Herald and News. “I make no bones about what my feelings are, about what my position is and I stand by it. If they want to fine me for it, that’s fine. If they want to put me in jail for it, that’s fine.”
Junior water right
According to Diane Enright, a spokeswoman for Oregon Water Resources Department (OWRD), the Klamath Project made a call for water on its 1905 priority water right on June 16. After the call was validated, OWRD issued shutoff notices to junior water right holders.
Mallams’ 150-acre farm is in Beatty and is part of the Sycan River Drainage. Mallams said his land is roughly 1/2 to 3/4 of a mile from the Sycan River and Snake Creek. His groundwater well has a 2001 water right.
OWRD adjudication regulation, which establishes priority water use by the property date claims, was first implemented in the Klamath Basin in 2013. The older the claim date, the more senior the water right. Junior water users, such as Mallams, can have their water access curtailed if a senior water right makes a claim to that water.
The groundwater regulation notices were sent out July 3, according to Enright.
Mallams said he knew a valid water call was in effect and he knew the call would affect his well, but “technically speaking,” he never got the notices.
“I never picked them up at the post office, so wasn’t really was sure what was in those letters,” he said.
According to Enright, four upper Basin water users were in violation of the July 3 regulation. She said Mallams was the only water user who did not comply after being contacted by OWRD.
Violation notice
Enright said three water regulation notices ordering Mallams to shut off his water were sent via first-class and certified mail.
Later, two violation notices were sent via first-class and certified mail. Hand-delivery was also attempted, she said.
Mallams admits OWRD tried to serve him papers multiple times.
“They had some certified letters, and I refused to sign for them. Water Resources actually came on our property twice. I wasn’t home but my wife was there. They wanted to serve her papers and she refused to take them.
“One of them actually said ‘I’ll just leave them here on your barbecue,’ and she said ‘No you’re not. This is private property,’ so they left with the papers,” Mallams said. “But they did tell us to turn the water off and I told them, and she’s told them, that we’re not going to turn the water off.”
The first OWRD violation notice issued to Mallams is dated Aug. 7. The letter said Mallams was being contacted because he failed to comply with water regulation orders issued on July 3, 21 and 30.
The letter said OWRD Watermaster Scott White witnessed Mallams’ well sending water to two of his wheel lines on Aug. 6.
Second violation
In a televised Sept. 1 commissioner meeting, Mallams boasted that water officials again witnessed him pumping water to a wheel line on Aug. 25.
“The odd part is when they came out that afternoon, I think they noticed we were on our last set (of irrigation) because that night we turned our water off.
“So if they say something like, ‘Commissioner Mallams complied with our water order,’ that’s not true. We were just done irrigating,” he chuckled.
After that incident, a second violation notice was issued. It is dated Aug. 28 and references the same July water regulation orders. The letter stated Mallams had until 6 a.m. on Aug. 31 to stop pumping.
In a later interview with the H&N, Mallams emphasized that although he shut off his well after OWRD officials instructed him to on Aug. 25, the shutoff had nothing to do with the orders or violations issued by the OWRD.
“I didn’t receive that letter until a week later. We were ordered to turn our water off by Aug. 31, and if we hadn’t turned it off by the 31st, we would be subject to penalties. Well, we turned it off on the night of the 25th, the same day they were out and we were done irrigating.”
OWRD civil penalties state that water regulation violations are categorized into three classifications: major, moderate and minor. Each have recommended times for compliance and fines. A Class 1 major violation brandishes a $1,000 fine.
Enright said penalties may be assessed for each day the violation continued.