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A question of water rights

Jon Carey gets emotional at the prospect of being forced to tear out a 2-acre pond that is the most prized feature on his 10-acre property near Butte Falls.

"I basically bought a lemon," the 40-year-old said, choking back tears as he stood on the shore of the partially iced-over pond on Tuesday. "That's how they explained it to me."

Carey said the Jackson County Watermaster's office has told him he doesn't have any water rights to his pond that was built 40 years ago, long before he bought the property off Butte Falls Highway two and a half years ago.

As a result, Carey and his wife, Sabrina, have pleaded with the Medford Water Commission to adopt the pond and treat it as a municipal water source, something Jackson County Watermaster Larry Menteer has opposed because of the precedent it would set.

The Water Commission has rights to the watershed around the Careys' property, where dozens, if not hundreds, of ponds are located, as well as Medford's primary source of water, Big Butte Springs.

This isn't the first time ponds have been an issue in the watershed.

In 2014, crews with an Oregon State Police escort entered the Crowfoot Road property of Gary Harrington and destroyed the head gates and outlets that state court cases have ruled were part of illegal dams. 

For more than a decade, Harrington said his ponds were the result of simply capturing rainwater on his property. A 1925 state law dictates that the water belongs to the Medford Water Commission. Also, the dams were built without permits, and the water impounded without any water rights.

Harrington spent 90 days in jail for appropriating water without a permit.

The Careys want the Water Commission to provide them with a permit for municipal storage so that the water could be used for emergency firefighting, wildlife habitat and as an additional source for municipal needs. They propose that they won't use the water for their own purposes but want to retain the pond rather than seeing it removed, which would significantly devalue their property.

The Water Commission will consider the Careys' request at its noon meeting Wednesday, though the commission board last week didn't seem inclined to approve the request. The Water Commission staff recommended denying Careys' request.

However, the Careys also suspect that water leaking from the Eagle Point Irrigation District canal above their property is seeping into their pond as well.

Sabrina Carey, 40, said she inspected county records before buying the property, and they clearly indicated that it had a pond.

When Jon Carey decided to grow medical cannabis, he needed to prove that he had a viable water source. At that point, the Careys say the water master's office told them the pond violated state regulations, and the previous owners hadn't received a permit.

"When you're honest, they take everything away from you," Carey said.

If the Careys can't succeed in establishing some kind of rights over the water, they face even greater worries.

"Now they want to put me in debt just to get rid of it," he said.

As a result, Carey stopped using pond water and resorted to trucking in water from Butte Falls. The couple's well also ran dry, so they depend entirely on imported water for their household and garden needs.

In a Nov. 7 letter from Schroeder Law Offices of Portland to the Water Commission, the Careys' attorney, Sarah Liljefelt, made the request that the commission provide the Careys with a permit to store water.

"The reservoir on Ms. Carey's property, though small, is one of the largest in the area," the letter stated.

In the past, the pond has been used for fire suppression and is accessible to fire trucks from Butte Falls Highway, Liljefelt stated.

Liljefelt said the pond is an important source of water for beavers, otters, elk, deer, bear, mountain lion, bobcat, bald eagle osprey, great blue heron, snowy egret, Canada geese and the western pond turtle.

"This pond seems to be doing way more public good than not being here," Jon Carey said. "Why, now, is it so important to be removed?"

Carey said he gives away the medical marijuana he grows for himself and others.

"I don't make anything out of this," he said, pointing to the older double-wide trailer he lives in and a dilapidated house behind it.

On Dec. 14, the Water Commission looked at an aerial view of the Carey pond as well as four others in the vicinity.

Water Commission board member John Daly said he wondered if it would be necessary to shut some of these ponds down if they were deemed illegal.

But interim Water Commission Manager Eric Johnson said the agency responds to complaints and isn't a policing agency.

Commission board Chairman Leigh Johnson said, "Sometimes you need to let a sleeping dog sleep."

Water Commission staff found several problems with the Careys' request, including setting a precedent that could prompt similar requests and weaken state statutes while not meeting the definition of "municipal water source." The staff found it would be very difficult to access the water stored in the pond for municipal reasons, and further monitoring and following up on compliance issues would be difficult and costly for the commission.

The Careys' attorney has said the couple would assume all costs associated with permitting, construction, maintenance and liability. A draft easement was provided to the commission from the Careys. The Careys have also agreed to reduce the size of the pond from about 12 acre feet of water to 9.2 acre feet to meet other regulations.

"Ms. Carey will execute an easement to the city of Medfore to flood her property, access the reservoir, and cause the reservoir to be drained any time the city deems necessary," the Careys' attorney stated.

Sabrina, his wife, said when she first looked at buying the property, the main thing that attracted her attention was the pond. Eventually, she'd like to build a log-cabin style home on the property.

"We didn't buy it for the double-wide," she said.

Sabrina said the pond could have been registered with the state back in 1997 under an exemption process with the Oregon Water Resources Department, but the previous owners were living out of the area and didn't take advantage of that opportunity.

She said she is trying to work with the various government agencies to resolve this issue so her property doesn't lose one of its most valuable assets.

"We're just trying to do it by the rules," Sabrina said. "I'm trying to cooperate."

— Reach reporter Damian Mann at 541-776-4476 or dmann@mailtribune.com. Follow him on www.twitter.com/reporterdm.

Jon Carey says the Jackson County Watermaster's office has told him he doesn't have any water rights to his pond that was built 40 years ago, long before he bought the property off Butte Falls Highway two and a half years ago. Mail Tribune / Jamie Lusch