The
Upper Klamath Basin Comprehensive Agreement was signed at Collier Park on March
5, 2014. The Agreement was described by the Klamath Tribes as reaching “a
landmark settlement that will, if approved, protect our long and hard-fought
time-immemorial in-stream water rights while providing conditional limited water
use for irrigators who are junior water right holders in the Upper Klamath
Basin”.
The
negotiations came about after the Klamath Tribes made a call on the surface
water that shut down most irrigation in the Upper Klamath Basin in 2013. The
signing of the “intent to support” the Agreement was reached following more than
eight months of deliberations in confidential and closed meetings by a team of
negotiators representing Tribal, state, federal, and ranching entities. The
majority of the Klamath Tribal Council and irrigation interests have
subsequently signed their intent to also support the provisions of the
Agreement.
Many
farm and ranch owners characterized their resolve to sign the Agreement as “a
business decision”, made necessary in order to maintain their ability to
irrigate their land. They were advised that most who refused to sign would no
longer be allowed to use either their surface or groundwater rights in most
years. Many of those water rights date to 1864 priority. They were further
advised that those who refused to participate would likely be subject to severe
restrictions on the use of their land due to the “potential listing” of new
endangered species.
The
Klamath Tribes provided an informational letter to Tribal Council members
strongly urging them to support the historic settlement. The Tribal document
described the nearly 100 page Agreement as having seven primary
objectives.
The
Agreement requires the destruction of the four mainstream hydroelectric dams on
the Klamath River. The settlement is essentially an extension of Section 16 of
the Klamath Basin Restoration Agreement (KBRA). It states “The Parties,
other than the U.S., agree mutually to timely promote, support, strive and use
best efforts to obtain funding and authorization necessary to implement the KBRA
and this Agreement. The Parties also agree that they will not oppose
authorization and implementation of the KBRA or the KHSA including any
legislation required to authorize or implement those agreements”. The three
interwoven agreements require the destruction of the Klamath River Hydroelectric
Dams without dissent.
The
Tribal letter asserts that the Agreement requires the permanent protection of
the in-stream flows that were granted to the Tribes by the Oregon Department of
Water Resources (OWRD), in its March 2013 Final Order of Determination (FOD) of
the Klamath River Adjudication. The OWRD reallocated virtually all surface
irrigation water located within former Tribal reservation boundaries to
in-stream flows in it FOD, by granting the Tribal claims to virtually all of the
surface water tributary to Upper Klamath Lake.
Like
the KBRA, the Agreement requires the permanent diversion of 30,000 acre feet of
irrigation water to in-stream flow. It further requires that net amount of water
to be delivered to Upper Klamath Lake. The water is to be derived primarily from
“willing sellers” who agree to permanently give up their consumptive use of
irrigation water.
Some
of the in-stream flow may be temporarily supplied by water leasing if the
necessary changes can be made in state law. The transfers to in-stream flow will
require the permanent dewatering of as much as 30 square miles of currently
irrigated productive pasture and farm land.
The
Agreement requires the creation of an extensive agenda to restore aquatic
ecosystems in more than 220 stream miles. Farmers and ranchers who own at least
80 percent of the land adjacent to streams tributary to Upper Klamath Lake,
located within former Tribal reservation boundaries, must agree to participate.
The
settlement will require the landowners to effectively share the management of
corridors of their private riparian lands from 50 to 130 feet wide, on both
sides of the rivers. The corridors appear to be similar to conservation
easements, where the title to the land is restricted, and the required
management practices are enforceable by a third party. In this Agreement, the
third party is ultimately controlled by the Tribes.
The
Agreement provides for Tribal and public access, including opportunities to
harvest fish, at four new riverside locations. The sites are yet to be
determined but will be located on the Wood, Williamson, Sycan and Sprague
Rivers. The access points will be purchased by the taxpayers of Oregon, and
developed for the use of the Tribes and the public by the Oregon Department of
Parks and Recreation.
The
Agreement “includes support for the KBRA-based acquisition of 90,000 acres
of the former reservation land commonly known as the Mazama Forest”. It
further requires the U. S. government to give the Tribes $45 million for
economic development. The agreement explicitly provides that “the Tribe will
have the option to utilize these funds for additional land purchases....”
It dedicates certain funding for the specific purpose of training between 10 and
20 new Tribal land-managers.
In
total, when combined with other provisions of the KBRA, the Tribes would receive
more than $147 million in direct funding. The money is mainly dedicated for the
purchase of land, ecosystem habitat enhancement, water quality improvement and
economic development for the Tribes.
The
Tribal letter asserts that “if the Agreement is approved, legislation is
successful and all of the contingencies of the Agreement are satisfied, the
parties will withdraw their exceptions and a final decree will be issued
affirming the Klamath Tribes time-immemorial water right at the level in the
FOD.” In short, the Tribes will forever acquire the water rights to
virtually all of the water tributary to Upper Klamath Lake, and the right to
protect an Upper Klamath Lake level arguably not sustainable without the Link
River Dam, through a non-judicial administrative process. Further, the Agreement
provides that the Tribes’ may request the Oregon Water Resources Department to
reverse the Department’s denial of certain Tribal claims for water outside of
the boundaries of the former reservation in the Adjudication.
The
final provision of the Agreement restores the “conditional use” of much of the
surface and groundwater that many of the farmers and ranchers have been using
for generations. Their ability to use that water to grow food and fiber will be
conditioned on how well the landowners continue to meet the other provisions of
the Agreement.
A
Joint Management Entity made up of the Tribes, landowners, state and federal
representatives is given the responsibility to determine how well those
provisions are being met by the landowners. The provisions of the Agreement in
effect provide the Tribes with veto power regarding that management
oversight.
Most
of the landowners believe that their representatives obtained the best “business
deal” possible given the untenable negotiating conditions that were created by
the Oregon Water Resource Department. However, others are rightfully concerned
that the Agreement infringes on their First Amendment right to free speech
because the document prohibits signatories from speaking or writing in
opposition to any of the agreements. Others believe the Agreement infringes on
their Fifth Amendment rights to own and enjoy the benefits of private property,
including their irrigation water rights.
Many
of the farmers and ranchers spent a great deal of time and money on research,
court filings and attorneys to represent their interests in the Klamath River
Adjudication. Most understood that the Ninth Circuit Court of Appeals had
determined that the Tribes are entitled to an in-stream water right sufficient
to support their Treaty rights to hunt, fish and gather. The Court determined
that the priority date of the water rights was “time immemorial” because those
Treaty rights were retained when the Tribes sold their former reservation to the
U.S. government.
However,
the Ninth Circuit Court determined that the Tribes are entitled to no more, or
no less water than they were currently using for a moderate standard of living
at the time of the Court decision. Further, the Court stated that the amount of
water the Tribes are entitled to cannot be interpreted to be the amount they
were using at the time of the 1864 Treaty. The Court had no intention of
returning the land to a wilderness servitude.
The
Oregon Water Resources Department appeared to ignore the latter part of the
Court ruling in their March 2013 Final Order of Determination. In spite of the
extensive arguments of the irrigators, and in spite of the Court’s specific
instructions, the OWRD gave virtually all of the surface water tributary to
Upper Klamath Lake, as well as an unsustainable lake level to the Tribes. It
denied the Tribal claims on the Klamath River because that was not part of the
former Tribal Reservation.
Last
fall, the OWRD made public their intent to regulate, or shut down, as many as
100 Upper Basin irrigation wells. The Department alleges to have determined,
through a regional groundwater model, the use of the wells for irrigation may
interfere with their newly determined Tribal in-stream water rights.
Oregon
laws and rules require OWRD to prove any well that is constructed more than a
quarter of a mile from a surface water body is actually causing substantial and
timely interference before it can be regulated or shut down. OWRD has alleged
that their modelled data proves that individual wells constructed within a mile
of a “gaining reach” of a river interfere with the Tribal water rights, even
though they admit to not being able to measure the amount of that alleged
interference. Nevertheless, they insist that the burden of proof is now on the
well owner to verify that it does not interfere. This shifting of the “burden of
proof” appears to be contrary to Oregon water law.
During
a teleconference last fall, OWRD stated their intent to regulate or shut down
many of these irrigation wells. They said that they would be forced to shut down
the wells by priority date in response to the next Tribal “call” to protect
their newly adjudicated in-stream water rights.
In
my opinion, the groundwater models that OWRD has developed are imperfect,
incomplete and possibly fraudulent. However, the Department’s determination to
use the threat of regulation of the wells to encourage compliance with the
Agreement was genuine.
The
Oregon Supreme Court has determined that an Oregon water right is a property
right. It has been made abundantly clear to the irrigators, at numerous meetings
this year, that the best way to avoid losing their private property right to use
their irrigation wells was to sign-on to the Agreement.
Governor
Kitzhaber and his Oregon Water Resources Department are signatories to and
strong supporters of the KBRA and KHSA. Upper Basin irrigators have generally
not supported those agreements in the past. From my perspective, both the
Adjudication and the OWRD groundwater models are now being effectively used to
“enlist” their support.
The
Agreement will not be complete until all of the funding, in-stream transfers,
riparian corridors, state and federal legislation and other provisions of the
settlement are in place. The settlement remains a work in progress.
Please
remember, if we do not stand up for rural Oregon no one will.
Best
Regards,
Doug | 
Our Klamath Basin Water
Crisis
900
Court St. NE, S-303, Salem, Oregon 97301 
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