Posted on April 11, 2014 by Martha Pagel
A year ago, this blog contribution described the latest battle in a nearly 40-year old water war in Oregon’s Klamath Basin. Now, there is a tenuous peace agreement in place – but it may be short-lived. With substantial leadership from Senator Ron Wyden and Governor John Kitzhaber, a “Proposed Upper Klamath Basin Comprehensive Agreement” was negotiated among the Klamath Tribes, State of Oregon, and a large group of independent farmers and ranchers who hold water rights to surface waters in the Klamath Basin, above Upper Klamath Lake. The underlying war has to do with who gets how much water in an on-going “general stream adjudication” of water diversions that began in the late 1800s to early 1900s, along with quantification of federally reserved water rights.
In March, 2013, the Oregon Water Resources Department (“OWRD”) issued its “Findings of Fact and Final Order of Determination” (“FFOD”), which approved the federally reserved claims of the Klamath Tribes for substantial instream flows in the Klamath River and tributaries above Upper Klamath Lake, and for specified lake levels. The Tribal water rights were granted a priority date of “time immemorial.” When the FFOD took effect last year, the Tribes were legally entitled to make a “call” for water – requiring the OWRD to take immediate action to curtail water use by junior appropriators until the Tribes’ instream flow allocations were satisfied. As a result, thousands of acres of irrigated farm and pasture lands were dry.
The impact of the call was economically, socially and politically devastating, leading Senator Wyden and Governor Kitzhaber to convene a fast-moving settlement process that began late last fall and resulted in conceptual agreement before the end of 2013. Further work in early 2014 resulted in a comprehensive agreement for the Upper Basin — but the deal is fragile. Implementation of key settlement terms depends on securing substantial federal funding and state agency support, with no guarantees of either.
The settlement includes two key components: a Water Use Plan and a Riparian Program. Under the Water Use Plan, irrigators will voluntarily retire or reduce historic diversions by up to 30,000 acre-feet. Under the Riparian Program, landowners will commit to voluntary habitat restoration actions. The two components are to be implemented over a five year period, subject to the availability of federal funding. An additional $40 million of federal funding is to be provided for Tribal economic development.
This settlement agreement complements another agreement, reached several years ago, among the Tribes, state and federal agencies, and lower basin irrigators who receive water from Upper Klamath Lake under contracts with the U. S. Bureau of Reclamation. That agreement also requires substantial federal funding that has not yet been committed, due at least in part to political pressures stemming from the fact that it addressed only half of the basin – leaving upper basin irrigators to bear the brunt of a Tribal call. With the upper basin interests now addressed through this second settlement agreement, the basin is now fully covered with strategies to help recover instream flows to meet Tribal water needs while maintaining a sustainable level of economic use for farmers and ranchers.
Optimists are hopeful the region will now be able to move forward with a united front to seek needed support from Congress. Pessimists say the deal will crumble beneath the political weight and budget pressures of Washington DC. One thing is for sure – the Klamath Basin water wars will not be ended soon. Stay tuned for next year’s update.
Tags: Water Law, Klamath Basin, Adjudication, Oregon
Litigation | State | Water Rights