Posted on July 9, 2013 by Martha Pagel
These are sad times in Oregon’s Klamath Basin. The state is making national headlines again over water wars pitting farmers and ranchers irrigating lands above Upper Klamath Lake against the Klamath Indian Tribes.
The Klamath area first made front page national news in 2001, when farmers and ranchers protested the removal of water from irrigation in order to protect threatened sucker fish under the federal Endangered Species Act (ESA). This time, the headlines stem from an unprecedented “call” for water to serve a time immemorial water right granted to the Klamath Tribes. Under principles of the prior appropriation doctrine in place in Oregon and most western states, seniority matters, and time immemorial is the ultimate priority date.
The current problem was a long time in the making. After more than 38 years of administrative proceedings, the Klamath Basin General Stream Adjudication finally reached a critical legal juncture in March, 2013 that allowed historic water use claims to be enforced for the first time. At that time, the Oregon Water Resources Department (OWRD) issued its long-awaited “Findings of Fact and Final Order of Determination” (FFOD) summarizing the state’s proposed disposition of more than 730 claims.
The FFOD included the state’s quantification of treaty-based reserved water rights for the Klamath Tribes to support fishing and gathering activities in Upper Klamath Lake and its tributaries. Although the instream flow and lake level amounts claimed by the Tribes and approved by OWRD are still subject to further judicial review, the state is obligated to respond to the Tribes’ call unless and until a court stays the action.
As a result of the call, OWRD has already begun the process of shutting off water diversions for all other upper basin water right holders to the extent needed to fully satisfy the Tribes’ approved claims. This means a loss of water for thousands of acres of irrigated farmland and other junior uses including domestic water for homes, stock water, and even the lodge at Crater Lake National Park. The regulation system is based strictly on priority dates; however, OWRD has taken emergency action to allow continued water deliveries for human consumption and stock water.
At this point, a coalition of upper basin water users has petitioned for a judicial stay of the FFOD’s enforcement. A hearing was held on July 3, and a decision is expected soon. If the stay is not approved, the upper basin lands will remain dry and the economic losses will be substantial. With nearly 40 years to prepare, it is sad that the affected interests were not able to reach some level of negotiated agreement before the battle lines were drawn. Although both Tribal and non-Tribal water users have expressed interest in a negotiated solution, there is no settlement process currently underway, and the war rages on.