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Comment: Two years on, and no resolution is in sight

Herald & News - 7/29/04 by Tim Fought, editor

Earlier this year at a convention of water lawyers in San Diego, Interior Secretary Gale Norton said that the resolution of water struggles such as that in the Klamath Basin lies in settling water rights.

The legal term is "adjudication." It means making water rights real by specifying how much water claimants can have under what conditions.

In the West, you get a right to water by using it, and you have a stronger claim the earlier you start using it. That's what first-come, first-served means. But how much water you can get under what circumstances isn't necessarily spelled out, at least not at first. These rights are like property, but they are not property like, say, a garage. How much garage you own doesn't vary from season to season and year to year.

It's not the same with water. As those who have water rights in the Klamath Basin know all too well, you can have a "right" to water but not know how much and when. Norton's point was that what's true in the Basin is true all over the desert West, where people claim rights to more water than rivers and aquifers can provide. Here's what she said of the Klamath River Basin:

"In that river system, none of the water rights have been quantified, despite two decades of litigation. ... One tribe claims water for agriculture and forestry, farmers claim contractual rights from a Bureau of Reclamation project, non-project farmers have ample state-recognized rights for grazing, two tribes downstream claim water for salmon fisheries, and a wildlife refuge and hydroelectric plant have their own needs.

"The competing claims far exceed the amount of water in the river. On top of that chaos, add the huge unpredictability of the ESA, with its regulatory restrictions on water use.

"If rights were clearly quantified, then farmers and fishermen could sit down and begin resolving their differences. Farmers might pay fishermen to restrict harvests and thereby improve fish populations. Fishermen might lease irrigation water from farmers who fallow their fields. Rather than face-to-face dealings, the current situation leads to lobbying and protests and litigation, as each party seeks to enlist the external power of courts and federal agencies."

This is quintessential conservative doctrine. If you can assign values to goods and create a market for the exchange of them, the marketplace will sort out the best, most efficient uses of the goods. To politicians trying to sort out the competing interests and forces in the Basin, this must be an appealing prospect: Let the courts, and then the market, decide.

It happens that, west of the Cascades, the state of Oregon is conducting an adjudication of water rights in the Basin. It's been under way for years, and from time to time there is news about it. The guesses about how long this process will take vary, but most of the people I've talked to figure it will be more than half a decade and on up to a decade.

Given the events of the past two weeks in the Basin, I'd say that agriculture will have a problem surviving to see the end of the adjudication, at least not Basin farming in the way it's been understood in past decades. The collected damage of 2001, mostly lost to farming, and 2003, as irrigators teeter on the brink of a shutoff in the middle of the growing season, is putting stress on balance sheets and psyches. At this writing, it's still uncertain how seriously farming will be hurt by the events of the past two weeks, but hurt it will be.

Norton's prescription for resolving water crises is interesting at this moment of crisis because it shows how far from any sort of resolution we are in the Klamath Basin. Norton herself hasn't exactly consigned the Basin to the slow grinding of the legal system and the call of market criers. If she had, she wouldn't, for example, be in the middle of negotiations with the Klamath Tribes over land, water and timber.

Still, a solution by adjudication seems dangerously distant.

Norton's not the only one with a vision. Environmentalists say that a resolution would consist of buyouts of enough farmers to balance water claims in the Basin. In my view, both visions suffer from a similar flaw - they look at agriculture in a vacuum, without reference to its relationship to the regional economy and social structure.

In venues such as the Hatfield working group and among groups such as the Klamath Basin Ecosystem Foundation and the Water Users Association, people of good will are pursuing processes that could lead to resolution. Many have an idea of how things ought to turn out, but the interests and issues are so various and the parties are often so estranged that nobody can reasonably say that the path to resolution lies here, or there, or anywhere.

It seems to me that part of the difficulty in resolving the Basin water struggle is ignorance. Even though the listings of suckers and salmon as threatened or endangered go back years, only now have the U.S. Bureau of Reclamation and the U.S. Fish and Wildlife Service started work on what restoration of those species would look like. This is a contentious issue that will take years to resolve, years that could erode a way of life and a regional economy past their own restoration.

Part of the difficulty, too, is the nature of Western water fights. Like sagebrush or knapweed, they persist. The fight among the Colorado River states was supposed to have been settled by a compact that predates the Great Depression, yet the fight goes on. Only this year, Norton herself got into the middle of it, but bargaining and legal wrangling continue.

I started work at the Herald and News two years ago, right after the Klamath Kruise and in time to write a headline during the Fourth of July celebration and headgates protest. It read: "Klamath Tea Party," and I'm still proud of it.

A lot has happened in those two years. We have new headgates and a 10-year operating plan for the Klamath Reclamation Project. The Bush administration now has its people in place - most farmers looked at 2001 as the residue of the Clinton years. A disinterested group of scientists has said that there's no evidence that manipulating lake levels contributes to, or detracts from, the prospects of fish protected by the Endangered Species Act.

But, here we are two years later with all the focus on the level of Upper Klamath Lake and on the crisis at hand, a crisis that could be the more damaging because it threatens crops in the ground and investments already sunk. A lot has happened these past two years, but not much has changed.#





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