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Adjudicating Water

Who Gets What and Why

by Sara Hottman, Herald and News 12/11/11

Klamath Tribes council member Jeff Mitchell stands in front of rapids near

the Blue Pool, an area of deep water on the Williamson River south of

Chiloquin that has spiritual significance to the Klamath Tribes. An

administrative law judge recently ruled in favor of the Tribes on their

in-stream claims on the Williamson River and other rivers and streams

that feed into Upper Klamath Lake. H&N photos by Ty Beaver

Last week’s water adjudication decision signaled the imminent end of an era for Upper Basin irrigators.

An administrative law judge recommended the adjudicator in the Klamath Basin adjudication process confirm the Klamath Tribes’ water claims on the Sprague, Sycan, Williamson and Wood rivers and their tributaries.

Ultimately that means for the first time, Upper Basin irrigators won’t have free reign of their pumps. They’ll be subject to senior water rights — dating as far back as the beginning of time — resulting in the potential for many dry years for junior water right holders.

But that’s Oregon water law: first in time is first in right. After 36 years and more than 700 claims and 5,000 contests, Klamath Basin adjudication is wrapping up with an adjudicator deciding who has the strongest right to water among farmers, ranchers and tribes.

“It’s going to be really messy,” said Larry Dunsmoor, a fish biologist for the Klamath Tribes who has worked in the area for 30 years. “There’s going to be a lot of people who say this is just between the Tribes and agriculture as a whole. The truth is (outside the Tribes) there would still be calls placed and the junior people asked to shut off.

“Adjudication will produce winners and losers. That’s why we say that. … There’s no sharing. It’s who gets how much and what the pecking order is.”

Rapids in the Williamson River churn south of Chiloquin. The Williamson River is one of five rivers, along with their tributaries, that feed into Upper Klamath Lake.

The order

Each proposed order is a recommendation from a judge to the adjudicator, who will make the final determination. Those who challenged the Tribes’ water claims may appeal the order, which the adjudicator will weigh with the judge’s conclusions.

Officials said it’s unlikely the adjudicator will veer far from the proposed order.

“The adjudicator received a tremendous amount of information,” said Tom Paul, deputy director of the Oregon Water Resources Department, which enforces water rights. “I don’t expect him to outright dismiss the order, but I also don’t think the order will stand as-is.”

Meanwhile, the Tribes are postponing celebration and Upper Basin contestants are hoping the appeals process reduces their claim.

“This was a victory for fish and for tribal treaty rights,” said Jeff Mitchell, a Klamath Tribes council member. “The proposed order clearly says that there’s no (diminution) of tribal treaty rights and the tribes deserve water to protect habitat of reservation resources.

“But we caution that this is just one step in the process. Now we need to turn our attention to finding a balance between competing interests.”

Tom Mallams, an Upper Basin contestant, cites as hope the fact that adjudication reduced the Tribes’ original water claims significantly as new studies were conducted to provide hard data for testimony.

“Their claims dropped because they claimed amounts that could not hold up in court,” he said. “Even if (the final determination) does hurt the irrigators, we’re so much better off than where we would have been without the adjudication.”

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The future of water adjudication

Next year, an administrative law judge will deliver a proposed order on the Klamath Tribes’ water claims in Upper Klamath Lake and the Klamath River.

“Those claims could have consequences for both Project irrigators and upstream irrigators,” said Greg Addington, director of Klamath Water Users Association. “The Project irrigators and the Tribes have already reached settlement about those claims and how they will or will not affect Project water supply.

“We support efforts for the upstream irrigators and the Tribes to reach agreements as well.”

Regardless of next year’s adjudication decision, the Project and Tribes are signatories of the Klamath Basin Restoration Agreement, in which both parties make concessions to get what they want.

The Tribes concede some of their rightful water and some water-related claims against the federal government in exchange for removal of four Klamath River dams and acquisition of the Mazama Tree Farm, a 90-acre parcel that was part of their original reservation. Dam removal, the Tribes say, would restore fish passage on the river.

Project irrigators, in return, would have more senior water rights (the Tribes would take on a 1908 water right instead of the awarded time immemorial) and would not be impacted by the Tribes’ water rights if irrigators use no more than 380,000 acre-feet of water.

But the KBRA has yet to be funded by Congress. A congressman with a key committee position has vowed to halt legislation that permits dam removal — a critical component of the agreement. And a vocal contingency of opponents has said it will fight for adjudication, not the KBRA, to be the final word.

Federal lawmakers responded to last week’s adjudication decision:

Sen. Jeff Merkley, D-Ore.: “The administrative law judge’s decision affirming that the Klamath Tribes have significant water rights underscores the importance of a longterm solution in the Klamath Basin and is yet another reminder why we must implement the KBRA.

“We do not need more lawyers and litigation where one side wins and the other is left with little to no water. The KBRA, painstakingly negotiated by the local collaborative effort of which the Klamath Tribes was a part and continues to endorse, is the only avenue I’ve seen that would put these water disputes behind us and let everyone in the Basin focus on creating jobs and moving forward. Action to put the KBRA into law will help provide stability to the entire community as well as help the local economy.”

Sen. Ron Wyden, D-Ore.: “I commend Sen. Merkley for seeking to implement the Klamath Basin water settlement agreement and the dam removal agreement. A lot of progress has been made in resolving water issues in the Basin and it’s time for Congress to take up these issues. This bill will now be coming to the Senate Energy and Natural Resources Committee for action. The subcommittee, which I chair, will be holding a hearing on the agreements and water management early next year in the Klamath Basin, which I will chair. I am determined to make sure that during the Committee’s deliberations all sides are heard and all issues and solutions are examined and I am going to hold off co-sponsoring Sen. Merkley’s bill to underscore that commitment.”

Rep. Wally Herger, R-Calif.: Herger’s communications director, Bryan Cleveland, said the congressman’s op-ed published Dec. 2 in the Siskiyou Daily News reflected his views. “If the science does not justify the proposal to remove the dams, or if the cost/ benefit ratio is so out-ofkilter that it does not pass the straight-face test, then PacifiCorp should be owed the opportunity to seek a new license that contains reasonable and affordable conditions. But the bottom line is we must continue working to reform the environmental laws that are making life so difficult for farmers and energy producers alike.”

Rep. Greg Walden, R-Ore.: Walden’s office did not respond to the Herald and News’ inquiry before deadline, but he has been notably non-committal to a position on the KBRA, saying the process should remain in locals’ hands. Supporters of the agreements are calling on him to take a position, calling his endorsement key to Congressional support.

Rep. Tom McClintock, R-Calif.: McClintock’s office did not respond to the Herald and News’ inquiry before deadline, but he has said he is vehemently opposed to dam removal, a critical component of the KBRA, though he is apathetic to the agreement itself. “My problem is specifically with spending a quarter of a billion dollars to tear down four perfectly good hydroelectric dams … I intend to do everything I can to stop the unnecessary destruction of dams.”

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Upper Basin to feel greatest impact

Pumps may be shut off during low water years

Even if the final determination is only a shadow of the proposed order, irrigation in the Upper Basin would change dramatically: those irrigators will face limitations akin to those Klamath Reclamation Project irrigators have been grappling with for years.

The Tribes, with their beginning-of-time priority date, could call their water rights to keep the minimum water flows a judge agreed are necessary to maintain their fish and wildlife habitats.

To achieve flows, pumps feeding junior water rights are shut down until the senior water right is met.

Not only that, Oregon Water Resources before the order could not enforce water rights being adjudicated so Upper Basin irrigators with senior water rights could not call their right, leaving junior water right holders the ability to pump freely.

“Water right holders upstream, because there are very few areas adjudicated up there … have had the ability to divert what they need to satisfy what their right says,” said Tom Paul, deputy director of Oregon Water Resources Department.

Larry Dunsmoor, who works on the Sprague River, said unlimited use is evident.

“In the middle of the summer when it gets hot and everybody starts to irrigate, the river just drops,” he said. “With the proposed order, flows would change that.”

More water in streams

Flows confirmed in adjudication are subject to a slew of variables — water year, habitat, reach of water, etc.

But in short, the range of f lows in the Tribes’ water right is higher than what has historically remained in the rivers and streams after irrigation.

Several contestants contacted by the Herald and News would not comment on adjudication, citing lack of knowledge in the proceedings, including Roger Nicholson, the rancher behind Water For Life Inc., who has long been active in the process.

In a press release announcing the adjudication decision, the Klamath Tribes said, “Some interests in the Basin advised people that the Tribes’ water rights are minimal, but those interests have been proven wrong. People who followed that advice have obviously been misled in a situation where they are risking a lot.”

Bill Ganong, an attorney for irrigation districts involved in adjudication, agreed, saying there’s no doubt the confirmed f lows will affect irrigators upstream of Upper Klamath Lake.

The farther upstream they are, the less water they’ll have if the Tribes call their water right.

“… It is clear,” Ganong said, “that for some stream segments, especially in the Sprague River drainage, the enforcement of Tribal rights in the amounts provided in the proposed orders would have a profound impact on the use of surface water for irrigation.”

Historical data on river flows

Recently confirmed Tribal water rights would require more water to remain in streams and rivers from which Upper Basin irrigators draw water.

The U.S. Geological Survey tracks flows on water bodies, including minimum daily flows, which vary with the amount of water in the rivers or stream. Here is a sample of, historically, the highest minimum flow recorded for a month, lowest minimum flow recorded for a month, and proposed order's minimums.

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A quick guide to what this means

After 36 years and more than 700 claims and 5,000 contests, the Klamath Basin adjudication process only has about six more claims to settle.

In a proposed order last week, a judge confirmed the Klamath Tribes’ claims to water in the Sprague, Sycan, Williamson and Wood rivers and their tributaries. Once the final determination is settled, the order, whatever form it takes, becomes enforceable.

What does that mean for people in the Klamath Basin?

Non-irrigators: Adjudication does not affect well water, and the Oregon Water Resources Department does not require groundwater permits for domestic wells or small agricultural uses, such as trough water. Surface irrigation water is not regulated for lawns or gardens up to one-half an acre.

On-Project irrigators: Water rights claims on upstream reaches don’t affect irrigators on the Klamath Reclamation Project, and could actually be beneficial, since the confirmed claims require flows that are higher than what is currently in the rivers. Those rivers feed Upper Klamath Lake, which must meet a minimum water level for irrigators to receive full water deliveries.

However, the proposed order for the Tribes’ claims on Upper Klamath Lake and Klamath River, to be ruled on in April, likely will affect the Project’s water.

Off-Project irrigators: Irrigators above Upper Klamath Lake are most affected by the recent proposed orders.

The Oregon Water Resources Department could not enforce water rights until they were adjudicated, so irrigators in the area have been able to pump without restriction. But once the final determination is made, the Tribes may call their water rights and pumps will be shut off, starting with the most junior water rights, until their rightful flows are met.

Irrigators with junior rights will either go without water or use well water.

Klamath Tribes:

While the proposed order still needs to go through an appeals and confirmation process, the Klamath Tribes received validation for their water claims after decades of contentious court battles.

Officials say the final determination will likely reflect the proposed order. That will give the Tribes power to act on their time immemorial priority date and call their water right when they deem it necessary to maintain fish and wildlife habitats for hunting, fishing, trapping and gathering rights guaranteed by the treaty of 1894.