Our Klamath Basin Water Crisis
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KLAMATH RIVER BASIN COMPACT
542.610 Klamath River Basin Compact ratified; when effective. (1) The Legislative Assembly of the State of Oregon hereby ratifies the Klamath River Basin Compact set forth in ORS 542.620, and the provisions of such compact hereby are declared to be the law of this state upon such compact becoming effective as provided in subsection (2) of this section.
(2) The compact shall become effective when it has been ratified by the legislatures of the States of California and Oregon, and has been consented to by the Congress of the United States as provided in Article XIII of the compact. [1957 c.142 s.1]
Note: The Klamath River Basin Compact became effective on September 11, 1957. The compact was ratified by the State of California by chapter 113, California Statutes 1957 (signed by Governor on April 17, 1957, and effective on September 11, 1957). The Congress of the United States consented to the compact by Public Law 222, 85th Congress (signed by President on August 30, 1957).
542.620 Klamath River Basin Compact. The provisions of the Klamath River Basin Compact are as follows:
The major purposes of this compact are, with respect to the water resources of the Klamath River Basin:
DEFINITION OF TERMS
As used in this compact:
C. "Commission" shall mean the Klamath River Compact Commission as created by Article IX of this compact.
DISTRIBUTION AND USE OF WATER
There are hereby recognized vested rights to the use of waters originating in the Upper Klamath River Basin validly established and subsisting as of the effective date of this compact under the laws of the state in which the use or diversion is made, including rights to the use of waters for domestic and irrigation uses within the Klamath Project. There are also hereby recognized rights to the use of all waters reasonably required for domestic and irrigation uses which may hereafter be made within the Klamath Project.
Subject to the rights described in subdivision A of this Article and excepting the uses of water set forth in subdivision E of Article XI, rights to the use of unappropriated waters originating within the Upper Klamath River Basin for any beneficial use in the Upper Klamath River Basin, by direct diversion or by storage for later use, may be acquired by any person after the effective date of this compact by appropriation under the laws of the state where the use is to be made, as modified by the following provisions of this subdivision B and subdivision C of this Article, and may not be acquired in any other way:
These uses are referred to in this compact as uses (a), (b), (c), (d), (e) and (f), respectively. Except as to the superiority of rights to the use of water for use (a) or (b) over the rights to the use of water for use (c), (d), (e) or (f), as governed by subdivision C of this Article, upon a permit being granted and a right becoming vested and perfected by use, priority in right to the use of water shall be governed by priority in time within the entire Upper Klamath River Basin regardless of state boundaries. The date of priority of any right to the use of water appropriated for the purposes above enumerated shall be the date of the filing of the application therefor, but such priority shall be dependent on commencement and completion of construction of the necessary works and application of the water to beneficial use with due diligence and within the times specified under the laws of the state where the use is to be made. Each state shall promptly provide the commission and the appropriate official of the other state with complete information as to such applications and as to all actions taken thereon.
2. Conditions on the use of water under this subdivision B in Oregon shall be:
3. Conditions on the use of water under this subdivision B in California shall be:
It shall be the objective of each state, in the formulation and the execution and the granting of authority for the formulation and execution of plans for the distribution and use of the water of the Klamath River Basin, to provide for the most efficient use of available power head and its economic integration with the distribution of water for other beneficial uses in order to secure the most economical distribution and use of water and lowest power rates which may be reasonable for irrigation and drainage pumping, including pumping from wells.
INTERSTATE DIVERSION AND STORAGE RIGHTS; MEASURING DEVICES
Each state hereby grants for the benefit of the other and its designees the right to construct and operate facilities for the measurement, diversion, storage and conveyance of water from the Upper Klamath River Basin in one state for use in the other insofar as the exercise of such right may be necessary to effectuate and comply with the terms of this compact. The location of such facilities shall be subject to approval by the commission.
Each state or its designee, exercising within the jurisdiction of the other a right granted under subdivision A of this Article, shall make provision for the establishment, operation and maintenance of permanent gaging stations at such points on streams or reservoir or conveyance facilities as may be required by the commission for the purpose of ascertaining and recording the volume of diversions by the streams or facilities involved. Said stations shall be equipped with suitable devices for determining the flow of water at all times. All information obtained from such stations shall be compiled in accordance with the standards of the United States Geological Survey, shall be filed with the commission, and shall be available to the public.
ACQUISITION OF PROPERTY FOR STORAGE AND DIVERSION; IN LIEU TAXES
Subject to approval of the commission, either state shall have the right (1) to acquire such property rights in the other state as are necessary for the diversion, storage, conveyance, measurement and use of water in conformity with this compact, by donation or purchase, or (2) to elect to have the other state acquire such property rights for it by purchase or through the exercise of the power of eminent domain. A state making the latter election shall make a written request therefor and the other state shall expeditiously acquire said property rights either by purchase at a price satisfactory to the requesting state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain, and shall convey said property rights to the requesting state or its designee. All costs of such acquisition shall be paid by the requesting state. Neither state shall have any greater power to acquire property rights for the other state through the exercise of the power of eminent domain than it would have under its laws to acquire the same property rights for itself.
Should any diversion, storage or conveyance facilities be constructed or acquired in either state for the benefit of the other state, as herein provided, the construction, repair, replacement, maintenance and operation of such facilities shall be subject to the laws of the state in which the facilities are located, except that the proper officials of that state shall permit the storage, release and conveyance of any water to which the other state is entitled under this compact.
Either state having property rights other than water rights in the other state acquired as provided in this Article shall pay to each political subdivision of the state in which such property rights are located, each and every year during which such rights are held, a sum of money equivalent to the average annual amount of taxes assessed against those rights during the 10 years preceding the acquisition of such rights in reimbursement for the loss of taxes to such political subdivisions of the state. Payments so made to a political subdivision shall be in lieu of any and all taxes by that subdivision on the property rights for which the payments are made.
The states recognize that the growth of population and the economy of the Upper Klamath River Basin can result in pollution of the waters of the Upper Klamath River Basin constituting a menace to the health and welfare of, and occasioning economic loss to, people living or having interests in the Klamath River Basin. The states recognize further that protection of the beneficial uses of the waters of the Klamath River Basin requires cooperative action of the two states in pollution abatement and control.
B. To aid in such pollution abatement and control, the commission shall have the duty and power:
2. To disseminate to the public by any and all appropriate means information respecting pollution abatement and control in the waters of the Klamath River Basin and on the harmful and uneconomic results of such pollution.
Each state shall have the primary obligation to take appropriate action under its own laws to abate and control interstate pollution, which is defined as the deterioration of the quality of the waters of the Upper Klamath River Basin within the boundaries of such state which materially and adversely affects beneficial uses of waters of the Klamath River Basin in the other state. Upon complaint to the commission by the state water pollution control agency of one state that interstate pollution originating in the other state is not being prevented or abated, the procedure shall be as follows:
The commission shall make an investigation and hold a conference on the alleged interstate pollution with the water pollution control agencies of the two states, after which the commission shall recommend appropriate corrective action.
If appropriate corrective action is not taken within a reasonable time, the commission shall call a hearing, giving reasonable notice in writing thereof to the water pollution control agencies of the two states and to the person or persons which it is believed are causing the alleged interstate pollution. Such hearing shall be held in accordance with rules and regulations of the commission, which shall conform as nearly as practicable with the laws of the two states governing administrative hearings. At the conclusion of such hearing, the commission shall make a finding as to whether interstate pollution exists, and if so, shall issue to any person or persons which the commission finds are causing such interstate pollution an order or orders for correction thereof.
It shall be the duty of the person against whom any such order is issued to comply therewith. Any court of general jurisdiction of the state where such discharge is occurring or the United States District Court for the district where the discharge is occurring shall have jurisdiction, on petition of the commission for enforcement of such order, to compel action by mandamus, injunction, specific performance, or any other appropriate remedy, or on petition of the person against whom the order is issued to review any order. At the conclusion of such enforcement or review proceedings, the court may enter such decree or judgment affirming, reversing, modifying, or remanding such order as in its judgment is proper in the circumstances on the basis of the rules customarily applicable in proceedings for court enforcement or review of administrative actions.
The water pollution control agencies of the two states shall, from time to time, make available to the commission all data relating to the quality of the waters of the Upper Klamath River Basin which they possess as the result of studies, surveys and investigations thereof which they may have made.
Subject to vested rights as of the effective date of this compact, there shall be no diversion of waters from the basin of Jenny Creek to the extent that such waters are required, as determined by the commission, for use on land within the basin of Jenny Creek.
Each state shall exercise whatever administrative, judicial, legislative or police powers it has that are required to provide any necessary reregulation or other control over the flow of the Klamath River downstream from any hydroelectric power plant for protection of fish, human life or property from damage caused by fluctuations resulting from the operation of such plant.
1. There is hereby created a commission to administer this compact. The commission shall consist of three members. The representative of the State of California shall be the Department of Water Resources. The representative of the State of Oregon shall be the Water Resources Commission of Oregon who shall serve as ex officio representative of the Water Resources Commission of Oregon. The President is requested to appoint a federal representative who shall be designated and shall serve as provided by the laws of the United States.
The representative of each state shall be entitled to one vote in the commission. The representative of the United States shall serve as chairman of the commission without vote. The compensation and expenses of each representative shall be fixed and paid by the government which he represents. Any action by the commission shall be effective only if it be agreed to by both voting members.
The commission shall meet to establish its formal organization within 60 days after the effective date of this compact, such meeting to be at the call of the Governors of the two states. The commission shall then adopt its initial set of rules and regulations governing the management of its internal affairs providing for, among other things, the calling and holding of meetings, the adoption of a seal, and the authority and duties of the chairman and executive director. The commission shall establish its office within the Upper Klamath River Basin.
The commission shall appoint an executive director, who shall also act as secretary, to serve at the pleasure of the commission and at such compensation, under such terms and conditions and performing such duties as it may fix. The executive director shall be the custodian of the records of the commission with authority to affix the commission's official seal, and to attest to and certify such records or copies thereof. The commission, without regard to the provisions of the civil service laws of either state, may appoint and discharge such consulting, clerical and other personnel as may be necessary for the performance of the commission's functions, may define their duties, and may fix and pay their compensation. The commission may require the executive director and any of its employees to post official bonds, and the cost thereof shall be paid by the commission.
All records, files and documents of the commission shall be open for public inspection at its office during established office hours.
No member, officer or employee of the commission shall be liable for injury or damage resulting from (a) action taken by such member, officer or employee in good faith and without malice under the apparent authority of this compact, even though such action is later judicially determined to be unauthorized, or (b) the negligent or wrongful act or omission of any other person, employed by the commission and serving under such officer, member or employee, unless such member, officer or employee either failed to exercise due care in the selection, appointment or supervision of such other person, or failed to take all available action to suspend or discharge such other person after knowledge or notice that such other person was inefficient or incompetent to perform the work for which he was employed. No suit may be instituted against a member, officer or employee of the commission for damages alleged to have resulted from the negligent or wrongful act or omission of such member, officer or employee or a subordinate thereof occurring during the performance of his official duties unless, within 90 days after occurrence of the incident, a verified claim for damages is presented in writing and filed with such member, officer or employee and with the commission. In the event of a suit for damages against any member, officer or employee of the commission on account of any act or omission in the performance of his or his subordinates' official duties, the commission shall arrange for the defense of such suit and may pay all expenses therefor on behalf of such member, officer or employee. The commission may at its expense insure its members, officers and employees against liability resulting from their acts or omissions in the performance of their official duties. Nothing in this paragraph shall be construed as imposing any liability upon any member, officer or employee of the commission that he would otherwise not have.
The commission may incur obligations and pay expenses which are necessary for the performance of its functions. But it shall not pledge the credit of any government except by and with the authority of the legislative body thereof given pursuant to and in keeping with the constitution of such government, nor shall the commission incur any obligations prior to the availability of funds adequate to meet them.
8. The commission may:
All meetings of the commission for the consideration of and action on any matters coming before the commission, except matters involving the management of internal affairs of the commission and its staff, shall be open to the public. Matters coming within the exception of this paragraph may be considered and acted upon by the commission in executive sessions under such rules and regulations as may be established therefore.
In the case of the failure of the two voting members of the commission to agree on any matter relating to the administration of this compact as provided in paragraph 2 of this subdivision A, the representative from each state shall appoint one person and the two appointed persons shall appoint a third person. The three appointees shall sit as an arbitration forum. The terms of appointment and the compensation of the members of the arbitration forum shall be fixed by the commission. Matters on which the two voting members of the commission have failed to agree shall be decided by a majority vote of the members of the arbitration forum. Each state obligates itself to abide by the decision of the arbitration forum, subject, however, to the right of each state to have the decision reviewed by a court of competent jurisdiction.
The commission shall have the right of access, through its authorized representatives, to all properties in the Klamath River Basin whenever necessary for the purpose of administration of this compact. The commission may obtain a court order to enforce its right of access.
The commission shall make and transmit to the legislature and Governor of each state and to the President of the United States an annual report covering the finances and activities of the commission and embodying such plans, recommendations and findings as may have been adopted by the commission.
The commission shall publish its rules and regulations in convenient form.
STATUS OF INDIAN RIGHTS
A. Nothing in this compact shall be deemed:
Lands within the Klamath Indian Reservation which are brought under irrigation after the effective date of this compact, whether before or after section 14 of said Act of August 13, 1954, becomes fully operative, shall be taken into account in determining whether the 200,000 acre limitation provided in paragraph 1 of subdivision C of Article III has been reached.
Nothing in this compact shall be deemed:
Each state and all persons using, claiming or in any manner asserting any right to the use of the waters of the Klamath River Basin under the authority of either state shall be subject to the terms of this compact.
Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, in any court of competent jurisdiction for the protection of any right under this compact or the enforcement of any of its provisions.
Should a court of competent jurisdiction hold any part of this compact to be contrary to the Constitution of either state or the United States, all other provisions shall continue in full force and effect, unless it is authoritatively and finally determined judicially that the remaining provisions cannot operate for the purposes, or substantially in the manner, intended by the states independently of the portions declared unconstitutional or invalid.
Except as to matters requiring the exercise of discretion by the commission, the provisions of this compact shall be self-executing and shall by operation of law be conditions of the various state permits, licenses or other authorizations relating to the waters of the Klamath River Basin issued after the effective date of this compact.
The physical and other conditions peculiar to the Klamath River Basin constitute the basis for this compact, and neither of the states hereby, nor the Congress of the United States by its consent, considers that this compact establishes any general principle or precedent with respect to any other interstate stream.
This compact shall become effective when ratified by the legislature of each signatory state, and when consented to by an Act of Congress of the United States which will, in substance, meet the provisions hereinafter set forth in this Article.
The Act of Congress referred to in subdivision A of this Article shall provide that the United States or any agency thereof, and any entity acting under any license or other authority granted under the laws of the United States (referred to in this Article as "the United States"), in connection with developments undertaken after the effective date of this compact pursuant to laws of the United States, shall comply with the following requirements:
The United States shall recognize and be bound by the provisions of subdivision A of Article III.
The United States shall not, without payment of just compensation, impair any rights to the use of water for use (a) or (b) within the Upper Klamath River Basin by the exercise of any powers or rights to use or control water (i) for any purpose whatsoever outside the Klamath River Basin by diversions in California or (ii) for any purpose whatsoever within the Klamath River Basin other than use (a) or (b). But the exercise of powers and rights by the United States shall be limited under this paragraph 2 only as against rights to the use of water for use (a) or (b) within the Upper Klamath River Basin which are acquired as provided in subdivision B of Article III after the effective date of this compact, but only to the extent that annual depletions in the flow of the Klamath River at Keno resulting from the exercise of such rights to use water for uses (a) and (b) do not exceed 340,000 acre-feet in any one calendar year.
The United States shall be subject to the limitation on diversions of waters from the basin of Jenny Creek as provided in subdivision A of Article VIII.
The United States shall be governed by all the limitations and provisions of paragraph 2 and subparagraph (a) of paragraph 3 of subdivision B of Article III.
The United States, with respect to any irrigation or reclamation development undertaken by the United States in the Upper Klamath River Basin in California, shall provide that substantially all of the return flows and waste water finally resulting from such diversions and use appearing as surface waters in the Upper Klamath River Basin shall be made to drain so as to be eventually returned to the Klamath River upstream from Keno, unless the Secretary of the Interior shall determine that compliance with this requirement would render it less feasible than under an alternate plan of development, in which event such return flows and waste waters shall be returned to the Klamath River at a point above Copco Lake.
Upon enactment of the Act of Congress referred to in subdivision A of this Article and so long as such Act shall be in effect, the United States, when exercising rights to use water pursuant to state law, shall be entitled to all of the same privileges and benefits of this compact as any person exercising similar rights.
Such Act of Congress shall not be construed as relieving the United States of any requirement of compliance with state law which may be provided by other federal statutes.
This compact may be terminated at any time by legislative consent of both states, but despite such termination, all rights then established hereunder or recognized hereby shall continue to be recognized as valid by the states.
[1957 c.142 s.2]
542.630 Water Resources Director to represent state in administering the Klamath River Basin Compact. The Water Resources Director shall be the only representative of this state in administering the Klamath River Basin Compact set forth in ORS 542.620. The director shall receive no additional compensation for services as such representative, but, subject to any other applicable law regulating mileage and traveling and other expenses for state officers, shall receive actual and necessary traveling and other expenses incurred in the performance of official functions as such representative, to be paid in the same manner and out of the same moneys as other similar expenses of the director are paid. [1957 c.142 s.3]
TEST STUDY OF INTEGRATED LAND-WATER MANAGEMENT
542.710 Test stream and watershed study. (1) The Department of Higher Education, under the direction of the State Board of Higher Education acting through the Agricultural Experiment Station of Oregon State University, is authorized to conduct a test stream and watershed study in order to ascertain in a scientific manner the interrelation between all factors operating in watersheds upon maximum resource productivity of the area for the greatest public benefit.
(2) In conducting the study the Department of Higher Education, under the direction of the State Board of Higher Education acting through the Agricultural Experiment Station of Oregon State University, may:
(a) Enlist the cooperation of other state agencies concerned with fields under study and may reimburse such agencies for use made of facilities and personnel.
542.720 Assistance and grants for study. For purposes of ORS 542.710, the State Board of Higher Education may accept assistance and grants in the form of real or personal property, money, labor, equipment or technical assistance from the United States or any of its agencies, political subdivisions or from other persons subject to the conditions imposed thereon regardless of conflicting state law and may, unless enjoined by the terms of the grant or donation, convert the same into money to be used for the purposes of ORS 542.710. [Formerly 184.470]
WATERSHED PROTECTION AND FLOOD PREVENTION PROJECTS
542.750 Cooperative studies of projects under federal Watershed Protection and Flood Prevention Act.
The Water Resources Commission may make surveys, investigations and prepare plans, specifications, estimates and other data, as in the commission's judgment can accomplish the purposes of the Watershed Protection and Flood Prevention Act. As soon as practicable after completion the commission shall prepare, or have prepared, a report setting forth the results of the surveys and investigations. All work performed by the commission under this section shall be correlated with that performed by the United States Natural Resources Conservation Service, or its successor agency, under the Watershed Protection and Flood Prevention Act.
The commission may on behalf of the State of Oregon enter into contracts or agreements with any agencies of the United States Department of Agriculture for the execution of surveys, investigations and the preparation of plans, specifications and estimates or other data to determine costs and feasibility of reservoir or other works of improvement which may be constructed under the provisions of the Watershed Protection and Flood Prevention Act, as amended.
(3) The intent of this section is to expedite the investigation and planning of works of improvement which may be constructed under the Watershed Protection and Flood Prevention Act to reduce the delay in time occurring between initiation of a project and beginning of construction. [1961 c.617 ss.1,2; 1965 c.95 s.1; 1985 c.673 s.138; 1997 c.249 s.181]
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