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Sen. Whitsett's chat with Craig Tucker at a Senate hearing

transcribed by Katherine Lehman

Talent Irrigation District's loss of their 30,000 acre foot diversion, which includes the KBRA citation.

Section 17.3.1. Technical Investigation

B. Rogue Basin Project (page 90)

"Within one year of the Effective Date, the Klamath Basin Coordinating Council shall identify a lead entity to undertake a study to evaluate the feasibility of replacing or otherwise reducing the diversion from the Klamath River Basin to the Rogue River Basin such that existing uses and users of that diversion are kept whole.

Upon completion of the study, the lead entity shall recommend to the Parties further action pursuant to Section 17.3.2.

17.3.2. Use of Additional Storage.

A. Reservations.

Consistent with Reclamation planning directives, policies and standards, and the National Environmental Policy Act (NEPA), Reclamation shall not determine the specific design, beneficiaries, etc. of such projects before completion of a NEPA decision document. Reclamation shall identify the range of alternatives identified in the Feasibility Study to enhance water management flexibility in providing for irrigation, fish and wildlife purposes, as well as the furtherance of Reclamation's tribal trust responsibilities.

B. Support.

Subject to Reclamation's and OWRD's reservations of responsibilities and obligations, the Parties shall support use of water from these facilities in accordance with this paragraph.

i. Such water will be a resource to be employed as needed to achieve the objectives of this Agreement as related to fisheries.

ii. When first available, such water will be used to realize the increase in diversions to the Klamath Reclamation Project as described in Section 15.1.1 and provided in Appendix E-

1, if that increase has not otherwise occurred.

iii. Water will be used to implement the provisions of

18.2.2.B.ii (which states, "The use of stored water available under Section 17.3;")

iv. Water may otherwise be used in accordance with recommendations of the TAT and decisions of the Klamath Basin Coordinating Council.

v. In addition, the TAT may recommend the use of any such water for Klamath Reclamation Project irrigation and/or fish and wildlife Refuges if circumstances so warrant. In that circumstance, an increase in water diversion as a result of such storage could not occur merely because additional storage has become available and there would be transparent public processes prior to any increase."

The Oregon Senate subcommittee did not prepare a written transcript of the hearing testimony on SB 76, held back on Feb. 3, and it took me a while to find and transcribe this conversation I told you about between Sen. Whitsett and Craig Tucker:

First, Tucker's comments (about 2 hours 30 minutes into the hearing) - "Someone mentioned that the KBRA would affect irrigation diversions to the Talent Irrigation District. That's not true. I'd be willing to meet with folks and confer and go through the Klamath Basin Restoration Agreement and point that out."

Whitsett (about 2 hours 40 minutes into the hearing) - "You wanted to comment, and to hold the Talent Irrigation District harmless, would then, it would be like, you know, with water law you have to make a claim on the top drawer, and then the second drawer, and the third drawer, and the fourth drawer, and so forth. They're, the Talent Irrigation District, is in the middle; you can't do that and make them whole without making everybody whole up the line. So I think there's some problems there, Dr. Tucker, and I think your comment there needs some explanation, and we'll talk about it. Thank you."

Tucker - "Well, I'll be more than happy to clarify that issue and discuss with interested parties a way that we can include language in the Final Draft of KBRA that addresses those concerns."

Whitset - "One other question for Dr. Tucker, and that is that you made the comment that the Talent Irrigation District would not be negatively affected. One of the cornerstones of the Klamath Restoration Agreement is to take the difference between the Project historical use and the Project paper claim, transfer that into the river as "environmental" water, which would be patent, with the same priority date, which would be a patent abrogation of Oregon water laws. It's an illegal enlargement of a water right.

Having said that, if that came to pass, as the Agreement is currently written, then the water right, instream water right for the Klamath River, that would be transferred into the river, would be have a priority date considerably better than the Talent Irrigation District's diversions from Hyatt Lake and Howard Prairie, and I can't see how they couldn't have a call on that water. It's simply Prior Appropriations Doctrine 101."

Dr. Tucker nodded, and the hearing continued.

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