Senator Whitsett's help
to Klamath Basin irrigators
Senate Bill 206-A
Oregon State Senator News from Doug
snowpacks in Oregon mountain ranges have
already prompted Governor Kate Brown to
Crook and Klamath counties,
which I am privileged to represent in
the state Senate.
Those drought declarations emphasize the
importance of creating sensible policies
relating to the regulation of water use
The Senate took a
big step in the right direction this
week with regards to water policy by
Senate Bill 206-A.
I had the honor of carrying this measure
on the Senate floor.
If passed by the House and signed into
law by Governor Brown, SB 206-A will be
of immense help to Klamath Basin
irrigators who have been imperiled by
the lack of predictable water
The water division in the Upper Klamath
River Basin is currently controlled by
the administrative Finding of Fact and
Final Order of Determination in the
Klamath River Adjudication.
That administrative finding was issued
by the Oregon Water Resources Department
(OWRD) in March 2013. The determination
is enforceable, and is currently being
carried out by the Department.
However, Oregon water rights are not
fully adjudicated until after the court
has made its final ruling on exceptions,
to the Department’s Determination, and
all judicial appeals have been
Current Oregon water law prohibits
transfer of the place of use, and the
type of use, until the water rights are
fully adjudicated by the courts.
SB 206-A makes a unique and limited
change to that statutory prohibition.
It authorizes the temporary transfer of
the place of use of a water right, as
well as temporary in-stream leasing of a
water right, subject to the
administrative phase of the Klamath
Aside from that, it strictly prohibits
any temporary transfer or lease that
would serve to either enlarge the water
right or injure another water right.
This unique authorization will allow
Klamath Basin irrigators to better
utilize what little irrigation water has
been left for them to use in order to
grow food and fiber.
The transfer authority will sunset in 20
years, or when the courts have completed
the judicial phase of the adjudication,
whichever occurs first.
Throughout recorded history, the Basin
has experienced periodic meteorological
droughts, lasting from one to several
That reality is normal for high mountain
valleys located east of the Cascade
summit. Traditionally, water users have
worked together, with good success, to
get through those drought years.
However, during the past 20 years, the
Klamath Basin has experienced
persistent, ongoing and worsening
Water that has been stored and used for
irrigation, for more than a century, has
been reallocated, under the public trust
doctrine, by our state and federal
governments, for higher and better uses.
The forced change of the use of water
from irrigation to grow food and fiber,
to instream flows for the benefit of
fish, is the overarching cause of the
persistent water shortages in the Upper
Klamath River Basin.
Our state and federal governments have
accomplished all of these changes of the
use of water entirely through the
application of administrative actions,
and those changes are ongoing.
Recently, the Klamath Tribes made their
“call,” to protect the instream water
rights given to them, administratively,
by the OWRD.
Such an action effectively prohibits the
diversion of virtually any water, for
irrigation, in four entire watersheds.
This represents the third consecutive
annual Tribal “call,” to prevent the use
of surface water for irrigation in those
Moreover, the Upper Basin “settlement
agreement” includes the permanent
“retirement” of 30,000 acre feet of
irrigation water, to be delivered to
Upper Klamath Lake.
That concession will permanently dewater
about 25 square miles of fertile crop
and pasture land.
The “retired” water was intended to
enhance instream flow in the tributaries
to Upper Klamath Lake, and to provide
more water for the Bureau of
Reclamation’s 1,400-family Klamath
Last month, the National Marine
Fisheries Service, administratively,
took all of that 30,000-acre feet of
water, for the alleged benefit of Coho
salmon in the Klamath River.
Approximately 15,000 acre feet in the
spring is to be used to flush Coho
smolts downriver, and 15,000 acre feet
in the fall is to ensure adequate flows
for the Coho to migrate upriver.
The only alleged alternative, to this
ongoing theft of irrigation water, is to
prohibit salmon fishing in the Klamath
River this fall.
According to the federal agency’s
administrative rules, the prohibition of
fall salmon fishing in the Klamath River
would require officials to shut down
salmon fishing on the entire southern
Oregon and northern California coasts.
The bottom line is that there was
nothing voluntary regarding
participation in the settlement
Irrigation interests were compelled,
coerced, some say even extorted, to
participate, in order to save any part
of their private property rights, from
administrative takings by governments
“gone rogue” and improperly empowered
through a less-than-transparent
administrative rules process.
The Oregon Supreme Court has ruled an
irrigation water right to be a valuable,
and protected, property right.
How valuable is that water right?
In the Upper Klamath Basin, the value of
the water right can actually make up 99
percent of the value of the farmland.
Some people might recall that the
federal government shut-off the
irrigation water supply for 1,400 farm
and ranching families within the Bureau
of Reclamation’s Klamath Project back in
The alleged reason for the entirely
“administrative” water shut-off was for
the benefit of endangered sucker fish in
Upper Klamath Lake and for the benefit
of threatened Coho Salmon in the Klamath
During that water shut-off, the Klamath
County Assessor reassessed the value of
the irrigated farm and ranch land, from
$2,700 per acre to $27 per acre. He
reasoned that virtually nothing can be
grown in the area without irrigation.
Further, Oregon’s land-use planning
rules prevent the use of the land for
“any other” purpose. On appeal, the
Oregon Department of Revenue upheld the
assessor’s 99 percent reduction in
assessed value. One can only imagine the
devastating affect this would have on
local government entities that rely on
property tax revenue to fund critical
SB 206-A is necessary, because to date,
no Klamath Basin irrigator has had a day
in a court of law to protect his or her
private property irrigation water
rights. The ongoing “taking” of
irrigation water by government
administrative fiat has resulted in
grossly inadequate water for Basin
irrigators to produce food and fiber for
It is the unrelenting, government-caused
water shortages that represent the
primary need for this legislation.
For all these reasons, and more, I have
been working to help draft and pass SB
206-A and have it signed into law.
Hopefully, my legislative colleagues,
and Governor Brown, will act accordingly
and do right by Klamath River Basin
Please remember--If we do not stand up
for rural Oregon, no one will.
Senate District 28
Address: 900 Court St NE, S-311, Salem,