The Upper Klamath Basin Comprehensive Agreement was signed at Collier Park on March 5, 2014. The Agreement was described by the Klamath Tribes as reaching “a landmark settlement that will, if approved, protect our long and hard-fought time-immemorial in-stream water rights while providing conditional limited water use for irrigators who are junior water right holders in the Upper Klamath Basin”.

The negotiations came about after the Klamath Tribes made a call on the surface water that shut down most irrigation in the Upper Klamath Basin in 2013. The signing of the “intent to support” the Agreement was reached following more than eight months of deliberations in confidential and closed meetings by a team of negotiators representing Tribal, state, federal, and ranching entities. The majority of the Klamath Tribal Council and irrigation interests have subsequently signed their intent to also support the provisions of the Agreement.

Many farm and ranch owners characterized their resolve to sign the Agreement as “a business decision”, made necessary in order to maintain their ability to irrigate their land. They were advised that most who refused to sign would no longer be allowed to use either their surface or groundwater rights in most years. Many of those water rights date to 1864 priority. They were further advised that those who refused to participate would likely be subject to severe restrictions on the use of their land due to the “potential listing” of new endangered species.

The Klamath Tribes provided an informational letter to Tribal Council members strongly urging them to support the historic settlement. The Tribal document described the nearly 100 page Agreement as having seven primary objectives.

The Agreement requires the destruction of the four mainstream hydroelectric dams on the Klamath River. The settlement is essentially an extension of Section 16 of the Klamath Basin Restoration Agreement (KBRA). It states “The Parties, other than the U.S., agree mutually to timely promote, support, strive and use best efforts to obtain funding and authorization necessary to implement the KBRA and this Agreement. The Parties also agree that they will not oppose authorization and implementation of the KBRA or the KHSA including any legislation required to authorize or implement those agreements”. The three interwoven agreements require the destruction of the Klamath River Hydroelectric Dams without dissent.

The Tribal letter asserts that the Agreement requires the permanent protection of the in-stream flows that were granted to the Tribes by the Oregon Department of Water Resources (OWRD), in its March 2013 Final Order of Determination (FOD) of the Klamath River Adjudication. The OWRD reallocated virtually all surface irrigation water located within former Tribal reservation boundaries to in-stream flows in it FOD, by granting the Tribal claims to virtually all of the surface water tributary to Upper Klamath Lake.

Like the KBRA, the Agreement requires the permanent diversion of 30,000 acre feet of irrigation water to in-stream flow. It further requires that net amount of water to be delivered to Upper Klamath Lake. The water is to be derived primarily from “willing sellers” who agree to permanently give up their consumptive use of irrigation water.

Some of the in-stream flow may be temporarily supplied by water leasing if the necessary changes can be made in state law. The transfers to in-stream flow will require the permanent dewatering of as much as 30 square miles of currently irrigated productive pasture and farm land.

The Agreement requires the creation of an extensive agenda to restore aquatic ecosystems in more than 220 stream miles. Farmers and ranchers who own at least 80 percent of the land adjacent to streams tributary to Upper Klamath Lake, located within former Tribal reservation boundaries, must agree to participate.

The settlement will require the landowners to effectively share the management of corridors of their private riparian lands from 50 to 130 feet wide, on both sides of the rivers. The corridors appear to be similar to conservation easements, where the title to the land is restricted, and the required management practices are enforceable by a third party. In this Agreement, the third party is ultimately controlled by the Tribes.

The Agreement provides for Tribal and public access, including opportunities to harvest fish, at four new riverside locations. The sites are yet to be determined but will be located on the Wood, Williamson, Sycan and Sprague Rivers. The access points will be purchased by the taxpayers of Oregon, and developed for the use of the Tribes and the public by the Oregon Department of Parks and Recreation.

The Agreement “includes support for the KBRA-based acquisition of 90,000 acres of the former reservation land commonly known as the Mazama Forest”. It further requires the U. S. government to give the Tribes $45 million for economic development. The agreement explicitly provides that “the Tribe will have the option to utilize these funds for additional land purchases....” It dedicates certain funding for the specific purpose of training between 10 and 20 new Tribal land-managers.

In total, when combined with other provisions of the KBRA, the Tribes would receive more than $147 million in direct funding. The money is mainly dedicated for the purchase of land, ecosystem habitat enhancement, water quality improvement and economic development for the Tribes.

The Tribal letter asserts that “if the Agreement is approved, legislation is successful and all of the contingencies of the Agreement are satisfied, the parties will withdraw their exceptions and a final decree will be issued affirming the Klamath Tribes time-immemorial water right at the level in the FOD.”  In short, the Tribes will forever acquire the water rights to virtually all of the water tributary to Upper Klamath Lake, and the right to protect an Upper Klamath Lake level arguably not sustainable without the Link River Dam, through a non-judicial administrative process. Further, the Agreement provides that the Tribes’ may request the Oregon Water Resources Department to reverse the Department’s denial of certain Tribal claims for water outside of the boundaries of the former reservation in the Adjudication.

The final provision of the Agreement restores the “conditional use” of much of the surface and groundwater that many of the farmers and ranchers have been using for generations. Their ability to use that water to grow food and fiber will be conditioned on how well the landowners continue to meet the other provisions of the Agreement.

A Joint Management Entity made up of the Tribes, landowners, state and federal representatives is given the responsibility to determine how well those provisions are being met by the landowners. The provisions of the Agreement in effect provide the Tribes with veto power regarding that management oversight.

Most of the landowners believe that their representatives obtained the best “business deal” possible given the untenable negotiating conditions that were created by the Oregon Water Resource Department. However, others are rightfully concerned that the Agreement infringes on their First Amendment right to free speech because the document prohibits signatories from speaking or writing in opposition to any of the agreements. Others believe the Agreement infringes on their Fifth Amendment rights to own and enjoy the benefits of private property, including their irrigation water rights.

Many of the farmers and ranchers spent a great deal of time and money on research, court filings and attorneys to represent their interests in the Klamath River Adjudication. Most understood that the Ninth Circuit Court of Appeals had determined that the Tribes are entitled to an in-stream water right sufficient to support their Treaty rights to hunt, fish and gather. The Court determined that the priority date of the water rights was “time immemorial” because those Treaty rights were retained when the Tribes sold their former reservation to the U.S. government.

However, the Ninth Circuit Court determined that the Tribes are entitled to no more, or no less water than they were currently using for a moderate standard of living at the time of the Court decision. Further, the Court stated that the amount of water the Tribes are entitled to cannot be interpreted to be the amount they were using at the time of the 1864 Treaty. The Court had no intention of returning the land to a wilderness servitude.

 The Oregon Water Resources Department appeared to ignore the latter part of the Court ruling in their March 2013 Final Order of Determination. In spite of the extensive arguments of the irrigators, and in spite of the Court’s specific instructions, the OWRD gave virtually all of the surface water tributary to Upper Klamath Lake, as well as an unsustainable lake level to the Tribes. It denied the Tribal claims on the Klamath River because that was not part of the former Tribal Reservation.

Last fall, the OWRD made public their intent to regulate, or shut down, as many as 100 Upper Basin irrigation wells. The Department alleges to have determined, through a regional groundwater model, the use of the wells for irrigation may interfere with their newly determined Tribal in-stream water rights.

Oregon laws and rules require OWRD to prove any well that is constructed more than a quarter of a mile from a surface water body is actually causing substantial and timely interference before it can be regulated or shut down. OWRD has alleged that their modelled data proves that individual wells constructed within a mile of a “gaining reach” of a river interfere with the Tribal water rights, even though they admit to not being able to measure the amount of that alleged interference. Nevertheless, they insist that the burden of proof is now on the well owner to verify that it does not interfere. This shifting of the “burden of proof” appears to be contrary to Oregon water law.

During a teleconference last fall, OWRD stated their intent to regulate or shut down many of these irrigation wells. They said that they would be forced to shut down the wells by priority date in response to the next Tribal “call” to protect their newly adjudicated in-stream water rights.

In my opinion, the groundwater models that OWRD has developed are imperfect, incomplete and possibly fraudulent. However, the Department’s determination to use the threat of regulation of the wells to encourage compliance with the Agreement was genuine.

The Oregon Supreme Court has determined that an Oregon water right is a property right. It has been made abundantly clear to the irrigators, at numerous meetings this year, that the best way to avoid losing their private property right to use their irrigation wells was to sign-on to the Agreement.

Governor Kitzhaber and his Oregon Water Resources Department are signatories to and strong supporters of the KBRA and KHSA. Upper Basin irrigators have generally not supported those agreements in the past. From my perspective, both the Adjudication and the OWRD groundwater models are now being effectively used to “enlist” their support.

The Agreement will not be complete until all of the funding, in-stream transfers, riparian corridors, state and federal legislation and other provisions of the settlement are in place. The settlement remains a work in progress.

Please remember, if we do not stand up for rural Oregon no one will.

Best Regards,

Doug