Klamath Restoration Agreement Makes Water Rights a Water Sport

The Klamath Basin has been waging a water war of epic proportions since 2001. Although this community has had a long history of water disputes, the issue garnered national recognition in early 2001 when a drought was declared and irrigators’ water was turned off in order to protect endangered fish in the Klamath River. It took another four years of economic and environmental catastrophes before many of the parties involved would join together in July 2005 to begin to discuss a settlement agreement. At this point the real game began, and the rules started to change.

Water rights have developed over decades from a common-law basis where prior appropriation was key. Water rights are established on a timeline, with the most assured rights held by the oldest rights holder, known as “senior.” All water rights with a date filed after that time are considered “junior” to the senior water right holder. So, for example, during a drought the junior water right holder must turn off their water before the senior right holder does. The Klamath Basin Restoration Agreement signed on February 18, 2010 overturns this system and risks throwing the region into chaos.

The Process

Settlement agreement negotiations were convened by the U.S. Fish and Wildlife Service. The original objective of the participants (who consisted of federal, state and local officials, along with PacifiCorp, irrigation district representatives, and environmental and fishing organizations) was to develop a single agreement which would include all stakeholders and be an open consensus process.

However, the playing field quickly changed. First, instead of one agreement, it was decided to develop one agreement to deal with the hydroelectric impacts and a second agreement to deal with the litany of water quantity and quality issues. In addition, somewhere along the way the process was no longer based on consensus. Many of the meetings were held in secret, and certain parties were excluded from the negotiations. The reason used to justify secret meetings was that issues being discussed were of a proprietary nature. However, no matter how proprietary some of the information may have been, the results will have profound effects on citizens throughout the entire Klamath Basin and will require taxpayer funding to implement. Therefore, no reasonable excuse exists to exclude any of the parties from any portion of those discussions.

The most egregious change made to the process was when the group representing the majority of the individual irrigators, referred to as the “off-project irrigators,” were excluded from the negotiation table. Instead, a newly formed group representing only a small fraction of the off-project irrigators was invited to participate in the negotiations, which consequently did not include the viewpoint of the larger stakeholder group.

In fact, it has been revealed that the newly formed group, known as the “Upper Klamath Water Users Association,” was organized by Becky Hyde. Ms. Hyde has had direct monetary ties to both Sustainable Northwest (considered the “unbiased” facilitator during the Agreement discussions) and the Klamath Tribes. Both groups have huge stakes in reaching an agreement that likely would not be to the benefit of the off-project irrigators. This sets an ugly precedent for facilitated processes. It changes the process from facilitated negotiation to participatory extortion. In essence, either a party agrees with the settlement group, or they will be replaced with a group that will agree!

The Implementation Impacts

The results of this agreement will be significant for all Oregonians. The Agreement unfortunately picks winners and losers among farmers. Water rights in Oregon will be usurped by the Agreement. This will have long-term impacts on the way water right issues are decided statewide. In essence, the Agreement ignores the “first in time-first in right” basis of Oregon water law and requires off-project water users (which for the most part are senior water right holders) to turn off their water before the junior water right holders (known as on-project irrigators) that are a part of the federal irrigation project can be asked to limit their water use. This game-changer could set legal precedents allowing junior water right users to negotiate their way to the top of the priority line. In addition, the Agreement requires off-project irrigators, many of whom have not been a party to this Agreement, to retire 30,000 acre-feet of water.

The one critical component that brought the water users to the table to craft this Agreement was an opportunity to obtain assurances that they could continue to use water critical to generating economic stability for the community and nutritious food products for the rest of us. However, the Agreement doesn’t provide that desired assurance. Instead, it creates a deep division within the community by requiring impacts to be shouldered by one segment of the community first (off-project irrigators). When that isn’t sufficient, the rest of the community (on-project irrigators) will be in jeopardy. That doesn’t constitute assurance.

The 369 pages of the Klamath Basin Restoration Agreement contain numerous other issues critically impacting the community, tribes and the environment that have not been discussed here. But, it is important to understand that both the process used and the resulting Agreement will have lasting effects on all Oregonians, not just those residing in the Klamath Basin. When there are so many victims of the process, the one-sided adulation of the Agreement by the Governors of Oregon and California, as well as others present at the signing ceremony in the state capitol rotunda, is disheartening.

Karla Kay Edwards is Rural Policy Analyst at Cascade Policy Institute. She has held positions of leadership in numerous organizations focusing on agricultural and rural industries and issues, including the Fresno (California) Farm Bureau, Washington Cattlemen’s Association and the Oregon Department of Agriculture.

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  • Mark

    Plus, with global warming, there will be less and less water in the Klamath Basin each coming year.

  • Reper

    The problem is that too many stakeholders are using the stakes to drive it into their opponents heart. I too question the governor’s agreement.

  • Anon on the Klamath

    The problem began when we had one federal biologist write an “opinion” for upper klamath lake, and when another federal biologist write an ‘opinion’ for the klamath river. They conflict with one another, but there is not a judge in Oregon smart enough to understand, we can not send more water then we produce, even in a super duper wet year. Dr. Thomas Hardy, author of river opinion, is a lying bastard whore for environmentalist hypocrites. And Becky Hyde should be ashamed of herself, but then you have to have a conscience to understand shame.

  • Just Saying

    Also left out of any of the settlement agreement negotiations were utility ratepayer representatives and organizations. In part because of Oregon’s bozo incompetent governor who is a “tax and spend” leftwing piece of work dim-whit; under the current accords, it appears as if utility ratepayers and taxpayers will bear the brunt of the price tag burden while many other parties and groups involved will receive financial benefit from those same ratepayers and taxpayers. Additionally, many Oregon utility rate payers will likely have to pay more for replacement power.

    Rather than having the costs placed on the backs of unrepresented ratepayers for what the eco-zealot groups want; instead of just a mouth piece supplying the usual rhetorical lip service,. it ought to be those groups themselves such as the Sierra Club that assume the responsibility for paying the project costs. They have plenty of wealthy control freak donors. Likewise, if it is going to be hasta la vista for the dams as California Governator Schwarzenegger so fanatically pronounced, then too the almost bankrupt of State of California needs to assume a big chunk of the debt – but not Oregon utility ratepayers or taxpayers.

    • valley p

      Do “eco zealots” include the commercial fishermen who were the primary party advocating for salmon restoration as part of this project? They might be surprised to be identified that way.

      Or is growing sugar beets that much more important than catching fish?

  • Britt Storkson

    What’s wrong with simply selling the water – a natural resource like oil, coal, minerals and timber – to the highest bidder? If the green weenies want water for fish they can buy it. Of course that’s too simple…

    • valley p

      So you are saying the fishermen should have to pay the farmers, who are only there courtesy of a federally funded and managed water storage system in the first place, to get back the water that used to be there for fish before it was taken away and given to the farmers? Does that seem fair to you?

      In past circumstances, when “green weenies” have come up with the funds to buy out water rights to help save fish, farmers and ranchers have complained that this is unfair and will kill off the economies of their communities. Farmers and ranchers are the last people in the world who want a free market on water, trust me.

    • eagle eye

      vp is right. Aside from the extremely vexed question of who really “owns” the water, when it’s been proposed that agricultural water be diverted to the highest bidder, to help urban areas in California, the squawking was loudest from the ag interests that would have lost the water in an open market.

      • valley p

        Not just in California either. Farmers and ranchers, particularly in the arid west, are the most subsidized, coddled businesses anywhere. As Joe Biden might say, God love em, they may be the salt of the earth, but lets not ever confuse what they do with a free market.

      • Britt Storkson

        There is no question about who “owns” the water. It is owned by the public.

  • Glen Spain

    The only problem wrong with Ms. Edwards analysis is that she is dead wrong, and her basic premises of the article are false. Here are the facts:

    (1) The KBRA states EXPLICITLY that “No water rights or water rights claims are determined or quantified herein. No water rights or potential water rightrs claims or any non-party to the Agreement are determined herein.” (KBRA Sec. 2.2.11) Look it up. The final document is at http://www.edsheets.com.

    Water rights, including any rights in the Adjudication process, are determined in accordance with state law, and under the Administrative Law Judge’s Adjudication rulings. NOT by the KBRA, which as a mere contract can never supersede state water laws. Any of those parties can negotate a separate settlement, but it becomes effective ONLY when adjudged so in the Adjudications process, NOT because it is attached in draft form to the KBRA.

    (2) The Klamath Off Project Water Users Association has been at the KBRA negotations table since the very beginning, though not always represented by any particular person. To say that they were excluded from the KBRA process is simply not true. They excluded themselves from the Hydro Agreement process by refusing to sign the Confidentiality Agreement for that separate dam removal negotations process, and have excluded themselves again by refusing to sign it as part of the package (which means they also cannot sign to the KBRA, since the two documents are linked) but were always included in the KBRA negotiations.

    We were involved in all these negotiations and sat shoulder to shoulder with Off-Project Water Users Association representatives throughout the KBRA process. Prior to Tom Mallams they were represented by Edward Bartell.

    (3) All off-Project water demand reductions are strictly on a voluntary, willing seller to willing buyer, basis. (KBRA Sec. 16.2.2.G) As owners of these water rights, these willing sellers are perfectly entitled to dispose of their own water rights as they please as their personal property.

    — Glen Spain, Pacific Coast Federation of Fishermen’s Associations

    • Anon on the Klamath

      Funny thing Glen, YOU dont represent fishermen, and you never have.

  • Brian

    Wow that was enlightening.

  • Adjudication

    Karla Edwards has not done her homework, she has been told a story by one of the Off-Project groups (there are 2 Off-project groups, one for the KBRA and one against) of irrigators that are opponents of the KBRA. The KBRA does in no way supercede Adjudication, which will happen in the Klamath Basin in 2012 and the first irrigators to have their irrigation water shut off when needed in drier years, will be those holding Junior rights. The KBRA allows for some flexibility in retiring 30,000 acre feet of irrigation water. Compensation for retirement, water banking or dry cropping assistance, seed, water efficiency improvements, etc. There is more water adjudicated than exists in the Basin. The opponents in the off-project have chosen the expensive path of litigation and have lost 2 rounds of lawsuits against Pacific Corp (currently in a 3rd appeal, $$$) for their perceived loophole in the 50 year Ag power contract (which ended in 2006), now the power rates increase from 3/4 cent per kilowatt up to a rate in which Farmers will not be able to afford to pump water on to their land to grow food. These opponents sued the On project group of irrigators and lost, $$$, (for negotiating an agreement with the Tribes), sued the Klamath Tribes and lost. They claim “to not have been allowed a seat at the negotiating table”, well that is completely false, you see they have always had a seat at the table from the very BEGINNING of the Negotiations, this is of public record and can be viewed on-line at the Meeting facilitators web site. They have been there for Power and water, you see they offered water language at meetings and they were the first to offer up 30,000 acre feet of water to the Tribes in an attempt to settle water disputes, then at a later date this group decided to Only be at the table for power. Karla, please do your homework as this article you have put your name on is not good for your career.

  • Adjudication

    Another correction is needed for this article: Ms.Edwards mentions the Facilitator for KBRA negotiations as Sustainable Northwest, this is wrong. The Facilitator of the KBRA and Hydro Agreements is a professional Facilitator named Ed Sheets, http://www.edsheets.com , and at this site one can find the attendance lists, along with the KBRA and Hydro Settlements. Sustainable Northwest was founded by Farmers and Ranchers as a foundation to help Sustain Farming and Ranching in our changing world of the Pacific Northwest. The Klamath Off Project Water Users Association, opponents of the KBRA and this article sound exactly like the mis-information they are attempting to spread. This opponent group also has paid consultants working for them.

  • Karla Kay

    Adjudication: I did do my homework. First of all I have an email directly from James Honey that said “We have served in a facilitative capacity from time to time during the settlement process.”. I in no way said they were the official facilitator. As for the more important part of you comments only time will tell as to the outcome of how 30,000 acre ft. of Upper Klammath Basin water will be retired. I hope it is all on a voluntary basis, but I am skeptical of that. As for the exculsion of the off-project water users that is not false. They were not included in closed door meetings, yes part of the issue was that they would not sign the “confidentiality agreement”, but those meetings that will impact the community as a whole should not have been closed door meetings in the first place.

  • Adjudication

    We all deserve to know how Ms. Edwards deciphers Oregon Water Law as saying Junior water rights supercede Senior rights according to the KBRA. Ms. Edwards we are still awaiting your answer to this inaccurate statement made by you in the above article.

  • Adjudication

    Karla, How do you determine that off-project water users were excluded?

  • Adjudication

    Hey! To learn more about Becky Hydes Agenda, go to http://www.ukwua.com

  • adjudication

    About Dam removal:The re-licensing of the Dams has been coming since they were built.We all new that re-licensing would happen in 2006.In order to re-license,the Dam Owners,Pacific Corp(dams are PRIVATE PROPERTY,in the USA private property can be used or done away with as the owner sees fit)need to Retrofit the structures with fish passage,etc.Pacific corp has already spent $50 million on studying re-licensing,which the rate payers will eventually pay for.The cost of Retrofitting the Dams and leaving them in place,is estimated at twice the cost of removing them,or more,again the rate payer would pay for.There is also the factor of continuing law suits by entities involved with river health and the health of the things that live within.So,Pacific Corp has decided that it is in their best interest,also for their rate payers,to remove the Dams.The Co-gen Plant(Natural Gas)in Klamath County produces 5 or 6 times what the dams produce altogether.

  • adjudication

    There was not a valid,effective group at the negotiation table for the off-project, there was a concern by stakeholders that the the Off-Project irrigators were not being properly represented by the Off-project group that was at the negotiations since the very beginning, it became apparent that there was not a Democratic process among the KOPWUA and that is why UKWUA was asked to be formed to properly represent the Off-Project irrigators. I am glad for this, as I was not interested in having KOPWUA represent my water and power interests.All we hear from KOPWUA is complaints and no solutions and no accounting and in the mean time I will not be able to afford the rising power rates and I will be out of Farming and Ranching. UKWUA was successful in securing $40 million loan already earmarked for the Basin and UKWUA also has some Bright minds working on energy production and independence.While KOPWUA is suing Pacific Corp round “3”.

  • Adjudication

    Regarding Representation, or “being Denied”: We who have live in the Basin Know that Roger Nicholson-Upper Basin Contestants and oh six or so other “non-profit” dot org groups, Tom Mallums Offproject Water Users, before him Ed Bartell,Sprague River Water Users, are all one in the same and they have been “at the KBRA meetings” from the beginning to the end, go to edsheets.com to see the attendance at any of the meetings. They are their under KOPWUA, that is their representation, of late their representative has been Tom Mallums, they have one seat. The Klamath Tribes have one seat. Pacific Corp has one seat and so on. The Stakehoilders at these meetings are smart enough to know that the multiple groups associated with KOPWUA, same people, constitute as one seat. Why they are there and claim that they were denied to be allowed in, is false and a desperate attempt at discrediting what Stakeholders, (who were all available by phone or e-mail for representation,much like contacting your Senator or Representative)have worked so tirelessly on. Not signing to both The KBRA and Hydro is their choice as their plan is to continue to sue Pacific Corp,this fact was brought up at the Commisioners Question and Answer meeting before their vote.Tom Malums said to Dean Brockbank of Pacific Corp “did you forget about our lawsuit against you?”, to which Mr.Brockbank answered “I forgot for about 3 seconds.” it is on the Commissioners Record. And yes this group has sued the KWUA,OWRD,Tribes and lost.KBRA does not take rights away,the opportunity to donate and not vote in Tom and Roger’s groups,their right to sue over and over will always be there.I’m saddened to hear people speak that have been lied to, as it causes grief and it slows the path to prosperity for all.

  • Open up

    Yeah,Becky Hyde has a job with a non-profit dot org called Sustainable Northwest that was formed by Ranchers and Farmers in order to keep on Ranching and Farming in the changing World of the Pacific Northwest.The transparency of Sustainable Northwest is to be commended,their income, projects and employees,it’s all open,honest and on-line. This group is the off-project proponent of the KBRA.The off-project group that opposes the KBRA,KOPWUA and associate sub-groups,have no such information available,their members have asked for an accounting and never received one(you see they collect donations,just like Sustainable Northwest).KOPWUA has no web site displaying tax forms and income in and paid out. They have a paid consultant that receives $70,000 per year, nothing wrong with that,I want paid Professionals working on such critically important issues such as water and Power negotiations,not Amateurs!Get the LOW DOWN on Becky Hyde at http://www.ukwua.com!!!

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