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.