— All parties cooperating for mutual needs, survival
According to the Rolling Stones’ popular song, “You can’t always get what you want, but if you try, sometimes you get what you need.” That wisdom permeates the most recent agreement on the Klamath Basin water war, which may prove to be the final word in this decadeslong conflict.
During the first week of March, the “Proposed Upper Klamath Basin Comprehensive Agreement” was released. Though still “proposed” and subject to amendments and voting by involved parties, the agreement has the potential to settle the problem of too little water in the Klamath Basin to every one’s satisfaction, if not their desires.
Though the history of the area’s water woes is long and storied, recent droughts and the March 2013 Klamath County Circuit Court ruling brought the longstanding problem to a head. When the court ruled in favor of the Klamath tribes, agreeing they had “time immemorial” water rights to vast sections of surface water in the region, it effectively gave the tribes all the water in the area. Sweeping shutoffs of surface water rights for irrigators followed, and this year threatened additional shutoffs of irrigation wells.
Such a situation was and is untenable for the agricultural community at large, however, plus widespread destruction of the agricultural community would devastate the whole region. The involved parties have been working on an agreement to get all needs met and this agreement is the result.
“Under the current adjudication decision that came out last March, the tribes were granted an instream water right for fish habitat to provide for their treaty rights and as a result there’s not water left available for agriculture,” explained Andrea Rabe, Landowner Outreach Project Manager with Water for Life, rancher, and a Professional Wetlands Scientist.
“Under the current adjudication that we’re subject to, we don’t have irrigation water either from ground
or surface water sources. So by putting together the settlement with
the Klamath tribes, we’re able to provide them habitat and some
in-stream flows while still having some flow available for irrigation.
That allows for irrigation to move forward and the irrigation community
to remain intact.”
Though the agreement covers many points, including the acquisition of the Mazama Forest by the Klamath tribes and an economic development program for the tribes, of central importance to ranchers and landowners are the water and riparian portions.
The Water Use Program (WUP) portion of the agreement calls for inflow volumes into the Upper Klamath Lake to increase by 30,000 acre-feet on an average annual basis. The increased inflow will come from reductions in the “Net Consumptive Use” of water by irrigation across six different regions. This will be accomplished through voluntary retirement of water rights, combinations of long- and short-term leasing, and other activities to reduce water consumption.
The agreement sets various water reduction levels for the different regions based on their size and influence on inflow to the lake.
The reduction in water use for the regions as set out by the agreement are as follows (also see Water Use Program Regions map):
Upper Sprague—reduce use by 6,900 acre-feet; Sycan—reduce use by 1,050 acre-feet; Lower Sprague—reduce use by 9,420 acre-feet; Middle Williamson—reduce use by 330 acre-feet; Lower Williamson (including Modoc Point Irrigation District)—reduce use by 2,700 acre-feet; and Wood Valley—reduce use by 9,600 acre-feet.
Participating landowners would enter into a Water Use Agreement (WUA) with the agreement’s Joint Management Entity (JME)—a nonprofit group, which would oversee the execution of the agreement and be made up of voting representatives from the Klamath tribes, the U.S., the state of Oregon, and the group representing landowners—who would review the WUA. WUAs would be approved or rejected by the JME according to WUP guidelines.
When asked what would happen if insufficient numbers of water rights holders voluntarily retired or gave up using their water rights to achieve the 30,000 acrefeet increase, Rabe explained that the tribes would be able call their time immemorial water rights, thereby leaving none for agriculture. All cooperate to limit use, or all lose.
“If we’re not meeting the flows, then there’s going to be a call to meet those flows,” said Rabe of the situation. But she went on to explain that the new agreement works out far better for agriculture than what the March 2013 adjudication allows.
“[The call] is limited to a specified in-stream flow. So there’s a call threshold that limits it, which is substantially less than what [the Klamath tribes] were granted during adjudication during dry years and it would be at that in wet years. The idea is that it varies by year type. If there’s less water to go around, everybody gets a little less. If there’s more water to go around, everybody gets what they need.”
The Call Thresholds—discussed in the agreement’s section 3.9 and 3.10 and covered in depth in Exhibit D— are flow rates associated with specific locations within the Water Use Program Regions (see map). There are maximum and minimum Call Thresholds associated with each location that vary throughout the irrigation season (April-October) and according to conditions.
The Riparian Program portion of the agreement has a similar structure though its goals are less precisely defined. According to the agreement, the purpose is to “re-establish and/or maintain the full expression of successional dynamics of the riparian plant community within the Riparian Management Corridors, thereby improving and maintaining water quality and fish habitat.”
The definition isn’t nearly as exacting or measureable as is the 30,000 acre-feet increase in the WUP requirements, but Rabe explained that the “fuzzier” definition is still useful.
“One thing to keep in mind is when we talk about a stream system and the riparian habitat, it’s not an end goal. We can’t say, ‘if we do X, Y and Z we’re going to have this perfect habitat and it’s going to be perfect like this forever.’ It’s a dynamic system. It’s going to change,” she said.
“What the tribes have asked the agricultural community is to try to achieve that natural system while balancing it with our agricultural production. And we think we can do that through managing how we are interacting with the riparian area through our management practices, particularly grazing.”
The agreement estimates that 80 percent of the eligible riparian areas need to participate in the riparian program to meet the estimates of what “proper functioning conditions” are for the habitat. While that is a relatively large number, particularly when the word “voluntary” is tossed around, Rabe pointed out that most of the riparian protection activities outlined in the agreement are already being done by area ranchers.
“A lot of the landowners over the last 20-30 years have implemented riparian fencing and either grazing exclusion or grazing management for the riparian areas. Many places have actually done restoration in the form of wetlands planting or seeding,” she said.
“So really at this point we’re asking landowners to continue to use best management practices and in the event that they haven’t been, to go ahead and implement those and document those activities in a Riparian Management Agreement. That will also allow for some monitoring of that riparian area to make sure that it provides the functional habitat that we need.”
Protections for Ag
Though one of the easiest ways to achieve the goals set forth in the agreement would be for irrigators to simply permanently retire their water rights—which would effectively remove the area from agricultural production—the agreement sets limits on how many acres can be retired. Rabe explained the provision (section 3.18) is an effort to maintain a viable agricultural economy.
“We need a certain number of acres to support our local feed stores, tractor stores, large animal veterinarians, and so on. If you reduce the total acreage of the ranching community below that threshold you get to the point where you start to see infrastructure collapse,” she said, giving the example of the logging industry, which was diminished to the point of insolvency in the 1990s.
“There’s an economy of scale that we need the industry at and if we go below that threshold individual ranches might make it, but the industry as a whole isn’t going to make it in the area.”
The limitations on permanent retirement of water rights are as follows for the aforementioned WUP Regions (see map):
Upper Sprague—limited to 4,140 acres.
Sycan—limited to 630 acres.
Lower Sprague—limited to 5,652 acres.
Middle Williamson—limited to 198 acres.
Lower Williamson (including Modoc Point Irrigation District)—limited to 1,620 acres.
Wood Valley—limited to 5,760 acres.
“At the end of the day it comes back to the concept of we have to look at what we need, not what we want. Clearly it’s not what we want because some lands will have to be retired from irrigation,” concluded Rabe, noting willing sellers would of course be reimbursed.
“The positive thing is it allows us to keep the agricultural community intact at a level that it can move forward with the agricultural infrastructure by having enough critical mass to support that industry. And also it allows the majority of landowners to receive some if not all of the allocation they need to operate their ranch.” — Kerry Halladay, WLJ Editor