Evaluating the Klamath River Water Settlement Agreement

Tom Burns, Modoc Point , OR

February 22, 2008

The Challenge and the Motivation

In seeking a water settlement for the Klamath Basin , we all start with the realization that the waters of the Klamath Basin have been over allocated as a result of the piecemeal encouragement of the activities of various water dependent interests over time.  We all now realize that in anything but very good water years, there is simply not enough water to meet the demands of all parties.  And in the projected future development of the area, we expect only more pressure on the basin water resources, not less.  We also have come to recognize that adjudication of the Upper Klamath Basin in Oregon 1) has taken a long time and involved a great expenditure of time, energy and money by all parties, 2) has promoted antagonistic relations among the competing parties, and 3) could take additional years to settle through the courts at even greater negative impact to the interested parties and communities, if nothing is done to curtail it.  More broadly, in recent years we have experienced the dire consequences to both resources – fish – and economic endeavors – fishing and agriculture - that have been the consequence of interested parties competing  for water. This is the situation that motivates all parties to seek a comprehensive water settlement agreement for the entire Klamath Basin .

Recognizing and Overcoming Absolutist Perspectives

With regard to water in the Klamath Basin , every party has its absolutist position; that is, its view of history with supporting documents and rationale that it asserts guarantees it control or use of all the water it needs.  And all of these parties point to the many concessions that they have made over time to accommodate the needs of other groups and claim that they should not have to give up any more.

All parties in the settlement have to realize that when it comes to rights and concessions, the tribes of the Basin have given up resources in bits and drabs and sometimes in big chunks to the surrounding Basin community for 140 years.  And the tribes also have the oldest and legally the most fundamental claims, which reside in the comprehensive rights guaranteed them by the United States in perpetuity in their treaties and through their federal recognition and reservation holdings.  Under the absolutist perspective of the Klamath Tribes – which claim all of the Upper Basin as being included in their 1864 treaty, all of the resources of the Upper Basin rightfully belong to them.  Any loss of these resources was the result of their being taken illegally in a series of events, ending in the Tribes’ termination.  From the absolutist view of the downriver California tribes [Hoopa, Karuk, and Yurok], their federal recognition status and property holdings guarantee them control of all the resources of their reservation areas as well as any resources outside their reservations that are necessary to support their traditional lifestyle.  If the Shasta Tribes were federally recognized with similar absolutist views for the middle portion of the river, the collective effect of the absolutist perspectives of all of the tribes along the Klamath River would essentially exclude the presence of all other parties in the Basin.

While the tribes have officially withdrawn these absolutist positions in the face of history and reality, even their leaders are inclined to revert to them in discussions because the guarantees in their treaties and recognized status are part of their core worldview.  All the parties to the current water settlement must respect the fact that no group has a greater challenge in releasing their absolutist perspective than the tribes, and no party has a greater right to resist giving up any more in behalf of a water settlement in light of what they have already sacrificed.  In the face of personal self-interest and their own absolutist views, it is difficult for the other parties of the Basin to sustain this larger awareness.

Other Upper Basin parties in settlement discussions – and especially the hardliners among them – tend to adopt and promote their absolutist positions as well, even though, when compared to the tribes, the historical basis for these positions is shallower, the legal support is less fundamental, and the implications are not so broad or sweeping.  Accordingly, Project irrigators point to the original documents from the federal government forming the Reclamation Project and approved by Oregon and California that guarantee them all the water they need for their agricultural pursuits – including that allowed for a greatly expanded system.  Off-Project irrigators point to the allotment origin for most of their properties and the senior status of their subsequent Walton rights.  Groundwater users have their certified water right allowances from the Oregon Water Resources Department.  US Fish and Wildlife and their refuges have the mandate of their authorizing legislation and the Endangered Species Act [ESA] to position themselves ahead of all others with regard to water provision.  Salmon fishermen, downstream tribes, and National Marine Fisheries Service [NMFS] have the ESA, federal recognition rights, and authorizing mandates to support their priority position for Basin water.

Under the umbrella of each party’s individual absolutist perspective, their right to water is guaranteed.  But so long as these absolutist perspectives inform negotiations for or discussions of the settlement, no progress can be made because they ignore the perspectives of the other parties and the reality of actual multiparty interest in and use of water in the historical development of the Basin. 

To their great credit, in achieving the current settlement proposal, all water parties did release their absolutist stances, did recognize the reality of the multiparty claims to water, and did allow for true negotiation and compromise.  But in spite of this fact, I keep hearing each of these parties revert to their individual absolutist positions when the current proposal is criticized.  In addition, these parties often adopt an absolutist position with regard to the settlement itself!  I have heard from several sources that, “It is this deal, or no deal.”  I suggest that while the appearance of absolutism at both levels is understandable under the pressure of the situation, it is unrealistic and unproductive.  A few very good people developed the current settlement proposal, but it substantially impacts all Basin residents.  It should be expected then, that upon review by the much broader Basin public, weaknesses in the proposed settlement will be discovered that will need to be addressed in the form of revisions.  As the evaluation process proceeds, it is my hope that we can all avoid the temptation to absolutism at all levels.

In the following seven sections, I offer my input on the proposed settlement from my perspective as a professional social scientist and as an Upper Basin resident who has been active for many years with the interests of many different groups.  Others may disagree with some of what I suggest, but I hope we can respect one another so long as the input we offer is based on a thorough reading of the settlement proposal, does not revert to absolutist positions, and is constructive in its intent.  In the final section, I offer the outline of an alternative settlement that addresses the weaknesses that I see in the current agreement.

Establish a Realistic Settlement Review and Adjustment Schedule

For the following reasons, the time has come for the group that has developed the current Klamath River Water Settlement Agreement to officially withdraw its fast track schedule for approval by all parties.

1)     Given the number of different parties involved, allowing only a month to review and approve a proposal of this magnitude and complexity is simply inadequate.

2)     A select few representatives of the interested parties of the Basin have developed the settlement document.  For all their good work and effort, this group is not the entire Basin community.

3)     Since it is the entire Basin community that is affected by the settlement, it is this entire community that must be given an opportunity to examine the proposed settlement, reflect, and respond.  The fast track schedule does not begin to allow sufficient time for this process.

4)     There are interested parties that are only now being identified that have not been involved in settlement negotiations.  One example is municipalities, whose ground water wells are potentially circumscribed by the settlement.

5)     There are parties to the settlement negotiations themselves that do not support the agreement, in particular Off-Project Water Users [OPWU], and the Shasta and Hoopa Tribes.  For an agreement of this scope and especially for one that calls for cooperative, consensus based decision making in its implementation, agreement to the settlement itself can not involve majority parties imposing their will on minority parties.

6)     The settlement depends on PacifiCorp agreeing to remove four or five of its dams on the Klamath River , and PacifiCorp has not agreed to this action.  In fact, it seems the company has not begun such considerations as part of the proposed settlement.  Without dam removal there is no basis for settlement, and it is going to take time to get a response from PacifiCorp.

7)     Representative Greg Walden has indicated that there is no need to meet a February, 2008 deadline since Congressional action on any settlement proposal will not occur in 2008.  There is a lot of time before we approach a deadline for a proposal to be considered for 2009 Congressional action.  There is no rush for Congressional reasons.

8)     Funding of the settlement is a huge question, especially since as developed the agreement depends almost entirely on outside federal support.  Time is needed to assess the reality of this entire funding program, which is designed to cover at least 10 years and possibly as many as 50 years.  We need to know if the degree and length of funding that is “expected” in the settlement is even probable before we expend much energy on resolving settlement details.

It is essential for the Settlement Group to announce an official relaxation of the original fast track schedule for review and approval of the settlement proposal.  Such an announcement will take the pressure off and allow all parties to calm down, reflect, and formulate constructive input.

The Necessity of Incorporating Groundwater

There is a fundamental contradiction in how groundwater is treated in the current Klamath River Water Settlement Agreement.  In one respect, groundwater use is not brought under control of the agreement, yet the potential for it being included is recognized and an allowance is made for it being regulated as the interrelations of surface and ground water are established.  This situation is not sufficient.

Groundwater use and users must be included the overall Basin water settlement.  This includes municipalities and the very substantial wells that they own, and not just commercial wells.  As the Basin anticipates considerable residential growth, there may even be a good argument for including domestic wells in the agreement.

The settlement allows for ground water to be brought under control of the agreement if a relationship can be shown between surface water flows and ground water use.  As I understand it, the completion of the U.S. Geological Service [USGS] comprehensive groundwater study of the Upper Basin when taken together with what is already established for surface water flows, has allowed USGS to develop a model of the overall Klamath Basin hydrologic system that is capable of displaying the ground water – surface water interrelationship.  Moreover, in the USGS study and the subsequent model, there is no question that groundwater and surface water in the Basin are in fact interrelated and that this interrelationship can be specified.  This can come as no surprise since surface water is really nothing more than the surface level aquifer, and the distinction between surface water and groundwater is a bit of a fiction.  USGS is on the verge of introducing their completed model for the purpose of contributing to the management of water in the Klamath Basin .  So, there can be no doubt that the conditions that the current settlement sets for groundwater to be included in the agreement are being met at the present time. 

While the refinement of the USGS model will come as it is employed over the next few years, groundwater and groundwater users need to be included in the settlement now.  If we fail to do this, we will just shift the current wars over surface water use to wars over groundwater use as water users attempt to shift from surface to groundwater sources.  At the present time, in a system that is designed to guarantee sustainable aquifers, USGS can indicate upper limits for groundwater use in specific areas of wells, and the settlement can require users in these areas to collectively manage within these limits.  Later it may be possible to specify exact groundwater allotments for each well.

Allowing for the connection among aquifers, sustainability of the Basin aquifer system over time must be the goal of the groundwater program that is included in the water settlement agreement.

In my estimation, there is no adequate water settlement for the Klamath Basin that does not include groundwater, groundwater use, and groundwater users. 

The Problem of Single Interest Control of Upper Basin Water

This is the most complex and controversial of the sections that I offer.  I want to begin by saying that the objections that I identify here apply to any single interest, if the settlement gives it an exclusive and controlling position with respect to water.  We can start by noting that the U.S. requires that all of its claimed in-stream water rights on public lands be allowed in adjudication [Appendix E-4].  So, water rights in most of the uplands of the Upper Basin belong exclusively to the owner – the federal government.  But since the U.S. claims are only for in-stream water rights, these federal claims match the interests of the Klamath Tribes – to keep water in-stream for fish.  The result is that in essence the claims of the Tribes and of the U.S. serve one and the same interest.  In what follows, my objections are not of the Klamath Tribes and the U.S. , but of the controlling position the settlement gives their mutual interest and the secondary and dependent position to which other water users are assigned.  I am aware that there are different interpretations of what the settlement agreement “means” on this matter and that there are clarifications under consideration that may address this issue, but I can only respond to the document as it stands and as I comprehend it.

Let’s look at what the document actually says in one of its key provisions [section 15.3.2, B, i and ii  p.67].  It is the Klamath Project Water Users [KPWU] who demonstrate what is required of irrigators [and perhaps most other water users] in the Upper Basin when they agree to the settlement.  KPWU “recognizes the tribal [Klamath Tribes] water rights at the claimed amounts and with the priority date of time immemorial.”  KPWU also stipulate the settlement “resolves and ends contests filed by KPWU [in adjudication].”  Now, what does this mean?  It comes down to what the word “recognizes” means.  And in the context in which it occurs, it has significance only if it means “accepts.”  If it means “observes” it has no significance, since the tribal claim is already entered in the adjudication process, and KPWU observing that fact is of no importance.  There is no point to the word “recognizes” if it does not mean “accepts.”  And if KPWU accepts the tribal water rights claim in amount and date as part of the settlement to end all contests between the Klamath Tribes and the Project Water Users in adjudication, then they are also agreeing to not contest the tribal claims in the ongoing adjudication process.

What happens if all irrigators – and other non-tribal water users – agree to the settlement on these same terms – following the precedent being set by the KPWU?  All irrigator contests of the Klamath Tribes’ water rights claims at the amount and date would be abandoned.  What happens then in adjudication?   The adjudicator has no justification for not authorizing the Klamath Tribes water rights claim at the amount and time immemorial date of their claim, less that allowed to the U.S. serving the same interest in the uplands.  The problem is that the claim of this one interest [Klamath Tribes and U.S. ] is equal to all the surface water in the Upper Basin .  In agreeing to the settlement on these terms, irrigators accept that the single interest of these two parties have primary rights to and control of all surface water and – through the tie to ground water that is allowed in the settlement – of all groundwater of the Upper Basin. 

It is a surprise to me that the U.S. would limit its water rights on its public lands to in-stream flows since this limitation would seem to preclude any water impoundment on these lands, which is a significant consideration in many on-going water storage explorations. 

If my understanding of the settlement is correct, agreeing to the settlement on the KPWU’s terms leaves irrigators with water rights that are entirely dependent upon the Tribes granting a continuing waiver of their water rights.  But the settlement only requires the Tribes to grant the waiver so long as a number of restoration conditions are met over a very long period of time.  It is a conditional waiver.  Under these circumstances, the settlement renders irrigators, and perhaps most other water users of the Upper Basin , second-class water users, having to satisfy tribal waiver conditions to get water.  Irrigators, and perhaps other water users, need to determine if this situation is fair and more desirable than continuing and concluding the adjudication process at the end of which time each property will be assigned a specified water right on an independent basis and with priority by the seniority of date.

If water rights are assigned in adjudication on the basis of the settlement and if irrigators depend on tribal waivers, what happens if the settlement falls apart at a later date?  Do the Tribes and the U.S. retain their control of Upper Basin water rights in behalf of a single interest because adjudication has been completed, or does everyone return to a reopened adjudication process at the point where they left off?  Neither situation would seem to be acceptable to non-tribal water users, who at best would have just delayed the adjudication process and at worst lost their independent water rights.

For non-tribal water users to depend on a conditional tribal waiver on a long term basis is risky at best considering the many variables that dictate against the settlement being sustained over the long term.  There are many circumstances that can intervene to interrupt or severely restrict meeting the settlement’s scheduled restoration and reintroduction goals with the result that the tribal waiver – upon which irrigators depend – can be rescinded or the settlement can fall apart.   The greatest of these is the loss or reduction of adequate outside funding.  And as conceived the settlement is entirely dependent upon a huge long-term commitment of outside funding, over which residents of the Basin have no control.  Also contributing to uncertainty about the settlement sustaining is the fact that virtually all the parties to the agreement reserve many rights and powers to serve what can be competing obligations and mandates outside the agreement.  In this situation, commitment by the parties is only partial, and the collective effect of so many partial commitments suggests that it is very unlikely that the settlement can sustain, especially considering the 10-50 year period required [See the next section for elaboration of this commitment problem].

My view is that a waiver based water settlement under the conditions of uncertain funding and inadequate commitment by the parties is risky, to say the least.  When we add to this waiver problem the graver concern of housing water rights control with a single interest, I conclude that both KPWU and OPWU need to consider VERY carefully the precarious position they are putting themselves in if they agree to the proposed settlement.

While the way water rights are handled in the proposed settlement might be able to work in an ideal world, this approach does not make sense to me in the real world.  I have to believe that there is a better settlement solution!

The Necessity of Unqualified Commitment by the Parties

A careful reading of the settlement document rapidly reveals that nearly all parties – especially the federal and state agencies and the up and downstream Tribes – agree to commit to the settlement while retaining the power vested in their sovereign status, basic rights, obligations, regulations, and/or mandates as assigned in and through the law or treaties.  While this may be a correct legal position for the parties to take, I suggest that it is impossible to base a long-term, complex, basin-wide settlement on this level of highly “qualified” commitment.  Why?  Because without full commitment by all parties, there is little certainty for any party.  The situation is especially uncertain for irrigators since they seem to be the only ones required to make an unqualified commitment.  Partial or qualified commitment by so many parties – as in the present proposal – collectively creates enormous uncertainty with the likelihood that many “outside” factors will emerge to undermine the effort to meet the goals and objectives of the settlement.  And such undermining is especially likely to occur in a situation where commitment is expected to persist over a long time period, as in the 10 – 50 year proposed agreement.

The only way that I can see to overcome this lack of commitment problem is for all parties to be truly satisfied that their water resource, water use, and water related restoration issues in the Basin are adequately addressed in the settlement document.  This means that all parties agree that the document provides a comprehensive plan, a strategy to fund and implement this plan, and an administrative structure and process that will assure that decision making will be fair, adaptive to the need for change, and undertaken in good faith and with flexibility by all parties.  If all parties agree that the document provides for this set of requirements, then commitment must be unqualified.  With an unqualified pledge by all parties to abide by an adaptive management process, the settlement is designed to meet the present situation as well as potential future changes in requirements, conditions, and needs.  If the proposed agreement is to have a reasonable chance to be adopted, there can be no “Reservations” like the ones that appear throughout the current settlement proposal.

In my view, either the agencies, tribes, and other key parties are willing to seek authority to make unqualified commitments, or it is not reasonable to expect that the settlement will sustain over time.  If the agencies, tribes and other parties must go to Congress or the state legislatures, or their boards or councils for the authority to make full commitment, so be it.  It just has to be done!

If all parties to the settlement cannot or will not make an unqualified commitment to the agreement – for whatever technical or legal reasons, we need to know now, so we do not waste further time and effort in a hopeless struggle to fix the document by adjusting internal details.  In my view, unqualified commitment by all parties is not a detail; it is an essential, if the proposed settlement is to have a chance of being approved.  We cannot be realistic and enter into a comprehensive long-term water settlement based on hope and what amount only to statements of good intentions by the interested parties.

Local Participation in Funding

The Klamath River Water Settlement Proposal includes a one billion dollar price tag to fund all the programs that are in the agreement for the first ten years.  For a comprehensive basin-wide restoration proposal, this cost is not surprising, but the fact that everyone has their hand in the pot while almost no residents expect to contribute a cent themselves is alarming.  The Klamath Basin is a seat of conservative politics where the values of rugged individualism are propounded on a daily basis and anti-welfare attitudes are prevalent.  Yet, in this settlement proposal we see no one taking responsibility for the ecological conditions that exist in the basin and all standing in line to receive the federal dole.  And this is not some single, unemployed mother signing up for $100 worth of food stamps.  This amounts to hundreds of millions of dollars every year for ten years and likely at least another billion dollars over the next forty years.  In fact, as it stands, the proposed settlement amounts to a federal bail out of the basin at the expense of the American taxpayer, and this at the same time when taxpayers in the Basin will not support measures to maintain state roads, state parks, local libraries, law enforcement, and school facilities.  It seems that under the mantra of individual self-sufficiency and assumed government waste it is alright to vote down support for essential services or the needs of the disadvantaged, while we have no compunction about lining up at the federal subsidy trough so long as “other” American taxpayers are the ones footing the bill.  As I see it, there is more than a little hypocrisy in this situation.

Yes, the federal government – being we the people – is the majority landholder in the Basin.  And, yes, our government has 1) promoted old growth timber harvest to support the Tribes and the mills of the area, 2) encouraged irrigated farming by establishing the Klamath Reclamation Project and by providing irrigated farm allotments for Indians, 3) supported hydroelectric development of the Klamath River, 4) encouraged commercial salmon fisheries, 5) made treaties and constructed and supervised Indian reservations, 6) established a network of wildlife refuges, 7) managed extensive federal forests and range lands, 8) created the ESA to protect endangered species, and 9) created one of the nation’s premiere national parks at Crater Lake.  In supporting all of these events in a piecemeal fashion in the Upper Basin , our government has over-allocated the area’s water resources, has put the ecology of the lands it has managed under stress, and has frequently not dealt fairly with the tribes. 

Yes, “our” government bears considerable responsibility for the impaired ecological condition of the Klamath Basin and the conflict Basin parties are now experiencing.  But it is also true that for nearly 100 years most of the area residents have been the main beneficiaries of most federally sponsored and funded developments, most of which were solicited and supported by local Basin residents and communities when they were initiated.  In many cases the Basin has come to depend on the continuance of these federally sponsored and funded activities.

Now comes the time for comprehensive ecological restoration as proposed in the Basin water settlement, and in spite of their announced conservatism and declared support for rugged individualism, Klamath Basin residents take no financial responsibility for addressing the restoration challenge.  Instead, they play the victim and run to “the government” for a fix.

I suggest that we either drop the phony conservatism, so we can legitimately go begging BIG TIME to “our” government, or we live up to our conservative rhetoric and pay at least half the bill.  50% government responsibility in this matter about maxes out what is reasonable.  So, if the Upper Klamath Basin wants a billion dollar settlement with its profusion of support programs and it is going to abide by its own conservative creed, let’s see how it is going to provide its match - $500,000,000.  When Basin residents are assigned their share in the cost of the settlement proposal [$5,000 for every man, woman and child], we can then see how enthusiastic their support is for the agreement!

Power Subsidy?

This section focuses on one part of the comprehensive outside subsidy proposed in the settlement: the expectation that power rates for all Basin irrigators should be subsidized long-term at a below market rate.  I am an irrigator myself, but I suggest that a conservative area like the Upper Klamath Basin should have a fundamental problem supporting this subsidy program.  In a conservative philosophy that applauds competition as the means to identify the worthy in the economic sphere, long-term subsidies have no place.  And on the whole, the Klamath Basin decisively supports a conservative perspective.

Short-term subsidies to address the sometimes fickle nature of market fluctuations can be justified, but long-term subsidies amount to unending welfare, which discourages constructive adjustment to changing conditions in the market.  Long-term subsidies are totally at odds with the conservative cornerstone beliefs in free markets and self-sufficiency.  And if the PacifiCorp power generating dams are removed as part of the water settlement, the irrigator’s argument disappears that they should be rewarded forever with low power rates for the water contribution they make to river flows and the value of those flows for hydropower generation.

Who is to pay more in order to support this long-term power subsidy for a select group?  Somebody will pay!  If PacifiCorp is not to pay – as the settlement suggests, will local non-irrigators, Oregon taxpayers, or the American taxpayer make up the difference?  Are private foundations expected to fund a separate entity to support such a long-term subsidy for a privileged few?  Everyone in the world is having to adjust to escalating energy costs, and there is no understanding that these cost increases are temporary and therefore appropriate even for short-term subsidies.   So, why should Klamath Basin irrigators be protected against these rising costs when even irrigators in other areas of our own state are not?

Irrigators argue that they will be out of business if they have to pay these higher electric costs of production.  That may be true.  It was true for our small nursery business as we struggled to compete when Wal-Mart arrived in the area.   But instead of subsidizing a special power rate for farmers and ranchers, who seem to admit that their operations will not be viable in the real cost market, would it not make more sense to support efforts of these same farmers and ranchers to first adjust their operations in terms of greater efficiencies and/or select product alternatives so they can remain competitive without subsidy?  And if this approach fails, is it not better to support programs to assist these same farmers and ranchers to transition to an alternative pursuit?

Long-term subsidies like the one proposed in the special below market power rate for Basin irrigators leaves farmers and ranchers in a state of denial about competition in the real world.  Moreover, they are left dependent upon others to support their denial.  This is the very same condition that so many of these same farmers and ranchers decry among welfare recipients in all other areas of our society.  What is the motivation to adapt and change, if the incentive to remain competitive and self-sufficient is undermined by long-term subsidies?

If we want to have a reasonable chance for Congress to fund a billion dollar water settlement agreement for the Klamath Basin, we need to avoid including in the proposal subsidies like the one represented by the special power rate program for irrigators.

Alternative Settlement Proposal  -  An Outline

In light of the weaknesses in the current Klamath River Water Settlement proposal that I have identified in the previous six sections, can I suggest a “better” alternative?  What follows is an outline of a water settlement proposal that I can support.

This settlement would:

1)     Include all surface and ground water of the Klamath Basin since ground water and surface water are fundamentally interconnected and since we now have sufficient information to specify the groundwater – surface water relationship.

2)     Suspend Oregon Klamath Basin Water Rights Adjudication during the time that an alternative way to handle water allocation in the Upper Basin and the Basin as a whole is being explored – or until the end of 2009.  If a plan, which includes PacifiCorp dam removal, is created, agreed to, and funded during this time, then suspension of Klamath Basin Adjudication would continue through the first ten year period of implementation and so long thereafter as funding is provided to continue to meet the restoration and reintroduction goals and programs of the agreement.  If no funded, comprehensive plan is forthcoming before the end of 2009, or pursuit of the plan is halted for whatever reason, Oregon Klamath Basin Adjudication would resume at exactly the place it left off with no advantage or disadvantage accruing to any party.

3)     Establish a single, separate entity – the Klamath Basin Water Consortium – to manage and control of all ground and surface water of the Basin.  The Consortium would operate under a Board of Directors elected by each of the key interested water use parties: Upper Basin tribes; Lower Basin Tribes; Project farmers; Off-Project ranchers; fishermen; recreationists; conservationists; municipal, county, state and federal governments and water related agencies; and public lands, refuges and parks managers.  The Board of Directors would oversee an administration, which would operate under a management structure and adaptive management process like the one described in the current proposal.

4)     Commit to the restoration, species reintroduction, and water allocation goals and objectives under the same schedule of the current proposal plus those related to groundwater.  The Consortium would commit to the programs of the current proposal plus those related to dam removal and groundwater so long as they do not involve long-term subsidies.

5)     Require unqualified commitment from all the parties for a ten year period, barring loss of funding or implementation capability or truly extraordinary circumstances.

6)     Require all parties – including the Consortium Board of Directors – to commit to consensus, flexibility, good faith participation, and compromise in its efforts to determine appropriate policy and to implement programs and projects, so the interests of all parties are respected.  No tyranny of the majority would be allowed at any level.

7)     Secure Ten Year Funding to cover the costs of all aspects and programs of the agreement from some reasonable combination of Basin, Region, State, and Federal Sources – Private and Public.

8)     Identify what contingencies would apply if funding is not sustained during this period or if the goals are not met during this period and additional funding is required over a longer period of time.

9)     Substitute an Economic Transition Program for the Power Subsidy Program to assist any and all parties to adjust their economic activities or transition to new pursuits if changing conditions make existing activities unproductive.  All parties would agree that economic activities in the Basin must be self-supporting through conditions of change.

10) Commit all parties to permanently subordinate their individual water rights and claims and make the Consortium the permanent entity responsible for management and distribution of all water in the Klamath Basin when the original goals of the settlement are met.  For the duration following its becoming permanently installed, the Consortium would commit to maintain the restoration achieved and to adapt to whatever new challenges arise following the same structure and process and with the same conditions of unqualified commitment from the interested parties.

11) Commit all parties to seek and support any and all legal and/or legislative adjustments that are needed to make this settlement agreement possible, workable, and successful.

12)  Require that once all parties agree to the settlement no party would be permitted to withdraw from the agreement or to challenge the agreement unless extraordinary conditions – defined in fundamental biological or social survival terms – are met.  No reservations; no easy exits.  All parties would be truly committed to make it work – from the start and for the long term.

(Permission to post from the author.)