Attorneys: No guarantees with pact

By LEE JUILLERAT

H&N Regional Editor

February 15, 2008

   Attorneys who specialize in water law agree the proposed Klamath Basin Restoration Agreement provides no guarantees that water will not be cut off to Klamath Project irrigators. 

   But Paul Simmons, who represents the Klamath Water Users Association and was highly involved in settlement negotiations, says the document includes safeguards aimed at preventing another crisis. 

   As examples, he says section 6.4 states “that litigation will be initiated as a last resort and only after careful consideration of the matters in dispute and the potential collateral consequences to this agreement.” Likewise, section 324v states, “The filing of an action by one party against another party over matters addressed in this agreement is deemed to constitute a failure. … Such failure triggers … an obligation to preserve the benefits of the agreement for all parties, including any party who is, or could be, adversely affected by the action.” Other sections, Simmons says, were negotiated with the goal of avoiding disputes on ESA compliance. 

   “There are so many interlocking aspects,” Simmons says of the settlement. “It’s certainly not a guarantee. A guarantee would require the repeal or a considerable amendment of the ESA.”

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