Questions & answers

Miscellaneous questions

Klamath Falls Herald and News

April 4, 2008

Page C6

   Q: What about other river systems, such as the Trinity? Why were they not included in the settlement? 

   A: Siskiyou County Commissioner Jim Cook said he suspects stakeholders limited the discussion to just the Klamath River to placate tribal members. He said including other river systems might have created complications because some tribes, such as the Hoopas, have concerns with rivers other than the Klamath. “I am glad they didn’t try to force a Basin-wide solution.” 

   Greg Addington of the Klamath Water Users Association said the Trinity “has its own somewhat unique legal history and circumstances” and its own restoration program. 

   Klamath Tribes attorney Bud Ullman said the Trinity is the subject of a separate settlement based on a “Record of Decision” stemming from lengthy federal, state and tribal research and negotiation. 

   “The Trinity has a unique history and setting, both legally and physically, and its own processes for dealing with the issues addressed in the Klamath Basin Restoration Agreement,” he said. “The Trinity Settlement resolved issues between irrigators in the Central Valley of California who divert water out of the Trinity Basin into the Central Valley , and the tribes and Feds (and others).” 

   Q: Why not a proposal for additional water storage? Could the lake be dredged to add storage? Could a deep-water reservoir be added to the Basin? 

   A: Oregon State Sen. Doug Whitsett, R-Klamath Falls , said short water supplies in late summer are caused primarily by lack of water storage in the Upper Klamath River .

Compounding the problem is earlier snowpack in the last few years. “The solution is to develop new deep-water storage such as the proposed Long Lake project, the Boundary Reservoir, or any number of other smaller potential storage locations,” he said. He doesn’t see dredging as a solution, he said, because natural levels of bedrock-derived phosphorus would keep releasing above-average levels of the element into the river and lake system. Pablo Arroyave, area manager for the U.S. Bureau of Reclamation’s Klamath Project, agreed. The Klamath Basin Restoration Agreement commits the BOR to complete its current offstream storage study by Sept. 30, 2011 . Arroyave said the study is required before BOR can get congressional authority to construct such a project. Currently the off-stream storage study is looking at Long Lake as possible deep-water storage. He also didn’t see dredging as a solution because the area that could be dredged would be unavailable to the Klamath Project — below the lower level of the gates at the Link River Dam — and the effort would just create “dead storage.” He added that sediment disposal would present a very big problem. “For example, adding just one acre-foot of storage capacity to the lake would lead to more than 100 semi-truck loads of material that would need to be disposed of — the lake holds about 485,000 acre-feet of water,” he said. 

   Q: It seems that the agreement would settle some adjudication, but not all? Where’s the line? 

   A: Ullman said the resolution of issues between the Tribes and the Klamath Project is part of the agreement, but issues between the on-Project and off-Project, as well as between the Tribes and the off-Project parties haven’t been resolved. 

   That reflects the uncompromising stance of those representing the off-Project in negotiations so far, he said, though that is changing as the Tribes begin negotiating with individuals and small groups that he said more accurately reflect off-Project interests. 

   The agreement allows future settlements and resolutions to be incorporated. Ullman also said that participants in the adjudication have the legal right to continue litigation if they choose not to settle. 

   Bill Ganong, legal counsel for the Klamath Irrigation District, said that to a large extent, the line is the north end of Upper Klamath Lake . 

   The agreement, he said, frees all water users in the Basin with a water right date of 1908 or earlier from the Tribal rights, if any, in Upper Klamath Lake and the Klamath River . However, he said those whose water right date falls after 1908 still have a reason to contest Tribal claims. All people with water rights for irrigation on the tributaries upstream of Upper Klamath Lake have a reason to contest the Tribal in-stream claims in those tributaries. The agreement’s section 16 provides a process and forum for resolving disputes across that line, Ganong said. “The agreement encourages settlement by providing fair market value compensation to landowners who agree to transfer part or all of their water right in-stream,” he said. Many individual claims were resolved by stipulated agreement, aside from Tribal claims, he said, others with completed administrative hearing processes will be determined by a court order.

“Following entry of the adjudicator’s order each party will again weigh the costs, risk and time that will be required by the court process against the benefits, if any, of continuing the litigation,” Ganong said. 

   Q: What is the history of the power rates for on- and off-Project users? What happened to make the rates jump up? 

   A: Addington said the Klamath Project enjoyed a favorable power rate through contracts between Copco, PacifiCorp’s predecessor, and Reclamation, first in 1917 and then in 1956. The 1956 contract renewal was required by the Federal Energy Regulatory Commission (FERC) for Copco’s license and both contract and license were to last 50 years. The irrigation rate agreement with the off-Project also began in 1956. Both the agreements expired in 2006, said Toby Freeman, regional community manager with PacifiCorp. Addington said that since 2006, PacifiCorp operated under one-year licenses and argued to FERC that the irrigator contract should not similarly be renewed annually and FERC agreed. 

   Freeman said the Oregon Public Utilities Commission ruled in 2006 that the off-Project should also move to the standard irrigation rate and that no new contract was made because the special rate for the Klamath irrigators wasn’t deemed to have a benefit for all PacifiCorp customers. 

   The Public Utility Commission upheld that. 

   In the relicensing proceedings, Addington said, the BOR submitted a condition to FERC that would require a new contract, which is opposed by PacifiCorp and many others. 

   “Generally speaking, it is PacifiCorp’s view that the old contract expired and is irrelevant, and there is no benefit to PacifiCorp from the Klamath Project,” Addington said. “High power rates would adversely affect water users and water use efficiency in the Klamath Project.” (For more information about power from the KWUA, visit its Web site, www.kwua.org/ power/power.htm.) 

   The current irrigation rates are rising to meet standard irrigation rates, which are now at about 8 cents per kilowatt hour in Oregon . Under the 1956 contract, the on-Project irrigators were paying 6.5 tenths of a cent per kilowatt hour and off-Project users were paying 7.5 tenths of a cent per kwh. Current tariffs in Oregon are $0.02 on and off project. On the California side, tariff rates are $0.06 on the Klamath Project lands. The Oregon standard rates are being phased in over a seven-year period, while the California rates will be in place after only four years. 

   Q: Why not proceed with adjudication? 

   A: Ullman said adjudication creates winners and losers based on priority date and quantified water rights. The winner-take-all process doesn’t address the water availability problems, water security, water quality problems, habitat problems, or timing of water needs. “All these things must be dealt with if the current instability for all communities is to be remedied,” he said. 

   The agreement also offers all involved a greater degree of control than if the matter were turned over to a judge, Ullman said. 

   Bill Ganong, Klamath Irrigation District’s legal counsel, said even if irrigators were awarded their full water claims, Tribal claims will have priority, which may limit irrigator use to nil. 

   “The Klamath Basin Restoration Agreement provides specified amounts of water for irrigation in the Klamath Project that is free of the Tribal claims, he said. “In addition, the agreement provides financial compensation to irrigators who do not receive a full supply of water. 

   “The benefits of the agreement outweigh the time, cost and risk to Klamath Project Irrigators of continuing litigation in the adjudication” 

   Litigation, he said, is expensive and inefficient. The costs involved create large financial burdens for all involved. 

   “Many suits settle because one or more of the parties cannot afford to continue the battle,” Ganong said. “The costs of the Klamath River adjudication to the state of Oregon , the claimants and the contestants to this date is in the tens of millions of dollars, and this litigation has not started the court process that follows the pending administrative process.” 

   Adjudication has been pending for 30 years, and during that time some land owners involved have simply gone out of business because of money, retirement, job changes or death, he said. 

   Ganong expects that if the litigation route continues, it will last many more years and few if any of the original irrigators will be alive. 

   Claims are currently over the available water supply, Ganong said, adding that each year, environmental regulations place more limitations and demands on that shrinking supply. Climate change is another monster looming in the future. In adjudication, the water supply allocation and regulation will be determined by an adjudicator for the Oregon Department of Water Resources scheduled for 2011, Ganong said. With an order, the oldest rights will receive a full supply, while younger water rights will probably get none during summer months. The majority of water users will have to deal with whatever is available in a given year, he said. No compensation will be awarded through adjudication to those who get no water. 

   Q: Is there an estimate on what’s being spent on adjudication by all parties, and would the settlement make all that go away? 

   A: A hard and fast estimate of exactly what has been spent by all parties involved in the adjudication litigation is not available; however, Ganong guessed the figure to be in the tens of millions. 

   The Klamath Project farmers have spent in excess of $4.5 million, Ganong said, adding that he expected the U.S. had spent much more and that the state of Oregon also had a huge investment as it has paid most costs for the administrative hearing process and field study of the irrigated land. 

   Ullman said the Tribes did not have a good estimate of what has been spent on the adjudication, but did say the expense has been “painful for all parties.” 

   Andréa Rabe, a Resource Conservancy board member and off-Project rancher in the Sprague River Valley , said adjudication expenses were in excess of $1 million in the off-Project. 

   Becky Hyde had heard $500,000, but that didn’t include litigation expenses for off-Project landowners litigating Tribal in-stream claims. 

   Hyde said farmers needed to seriously evaluate the situation and “determine how deep your pockets are” and consider what continued litigation means to the agricultural community financially. 

   “What’s nice about this settlement is that there is a choice — off-Project landowners who want to settle can, while others who prefer to litigate these issues are welcome to,” she said.

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