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Restoration agreement better than the status quo
By GREG D. CORBIN
Guest writer
Klamath Falls Herald and News
January 24, 2010
The Upper Klamath Water Users Association represents farmers and ranchers in the area above Upper Klamath Lake often referred to as the “off-Project.”
The association was formed by a group of landowners concerned their interest in agricultural stability was not well represented among the parties involved in writing the Klamath Basin Restoration Agreement.
One of the most
compelling reasons for the association to negotiate with the
other parties to the restoration agreement is that the status
quo is fraught with risk and uncertainty over which the
association has little or no control. The restoration agreement
gives association members and all off-Project landowners an
opportunity to determine their own fate.
Junior water rights at risk
The status quo is this — the allocation of water in the Basin is going to change. The Klamath Basin water rights adjudication is winding down and there will be winners and losers.
When the final decision in that process is made, the watermaster will be able to shut off junior water right holders to satisfy the senior water rights determined in the adjudication. Those senior water rights amount to much, if not all, of the water flowing through the off-Project. That means many of the off-Project landowners who have enjoyed uninterrupted water use in the past will face shutoffs. It will be nearly impossible to predict when those shutoffs will come, or who will suffer.
Two approaches to dealing with the status quo are playing out in the off-Project. One is to fight; the other is to talk. Those fighting oppose the restoration agreement and use litigation to advance their agenda.
For example, a group of off-Project landowners known as the Upper Basin Contestants has chosen to fight by contesting some of the most senior water right claims in the adjudication, most notably those of the Klamath Tribes. They seek to convince a judge that the Tribes don’t have a water right, or at least that the Tribes shouldn’t get all the water they claim.
They also have argued that the Klamath Basin Restoration Agreement denies them their day in court. The Upper Basin Contestants lost that argument, and there is a real risk they will lose the entire fight. And, even if they win at this stage of the adjudication, there will inevitably be more court hearings and appeals where they may lose.
For the Upper Klamath Water Users Association, the fight carries too much risk, delay, and cost (both in terms of money and damage to relationships already built in the off-Project).
Upper Klamath Water Users Association’s approach has been to talk, which included challenging negotiations with the other Klamath Basin Restoration Agreement parties that lead to significant improvements to the restoration agreement for off-Project landowners.
Changes made in agreement
As a result of association’s efforts, the restoration agreement now provides an opportunity and process for off-Project landowners to craft a water rights settlement with the Tribes that will provide certainty of water delivery in less time, and at less expense, than fighting.
It provides access to low-cost power, funding and assistance to deal with endangered species issues, and protection for junior water right holders in the worst of years. Participation is entirely voluntary, and the restoration agreement is clear that the government can’t force anyone to give up water or otherwise participate. Best of all, the off-Project landowners, not a judge, get to decide their fate.
When all is said and done,
those who participate will give something up, but they will know
with certainty what they are getting in return, and that is
something they can rely on. It may not be all one could ask for,
but for the Upper Klamath Water Users Association it is a far
better alternative than living with the risk, uncertainty,
delay, and cost of the fight.
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