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Klamath Water Users Association
FREQUENTLY
ASKED QUESTIONS REGARDING THE PROPOSED
Q:
Will the proposed
A:
No, the KBRA would not result in granting any tribal water rights
to any tribe or affect the ability of any opponent of tribal claims
other than Project water users to contest any tribal claims.
The KBRA would only resolve questions related to: whether or to
what extent tribes can make a call against, or demand water from, the
Klamath Project.
Q:
Does the KBRA affect
off-Project irrigators and their case in the Adjudication?
A:
No. The KBRA is
structured to result in settlement of water rights disputes between the
Klamath Tribes and Project water users.
However, the terms of the KBRA will not, and legally could not,
affect the rights of any other party who is currently contesting the
tribal claims in the ongoing
Q:
Doesn’t the KBRA
unilaterally grant the Klamath Tribes a priority date of ‘time
immemorial’?
A:
No, it is legally impossible for the KBRA to create or grant
water rights. The State of
Q:
But section 15.3.2.B
of the KBRA says that Project irrigators will file a document in the
Adjudication that “recognizes” the Klamath Tribes’ claims
including the ‘time immemorial’ priority date at the full quantity
claimed.
A:
This simply reflects that the Project water users are not going
to contest the Klamath Tribes’ claims further (unless certain
conditions, specified in section 15.3.4 of the KBRA, are not met).
In other words, Project water users will effectively consent to
those claims, but SUBJECT TO all the other conditions of the KBRA;
that is, those conditions in sections 15.3.3.B and 15.3.9 which
provide that the Klamath Tribes will not make a call or tribal trust
demand against the Klamath Project, either for more water than the
agreed Project use that is the basis for the settlement, or, in the
interim, for any water diverted by the Project.
These terms will also be implemented through a stipulation in the
adjudication.
Q:
Where can I read more
about the tribal water rights issue?
A:
The proposed KBRA deals with tribal water rights issues in
multiple sub-sections of section 15.3.
Q:
Can you explain the
process that would occur to settle these claims with the Tribes?
A:
One provision that is central to permanent resolution of the
water rights issues involving tribes is section 15.3.4.
Specific assurances by tribes become permanent if certain
conditions, delineated in section 15.3.4, occur before December 31
of 2012. The Secretary of
the Interior would be obliged to publish a finding if those conditions
occur.
With respect to the Klamath Tribes, the mechanics of the proposed
KBRA are as follows. First,
the Project water users “provisionally” agree to withdraw
contests of the Klamath Tribes’ claims for water in
The Klamath Tribes provisionally agree not to assert rights against
the Project that would interfere with the agreed water use for the
Project. Both of these
commitments will become permanent if the specified conditions in section 15.3.4
are met. (Section 15.3.3.B.)
In the meantime, there are also additional assurances by the
Klamath Tribes. First,
beginning on the effective date of the KBRA, the Klamath Tribes would
agree not to assert any tribal demands against ANY use of water in the
Klamath Project. If the
conditions of section 15.3.4 are met, this commitment would remain
in effect until the water users have completed the steps to implement
the “on-project plan” which is to be developed to live with the
agreed water quantity for diversion.
(Section 15.3.9.B.)
Q:
What if the certain
“conditions” in Section 15.3.4 do not occur?
A:
In this circumstance, the Klamath Tribes could not make a water
right call against the Klamath Project until after the Project water
users have had the opportunity to litigate their contests against the
Klamath Tribes’ claims in Klamath County Circuit Court.
In other words, there will either be a final settlement or the
parties will revert to their current positions, but in the meantime,
tribal claims could not be asserted against the Project.
(Section 15.3.9.C.)
Q:
Has this type of water
rights settlement involving a Secretarial finding been proven or done
before?
A:
Yes, this is a common approach in recent Indian water rights
settlements, including one just concluded in
Q:
I have heard that tribes
are ‘sovereign’ nations and as such any agreement with them could
not be legally enforced. Is
this true?
A:
It is true that tribes are sovereign entities and cannot be sued
unless there has been a waiver of sovereign immunity.
However, the promises related to water rights will be
enforceable. With respect to
the Klamath Tribes, there is a waiver of sovereign immunity in an Act of
Congress (the McCarran Amendment) that results in tribes being bound by
state adjudication decisions, and the water rights settlement involving
the Klamath Tribes and the Klamath Project will be implemented in the
state adjudication proceeding. In
addition, if a settling tribe were to file a lawsuit seeking more water
from the Klamath Project than is agreed on in the KBRA, water users
would assert the KBRA promises as a defense to that lawsuit and thereby
enforce them. The KBRA
contemplates enactment of legislation to ensure that the commitments are
effective.
Q:
The KBRA is complicated
and hard to understand. Who
has reviewed it and how do we know these statements are accurate?
A:
The KBRA was negotiated by many parties; most were represented by
legal counsel as well. No
less than eight attorneys representing multiple districts and water
users within the Klamath Project have performed numerous reviews of the
document and its preceding drafts. These
local attorneys have a duty and ethical responsibility to look out for
the best interests of their clients.
Q:
Will the KBRA jeopardize
the use of groundwater in the
A:
The KBRA will not create any new state law or regulatory system
regarding groundwater. It
does contain contractual promises related to groundwater which could
affect the plan to be developed by Project water users in order to
adjust to the agreed amount of surface water diversions.
Under the KBRA, it is expected that funding provided to develop
and implement this plan will result in payments for using groundwater in
lieu of surface water in certain years.
There are limitations on the degree of impact on certain springs
in
Q:
Does the KBRA supersede
state water law or is it somehow illegal?
A:
No. The KBRA itself
does not and could not amend any state or federal laws.
It specifically requires consistency with existing applicable law
including state water law. (Section 14.2.)
If, nevertheless, a term of the KBRA were found to be
inconsistent with state water law, state water law would control.
The KBRA does include support for state and federal legislation.
The
Q:
Is the KBRA consistent
with the
A:
We believe the answer is yes, but the Klamath River Basin Compact
Commission is conducting their own review. The basis for our answer is
found in the answer to the preceding question.
Q:
How can Project irrigators
think the KBRA gives them stability or certainty on water deliveries
when the ESA does not go away?
A:
The KBRA does not guarantee that there will be no impacts from
the ESA. To have an absolute
guarantee would require repeal, or at least major amendment, of the ESA,
which is extremely improbable. The
KBRA does, however, contain numerous provisions to ensure the greatest
possible protection under existing law from ESA and other regulatory
impacts, in order to make a considerable reduction in risk.
Among other things, these provisions: are designed to move away
from the approach of looking to the Klamath Project to solve species
concerns; support stable and long-term regulatory mechanisms to reduce
risk; and reduce exposure to, and adverse consequences of, any potential
litigation. These provisions
include sections 3.2.4, 5.4, 6.4, 20.3, 21.1.3, and 21.2.
Q:
Why wasn’t PacifiCorp at
the table?
A:
The KBRA deals with issues which do not involve commitments from
PacifiCorp. PacifiCorp will not be a signatory to the KBRA.
PacifiCorp facilitated the first several meetings of all parties
including PacifiCorp itself. Parties
at that table, for the most part, were those who had filed paper work to
be involved in the relicensing process for the Klamath River Dams.
PacifiCorp did not need or want to be involved with issues such
as water allocation for Project irrigators.
The Settlement group and PacifiCorp essentially split off the
negotiations that involve PacifiCorp directly, to a parallel process.
This parallel process was deferred for a time in 2006 based on
FERC-related hearings, but was not abandoned.
Issues resolved in the KBRA do not affect PacifiCorp or their
ratepayers. Issues that may
have an impact on PacifiCorp or ratepayers or those issues that FERC
will need to approve will be part of a separate negotiation and
settlement between KBRA parties and PacifiCorp.
Q:
Was PacifiCorp unaware of
the issues being discussed in the KBRA?
A:
No. PacifiCorp knew
the nature of negotiations. Additionally,
representatives from the KBRA group had no less than 16 formal
meetings with PacifiCorp leadership over the last two years related to
the separate negotiation with PacifiCorp, as well as less formal
contacts.
Q:
I am a PacifiCorp
ratepayer. Will the KBRA
increase my power bill?
A:
Irrespective of the future of the dams, there will be
consequences for PacifiCorp ratepayers.
If PacifiCorp obtains a new license to operate the Klamath Hydro
electric project, it will have no choice other than to make significant
investment in fish passage at all four dams based on mandatory
conditions prescribed by federal agencies.
The estimated cost is on the order of $300 million.
Additionally, power generation will decrease due to other license
conditions. These costs
would be borne by ratepayers in relevant states.
FERC and the California Energy Commission have estimated that the
least cost alternative for PacifiCorp and its ratepayers is dam
decommissioning. Irrespective
of argument over these matters, PacifiCorp will be obliged to
demonstrate to the Public Utilities Commissions that it has proceeded
prudently in the interest of ratepayers before seeking recovery of any
cost from its ratepayers for any alternative course of action.
Q:
Were off-Project
irrigators represented in these talks?
A:
The Klamath Off-Project Water Users Association (KOPWU) was at
the table and involved from the beginning.
In addition, there were other representatives from off-project
representing water interests who attended regularly and fully
participated in all aspects of the negotiations.
Q:
Did KOPWU have
opportunities to come up with a program similar to the Klamath Project?
A:
Yes. KOPWU and their
representatives did not reach mutually agreeable terms of water right
settlements with tribes or other parties.
NOTE:
This document is for general information purposes and is not a
formal legal analysis or legal advice.
Parties evaluating the KBRA should consult with legal counsel.