Klamath Water Users Association 

Despite two heavy snowstorms that blanketed the Klamath Basin over the holidays, officials from the U.S. Bureau of Reclamation (Reclamation) and local water users are concerned about water supplies for the 2004 irrigation season. Warm weather and rains that moved into the Klamath Basin in the past 10 days have melted much of the snow in lower elevations, and snowpack levels in the upper reaches of the watershed have also diminished. However, Upper Klamath Lake has not seen a substantial increase in water levels resulting from runoff that was expected from the snowmelt. Instead, because the underlying ground surface in parts of the watershed did not freeze prior to the snowstorms, much of the melted runoff percolated directly into the soil, and has not appeared as streamflow in tributaries to the lake.

"We are still looking at below-average water year conditions," said Dave Sabo, Reclamation’s Klamath Basin Area Office manager.

Local water users and Reclamation officials continue to hope that Mother Nature will send more storm fronts crashing into the Upper Basin in the coming months. However, efforts are underway to develop a Klamath Project operations plan that meets the conditions of federal fisheries biologists and satisfies the needs of the 200,000-acre Project.

Reclamation had received over 30 responses to its "Request for Ideas" regarding the 2004 water bank, which is scheduled to be expanded to 75,000 acre-feet this year. Sabo appears to be looking at an Upper Basin water bank and Reclamation is not just focusing on the Klamath Project, especially for the land idling program. Reclamation is apparently considering proposals to store water on private lands within the Klamath Project, and opportunities to purchase groundwater from irrigation districts and private landowners are also being investigated.

Preliminarily, it appears that Agency Lake Ranch will fill with water this year, providing between 10-15,000 acre-feet of water for the bank. Reclamation is currently working on negotiations to lease the Barnes property for water supply purposes this year, as well. A final government appraisal on the American Land Conservancy’s proposal for the federal government to permanently purchase Barnes is due by the end of the month. It also appears that federal funding is being sought to implement the Klamath Basin Rangeland Trust (KBRT) forebearance project along the Wood River.

Local water users have been working with the Lower Klamath Refuge and Reclamation to assess the possibility of storing 15,000 AF of water bank water on seasonally flooded wetlands early on this year. That water would be released by June to help meet spring coho flows. In exchange, refuge managers are considering an arrangement where groundwater pumpers would replace water to the refuge between August and November.

Reclamation is also apparently evaluating the manner in which water year types are determined for Project operations. Last year, radically differing operating scenarios based on changing year types nearly resulted in a shutdown in Project operations to avoid "busting" a lake level set for sucker fish.

Reclamation will schedule a meeting soon with irrigation district managers and water users to discuss potential water management scenarios that may emerge in the coming months.

Judge John Wiese of the U.S. Court of Federal Claims has determined that a number of water districts, and their water users, in the San Joaquin Valley of California must be compensated for water taken by the United States under the federal Endangered Species Act (ESA). The December 31, 2003, decision concludes that the fair market value of the water taken was approximately $14 million at the time of the take. It is expected that the final judgment in the case, with interest and litigation expenses, will be approximately $26 million.

The case was brought by the districts and water users involved to recover compensation under the Fifth Amendment to the United States Constitution for a taking of the water for federal purposes by the federal government. The water was taken during the 1992 to 1994 time period for the benefit of species listed under the federal Endangered Species Act. The decision comes after an earlier ruling in the case that the federal government was liable under the Fifth Amendment for the taking of the State Water Project (SWP) water, and a lengthy trial to assess the actual amount of water taken and its value.

In an earlier ruling concerning the taking of water for ESA purposes, the court was direct and to the point: "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so."

The recent decision, issued after thorough consideration of two weeks of testimony and evidence, finds that the federal government took more than 300,000 acre-feet of SWP water (an acre-foot covers a football field with water to a depth of 1 foot). The court found that the value of the water, at the time of the taking, was approximately $14 million. With recoverable interest, and litigation expenses, the final judgment is expected to be in the vicinity of $26 million.

"It’s a victory for both farmers and urban water users," says Gary Bucher of plaintiff Kern County Water Agency, "anyone who uses water from the Delta – in California that’s most of us – should welcome this decision."

Veteran claims court counsel Roger Marzulla hailed the ruling as "a reaffirmation that the federal government cannot take property without just compensation to its owners."

The exact amount of the judgment will depend upon calculation of interest and a determination of recoverable litigation expenses. The landmark ruling on liability of the federal government for water taken for the benefit of the ESA does not depend on the precise amount of the judgment. It confirms the Fifth Amendment principle that when the government takes property in the pursuit of its goals, it is bound to justly compensate the owners of that property.

Roger Marzulla also represents Klamath Basin irrigators in Klamath Irrigation District et al. v. United States. In this case, individual Klamath Project water users and districts seek compensation under the Fifth Amendment, for taking of their property rights (water rights) in 2001, when Project supplies were curtailed to meet conditions imposed by federal fisheries agencies. The case also includes claims based on Klamath River Basin Compact provisions which require just compensation for impairment of water rights.

The Bureau of Reclamation is soliciting bids for the 2004 Pilot Water Bank. The Water Bank’s purpose is to comply with the 2002 NOAA Fisheries Biological Opinion on Klamath Project Operations. In 2004, the Biological Opinion calls for a water bank of 75,000 acre-feet.

As in 2003, the Water Bank will include forbearance of surface water use and substitution of groundwater use for surface water use. However, participation in 2004 is open to all users of surface water above Keno Dam, including non-Project users, but excluding Federal lease lands. The 2004 Water Bank program allows for greater flexibility in land use practices.

Selection will be performed through a bidding process. The price bid per acre, combined with estimated water savings based on crop and soil types, will be used to rank applications by price per acre-foot of water. Reclamation will select applications reflecting the lowest cost per acre-foot.

Bid and application materials are being mailed to those who applied for the 2003 Water Bank. An application information sheet and a final bid and application form are available from Reclamation’s Klamath Basin Area Office at 6600 Washburn Way in Klamath Falls and online at: www.usbr.gov/mp/kbao.

The application period for the Water Bank will begin on Monday, January 19, 2004. All applications must be received in the Klamath Basin Area Office no later than 4 p.m., Friday, February 6, 2004. For further information or questions contact Phil Graf or Gary Baker at 541-883-6935.

The Klamath Water Users Association on February 3^rd will join representatives from the California Resources Agency and the University of California in the "Western Water Forum", hosted by the Yale University School of Forestry and Environmental Studies. The event, which will take place at the New Haven, Connecticut campus, will focus on the Klamath Basin. Heather Dempsey, a graduate student from the Forestry School, is helping to organize the event. "We have reserved our largest auditorium," said Dempsey. "We will do our best to rally a large crowd – it will not be difficult!"

Dempsey also formerly served as an intern in the California Resources Secretary’s office.

The three-person panel will feature Jeffrey Mount, a geology professor at the University of California, Davis, and Tim Ramirez, a senior policy advisor to the director of the CALFED Bay-Delta Authority. Mount recently served on the National Research Council’s Committee on Endangered and Threatened Fishes in the Klamath River Basin. Ramirez formerly represented California Resources Secretary Mary Nichols on Klamath and Trinity River matters. Dan Keppen, KWUA Executive Director, will join Mount and Ramirez on the panel.

Each panelist will discuss his past and present involvement with the Klamath River Basin. Panelists have been asked to focus on:

• Obstacles to resolving the current conflict;
• Flaws in the current policy process; and
• Recommendations for a path towards resolution.

This is not the first time a connection has been made between Yale and the Klamath Basin. A political science professor from Yale University spent several days last May visiting and touring the Basin with Klamath Project farmers and ranchers, business owners and irrigation district managers. Dr. Richard Marcus, a former Oregonian, teaches a class on comparative politics of water resources at the Ivy League school. He has completed extensive research on water resources conflicts in Madagascar, Kenya, Israel, and other mid-eastern areas. The Klamath Basin was a hot topic in Marcus’ class last year, and his visit to the Basin was driven primarily by his interest as a teacher.

"I want to learn what you all have done, what has worked, what hasn't, and why," Marcus told water users last year in Klamath Falls. "You all have done a pretty good job of not taking this lying down.  This is unusual - not just in California or Oregon, the Western U.S., or even the U.S., but anywhere."

Wednesday, January 21 – Friday, January 23, 2004. Mid-Pacific Region Water Users Conference. Reno, Nevada.

Tuesday, February 3 – Friday, February 6, 2004. Upper Klamath Basin Science Workshop. Shilo Inn, Klamath Falls, Oregon.

Tuesday, February 24 – Thursday, February 26, 2004. Klamath Watershed Conference. Oregon Institute of Technology, Klamath Falls, Oregon.

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net

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