Klamath Basin Restoration Agreement - KBRA Bible Lesson #1 -
QUOTES from your new law of the land

composed by a KBC reader

You must support a whole numerous new  claims on your water, even those unquantified

 * KBRA mandates that signatory irrigators support a whole litany of instream claims potentially adverse to their interests.  Quoting directly from KBRA below:

20.5. Protection of Environmental Water (page 141)

20.5.1. Not Available for Consumptive Use

The Parties shall support requests to regulatory agencies to protect Environmental Water to the maximum extent permitted by Applicable Law. These legal protections shall include, but not be limited to: (i) performance under Sections 15.3.1.C, 16.2.2.I, and 18.3; and (ii) the state-specific measures listed below.

20.5.2. Oregon Protections

A. Existing Instream Water Right Applications

The Parties, except the OWRD, which must make independent decisions that cannot be predisposed by this Agreement, shall not oppose the existing Instream Water Right applications filed by the ODFW, or the Oregon State Parks and Recreation Department for all Klamath Basin streams and water bodies; and any protests previously filed by Parties to these claims shall be withdrawn. The OWRD shall move these applications forward for certification of the instream water right requests as soon as feasible pursuant to Applicable Law. A summary of the outstanding Instream Water Right applications and protests for the Klamath Basin is set forth in Appendix E-3 and incorporated herein. It is acknowledged that not all protests to these existing Instream Water Rights are within the control of or filed by Parties themselves, and that no Party shall have any obligation to secure any such commitments from its individual members who may have filed such protests individually. Also, settlement of some of these protests shall require the consent of PacifiCorp, and those protests within the control of PacifiCorp will be resolved as elements of the Hydroelectric Settlement.

Public Review Draft January 7, 2010 142

B. New Instream Water Right Applications

Any appropriate Party may apply for a permit to store Managed Environmental Water consistent with Applicable Law. If a permit to store water is issued, the ODFW may apply for an instream water right to be supplied from the stored water if the ODFW determines that such application would be consistent with Applicable Law.

C. Existing Instream Water Right Claims of Various Federal Agencies

The Parties shall not file exceptions in Klamath County Circuit Court opposing issuance or proposing to diminish the federal instream water right claims listed in Appendix E-4, which were filed by the BLM, Forest Service, or National Park Service.

* Furthermore KBRA prohibits Klamath Project Water Users from contesting the potentially massive tribal instream claims (provided they are consistent with sections 15.3.6.A, 15.3.7.A, 15.3.8.B, and 15.3.9)

15.3.2 Page 78

C. Tribal Rights Unresolved-Unquantified KPWU agree that the water rights, whatever they may be, of the Hoopa Valley Tribe, Yurok Tribe, and Karuk Tribe and the United States, acting in its capacity as trustee for these federally-recognized Indian tribes of the Klamath Basin, have not been quantified, resolved or determined in any way by this Agreement or any related documents. KPWU also hereby provide interim Assurances, subject only to Section 15.3.8.B, that they will not protest, contest, object, or block any assertion of water rights by the Yurok Tribe, Karuk Tribe, or the United States in future judicial or administrative proceedings that are not inconsistent with Sections 15.3.6.A, 15.3.7.A, 15.3.8.B, and 15.3.9. The interim Assurance in the preceding sentence will:

i. Become permanent and unconditional upon the publication of the notice by the Secretary described in Section 15.3.4.A; or

ii. Terminate if the Secretary publishes the notice described in Section 15.3.4.C, or if the Klamath Tribes withdraw pursuant to Section 33.2.

* When we look up Section 15.3.6A it appears to say that the Tribes can still seek all the water they want for ESA purposes.   Does all this mean that, if the Tribes seek all the water for ESA purposes under 15.3.6.A. Is KPWU barred from challenging these claims under 15.3.2?  Note the other listed sections have similar language for the other Tribes and the United States.

15.3.6.  (page 89)  Assurances By and Between the Yurok Tribe and the United States

A. Assurances by the Yurok Tribe

The Yurok Tribe hereby provides interim Assurances as stated in Section 15.3.8.B, and conditional permanent Assurances that the Tribe will not assert (1) tribal water or fishing rights theories or tribal trust theories in a manner, or (2) tribal or trust water rights, whatever they may be, in a manner, that will interfere with the diversion, use or reuse of water for the Klamath Reclamation Project that is not precluded by the limitation on diversions of water as provided in Appendix E-1 in any administrative context or proceeding, or any judicial proceeding, or otherwise; provided, however, that these Assurances shall not include, and shall not be construed to extend to, rights under statutes of general applicability, including the Endangered Species Act, consistent with and subject to Sections 21.3.1.B and 21.4.1. The conditional permanent Assurances will:

i. Become permanent and unconditional upon publication of the notice by the Secretary as described in Section 15.3.4.A; or

ii. Terminate if the Secretary publishes the notice described in Section 15.3.4.C.