Groups: Deal has greater benefits

Off-Project users: Settlement doesn’t resolve everything

by Ty Beaver, Herald and News May 31, 2009

Irrigators on the Klamath Reclamation Project aren’t the only water users to benefit from a recent settlement agreement between on-Project water users and the Klamath Tribes.

The two groups reached a tentative settlement last week that settled their contesting claims in the Klamath Basin adjudication process for water from Upper Klamath Lake. The settlement establishes how much water from the lake Project irrigators can use, based on the type of water year, and seeks to fulfill the Klamath Basin Restoration Agreement.

The agreement would allocate water in the Klamath River Basin among fisheries, farmers, tribes and conservationists.

Klamath Tribes water attorney Bud Ullman said the nature of water law prevents the Tribes from striking a deal with the Project. The Tribes had to abandon their contests to claims on the lake from 1908 or before, which includes irrigators off and on the Project.

“It protects an awful lot of people,” Ullman said.

The Project was established in 1908.

Greg Addington, executive director of Klamath Water Users Association, said he and others representing Project irrigators have asserted before that their settlement with the Tribes also would benefit off-Project irrigators.

But off-Project representatives said the recent settlement doesn’t resolve all their concerns.

Tom Mallams, president of the Klamath Off-Project Water Users, said the recent settlement was already in the restoration agreement and doesn’t diminish the Tribes’ claim for flow levels on the rivers feeding into the lake.

“If they were truly sincere about not making a call, they should drop their claim,” he said.

Becky Hyde, member of the Upper Klamath Basin Water Users Association, said even if the Tribes don’t call on off-Project irrigators regarding lake levels, Project irrigators still could, and many off-Project irrigators with junior water rights still need protection.

Water conflicts

The Tribes and Project irrigators have promoted their recent settlement as a sign that the conflicts over water in the Basin, something the restoration agreement seeks to resolve, are nearing an end.

The fact the Tribes abandoned their claims to lake water prior to 1908 bodes well for many irrigators.

Under the tentative settlement, any irrigator using water from the lake or its tributaries with a water right before 1908 cannot be called on by the Tribes to maintain lake levels should the Tribes win other water rights in adjudication, regardless of whether someone signs onto the broader restoration agreement.

Addington and Ullman said off-Project irrigators aren’t completely protected from a call on their water. If the Tribes win their remaining claims, they could call on off-Project irrigators to meet flow requirements of the Williamson, Sprague and Wood rivers to provide for fish. Ullman said it’s still possible for that issue to be worked out, as provided in the restoration agreement.

Mallams said the recent settlement isn’t anything new and still leaves off-Project irrigators vulnerable. Even if the Tribes are granted their other claims and don’t ever call on them, others such as environmentalists could as it would be legally established through adjudication.

“They still have an instream claim that’s not meetable,” he said.

Hyde said the real threat to off-Project irrigators isn’t the Tribes or the Project irrigators, but the off-Project irrigators themselves.

Ongoing problems

Time has revealed more off-Project water users with junior water rights, or rights dating after 1908. That means that they don’t have to worry about just the Project or the Tribes making a call, but also the number of off-Project irrigators with senior rights, such as the Modoc Point Irrigation District.

“That’s where we have ongoing problems,” she said.


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