The January 2008 version of KBRA directly Targeted the Rogue River Project. 
 

2010 version – where the water will come from, go, and who decides

17.3.1 B

B. Rogue Basin Project. [This is the Jan 2008 KBRA version]

Within one year of the Effective Date, the Klamath Basin

Coordinating Council shall identify a lead entity to undertake a study

to evaluate the feasibility of replacing or otherwise reducing the

diversion from the Klamath River Basin to the Rogue River Basin

such that existing uses and users of that diversion are kept whole.

Upon completion of the study, the lead entity shall recommend to the

Parties further action pursuant to Section 17.3.2.

After facing a firestorm for targeting Medford area irrigators without giving them a seat at the table participants modified KBRA.   The January 2010 version is much more subtitle, while appearing to try to achieve the same purpose, or perhaps even worse, whereas the condition has been removed that existing users should be kept whole.   This language is one paragraph above where the former language was (they changed the numbering in the document).

18.2.6. Additional Conservation [Jan 2010 version]

The Parties shall support continued investigations of methods to achieve

conservation of Klamath Basin water.

You might hear that the so called allocation for the project provides protection for the Klamath Project.  (See 21.3.1.B e. page 151).   The “allocation” that supposedly assures water supplies is referred to as Appendix E-1 below.  The so called protection is that irrigators outside the Klamath Project will be targeted first, then the Tribes and the Enviro’s  can still sue to try to shut down the project, once there has been a meaningful effort to shut down Medford area irrigators and other irrigators  outside the Klamath Project.

 iv. Assurances Once Diversions Limitations Are In Effect

After Appendix E-1 is in effect as provided in Section 15.3.1.A

or after the applicable deadline in Section 15.3.8.A for

implementation of the On-Project Plan, whichever is earlier, a

Party other than Federal and State Public Agency Parties shall

not seek to enforce Applicable Law to impose further

limitations on the water quantity for diversion, use, and reuse

in the Klamath Reclamation Project, beyond the limitations

that result from the application of Appendix E-1, unless:

a. The Party has certified that the applicable parties are

timely implementing the actions in the Off-Project

Water Use Retirement Program under Section 16.2.2,

wetlands reconnection under Section 18.2, additional

storage under Section 18.3, Interim Flow and Lake

Level Program under Section 20.4, the Restoration Plan

under Sections 10.1 through 10.2, and related actions

contemplated under this Agreement; or, in the event of

non-performance, such Party has made Best Efforts to

correct any nonperformance;

b. Applicable after the issuance of the Findings of Fact

and Order of Determination in the KBA, the Party has

requested that the Klamath Tribes and United States,

individually and severally, make water right calls under

water rights that they hold for instream use not

affecting diversion, use, or reuse of water by the

Klamath Reclamation Project;

c. The Party has taken into account any evaluation the

TAT has completed pursuant to Sections 12.2.1 through

12.2.3 on the effects of any actions contemplated by

this Agreement that have been implemented;

d. The Party has considered reasonably available actions

within its ability to enforce Applicable Law, outside of

the Klamath Reclamation Project, where such

enforcement would benefit the Fisheries or other

aquatic resource of interest, and has concluded that

such alternatives are not reasonably likely to provide

timely or effective relief;

e. Notwithstanding the representations on Effective Date

in Section 21.3.1.B.ii, and after consideration of the

effects of any such actions that have been implemented,

the Party then believes that the water quantity of

diversion, use and reuse in the Klamath Reclamation

Project may result in jeopardy of listed Species under

the Endangered Species Act or other prohibited impact

to the natural resources of the Klamath Basin under

other Applicable Law;

Section 15.3.1.C page 77 advocates transferring project water rights instream, if this were to come to pass this would be disastrous for irrigators.  The Bureau of Reclamation has filed for roughly 1.1 million acre feet, the maximum net amount ever diverted for the Klamath Project from Klamath Lake and River is roughly 475 thousand acre feet (project diversion plus refuge diversions minus lost river water and return flows).  Meaning if they were granted the full claim they could transfer 600 thousand acre feet instream.  If this were to come to pass a massive 600,000 acre feet instream right would end all surface irrigation outside the Klamath Project  with a later priority date than the Project right. 

Naturally granting the project 600,000 acre feet more than they have ever used would be absurd, since water rights in the Adjudication are generally limited by beneficial use, and users outside the Klamath Project are challenging these absurdly high claims.   However, OWRD has generally been rubber stamping claims that are no longer challenged.   Provisions inserted by Settlement Proponents mandate support for these absurdly large claims of the Klamath Project, and bars any further opposition to these claims by parties who sign on and want benefits of KBRA (See section 19.5.3 page 136)

15.3.1

C. Dedication

Within four years after completion of the events described in Section

15.3.1.A, the Secretary and KPWU shall provide Notice to the Parties

of whether and to what extent they will seek to transfer to instream use

water rights to the Klamath River and Upper Klamath Lake from the

Settlement Points of Diversion identified in Appendix E-1 in amounts

that are in excess of the applicable maximum DIVERSION quantities

that can be diverted under Appendix E-1. Any such quantity or

quantities transferred shall utilize the then current process to request a

transfer of water rights under Applicable Law and shall not exceed

amounts allowed under Applicable Law.

There are numerous provisions which imply that there could be valid unresolved claims for instream rights, in the State of California and Oregon, that could be very injurious to Medford irrigators and other irrigators outside the Klamath Project.  For example see the below section

15.3.2

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.

20.5.2.E. Identification of Needs and Priorities for Stream Flow

Restoration for the Klamath Basin in Oregon

Within five years of the Effective Date, the ODFW, in cooperation

with the OWRD Field Services Division, shall update its Streamflow

Restoration Needs and Priorities Identification work list done

originally under the Oregon Plan for Salmon and Watersheds in 2000

that prioritizes individual water availability sub-basins for streamflow

restoration activities in the Klamath Basin based on fishery concerns,

along with opportunities to restore instream water for individual water

availability basins. This prioritization list shall be used to target future

opportunities to restore instream water within the Klamath Basin

consistent with and to implement this Agreement.

16. Off-Project Water Program

16.1. Scope and Purposes

The purposes of the Off-Project Water Program are to: (i) develop an Off-Project Water

Settlement (OPWAS) if possible that, upon approval, resolves water rights disputes

between the Off-Project Irrigators, Klamath Tribes, and BIA; and (ii) through the

OPWAS, or the Water Use Retirement Program (WURP) described in Section 16.2.2,

provides for increased stream flow and inflow into Upper Klamath Lake through

voluntary retirement of water rights or water uses, or other means as agreed to by the

OPWAS Parties, or the UBT consistent with Section 16.2.2, to improve Fisheries habitat

and also to provide for stability of irrigation water deliveries in the Off-Project Water

Program. The area for the Off-Project Water Program (Off-Project Area) shall consist of

the following sub-basins: the Wood River, Sprague River, Sycan River, and Williamson

River sub-basins. The Parties who develop the OPWAS, referred to as the “OPWAS

Parties,” shall be Klamath Tribes, Upper Klamath Water Users Association (UKWUA),

and the BIA.