Senator Whitsett's help to Klamath Basin irrigators Senate Bill 206-A

Oregon State Senator News from Doug Whitsett 4/29/15

Record low snowpacks in Oregon mountain ranges have already prompted Governor Kate Brown to proclaim drought declarations for seven counties, including Lake, Crook and Klamath counties, which I am privileged to represent in the state Senate. 

Those drought declarations emphasize the importance of creating sensible policies relating to the regulation of water use throughout Oregon.

The Senate took a big step in the right direction this week with regards to water policy by passing Senate Bill 206-A. I had the honor of carrying this measure on the Senate floor.

If passed by the House and signed into law by Governor Brown, SB 206-A will be of immense help to Klamath Basin irrigators who have been imperiled by the lack of predictable water allocations.

The water division in the Upper Klamath River Basin is currently controlled by the administrative Finding of Fact and Final Order of Determination in the Klamath River Adjudication.

That administrative finding was issued by the Oregon Water Resources Department (OWRD) in March 2013. The determination is enforceable, and is currently being carried out by the Department.

However, Oregon water rights are not fully adjudicated until after the court has made its final ruling on exceptions, to the Department’s Determination, and all judicial appeals have been completed.

Current Oregon water law prohibits transfer of the place of use, and the type of use, until the water rights are fully adjudicated by the courts.

SB 206-A makes a unique and limited change to that statutory prohibition.

It authorizes the temporary transfer of the place of use of a water right, as well as temporary in-stream leasing of a water right, subject to the administrative phase of the Klamath River adjudication.

Aside from that, it strictly prohibits any temporary transfer or lease that would serve to either enlarge the water right or injure another water right.

This unique authorization will allow Klamath Basin irrigators to better utilize what little irrigation water has been left for them to use in order to grow food and fiber.

The transfer authority will sunset in 20 years, or when the courts have completed the judicial phase of the adjudication, whichever occurs first.

Throughout recorded history, the Basin has experienced periodic meteorological droughts, lasting from one to several years.

That reality is normal for high mountain valleys located east of the Cascade summit. Traditionally, water users have worked together, with good success, to get through those drought years.

However, during the past 20 years, the Klamath Basin has experienced persistent, ongoing and worsening man-caused droughts.

Water that has been stored and used for irrigation, for more than a century, has been reallocated, under the public trust doctrine, by our state and federal governments, for higher and better uses.

The forced change of the use of water from irrigation to grow food and fiber, to instream flows for the benefit of fish, is the overarching cause of the persistent water shortages in the Upper Klamath River Basin.

Our state and federal governments have accomplished all of these changes of the use of water entirely through the application of administrative actions, and those changes are ongoing.

Recently, the Klamath Tribes made their “call,” to protect the instream water rights given to them, administratively, by the OWRD.

Such an action effectively prohibits the diversion of virtually any water, for irrigation, in four entire watersheds.

This represents the third consecutive annual Tribal “call,” to prevent the use of surface water for irrigation in those four watersheds.

Moreover, the Upper Basin “settlement agreement” includes the permanent “retirement” of 30,000 acre feet of irrigation water, to be delivered to Upper Klamath Lake.

That concession will permanently dewater about 25 square miles of fertile crop and pasture land.

The “retired” water was intended to enhance instream flow in the tributaries to Upper Klamath Lake, and to provide more water for the Bureau of Reclamation’s 1,400-family Klamath Project downstream.

Last month, the National Marine Fisheries Service, administratively, took all of that 30,000-acre feet of water, for the alleged benefit of Coho salmon in the Klamath River.

Approximately 15,000 acre feet in the spring is to be used to flush Coho smolts downriver, and 15,000 acre feet in the fall is to ensure adequate flows for the Coho to migrate upriver.

The only alleged alternative, to this ongoing theft of irrigation water, is to prohibit salmon fishing in the Klamath River this fall.

According to the federal agency’s administrative rules, the prohibition of fall salmon fishing in the Klamath River would require officials to shut down salmon fishing on the entire southern Oregon and northern California coasts.

The bottom line is that there was nothing voluntary regarding participation in the settlement agreements.

Irrigation interests were compelled, coerced, some say even extorted, to participate, in order to save any part of their private property rights, from administrative takings by governments “gone rogue” and improperly empowered through a less-than-transparent administrative rules process.

The Oregon Supreme Court has ruled an irrigation water right to be a valuable, and protected, property right.

How valuable is that water right?

In the Upper Klamath Basin, the value of the water right can actually make up 99 percent of the value of the farmland.

Some people might recall that the federal government shut-off the irrigation water supply for 1,400 farm and ranching families within the Bureau of Reclamation’s Klamath Project back in 2001.

The alleged reason for the entirely “administrative” water shut-off was for the benefit of endangered sucker fish in Upper Klamath Lake and for the benefit of threatened Coho Salmon in the Klamath River.

During that water shut-off, the Klamath County Assessor reassessed the value of the irrigated farm and ranch land, from $2,700 per acre to $27 per acre. He reasoned that virtually nothing can be grown in the area without irrigation. Further, Oregon’s land-use planning rules prevent the use of the land for “any other” purpose. On appeal, the Oregon Department of Revenue upheld the assessor’s 99 percent reduction in assessed value. One can only imagine the devastating affect this would have on local government entities that rely on property tax revenue to fund critical services.

SB 206-A is necessary, because to date, no Klamath Basin irrigator has had a day in a court of law to protect his or her private property irrigation water rights. The ongoing “taking” of irrigation water by government administrative fiat has resulted in grossly inadequate water for Basin irrigators to produce food and fiber for American consumers.

It is the unrelenting, government-caused water shortages that represent the primary need for this legislation.

For all these reasons, and more, I have been working to help draft and pass SB 206-A and have it signed into law. Hopefully, my legislative colleagues, and Governor Brown, will act accordingly and do right by Klamath River Basin irrigators.

Please remember--If we do not stand up for rural Oregon, no one will.

Best Regards,

Doug

Senate District 28

Email: Sen.DougWhitsett@state.or.us I Phone: 503-986-1728

Address: 900 Court St NE, S-311, Salem, OR, 97301

Website: http://www.oregonlegislature.gov/whitsett