Klamath Falls Adjudication

Alternative Dispute Resolution Meeting Summary

Public Meeting #3

November 19, 1997

* Meeting summary has been amended by 12/15 letter from Paul Simmons. See letter for correction.

Reed Marbut opened the meeting with a brief recap of last the last meeting. Meeting summaries, an agenda and a packet of information were passed out. Reed reviewed the packet which contained claim summaries, water availability calculations, bibliography of documents and publications on Klamath Basin and locations of seeps and springs.

The first section of the packet is a list of project and reserved right claims. There is a tally and claims summary which includes quantity of water and number of acres. Maps are available in the Watermaster's office that show location of claims, however, the claim number is not listed on the map. Missing from the claims summary is information from the core interior departments, BIA, NPS, and USFWS since no GIS information was available. There are notebooks in the Watermaster's office that have more detailed information on the claims, such as the reach of stream the claim is on.

A bibliography has been started and is included in the packet. The WRD information is incomplete since we have so many documents and files to review. Reed will add to it as we go along.

A summary of water uses under permits and certificates granted after 1909 is also included in the packet. This information was taken from our Water Resources Information System (WRIS). This summary also includes rights which were granted in previous Klamath Basin Decrees (e.g. Wood River, Upper Sprague, etc.).

The rest of the packet includes a water availability analysis, based on WRD's water availability report system. This shows water available after subtracting existing water rights, claims, instream water rights and scenic waterway flows. Natural stream flow is based on a WRD model when gage information is not available. This database has not been updated since last spring and does not include the federal claims. It should be noted that the water availability calculation does not subtract the entire paper value for the water right since municipalities and irrigators typically do not use their entire rights. The water availability analysis and calculation process is complex. It may be appropriate to bring staff to a future meeting to discuss this in more detail. There is also a staff report to the Water Resources Commission that could be distributed.

Reed pointed out that the water availability column will not be used to justify adjudicated claims. It is useful for discussion only, with respect to the adjudication. The water availability information is used primarily for processing new water right applications. In the Klamath Basin, we would have to take into consideration claims not yet adjudicated when doing the water availability calculation.

Presentations by Claimants:

Klamath Tribe/BIA Reserved Claims: Bud Ullman gave a presentation on tribal claims. He is presenting for BIA as well as trustees. He noted that confidentiality is a concern so some information may be vague.

Legal basis for claim is the 1983 U.S. vs. Adair decision which confirmed that tribes have the right to water with earliest priority date for the purpose of providing water for hunting, fishing and gathering. A scientific team is doing an analysis to determine how much water is needed to support needs. In some cases, the tribes need all of the water that is available. The claim is in 5 parts and includes irrigation water for fish hatchery and cemetery. There are instream flows, claims for upper Klamath Lake, Klamath Marsh, and 334 seeps and springs.

Water is needed to protect, restore and enhance fish habitat at every life stage. It is also needed to protect the surface elevation of the Klamath marsh and preserve wetland values. If habitat restoration projects are effective, the tribe is willing to re-examine water needs.

There were questions about the scientific study. The study is part of the claim and may be viewed at WRD. The study has a water quality component that was used to determine the quality of habitat.

The tribes are willing to leave the adjudication process with less water, if other claimants are willing to do the same, by closely examining their water needs.

Federal reserved claim: Dave Gehlert, USFS.

Goal of adjudication and ADR process is to protect the resources in its charge on behalf of the citizens, in perpetuity.

There are several small consumptive claims. i.e.: stock watering, road watering for timber harvesting activities, and fire suppression. Most uses use less than 1 cfs.

Instream flow claims are at perimeter of adjudication area, near headwater of streams to protect flows into upper Klamath lake.

Four statutes are used to base claims on:

Organic Act - Creates national forest system. Specifies securing favorable conditions for flow, i.e. headwaters. Claims are designed to ensure they are able to deliver that water. (Priority Date 1961 and pre 1961)

Multiple Use and Sustained Yield Act: Secures flows for fish and recreation. (Pr. date 1960)

Wild and Scenic River Act: Preserves outstanding features of the rivers. (Priority Date 1988)

Wilderness Act: Four wilderness areas designed to remain untrampled by man. Congress didn't want water to be diverted out of this area. (Priority Dates, 1964, 1984)

National Park Service: Michelle Gilbert. Crater Lake National Park is one of the oldest national parks in the nation. The NPS filed 21 federal reserved claims, for instream and out of stream uses in the park. All but one claim is for surface water. Claims are to protect the lake level. Ten stream systems are included. Instream claims are on all streams and tributaries. The purpose of the claim is to preserve and protect natural and historic objects in the park and its unimpaired condition, including timber and habitat as well as preserve Crater Lake's pristine condition and its lake levels. Claims are for all natural flows except for water needed for park service use, such as administrative uses, fire protection, visitor center, lodge, campgrounds., etc. The out of stream uses are very small.

The priority date for claims vary, the park was established in 1886.

Studied have been and are being conducted on instream flow needs. There are no other diversions (non-governmental) in the park.

Bureau of Reclamation: Barbara Scott-Brier, Dept. of the Interior. Discussed claims for the BOR, stock watering and wild and scenic rivers. Public water is reserved for animal and human consumption: future and present uses. Hydrologists and range specialists determined how many animals can be supported per season, 15 gal/cow/day.

There is one wild and scenic claim for the lower 11 miles of the Klamath river to protect recreation, wildlife, etc. 550 cfs for fisheries, 1500 cfs for 6 hours for recreation. The priority date is 9/22/1994.

United States Fish and Wildlife Service: Geoff Garver . There are four refuges: Klamath forest, Upper Klamath, Hanks Marsh, Lower Klamath Marsh, and Tule Lake. The claims describe the existing use; however, future uses are incorporated into a long term strategy which should not increase the amount of water needed. Most of the water is already being used. The refuges were created as sanctuaries for birds, breeding grounds and habitat preservation. There is some duplication with the tribal claims. The priority dates are 1985/1960 for 50,385.3 af/yr. Some claims are Walton Claims, 2 are pre-1909 vested rights.

Klamath Allottees Water Users Association: Paul Hamai from NRCE consulting firm put together claims. The allottees are members of the Klamath tribe who have grouped together to file water right claims in the basin. The tribe cannot make claims for the allottees because of a conflict of interest.

Eligibility is based on enrollment in the Klamath tribe and the land must have always been in continuous Indian ownership since reservation was created in 1864. There are approximately 55 members in the association who own about 13,400 acres of land. There are 83 parcels of land with 29,000 AF of water in the former reservation. They are in the process of filing amended claims to take into account where there has been property sold or member has died. This could reduce the figures.

The claims are based on the U.S. vs Adair case. Claims are for present and future irrigation as opposed to tribe's uses. Priority date is 1864.

Present irrigation easy to determine, but also had to calculate reserved right for future use of the land, land which is practicably irrigable. This is done by evaluating the natural land base (present irrigable land, soil survey, land classification), natural flow, practicably irrigable land (crops, irrigation requirements, irrigation system, costs, crop benefit/acre), report and property summaries. All parcels have had a detailed study to determine the practicably irrigable acreage. WRD has maps showing the location of the properties.

Bureau of Reclamation: Steve Palmer, Solicitors Office. Discussed Klamath Project claims.

Irrigated acres:

California Lands. 54,747

Oregon 97,601.3

USFWS lands 50,647.00

Total 202,995.30

Inchoate 15, 659.00

Priority Date: 5/19/05

Inchoate claims are on contract, have been paid for, but are not currently irrigated but could be irrigated in the future.

Districts and Private Claimants: Paul Simmons, attorney for Tule Lake Irrigation District.

Seven attorneys represent this group which is similar to the BOR claim and includes irrigation users and private land owners. Their goal is for the BOR to have best claim possible. Irrigation districts are making claims on behalf of the land owners. There are 17 claimants on 170,000 acres. Mark Van Camp, engineer explained the 4 part claim for natural flow, storage, direct diversion and use of stored water. The purpose is for irrigation and stockwatering. Season is year round for all claims. The priority dates range from 1868-1905 . (Handouts were provided)

End of presentations.

There was interest in putting together a hydrology working group and other committees. It was decided that goal setting was a first step to forming committees.

Martha Pagel proposed for the December meeting that we participate in goal setting session to identify and clarify shared goals and what the ADR process will and won't do. WRD will hire a facilitator for the next meeting with grant funds from a state dispute resolution fund. By January, we will propose recommendations for a continued ADR process. In January, the meeting schedule will change to the 2nd Tuesday and Wednesday of the month.

It was also proposed that we set up a meeting with WRD staff to discuss the water availability model and that WRD provide a printout of all the water availability basins using a 80%, 50% and 20% exceedence level. More information was also requested on historical natural flow.

A future agenda item is to discuss confidentiality. Martha offered that draft model rules are available for comment. Once rules are adopted, we can work with the rule to draft an agreement for the ADR process. WRD will try to make copies of the rule available at the December meeting.

End of meeting.