KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION-- MEETING SUMMARY
January 12, 1999
The January 12, 1999 Monthly Meeting of the Klamath Basin ADR was held in Klamath Falls,
Oregon at the Oregon Institute of Technology. The Hydrology Subcommittee met from 10:00
a.m to 12:00 p.m. The General Meeting of ADR participants was held from 1:15 to 4:30 p.m, 75
participants were in attendance.
Meeting Agenda
10:00 - 12:00 Hydrology Subcommittee Meeting
11:30 - 1:00 Lunch (Administrative Subcommittee Meeting)
GENERAL MEETING
1:15 - 2:20 Hydrology Subcommittee Report
2:00 - 2:30 Subbasin Reports
National Park Service
Tribes
2:30 - 3:00 Water Supply Augmentation Effort
3:00 - 3:15 Break
3:15 - 3:45 ODA-DEQ Update
3:45 - 4:15 Review ADR Goals and Operating Principles
4:15 - 4:30 Other Business
Agenda Review
Mike Golden reviewed the agenda.
Hydrology Subcommittee Report (Steve Sweet)
The Hydrology Subcommittee (HSC) met in December at the Forest Service Regional Office in
Klamath Falls. In addition, the HSC met during the morning before this Monthly Meeting.
These two HSC meetings focused on the evaluation and selection of the most accurate stream
flow measurement base period to be used in calculating natural flows in the Klamath subbasins.
At the December meeting, Jonathan LaMarche presented information about subbasin
configurations, base periods and long term discharge flows.
The issue related to selection of the base period revolves around the comparison of the Oregon
Water Resources Department's (OWRD) base period (1958 to 1987) to the United States
Geological Survey's base period (1960 to 1991). Since there is no substantive difference between
these two records, the HSC recommends that OWRD's base period be utilized in order to
promote consistency between the OWRD work and the ADR discussion. The HSC also
reiterated a previous recommendation that Rick Cooper (the OWRD hydrologist) and Jonathan
(the ADR hydrologist) work together to select the most efficient subbasin configuration, to
validate stream flow records and determine natural flow figures for the selected Klamath
subbasins.
In addition to the issues related to the selection of the most appropriate base period, the HSC
indicated that coordination between the ADR work and the Adjudication is of concern. The HSC
reminded the participants that the open inspection is scheduled for September, with information
about natural and distributive flow needed by the first of July. Available information varies in
length; some records contain a long periods of flow data while others contain short periods. The
short periods of record need to be extrapolated into longer records, using index stations.
However, Jon's ability to accomplish this in a timely manner is dependent on OWRD's (Ben
Scales') schedule for completing hydrographs for pertinent streams. The HSC recommends that
the Department focus its efforts more fully on the Klamath Basin to allow timely accomplishment
of this work. Once natural flows are determined, the effects created by changes in flows and
consumptive uses must be calculated.
David Purkey, from the National Heritage Institute, presented information about a flow
distribution model know as "Water Evaluation and Planning System" (WEAP). The WEAP
system is a computer program that can be used to model stream flows and water distribution in
select basins and subbasins. WEAP could be used to model a variety of flow regimes and water
distribution schemes in the various subbasins in the Klamath. The HSC and OWRD have asked
David to prepare a workplan and budget for development of the WEAP model for use in the
Klamath ADR. The HSC will review the workplan/budget at its next meeting.
Determination of the natural and distributive flows must be a parallel process. There are 205
subbasins for which natural flow figures must be prepared by July 1, 1999. The HSC felt this job
to be unrealistic for one person; more time and/or personnel is needed. Members of the HSC
suggested that the OWRD consider revising the Adjudication scheduled to give more time before
the Open Inspection for completion of the hydrologic work.
Options that were identified by the HSC for coordination of the ADR and Adjudication include:
Martha Pagel (OWRD Director) reminded the ADR participants that the OWRD promised that
the ADR process would not delay the Adjudication and, therefore she did not feel she could agree
to postpone the date of the Open Inspection past the date set by the Adjudicator (September
1999).
Concerns were raised about the operation of the HSC; especially, its supervision of Jonathan in
his selection of the most appropriate base period and his development of subbasin natural flows.
Ed Bartell raised a question about the admissibility in the Adjudication of data and/or information
developed in the ADR. Roger Nicholson and Ambrose McAuliffe joined in the discussion
concerning development and use of the hydrologic data. One of the participants asked why
provide the ADR with information if it could not be used in a court of law (the Adjudication)?
The question of what constitutes "original" work in the ADR versus that which can be presented
to the adjudication was asked. The underlying question as to the safeguards between the ADR
and Adjudication is of interest to the participants.
Ed Bartell expressed concern that the HSC would in effect direct the OWRD towards
development and interpretation of data to the benefit of one party over another. Ed expressed the
opinion that each interest group should have their own hydrologist on the HSC in order to receive
fair representation in the Subcommittee. It was pointed out that only three representatives of
irrigation interests were present at these meetings. One participant indicated that the Upper
Klamath did not seem to be adequately represented.
Martha noted that interpretive information developed in the ADR is not admissible in the
Adjudication; however, raw data, such as stream flow data, is a matter of public record and may
be presented to the Adjudicator. She noted that the Adjudication must also address questions
regarding the natural flow. Martha repeated that interpretive work done on that data in the ADR
is not admissible in the Adjudication, unless approved by the affected parties.
The ADR and the HSC are both controlled by the ADR participants as a whole. The ADR
Hydrologist was hired to provide technical information to aid in the ADR decision making. The
basic stream flow research done in the ADR is intended to be neutral and is not meant to be
biased in any way to injure anyone. Requests from the HSC to the ADR participants and the
OWRD about prioritization are just requests. ADR tasks are prioritized by the ADR participants,
and Adjudication tasks are prioritized by the Adjudicator.
Representation on the HSC was decided by the group; if there is disagreement about the process,
then the group as a whole should address the issues. (See the meeting summary from November
10, 1998 for more information). Summaries of the HSC meetings are circulated to the
Subcommittee members, including OWRD staff. All subcommittee meetings are open to anyone
who wants to attend.
Ed Bartell and Ambrose McAuliffe raised questions about the Department's base period of 1958
through 1987. They wondered if the stream flow information would be improved if more years
were included in the stream flow calculations. Jonathan responded that a lack of information for
certain index stations outside that period would make the results less reliable. Jonathan pointed
out that 100 years of record is ideal, but very few gages have that length of record. He pointed
out that the 30-year base period he and the OWRD are using provides the largest cross-section of
data that is co-incident with an average range of climate history. This process allows for the most
accurate calculation of representative natural flows where high and low flows are represented.
The reason the record cuts off in 1987 is that the USGS began dropping gages that year.
Student help was suggested as a way to gain assistance in determining flow data and working
through the numbers.
One member expressed concern that a 30 year period of record could unduly benefit one group;
that this represented a clear conflict of interest. Martha replied that informing the process and
helping with decision making is in each claimant's best interests; therefore, claimants and other
ADR participants that have pertinent, reliable information should bring it to the table.
For the next meeting, Jonathon was asked to provide a breakdown on how he spends his time and
the kind of products he is working on. Hopefully, this will help participants get a better
understanding of what information is subject to confidentiality provisions and what is already
public record.
HSC presentation by Jonathan LaMarche:
Jonathan has just completed his evaluation of Klamath Basin watershed characteristics
(precipitation, vegetation, soil characteristics, topography, bedrock, etc.). The watershed
characteristics will be used to help determine index sites for each of the sub basins. An ideal index
site is one which has no diversions above it, no logging activity and a long period of record; Odell
Creek in the Deschutes Basin is a good example.
Jonathan divided the Klamath basin into subbasins for purposes of natural flow calculations. The
subbasin configuration is based upon the location of in-stream claims filed in the Adjudication.
Jonathan displayed a map of in-stream claim subbasins and gage locations in order to delineate the
subbasin breakdown to be used in the natural flow calculations. He provided a prioritized list of
subbasins for data development.
The subbasin prioritization Jonathan is recommending is:
1. Upper Sprague;
2. Upper Williamson;
3. Jenny Creek;
4. Miscellaneous streams;
5. Sycan River;
6. Lower Sprague;
7. Wood River;
8. Middle Williamson;
9. Lower Williamson;
10. Upper Klamath Lake; and
11. Gerber Reservoir.
Since December, an audit of USFS flow records (raw data) was performed. Modifications made
to the USFS flow records resulted in changes in calculated exceedence values of less than ten
percent, with most changes being less than five percent. He shared the OWRD modifications with
the USFS hydrologists who agreed with the OWRD modifications. He performed a statistical test
between the OWRD and USGS/USFS base periods (58-87 as opposed to 61-90) and found no
difference in the base periods at a ninety nine percent confidence level, with the exception of the
month of October (which still had less than a 10% difference). Since there was no major
differences in the base periods, he thought that the State's base period should be used to allow
consistency with other state records. The HSC hydrologists agreed with Jonathan's
interpretation and agreed that the OWRD base period should be used. This information was
presented to the HSC earlier in the day.
Jonathan is currently working on a preliminary analysis of how to mathematically extend the short
records in subbasins where long records are not available. In order to do this, he is looking for
criteria from both the OWRD and the USFS's methods for extrapolating data to determine which
process provides more accurate information. Index gages will be used as predictors once the
index records are updated. He will most likely start with three tributaries in the Upper Sprague
basin using the gage on the Chewaucan River as an index.
Mike Connelly asked why Gerber Reservoir was included as one of the subbasins. This subbasin
is included because it is hydraulically connected to streams that have claims in the Adjudication; in
addition, a claim to water in Gerber Reservoir has been filed in the Adjudication.
In response to a question about the meeting with Forest Service to examine their data and
whether or not each claimant would receive similar treatment, Jon mentioned that he had put out
a request for all available data when he started this process and all data received would be
examined and treated in a similar manner. He is using whatever data has been made available to
him.
Marshall Staunton questioned the use of the thirty-year period of record and its applicability in
extreme drought years since the record does not include the drought years in the 1930's and
1990's. Jon replied that statistical analysis shows the 1958-1987 period of record adequately
accounts for wet, dry and average years. Paul Simmons pointed out that the median flow is the
key piece of information.
Sub Basin Reports:
National Park Service (Barbara Scott-Brier)
Negotiations on Annie Creek, the Wood River and the Williamson River are on-going. Interested
parties are welcome to attend. They are currently looking up options to free up water while
putting other options on hold. The next meeting is in March; a mailing list separate from the
ADR list is being created. A copy of this list is attached to the minutes.
If anyone is not on the master list and wants to be, please notify the OWRD. The OWRD does
not have current names and addresses of all water right holders for purposes of mailing notices.
Roger Nicholson suggested that the OWRD should attempt to send notice of the ADR to all
people with water rights.
The Klamath Tribes (Bud Ullman)
The Tribes have been holding a variety of meetings. For example, tribal representatives have met
with the project irrigators. A number of participants indicated that these meetings are very
productive. The hope is that mutually shared problems will result in mutual solutions. Personal
relationships seem to be building, the proof being that people keep coming back. Bud stated that
even though progress has been made on general concepts, the devil is in the details; however, the
Tribes hope to have some settlement concepts available for the participants in the next few
months. Paul Simmons noted that one of the purposes of this process is to foster understanding.
Bud concurred that this seems to be happening.
When the Tribes were questioned about whether the spirit of compromise from the Tribes had
changed, Jeff Mitchell, chairman of the Klamath Tribes, offered that the Tribes continue and will
continue to sit down with any interested ADR participant, or group of participants.
Scott Runels suggested that the Tribes were paid for their Reservation and water and thus did not
have a right to claim. He asked how U.S. v. Adair, 723 F.2d 1394 (1983), affects this
negotiation. Bud Ullman commented that the Adair case as well as the Tribal land issues are
subjects that need to be kept in mind during this process. Bud pointed out that the termination of
the Reservation was actually a condemnation and taking, and the right to water survived the
termination.
Water Supply Augmentation Effort (Jim Carpenter)
The Hatfield group is taking on a peripheral role in the water supply augmentation effort. The
goals of the Hatfield committee outside group is to support efforts in ecosystem restoration,
mitigation of economic impacts and to increase water through storage augmentation. Senator
Ron Wyden helped arrange for a million dollar appropriation for this effort; grant review began on
January 11, 1999.
Participants asked if there is to be some form of grant review, or a notification of grant funding.
Two hundred thousand dollars is earmarked towards drought relief through supply augmentation.
No particular program is yet targeted for the money. Increasing the supply is an idea that had
been given little attention; the Hatfield group wanted to acknowledge its importance.
The final report on the water supply initiative was published at the end of the summer. There are
a number of options that will not be pursued; however, some of the more feasible options have
been picked up by the Bureau of Reclamation, in conjunction with the OWRD. One option that is
being examined is the possibility of raising Link River Dam by thirty feet while creating the ability
to regulate the water temperature better. Barbara Scott-Brier noted that the cost of Unit 13, a
proposed storage project within the lower Klamath Wildlife Refuge, is higher than the initial
estimates. Another possibility under examination is the use of deep water wells to augment
supply in the area below Upper Klamath Lake. Innovative thinking is needed to be sure options
are not overlooked.
Karl Wirkus indicated that the Bureau of Reclamation has been pursuing a number of different
options. Off-stream storage is one option. The Bureau bought Agency Ranch and is currently
preparing an operating plan for 1999 that proposes to operate the Ranch as a storage area versus
a wetland. This will mean the Ranch will be drained in the later part of the season. Another
possibility is increasing existing storage. The Bureau's Denver office is currently pursuing
feasibility studies on the possibility of raising the level of Upper Klamath Lake (raising Link River
Dam). A third item of interest is the further development of groundwater resources, both in
Oregon and California. Two areas have been identified for test pumping -- Shasta View and
Langell Valley.
The Clear Lake Dam safety questions are currently being evaluated. The Bureau is moving
forward with a design to repair the dam and return it to its original capacity. Construction is
scheduled to begin during the year 2000.
No explorations of new dam sites are currently underway. If local support and interest grows,
then the Bureau will address the new dam/new storage question further.
Tulelake Refuge Lease Lands (Steve Lewis)
Due to a request from the participants, Steve agreed to give an update on the status of the lease
lands on the Tulelake Wildlife Refuge administered by the US Fish and Wildlife Service. Under
three federal statutes, the National Wildlife Refuge System Administration Act (NWRSAA), the
National Wildlife Refuge System Improvement Act (NWRSIA) and the Kuchel Act. The U.S.
Fish and Wildlife Service (USFWS) is required to review any activities that are not expressly
authorized in the Refuge formation statutes.
Steve stated that the wildlife refuges in the Klamath Basin were established for two purposes:
1. To protect the 20,000 or more acres of wetland; and
2. To protect the 20,000 acres of lease land.
Farming has been found to be consistent with the purposes of the Tule Lake Refuge, as long as
the wetlands receive their full allocation of water. If water is unavailable for all uses, water to the
lease lands will be decreased to ensure full allocation to the Refuge wetland areas. A draft
Environmental Assessment and Compatibility Determination are due out January 29, 1999. There
will be a ten day comment period. Revised lease information will be sent out at the same time.
Sam Henzel asked Steve to be sure to notify the Klamath Drainage District when the USFWS
decides to shut off water to the lease lands so that the Drainage District can stop deliveries to the
Lower Klamath Wildlife Refuge through the Ady Canal.
It was noted that part of the controversy about the lease lands stemmed from the way the USFWS
handled the notification and involvement of interested parties. Legal questions as to whether or
not the NWRSAA and NWRSIA apply to the operation of the Tulelake Refuge were raised.
Marshall Staunton expressed concern that the developing relationship of the pro-active ADR
participants has been destroyed. Determinations of information such as lake levels is a large issue
and important to interested parties; people don't want to feel cut out of such discussions and
decisions. Lessees don't want to be in the position of scrambling for water and are interested in
the examination of the wells in the Lower Klamath.
ODA/ DEQ Update (Steve Kirk)
Steve Kirk, Department of Environmental Quality, invited interested parties to attend the
discussion of the TMDL process in the Klamath Basin. The first Citizens Advisory meeting will
be held February 4, 1999 at noon. This will be an organizational meeting, with information about
TMDLs and the 303 (d) list.
Jim Carpenter gave an update on SB 1010; the process is being built up for the Upper Lake.
There is a lot of effort to put information on the table for discussion in the monthly meetings.
Review ADR Goals and Operating Procedures
Mike Golden began by remarking that reactions and information about the ADR process are
filtering back. Questions about the effectiveness of the ADR process and how it has been
developing have arisen. Mike reviewed the four ADR goals. He thought that progress had been
made with people talking face-to-face and trying to work things out. However, there is a need to
keep prodding people to keep moving ahead with individual and group discussions.
Martha Pagel commented that she was glad for a chance to look at any mid-course corrections.
She received positive feedback earlier in the day from a party that had originally been skeptical of
the process and was heartened by the pep talk that now is the time to keep going. A lot of issues
outside the ADR seem to be affecting the process. Examples include Reclamation's 1999
Klamath Project Operating Plan (KPOP), the proposed changes in management of the Tulelake
and Lower Klamath Refuges and the leasing issues.
Internal issues have also been divisive. The battle of the guest opinions is one example. Some of
the issues brought forward in the newspaper are contrary to the ADR Operating Principles. The
OWRD has tried to distinguish the ADR process from the Adjudication procedure. Another issue
of concern is the frustration by various participants over information that has been withheld; for
example, the Tribal instream flow supporting data.
Martha said, despite these issues, people still think the ADR is an important process. If someone
is of the opinion that the ADR is not likely to work, they should not interfere with those who are
trying to make it work. Not everyone has to buy into the process. The ADR is still in Phase I, and
though it has been frustrating at times, more information should be available at the open
inspection. Information made available at that time should help open up opportunities for further
negotiation. Note: The open inspection is scheduled for September 1999.
The operational procedures for the ADR process are critical. Everyone should remember the
pledge that negotiation is to be conducted in good faith, and not in the press.
Participants expressed appreciation for the OWRD acting ahead of the Adjudication curve.
Martha commented that the ADR is in addition to the Adjudication. The Adjudication can line up
the water rights and priority dates, but that doesn't necessarily mean that there is adequate water
to fulfill those rights. The ADR offers a way to try to find that water.
Bud Ullman noted that the battling guest opinions in the newspaper were placing the Tribes in
delicate position. It is difficult for the Tribe to offer compromises when this is happening. The
Tribes are vilified if they respond in the press; on the other hand they are at a severe disadvantage
if they do not respond. They have the feeling that they are often being asked to give information
without a mutual promise of information in return. Bud noted that their negotiations with the
Project irrigators have been productive without a large exchange of information.
Martha pointed out that the last date that the Tribes, or anyone else, can submit information to the
Adjudicator is at the beginning of open inspection. Bud Ullman noted that the Tribes own the
information in question; they are currently working with the Department's Adjudication Section
to determine the most useful form of that information. It will be submitted before the open
inspection. All information will be available for review at the open inspection. The model and
approach to information gathering will also be available for review; however, the raw data will not
be laid out with the claims.
Jeff Mitchell noted that a lot of comments and characterizations had been made. Despite this, the
Tribes will continue to reach out. The Klamath Tribes fought for the ADR as a means to address
the issues facing everyone. The Tribes have committed significant resources to work with the
community -- it has not been an easy process. Future success will come because the parties
agreed to sit down and talk. On the other hand, the Tribes have reached out to other participants
and wish now that more progress had been made. In some cases, there is little participation or
cooperation. This is a community matter, not just a Tribal or Project issue. The Tribes are trying
to protect their resources and find solutions for the community as a whole.
Sam Hanzel noted that Klamath Drainage District has developed a good relationship with the
Tribes and have found working with them to be a positive experience.
Martha offered another example from within the OWRD about an on-going negotiation. It seems
to be working because of working on assumptions. For example, if this is true, then we are
willing to take that action. If it is not true, then we won't. The idea is to set up the negotiation
so it can proceed even though all information may not be available at the outset.
Roger Nicholson asked about the relevance of the proposed Senate Bill 299 to the settlement of
water rights claims in the Klamath. Martha explained SB 299 is a bill filed at the request of the
Water Resources Department. It relates to changes in water management details before an
adjudication occurs. SB 299 results from changes in a point of diversion that the City of
Springfield has claimed in the Willamette Basin.
Mike Golden summarized the discussion with the following points: Don't wait for every piece of
information to start negotiating; get to the table; and know that the Department will try to help in
any way possible.
Other Business
Possible topics for next meeting's agenda were discussed. Martha noted that the legislature is in session in Salem and apologized in advance if she could not attend an ADR meeting due to legislative duties. The HSC will meet at 8:30 am before the next Monthly Meeting.