Klamath Basin Alternative Dispute Resolution - Meeting Summary


March 9, 1999

The March ADR meeting was facilitated by Rebecca Geisen of the Water Resources Department in Mike Golden's absence.

Geisen briefed the group on previous meeting summary changes.

UPPER KLAMATH BASIN WATER USERS GROUP REPORT - Roger Nicholson

Roger's presentation was made on behalf of the Resource Conservancy, Inc., Fort Klamath Critical Habitat Landowners, and the Sprague River Resources Foundation. The following summarize the points made in the presentation:

- added late season instream flows due to the "sponge effect;"

- no energy needed to run pumps;

- wetland enhancement;

- ground water recharge;

- purification of naturally occurring impurities and sediment from water.

Other points raised in the discussion were that meaningful negotiations can only be conducted when claims are legitimate. Roger does not think tribal claims are legitimate and that water needed for restoration of tribal lands should not be part of the discussion. All solutions must be justified by state water law. Endangered Species Act and Clean Water Act issues should not be part of the ADR and adjudication discussion. The tribes settlement concept leaves no water for irrigators. The Upper Basin is an organized group and they hold monthly meeting, everyone is welcome to attend. The discussion concluded with the Upper Klamath Irrigators and the Tribes agreeing to meet, ideally without lawyers.

HYDROLOGY SUB-COMMITTEE REPORT - Jonathan LaMarche

Jonathan discussed the distribution model for the Upper Klamath Basin.

A distribution model was selected for the "what if" analysis in the Klamath Basin. The selected model, MODSIM, was developed at Colorado State University and has undergone several updates since its first release 10 years ago. The model has been widely used in studies throughout the western US, including applications in the Snake, Yakima, and lower Klamath Basins.

The capabilities of the modeling effort were presented in terms of model resolution. Aggregation of claims based on geographic location and priority dates is necessary in order to facilitate a level of complexity that is reasonably simulated. The model resolution consists of three parts:



Time Immemorial

1776 - 1864

1865 - 1904

1905

post 1905





OWRD REPORT ON HYDROLOGIC INFORMATION AND PROCESS - Martha Pagel

Martha discussed the evolution of the hydrology sub-committee (HSC) and the need to have dedicated technical staff to support the ADR. The hydrology sub-committee was tasked with collecting data to estimate average natural flow, make water availability determinations and establish a process and methodology. A staff person (Jonathon LaMarche) was hired to assist the HSC. It was the recommendation of the HSC to gather the basic information as soon as possible and to work with WRD staff. There were concerns that Jonathan might communicate information to each other regarding the ADR. Martha assured the group that both Rick and Jonathan are working on their own and that there will be no inappropriate commingling of information amongst WRD staff. However, to address these concerns, it has now been established that Rick Cooper will work independently. Martha stressed that there has been no inappropriate co-mingling of information between the ADR and Adjudication and there have been no analytical discussions. Once the information from Rick is complete, it will be a public document and will be available to both the ADR and Adjudication. At that time Jonathan LaMarche can use the information for the distribution model.

Open Inspection is now scheduled for October. The open inspection period will be from October 4 - November 5 at the Watermaster's Office in Klamath Falls.

A question was raised regarding the period of record which Rick will use to prepare his natural flow estimates. The base period of 1958-1984 was used. The Department believes this is representative of a 100 year record. This was approved by the Water Resources Commission and was subject to peer review. It is the period that will be used in the adjudication. Martha reminded folks that ordinarily, the judge in an adjudication only looks at the use of water pursuant to water law. Natural stream flow and water availability aren't generally a part of the evaluation of consumptive uses. However, natural flow estimates must be considered in the evaluation of instream flow claims.

It was emphasized that Rick Cooper is not an adjudication decision maker, but a technician. There is no prohibition to calling him and asking him questions. Questions should not be addressed to him on behalf of the HSC. There has been no confidential hydrology information yet, there has only been raw data that is already a part of the public record.

UPDATES

KPOP

The draft assessment has been mailed. Steve Palmer noted that the comment period for the 1999 draft assessment closes March 24. A final draft should be available in late April.

Leased Lands

Paul Simmons spoke about the leased lands issue. Tulelake Irrigation District has filed a lawsuit against the U.S. Fish and Wildlife Service. They would like to use the ADR process to settle the dispute over leased lands. Tulelake Irrigation District has decided to take a step back:

Steve Palmer, of the Regional Solicitor's Office, stated that the USFWS is willing to form a negotiating group of the ADR to receive information on the criteria and operational mechanisms to be used in implementing the new lease terms pursuant to the compatibility/ consistency determination.

The Klamath Drainage District had previously requested formal ADR, which was turned down. They will consider USFWS proposal to form a negotiating group under the Klamath Basin ADR, but are not willing to accept the offer at today's meeting.

Unit 13

Barbara Scott-Brier discussed a proposal to increase the storage facility on the Klamath Refuge. The Fish and Wildlife Service had a filing meeting with OWRD and filed a water right permit application with WRD. They are looking at other options for augmentation.

Tribal Negotiations:

Paul Simmons stated that the irrigators and Tribes have continued to meet and are a negociating group under the ADR operating principles. They have met for the last 1 ½ years and developed their own confidentiality agreement in addition to the ADR operating principles. They meet with and without attorneys, the objective is to build trust, understand each other's respective issues and desired outcomes. The group has conceded that there are points they will never agree on, but they have found ways around those issues and are staying focused on goals. Martha Pagel and Bob Anderson have been briefed on the general settlement concepts and to identify red flags. When an agreement is ready, they will bring it forward to the whole group.

Pagel noted that she reviewed and clarified the process on the concepts of the Operating Principles. When negotiation groups have a formal concept, it needs to be on the ADR agenda, but first the concept needs to be brought before Martha Pagel.

OTHER BUSINESS

Items of interest were discussed for the upcoming April ADR meeting.

Note: The next ADR meeting will be held at OIT in the Shasta Complex on Tuesday, April 13.