MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION

Date: June 8, 1999 - 1:00p.m.

Location: Oregon Institute of Technology, Klamath Falls, Oregon

Welcome and Agenda Review

Mike Golden reviewed the agenda for the meeting. The following corrections to page six of the May 11, 1999, meeting summary were proposed:

1. Adjudications Update: No change since the previous ADR meeting in the federal information which is still available for public inspection; and

2. The Adjudicator will determine what name will go on the certificate.

Water Resources Department (WRD) announcements: Reed Marbut conveyed apologies from Martha Pagel who was unable to attend the day's meetings. Martha needed to be in Salem for legislative and administrative business. Jan DeVito of WRD staff was introduced. She will assume the administrative duties formerly handled by Rebecca Geisen. Mike thanked Rebecca for her excellent work in assisting the ADR process.

Water Availability Report and Update

Reed introduced Rick Cooper, the WRD senior hydrologist, who was at the meeting to present "Streamflow Estimates for the Klamath Basin in Oregon." Reed pointed out that the streamflow estimates will be given to the Adjudicator to be used in the adjudication process. Claimants may submit additional documentation for their claim files on matters related to streamflow estimates. In addition, claimants have the right to file contests on issues related to the estimates. The ADR participants may not communicate with Rick Cooper regarding the streamflow estimates and/or the adjudication process; however, parties may contact Ken Starr in the Salem office for help accessing streamflow information on the Department's Homepage. The Adjudicator must use natural flow estimates in his evaluation of instream water right claims, such as the BIA and USFS federal reserved water right claims for minimum stream flows. However, Reed emphasized that water availability as such is not an issue in the adjudication of pre-1909 water rights.

Rick Cooper handed out paper copies of the slides used in his report. He noted that Ken Starr and Ben Scales of WRD staff had assisted with calculations, maps and posters. (Note: The handouts may be obtained from Jan DeVito at WRD upon request.)

Rick's presentation of "Streamflow Estimates for the Klamath Basin in Oregon" included:

I. Overview of the Klamath Basin in Oregon

II. Where Natural Streamflows are Estimated

III. Selecting a Streamflow Statistic

IV. Calculating Exceedance Streamflows from Gage Records and Miscellaneous Measurements

V. Correcting Exceedance Streamflows to Natural Streamflow

VI. Estimating Exceedance Streamflows for Ungaged Streams

VII. Checking Our Work

During his presentation, Rick responded to audience member requests for several points of clarification.

Public Information Access: Streamflow information for the Klamath Basin can be accessed online from www.wrd.state.or.us - go to file pickup, then follow the directory tree to wars/review/klamath To download information, it is necessary to use the Courier font or another non-proportional font. For assistance in downloading or explanation of tables, contact Ken Starr at WRD (503)378-8455 or 800-624-3199 extension 243.

Hydrology Subcommittee Report (HSC)

Bob Main reported on the Subcommittee's morning meeting. The principle focus of the Subcommittee discussion related to the question: Who gets water under various flow and allocation scenarios? Using the Sprague River Basin as an example, Jonathan LaMarche demonstrated estimated flows at various points. Jonathan's model was well received by the Subcommittee. There was discussion about the accuracy of models and the importance of considering variations in streamflows.

The following questions were suggested for research by Jonathan using his model:

1. If all claims which have been made are honored, who gets water?

2. Who gets water if there is a lake level claim (Upper Klamath Lake) but there are no instream claims?

3. Who gets the water if there is no lake level claim and no instream claims?

The following points were clarified:

1. Project claims should be represented both as BOR claims and as districts claims;

2. Refuge claims will be considered by oldest priority date; and

3. Rick Cooper's report was not considered in Jonathan's model.

Rate and Duty Subcommittee

Reed Marbut stated that the goal of the Subcommittee was to establish a bibliography of rate and duty, historical information and basic background of irrigation practices to benefit the adjudication process. The Subcommittee will not set actual rate and duty, but will contribute concepts to be incorporated into the settlement agreement. The goal is to be a resource for settlement of contests.

At a recent meeting, the group decided to review methods and statistics regarding how rate and duty applied to various areas. Reed asked for volunteers willing to serve (especially members of the Hydrology Subcommittee) to contact him during the meeting break.

The Hydrology Subcommittee members indicated that they will not consider the rate and duty issue (see below).

Adjudication Up-date

Reed outlined progress of the adjudication process. One informational meeting was held 5/18 regarding the Walton claims. As follow-up to an information request letter, a meeting is being considered regarding pre-1909 claimants.

A bill to amend ORS Chapter 539 (the Oregon adjudication statute) has been submitted to the 1999 Legislature. Apparently, the bill was requested by Water-for-Life. Reed briefly described the bill and stated that the Water Resources Department opposes the bill. The principle reason the Department opposes the bill is that we are concerned that, if ORS 539 is amended, it could expose the Oregon adjudication process to another challenge by the United States. Reed reminded the ADR participants that the U.S. v. Oregon case, that was filed by the United States in 1990, was a challenge to the Oregon adjudication system. In that case, the 9^th Circuit confirmed that the Oregon adjudication system is acceptable under federal law and the United States and Klamath Tribes must file claims in the Klamath Adjudication.

Despite the Department's concern about amending the adjudication statute, Reed noted that the portion of the Water-for-Life bill that proposes to extend the period for preparing and filing contests seems to be appropriate. In fact, a number of participants have suggested that the time period between the beginning of open inspection and the deadline for filing contests is too short in light of the complexity of claims. It is possible for the Adjudicator to extend the open inspection period administratively, without changing the statute. Therefore, to address the short time period concern, the Adjudicator proposes the following revision to the open inspection and contest periods:

Open Inspection will be conducted in Klamath Falls from Oct. 4 to Nov. 5, 1999

Files and related documents will be moved to Salem beginning on Nov. 6, 1999

Open Inspection will be continued in Salem from Nov. 15, 1999 to Jan. 14, 2000

Contests will received in Salem from Jan. 17, 2000 to February 18, 2000

The Adjudicator's summary report will be available on October 4, 1999. Reed noted that this schedule will mean that claimants will have from October 4, 1999, to February 18, 2000, to prepare and file contests.

Discussion included: clarification of number of days; suggestion for longer period of time in Klamath Falls; and whether 10/4 beginning of open inspection was a firm date. Reed responded that limiting the open inspection time in Klamath Falls was influenced by the costs of office space and staffing. In addition, since the claim data base and Adjudicator's summary evaluation of the claims will be available in paper at the Klamath Falls Watermaster's office and on the Department's Homepage, interested parties will continue to have most of the essential information on hand in Klamath Falls. At this time, the Adjudicator is confident of the 10/4 start date.

Long-Term Operations Plan for the Klamath Project

Jim Bryant of the Bureau of Reclamation commented on above-normal inflow of the Williamson River into Klamath Lake and the water storage in the form of snow. Although these factors present difficulties in predicting lake levels and evaluating operation of the Klamath Project, things look good for this irrigation season. Due to the wet spring, several replantings have been necessary in some areas of the Project.

Karl Wirkus of Bureau of Reclamation spoke about the federal obligation for completing the Project long-term operations plan. Following input from public meetings, comments are being evaluated and a draft of alternatives is being developed. Technical teams are gathering data to describe the existing environment.

Karl described his purpose in attending the ADR as an essential part of the documentation and analysis which will be incorporated into a final plan supplement. A decision is planned for next spring for an environmental impact statement on the long-term operations plan. A biological assessment should be available in approximately one week.

Bill Kennedy asked whether there is agriculture and local government representation in the Bureau process. Karl responded that cooperating agencies are included, and that representatives from local government may be considered.

Reed Marbut asked a number of questions to determine whether the Bureau was following through on their prior commitment to involve ADR in the long-term planning process. In response, Karl stated that they intended for the ADR to be involved as much as possible. The long-term planning is a NEPA process, but is not considered Department of Interior rulemaking. He further responded that not all groups could be involved in the process, but hoped that the ADR would be included. Downstream demands on Klamath River water is unquantified, but will be addressed.

Negotiating Group Reports

Williamson Area Negotiating Group - Kip Lombard reported on the negotiating session held last month in Chiloquin. It was a forum for good exchange. The next meeting with the tribes is scheduled for Monday, June 14 at 2:30p.m. at the Methodist Church in Chiloquin. At the meeting in Chiloquin the water users and Tribes presented and tabulated their negotiation points of interest.

Annie Creek/NPS Negotiating Group - Barbara Scott-Brier of Department of Interior reported that the group had a good and productive meeting. They considered a general conceptual proposal. They plan to meet from 9-11a.m. at the next ADR meeting to be held at the Extension office.

SB1010 - A brief update was given concerning a meeting of the Klamath Headwaters Local Advisory Committee. In considering plan templates to reduce non-point source pollution. The Committee reviewed a plan proposed by Ag Alliance.

Lost River Advisory Committee - Considered historical input on conditions in past years. Andrea Rabe, new district manager of the Klamath Soil and Water Conservation District, offered to give future updates.

Total Maximim Daily Load (TMDL) - Will meet on June 17. A technical committee has been formed. Jim Carpenter will give future TMDL updates.

Other Business

Change in ADR Meeting Time - Alice Kilham, a Klamath River Compact Commissioner, explained that her group is sponsoring a Congressional fact-finding tour of the Upper and Lower Klamath Basins on August 10-11-12. She has spoken with Martha Pagel about a combined Compact and ADR meeting. Alice suggested that the August 10 ADR meeting be moved to the morning in order to allow participation in both the ADR and the Congressional activities. Without objection, the 8/10/99 ADR meeting will be held from 9:00a.m. to 12:30p.m.. More details will be available by the July ADR meeting.

Status of Lost River Adjudication - Paul Simmons explained that the adjudication of the Lost River in 1918 recognized the anticipated development of the Klamath Project. At that time of the 1918 adjudication, in addition to the private land being irrigated, the Klamath County Circuit Court recognized certain lands to be irrigated in the Klamath Project. Langell Valley Irrigation District and Horsefly Irrigation District have petitioned the Circuit Court to modify the 1918 decree to modify the description of the irrigated lands to include land in their districts outside the project area originally identified and to delete some lands described in the Decree. Eventually, the Department will issue certificates for the lands described in the Decree and irrigated. The United States has moved to dismiss the petition to amend the Decree on the grounds that it was not a party in 1918 and the modification would affect its rights but is not occurring in a McCarren Amendment general stream adjudication. This is a legal action and may or may not involve the ADR.

July ADR Meeting Agenda Suggestions

- Forecast model by Jonathan LaMarche as a regular agenda item.

- Tribal update as a regular agenda item.

Rate and Duty Subcommittee  - Reed Marbut stated that so far, three people had volunteered to serve. Bob Main stated that the Hydrology Subcommittee declined to be involved in the rate and duty discussions.

The meeting was adjourned at 3:30p.m.

The next ADR meeting will be held on July 13 at the OSU Extension Office in Klamath Falls, 3328 Vandenberg Road. Subcommittee meetings will be held in the morning, with the general meeting in the afternoon.

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