KLAMATH ALTERNATIVE DISPUTE RESOLUTION - MEETING SUMMARY

January 11, 2000


Welcome and Agenda Review

Mike Golden welcomed everyone and discussed the upcoming agenda.

Hydrology Subcommittee Report and MODSIM Presentation

Bob Main and Jonathan LaMarche gave a presentation on the results of the MODSIM.

Out-put reports are available MODSIM on the Department's web page at:

ftp://www.wrd.state.or.us/pub/studies/klamath-adr

click on "Hydrology-model-output"

MODSIM is a computer program originally developed at Colorado State University which Jonathan is using to build a water distribution model for the Klamath Basin. The MODSIM program can evaluate various conditions of water supply and demand. The program user can insert hypothetical conditions of stream flow and water use to evaluate how the Basin, or any select sub-basin, would be regulated under differing circumstances.

As the ADR participants attempt to develop settlement of water allocation issues, the use of MODSIM will allow the participants to run hypothetical simulations of water flow and use so that the impact of settlement proposals can be understood. MODSIM will be especially helpful in evaluating various levels of Tribal instream flows in the upper Basin, and how these flows impact water uses under a number of priority dates. As the participants become familiar with MODSIM, hypothetical ­ "what if" ­ questions will undoubtedly come to mind. Such questions should be posed to the Hydrology Subcommittee for evaluation with MODSIM. If you have "what if" questions for MODSIM, please contact someone on the HSC, Jonathan or Bob Main with your idea.

Martha Pagel encouraged everyone to become familiar with the model (MODSIM) so that groups and individuals can run simulations to see how various alternatives affect water supply and demand.

Ed Bartell questioned a number of assumptions used in MODSIM and stated that he believed the supply/demand evaluations were as much as 100% off. His main point of contention was that Jonathan had used incorrect water consumption figures for irrigation in the upper Basin. For example, Ed noted that if actual consumption was over estimated, the benefits of regulation, that is cutting off junior irrigation uses, would appear to be larger than what would be actually acheived. Jonathan noted that he recognized the importance of using the best consumptive use information available. With this in mind he elected build his model using the best available evapotranspiration estimates for area crops. These state-of-the-art estimates included climate information to account for water available to crops by precipitation.



Ambrose McAuliffe pointed out that the result of one of Jonathan's model runs was that junior Klamath Project water users (1905 priority date) would receive water stored in Upper Klamath Lake at a time when more senior water users above the Lake (1864 priority date) would be shut off to satisfy the tribal instream flows with a time immemorial priority date. Jonathan and the participants discuss the parameters of this result. In this particular simulation, instream flow requirements in the upper Basin made water available in the lower Basin for junior water users, such as the Project irrigators. It became apparent that the use of MODSIM will uncover a number of water use anomalies that need to be carefully evaluated and understood if settlement of water right issues are to be achieved.

Mike asked everyone to view the three MODSIM simulations so that the participants can discuss MODSIM's applicability at the next meeting. Please bring comments to the next monthly meeting (February 8, 2000).



Subcommittee and Negotiating Group Reports:

Administrative Subcommittee

Mike indicated that the Subcommittee is behind on its progress report. The report is over due. The Subcommittee looked at a draft report and will bring back a final at the next meeting.

Martha summarized her view of the ADR process for the next year. Currently, the ADR is in the transition between Phase I to Phase II. Phase I is the pre-contest period, and Phase II, which follows contest filing, is intended to focus on resolution of contests. After the contest period people will know who is contesting who's claim. That is, claimants will know who is contesting which claim or claims and contestants will know if there are other like situated contestants (contesting the same claim or claims). In addition, common issues will likely be revealed in the contests.



Summary/Review of ADR Benchmarks and Goals for 2000

Mike reviewed the goals set for 2000. He emphasized the importance of moving through Phase II and encouraged early discussions between contestants and contestees. While in Phase II, it would be helpful when contesting claims, to keep claims that are similar together.



Adjudication Up-date and Contest Filing Procedure (Question/Answer Discussion)

Reed announced that the Adjudicator discovered that it is taking longer to complete preparation of the mail notice for the Contest Period; therefore, the Open Inspection has been extended to March 31. The contest period has been rescheduled to run from April 3 to May 8, 2000. The Adjudicator's plan is to send notice of the contest period and the opportunity to file contests to all adjudication claimants and holders of permitted and certificated water rights before February 1.









Roger Nicholson noted that, given the complexity of the adjudication, this was a very short time for someone to prepare and file a contest. In addition, Roger asked if we had changed our legal position on who could file contests, and now were re-opening the adjudication to allow anyone to file a contest. Reed indicated that the notice of the contest period did not change the law concerning who could file contests. The purpose of the notice is simply to alert individuals who have always had the right to file contests of the period in which contests must be filed with the Adjudicator. Individuals who received notice in early February will have over 90 days to file contests before the May 8, 2000, contest filing deadline.

Reed Marbut reported that two types of contest forms were mailed to everyone on the Adjudication and ADR mailing lists. The two types of contest forms are:

STATEMENT OF CONTEST OF CLAIM AND/OR PRELIMINARY EVALUATION OF CLAIM:

CLAIMS OF OTHERS

STATEMENT OF CONTEST OF PRELIMINARY EVALUATION OF CLAIM:

YOUR CLAIM

Reed said that the Department plans on developing a database of contests which will identify claims that are contested. We cannot report now the timing of the database development; however, we intend that the database will be available on the Department's web page.

An up-dated version of the CONTEST QUESTIONS with answers was made available at the meeting. A few of the questions/answers were discussed. The following additional questions for the Adjudicator were submitted by those in attendance:

1. In addition to the notice to holders of permitted and certificated surface water rights, will the contest period notices be sent to holders of groundwater rights?

2. Who has the right to receive the notice?

3. If you have questions regarding small claims, claims with relatively small files, can you have the documents in the file photocopied and mailed instead of coming to Salem?

4. Will the notice of contest include some description of what is at stake? That is, what affect will an adjudicated right decreed in the current Klamath Basin Adjudication have on an existing permitted or certificated right, including rights that were adjudicated in one of the previous sub-basin adjudications (e.g., Upper Sprague, Wood River, etc.)?

5. Please provide clarification as to the discretion of Hearings Officer.

6. Under what circumstances and in what way will the Department, meaning the Adjudicator and his staff, participate in contested cases?



7. When filling out the contest claim form, will a certificate or claim number be sufficient to identify the contestants standing to file a contest?



8. Expand on items #2 and #4 of the "Your Claim" contest from.

Item 2: That the Adjudicator made a Preliminary Evaluation of the right claimed, as follows:

Item 4: That claimant/contestant contests the Adjudicator's Preliminary Evaluation of the right claimed for the following reasons:



Updates

Tribes Update - Presentation on settlement needs above the lake (Williamson, Sprague, Wood River and Marsh)

Bud Ullman said that the tribes are working on the Streamflow Negotiations Proposal on the Upper Klamath Lake. Substantial progress is being made and there should be more information by the next ADR meeting.

Klamath Project update

Paul Simmons said he talked with the U.S. Department of the Interior regarding near term legislation for increasing water supply. He noted that there will be a summary at the next ADR meeting.

Lost River Adjudication update

Paul said that nothing had changed since the last meeting. The United States motion to dismiss is currently before the court; however, the court has not ruled on the motion as yet.

Bureau of Reclamation ­ KPOP Up-date

Karl Wirkus discussed the need to review and complete long-term, multi-year consultations under the Endangered Species Act. A considerable number of scientific studies have been undertaken since the last consultations were completed. The National Marine Fisheries Service will likely use, to a great extent, the forthcoming phase II study being completed by Dr. Thomas Hardy of Utah State University. That work will supersede the phase I study and flow recommendation which was used during 1999. There are also a number of studies being updated and completed for the endangered suckers. The studies will be used by Reclamation and the Fish and Wildlife Service during reconsultation.

Klamath Watershed Coordination Group and Hatfield Group

Jim Carpenter said that the Group is working on a plan and hope to have something ready for distribution by this Spring.

Jim reported that Senator Ron Wyden wants the group to continue to work. He noted that Alice Kilham has retired. Marshall Staunton from Tulelake, California has taken Alice's place.

U.S. Fish and Wildlife update

Barbara Scott-Brier said the Fish and Wildlife Service received finding for a study of the feasibility of developing ground water in the Lower Klamath Refuge. Phase I will be completed in 4-6 weeks. Phase II will include development of test wells on the refuge.

Other Business

Items for the upcoming February 8, 2000 meeting will be as follows:

Regular Agenda

Progress Report

Filing of Questions

What do you want out of these meetings in the upcoming year

Updates

With there being no further business, the meeting was adjourned.