Klamath Alternative Dispute Resolution - Meeting Summary

October 14, 1998

ADR Progress Report:

Mike Golden gave a brief overview of his semi-annual ADR Progress Report and distributed copies of the final Report to the participants. Mike indicated that the participants should be proud of the ADR accomplishments. The Report includes timelines to keep the process moving. Mike emphasized that subcommittees need to keep revisiting the timeline to ensure progress continues, and formation of negotiating groups needs to move forward. Finally, Mike pointed out that, according to the Operating Principals, a progress report must be completed every six months.

Water Quality Coordination Update:

Since neither DEQ or ODA representatives were unable to attend this meeting, Mike read an update of DEQ and ODA activities, provided by Ellen Hammond. On October 21 there will be a technical meeting in the Lost River to discuss local conditions that are expected to be addressed by the SB 1010 Pollution Prevention and Control Measures. The next local advisory committee meeting is November 3, 1998.

Final approval of the Upper Basin Klamath Local Advisory Committee membership is expected in November. Ellen Hammond is scheduled to give a presentation on the SB 1010 process in the Klamath Basin at the November 10 ADR meeting.

DEQ has put together a Data Committee for the Lost River that includes key players in agriculture, small towns and affected agencies. Their first meeting is on October 22.

Hydrologist Position Update:

A revised Stream Flow Analysis and Hydrologic Information paper was distributed to the participants. The following issues concerning the development and use of hydrologic information raised at the last meeting:

1. Does the Bureau of Reclamation (BOR) funding of the hydrologist position create a conflict of interest? Martha responded that indeed the funding for the position is provided by the BOR; however, Jonathon is a state employee and receives his assignments from the Hydrology Subcommittee (HSC). In addition, his work will be reviewed by the HSC, which must approve release and use of the hydrology work product.

2 Can hydrology information, including the ADR Hydrologist work product be shared between the ADR Process and the Adjudication. Martha explained that there is a legal requirement for the Water Resources Department (Department) to make a determination of natural flow and water availability as a part of its report for the open inspection. The HSC recommends that the ADR Hydrologist participate in the collection of data and the development of natural flow and water availability, and that this information be made available to Rick Cooper for use in the adjudication. However, the HSC will make the decision whether to release flow data and natural flow and water availability information to the Department. The Department can choose to either accept or reject the data and information. Once accepted by the Department, the data and information becomes part of public record and may be used by the Department's hydrologist and may be used in the Adjudication. It is not a joint decision.

The Department does not propose to take action on this revised document today; however, the we want to get a sense from the group as to whether we on the right track.

There was considerable follow-up discussion on the topic. Martha emphasized that the Department is required complete its natural flow and water availability analysis, with its own hydrology staff, but will receive and evaluate other hydrology information submitted by the ADR Hydrologist and other participants. The Department does have data and will make a determination whether there is an ADR hydrologist or not.

Paul Simmons indicated that the hydrology information used in the ADR should be the same as that going to the Adjudication. By using the ADR Hydrologist to develop information under the direction and approval of the HSC will insure that all the hydrologic information will be reviewed by the ADR participants rather that having individuals submit their own independent information.

Roger Nicholson stated that he does not want to see co-mingling of ADR and Adjudication information, especially if the hydrology position is federally funded. Martha reiterated her confidence that sharing information is appropriate, stressing that the hydrology information developed in the ADR is not available to Adjudication until released by the HSC. However, once data and information is released and used Rick Cooper and the Department it must become part of the public record. The process as outlined in the revised Hydrologic Information paper abides by the operating principals, and the ADR/Adjudication firewall is intact. Martha expressed her confidence that the funding will not taint the outcome. The general consensus of the participants seems to indicate that we should not reject the funding. It was also stressed that data and information developed by the ADR Hydrologist and the HSC is available to all ADR participants and that all general and subcommittee meetings are open to everyone.

Database Update:

Bob discussed the claims database. The data base is almost complete and he hopes to distribute a summary claims at the next meeting -- at least in part. There are 4600 records and there are still some holes in the database because some of the information in the claims is incomplete and/or ambiguous. Several participants expressed an interest in having the claim information on the web page or on a computer disk. Bob indicated that we will make every effort to accommodate that request. The reason there are so many records (4600) is because each claim has many elements, each of which must be entered into the data base record. For example, a claim can have more than one point of diversion and each diversion is a separate "record." What will be available in the data base report is a summary of the claims, not the whole claim; in addition, Bob does not think all of the uncertainties will be worked out by the November meeting.

Sub-basin Committee Reports:

Bud Ullman (Klamath Tribe's attorney) gave a recap of the September 9 tribal subcommittee meeting held last month in Chiloquin. At that meeting, the tribes presented their instream settlement proposal. The Department mailed out copies of the proposed settlement to everyone on the ADR Master Mailing List. Several comments have been received. As a result of suggestions made at the meeting and comments received in the mail, the Tribes revised the settlement proposal. In addition, the Tribes believe the revised edition corrects several technical elements of the proposal. For example, the "Share the Pain" equation was incorrect and has been changed. Also, one of the reaches in the document, was describes as having no diversions above it, which is incorrect. This second revised edition is available and the Department has agreed to mail out copies before the November ADR meeting. Bud noted that there are still more comments to be considered, and further changes may be made.

There were some concerns voiced about whether the Chiloquin subcommittee meeting was protected under the confidentiality and inadmissibility agreement, especially in light of the news paper article that appeared in the paper about the meeting. The meeting is protected under the agreement and statements, documents and other information presented and statements made are not "confidential" as such, but are not admissible in the Adjudication. The Tribes did not publish a news release about the meeting or suggest an article to be written.

There was a question about the data the Tribes are using as the basis of their claims. For example, was the information from ODFW used to determine instream flow needs and why do the Tribes' instream flow figures differ from the ODFW flows in the same stream reaches? The Tribes did take that data into consideration when they made their determinations. The Tribes based their assessment on what is necessary to protect the health of the stream systems (e.g., how much water fish need to thrive, riparian health of stream, geomorphological health of stream, movement of sediment, etc.). Bud indicated that he was not clear just what the ODFW flows represent or what values they were evaluating when they did instream flow study.

There is still considerable frustration over not being able to see the Tribes flow data and concer that their instream flow claims do not make allowance for water for irrigation. Bud indicated that the Tribes are working to get their data to the HSC. In addition, Bud indicated that it is not Tribes' intent to leave irrigators with no water.

On a related issue, it was pointed out that there are two versions of the hydrology of the Wood River. It was suggested to form a negotiating group to look at competing data and talk about it so that settlement discussions on flows in the Wood can proceed. In the meantime,

There was some disagreement regarding the suggestion that Tribes' negotiating groups should only discuss the settlement proposal, rather than the original claims. It was pointed out that historical information as represented in the claims and their supporting data needs to be considered along with the settlement concepts. It was acknowledged that their should be a reality check with the original claims, and perhaps this should be part of the negotiating group activities. Participants indicated that a settlement proposal cannot be divorced from reality. A tribal representative objected to the inference that their instream claims are 200% of natural flow, which she believes is not the case. The Tribes were asked to rethink their assumption that irrigation diversions should be curtailed, because return flows redeliver that water back to the stream, later in the season, perhaps at cooler temperatures.

Report on Klamath Project Operating Plan:

The BOR needs to develop its annual Klamath Project operation plan for the 1999 irrigation season. The Project operation plan is a federal process, but may have a significant impact on the ADR discussions. The BOR usually uses its own internal procedure to develop a proposed plan and public review process. This year it was thought the ADR may have some helpful input in the development of the plan for 1999. ADR representatives and BOR had a conference call on September 29 and met again this morning. It was proposed that the ADR could relay concerns to the BOR regarding development of the operation plan and still recognize it as a separate process. The Bureau will look at our comments. It has been a balancing act on how to provide input to KPOP process without bogging down the ADR. It was suggested that a negotiating group be formed in the ADR process to come up with suggestions which can incorporated into the 1999 Plan. The federal process will still be available for individual comments during public review.

A number of questions were raised. For example, who will be on the negotiating group? (The original group was proposed by the Administrative Subcommittee.) If there are others interested, they should let the Administrative Subcommittee members know. The previous meetings included Dick Fairclo, Paul Simmons, Bud Ullman , Bob Anderson, Karl Wirkus, Martha Pagel and Reed Marbut. They will proceed unless the Administrative Subcommittee hears otherwise. The Tribes would like more time to make a decision about their involvement. Karl would prefer that comments be submitted as soon as possible. It would be best to have a meeting before the next ADR meeting to develop a process. It was suggested that the original group get together again while the Tribes will have had a chance to talk about how they want to participate.

Claimant Presentations:

Klamath Tribes - David Harder

David is with the US Dept of Justice in Denver and represents the Bureau of Indian Affairs (BIA). The BIA filed claims on behalf of the Klamath Tribes. Oct. 14 is the anniversary of the treaty between the tribes and the US 134 years ago. The Adair case held that the tribes have reserved rights to water in an amount necessary to support its treaty fishing and hunting rights. The Tribes's hunting and fishing water right was not quantified in the Adair case, rather the Adair Court stated that the Tribe's water right was to be quantified in a state court adjudication. The Tribes' reserved water right is non-consumptive. They have a right to the natural flow of the stream and are basing their claim on the un-depleted flow.

There are 5 claim types:

1. Instream flow above Klamath Lake in Williamson and Wood River Basins;

2. Wildlife seeps and springs;

3. Upper Klamath Lake water elevation;

4. Instream flow in Klamath River; and

5. Klamath Marsh (National Forest Wildlife Refuge area).

1. Upper Basin instream flow claims: David showed overheads of the claim form. There are three components: physical, riparian and structural habitat. The physical component relates to fish habitat and was quantified using Instream Flow Incremental Methodology process (IFIM). Riparian flows are needed for riparian habitat and stream banks. Structural habitat needs are to ensure the health of stream channel. The structural habitat flow is intended to protect peak high-water flows between a trigger flow and cap flow. The trigger flow is that amount of water that begins to move large pieces of streambed material, and the cap flow amount is the maximum flow need to maintain a healthy streambed morphology. The claimed amount for the cap flow is the estimated 25-year flood flow.

Roger Nicholson question: Is water quality an added feature -- it does not appear to be a part of your claim? There are some water quality aspect in the claim. Is water quality an element of the IFIM? Has the Tribe made a claim for water quality?

Bud indicated that it is assumed that the water is clean enough to support fish.

Roger pointed out that there is very little actual consumption by irrigation diversions because there is lots of return flows; therefore, the net loss of flow is very small. Did the tribes take that into consideration?

2. Wildlife seeps and springs claim: These claims are generally for small amounts of water for wildlife in the National Forests. The claims are grouped by quadrangle map sheets. Some of the seeps and springs may have been incorrectly claimed on private lands.

3. Upper Klamath Lake claim: The claim proposes four lake levels for different times of year. For fish and wildlife habitat including water quality. The four levels are: April 1 - June 30 = 4143; July 1 - July 31= 4142; and August 1 - October 31 = 4141.

A participant stated that there have been fish kills when the Lake has been held at a high level.

A participant raised an issue as to the meaning of Adair case.

4. Instream flow in Klamath River: The primary species is for anadromous fish.

5. Klamath Marsh: Instream claim on Klamath Marsh claim is based upon a gaged water level to improve and enhance plants and wildlife habitat, especially the Wocus plant that the Tribe has relied on for centuries. The Tribes believe they will need more water from above the Marsh to achieve water level requested in the claim, possible from some small checks in the refuge area. What process was used to identify the level claimed? Bud stated that the process used to prepare the claim is described in the affidavit attached to the claim.

A participant asked if the Tribes will be able work out a settlement agreement with the other ADR participants that would be acceptable to the BIA? David Harder indicated that he thought agreements reached through negotiating groups that include land managers and their attorneys is likely to be approved. However, all settlement agreements will have to be reviewed and approved by the U.S. Department of Justice.

A participant asked if the Klamath Tribe is the decision maker? If not, who is the decision maker? How can we incorporate the decision makers into the process? David does not expect that time spent in negotiations will be undermined by the U.S. Government -- they only need to stay in touch with process. The federal team can make a recommendation; however, the team members are not the decision makers. The ultimate decision maker can't make it to all the meetings -- David is one of the troops.

U.S. Fish and Wildlife Service - Geoff Garver

Geoff is with the U.S. Dept. of Justice representing the USF&WS and BLM.

There are four National Wildlife Refuges in the Klamath Basin for which claims have been filed.

Klamath Forest National Wildlife Refuge (KFR): Eight claims have been filed for the KFR, seven of those are Walton claims and the other is a federal reserve water right claim. The KFR was established in 1958 to protect migratory birds. KF1 is federal reserved water right claim. KF2-8 are Walton right claims (Walton claims are claims filed by non-Indians who are successors to Indians who received allotted land of the former Klamath Indian Reservation. The KFR claims are based upon a consent decree in the Adair case?

The KFR was created on September 7, 1960; however, the 1985 water right priority date was established by the Adair consent decree. The reserved right claim requests 50,385.3 acre feet per year. The total of the Walton claims is about 170 cfs. The Walton claims are each appurtenant to specific parcels. All the claims are for diversions from the Williamson except KF8 which claims water from Big Spring Creek, with a priority date of 1864.

Upper Klamath National Wildlife Refuge. Different rights relate to different additions to the refuge. This Refuge was created in 1928 with additions in 1954 and 1964.

A participant asked what evaporation is being claimed? About 3 acre feet per year.

Bureau of Land Management wild and scenic river claim for Klamath River. This claim is for minimum flows in Klamath River between the J.C. Boyle Dam and the Oregon/California border. The flows claimed are 1500 for recreation and 550 for fish habitat with a priority date of September 1994. An Oregon initiative designated this reach of the Klamath River a state scenic waterway. The instream flow amounts are not additive. There is no federal designation in California.

Private claimants - Reed Marbut

Reed did not discuss the adjudication claims since data base is not ready. Reed handed out a Department Water Right Information System (WRIS) print-out of permits and certificates in the Williamson and all its tributaries. Many of the people who filed claims may also have a permits or certificates. Naturally, people with permits and/or certificates who have also filed claims don't use water twice. The WRIS report seems to be a good indicator of the amount of water used in the Williamson Basin. This report comes right from WRD's database and is on the Department's Web-page. Use this to formulate question about the adjudications database and how it can be useful for you. The rights in this WRIS report can also be decreed rights in addition to permit or certificate. A participant ask why are there zeros in the quantity column on some of the rights? The answer is that the quantity amounts were not entered in the WRIS data base.

Barney Simonsen took a few moments to describe his claim, Keno Irrigation district. Downstream of link river dam. 3600 irrigated acres 15 land owners. The district is below river level, have 15 diversions into the property via canals, with flood irrigation, recollected and pumped back into the river. Serves as a drainage district for the area as well. The priority date is 1858. The land was naturally flooded, livestock grazing and hay claim is 3 acre feet per acre for irrigation season. The claim includes livestock water and wildlife (hunting). The District does not monitor quality of water that is pumped back into the Klamath River. More water is often pumped into the River than is taken out at the diversion over the course of the season.

Other business:

Subcommittee reports:

The Tribal Subcommittee did not meet.

Hydrology Subcommittee (HSC): Tim Sullivan gave the report. Engineers and hydrologists comprise the group. Steve's money have evaporated and no longer participating. There was a plea to get more funding for him. Jon LaMarche gave a report. Still in the process of gathering flow data to determine natural flows. Has not received all requested information and data. His next task is how to make data accessible on the Web-Page. Bob Main will take responsibility for posting the data on the Department's Web-Page. The HSC urges that Jon be able to share data with Rick Cooper (e.g., long term flow records, miscellaneous flows records, delineation of basins by GIS layers, claim points, etc.). This is all to allow Jon to come up with a measure of median monthly flows. David Purkey then presented the WEAP simulation model. David Purkey has agreed to come up with a real world display of the capabilities of this model. He will reveiw the 12 questions presented to the HSC and over the next month see what he comes up with. Look at opportunities and trade-offs of using a simulated model.

Reed suggested that the HSC should just take action, if and when the new Hydrology Information paper is "adopted". MOP asked if participants willing to share information? The hydrologists seem to be willing to share, but not sure if their bosses will go along with that. MOP, to move forward, we expect that there will be discussions between Rick and Jon; however, this does not mean data will be used by Rick. It is reasonable for Jon to tell Rick that he has certain data without turning it over for use in the Adjudication.

The question of how do you determine historical flows was discussed. One method is to refine the Department's natural flow calculations and water availability model. There must to be a reference period so that drought and flood years are integrated on a monthly basis. We'd also like to know on a monthly basis what happens in a water rich and poor year, that could be the next step.

Ed Bartell suggested that the membership of the HSC should be expanded so that all interests are represented -- or parties that aren't represented will drive the process? Ed asked to be put on HSC list.

Martha reminded the participants that it has not been determined what information will be admissible in the Adjudication. We are proposing that the HSC decide when it is ready to be turned over. If the forest service agrees that Rick and Jon can jointly review data without it becoming admissible, this could be done informally.

Jim Carpenter made a couple of announcements. Pointed out an article in the Oregonian about 8 billion federal dollars being made available for restoring the Everglades. There is money available. Announced the Oregon Lakes Association Annual Meeting at Diamond Lake Resort on October 23.

Michelle Gilbert made a brief announcement about the Park's meeting tonight. She reiterated that anyone who is interested may attend.

November Agenda

Mike reviewed the agenda put together by the Administrative Subcommittee. There was some discussion to go back to our original meeting schedule with subcommittees meeting in the morning and a general meeting in the afternoon.

The Administrative Subcommittee wants to discuss how to make copies of the meeting videos available at the next meeting. The other video camera at the meeting today was filming for a documentary on the Klamath Basin, Martha and others were being interviewed.