MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION

Welcome

Mike Golden welcomed everyone. The August 8, 2000, meeting summary was reviewed and approved.

Hydrology Subcommittee Report

Bob Main and Jonathan LaMarche reported that the ADR has secured funding to keep Jonathan on as the ADR Hydrologist for the remainder of the biennium.

Jonathan had a report available that dealt specifically with the Upper Williamson irrigators and the tribes.

Jonathan LaMarche gave an overhead presentation on current and future hydraulic studies in the Klamath Basin. The Upper Williamson Negotiating Group continues to be active and has asked for several studies evaluating the compatibility of existing agricultural with instream flows in the Upper Williamson basin. He will continue evaluating any additional questions posed from this negotiating group. He will also be doing a seepage study on the Upper Williamson this fall as soon as the irrigation season is finished. A similar study was done in late winter of last year. This will give an idea of groundwater seepage into the Upper Williamson and give an idea of where a consumptive use study in the sub-basin could be set up (if needed). This will allow a comparison between measured and estimated consumptive use (used in the distribution model).

A seepage study was done last month on the Sycan River below Sycan Marsh. He is in the process of writing up the results.

A seepage study will be done on the Sprague River to find out what the groundwater contribution is and where it occurs. This information will be useful for the USGS Ground Water Study as well as setting up a consumptive use measurement study for the Sprague sub-basin for the next irrigation season.

He will be working on KPOP and MODSIM integration. He's taking the output from MODSIM which simulates the interaction of claimants below the lake with above the lake, taking that output and using it in KPOP. KPOP is a higher resolution model, as far as the project is concerned.

The USGS is developing a surface water model for the entire basin. They have asked Jonathan for his input on this. This information can help refine the distribution model resolution.

In response to a question regarding the timing of the seepage studies, Jonathan said the best time of year to do a seepage study is the winter time before snow melt has occurred. This gives you a good indication of base flows. However, in many instances it is impossible to reach the measurement locations due to snow. The best alternate time for a seepage study is in early fall, before the early winter precipitation has occurred and after the irrigation season so your not confusing returns flows with actual natural ground water flows.

The time-frame for the USGS Ground Water study completion is four to five years. The surface water portion is supposed to have results is approximately one year. This information will be very useful in order to answer questions regarding the smaller tributaries.

Bob Main said that he hopes the report turns out to be useful, he would like to have interested parties evaluate the reports and provide feedback.

Klamath Project Operation and Clear Lake Releases

Paul Cleary opened this portion of the meeting with a request that the discussion be focused on a report on the status of the Project operations, including the Clear Lake releases. He explained that the federal officials were not invited to the meeting to debate the federal actions, but to answer questions and report on Project status and operational plans. Paul introduced Bob Anderson from the U.S. Department of the Interior (Councilor to Secretary Bruce Babbitt, and chairman of the federal negotiating team).

Mr. Anderson provided a brief background on the decisions made by Interior that have affected the Project operations. Mr. Anderson stated that when this matter was brought to his attention in early August, he wanted to make sure the Reclamation office in Klamath Falls is the place where decisions are made concerning the Project operations. They make the decisions according to the law. The Basin and Washington offices do communicate, but the local office is the primary decision making body and the place where consultations and discussions about these issues occur.

When the annual operating plan was set up, two decisions had to be made. First, what minimum elevations of Upper Klamath Lake must be maintained. The U.S. Fish & Wildlife Service must make the elevation call. The decision as to downstream flows for endangered coho is made by the National Marine Fishery Service (NMFS). There has been a lot of discussion and study over the last several years. An additional study is being completed to determine what contributions to the Klamath flows may be available from the California tributaries. These studies include what work could be done in the Shasta and Scott Rivers to make sure that there is more water quantity and better water quality so that the burden of instream flows doesn't fall solely on the Klamath Project.

The ADR is a place where everyone shares information. It has been successful in getting legislation introduced in Congress by Senators Smith and Wyden. This legislation is primarily the result of work by the Project irrigators working with the Klamath Tribes to come up with several water supply augmentation proposals. A bill has been developed to authorize feasibility studies for increasing storage in the Upper Klamath Lake. It would also look at increasing the water supply in Gerber and look at ground water options. He is hopeful to continue in the ADR to advance those types of settlement initiatives. This is the only way to avoid getting into a situation where there are insufficient amounts of water to deal with all the needs.

Karl Wirkus, of the Klamath Falls Bureau of Reclamation office, said that the EIS process for the long-term Project operations planning needs to get finished in order to get to a point where the tools are available for water management in the Project. Other pieces to the process include increasing water supply. We need to get to a point where there is some level of certainty about operation of the Project. They are moving forward with the EIS process as quickly as possible. Cooperating agencies have reviewed the preliminary report, including the identified prudent reasonable alternatives. The report will be distributed to the cooperating agencies and moving forward with a technical analysis of alternatives. This will lead to a public review draft of an EIS by next March.

The Bureau is also beginning a multi-year consultation with NMFS on the Klamath River coho. This consultation gives NMFS the opportunity to look ahead to the variety of year types that must be considered. This multi-year evaluation gives NMFS the opportunity to consider the natural variability in the hydrologic cycle so as to provide a biological opinion that takes into account all the hydrology variables.

Karl reported that there is a new volume of data with respect to suckers in Upper Klamath Lake. They will be completing a consultation with the U.S. Fish & Wildlife Service with respect to that new data as soon as possible. Draft biological assessments (BA) will be distributed to contractors and other agencies within approximately two weeks. They hope to send the draft BAs to the F&W Service as final biological assessments by the end of October. This gives a framework to work within for next year. They are currently in litigation with groups that have challenged their compliance with the Endangered Species Act on flows downstream.

Karl said he is obligated to operate the Project consistent with the legal requirements of the ESA and federal tribal trust obligations. Over the Labor Day Weekend, with releases from Clear Lake and the rain, the elevation of the Upper Klamath Lake has stabilized and is now about 4139.4. As a result of voluntary compliance with the management directive given to the Project irrigation districts last week, they are in somewhat of a manageable position at this time. They have had a response from a number of irrigation contractors that they would comply with the curtailment notice. Others have taken a different route. It is critical to see what develops over the next few sunny days.

Bill Kennedy stated that he felt that federal officials should reflect upon the manner in which the notification was provided to the irrigation community by the Bureau. He feels the timing of the notice was poor. In addition, he believes the Bureau's failure to respond to any questions that were asked by the irrigation districts is inappropriate. In fact, Bill stated that the Bureau's failure to respond is insulting. He feels that the Department of the Interior has close too derailed the ADR process that the State of Oregon has spent a lot of time and money on. He feels that Department of the Interior has mistreated the local citizens.

Bob Anderson said that it was poor judgement on his part not to react sooner, but; however, without the water flowing down-river and the maintenance of the minimum elevations on the Lake, they would be in violation of the Endangered Species Act. As far as the ADR goes, he hopes to clarify what the ADR is and isn't. He has obligations outside of what the ADR can address. They have obligations to downstream fish and tribes that are not part of this process.

Bill Kennedy said the people who are using the water, namely the irrigators, have been left out of the consultation process.

Bob Anderson said he believes they are making a reasonable effort to involve all affected parties. He agrees that being more inclusive is an appropriate goal.

Ed Bartell asked if sucker fish die in Lost River as a result of the Bureau's release of water, would the Bureau be in violation of the ESA.

Karl Wirkus said he believes the answer is no. That the Bureau has an incidental take permit to operate the Project for irrigation, along with other uses, so long as it follows the procedures and limitations set out in the permit.

Someone asked if there were any other options for people in order to take care of the ESA and water supply problem and whether or not it is possible to go outside of the project boundaries for supply augmentation.

Karl said that is something that has been of interest for a number of years. A study has been funded to line out a water acquisition program. This will help to decide where priorities are and how a program should be run.

A question was brought up regarding what happens if the gage on Upper Klamath Lake malfunctions again.

Jim Bryant, said that the gage would have to be watched on a daily basis. They would probably install a more accurate telemetry gathering system.

Karl said they would pay extra special attention if that happens.

Bill Kennedy said that the Bureau should stand by the people as citizens of the U.S. and think globally and act locally.

Dick Fairclo asked if the Bureau could be more specific on time lines.

Karl said they are watching to see if the lake levels stabilize. He believes that they ought to get district managers together and take it a day at a time.

Contest Filing Report

Reed Marbut said that the Adjudicator has now completed the organization of the contests and is starting the grouping process (to group like contests together for a possible consolidated hearing schedule). He hopes that within a month the Adjudication staff will be referring groups of contests to the hearings panel. The hearings officer will then set up a case management system. How fast those hearings move, will be up to the hearings officer.

The Adjudicator is proposing to refer a number of the contests to hearing immediately. In evaluating the groupings of the contests, he's hoping to resolve several thousand of the over 5000 contests in about eight hearings. The reason the contests can be grouped is because many of the contests are based upon the same legal issues. Once that legal issue for one contest is resolved, it resolves the other identical contest.

The contestants and the claimants on the several thousand contests, will receive a notice that their contest will be scheduled for referral to the hearings officer panel. Be prepared for a notice from the hearings officer on how this process will work. They are expecting this to be a transmittal of all of the information necessary to participate in the process.

Settlement Framework Follow-Up Report of the Administrative Subcommittee

Reed said the Administrative Subcommittee is working on the wording of the Settlement Framework. He said they hope to come back at the next meeting with further drafts. There is still a lot of work to be done. The subcommittee hopes to have it completed so that as small groups are formed, the negotiating parties will have a check-off list of the types of issues that subbasin groups will need to be address to be sure local agreements will fit with basin-wide settlements.

Paul Simmons asked about the relationship between the ADR and the ongoing external federal processes (e.g., Project planning and ESA consultation). Are the state and federal government in agreement or disagreement about how to have some type of linkage between long-term settlement efforts and these short-term conflicts?

Reed said it was decided that the ADR was not a good forum to try to develop the Project operating plan. But rather it is a forum to update the people about what is happening in the planning process. The ADR forum is the place where everyone can hear what others are saying and doing. He said that it looks like this is about as much as the ADR can contribute to the process of developing the operating plan, short-term or long-term.

Updates

Dividing the Waters - Follow-up Workshop

Reed Marbut talked about the follow-up workshop. The tentative date has been set for December 11-15. This workshop will identify particular basin issues that need resolution and help facilitate how to resolve issues dealing with Klamath Basin. Perhaps some issues can be agreed upon that could be placed in a packet and used in a 2-4 day follow-up workshop. The facilitators are already scheduled for this time period. It will be held in the Klamath Basin and would like to have all parties to participate. We hope to at least find what it takes to address particular issues. Reed agreed to contact representatives of the federal agencies to secure commitment for participation in the workshop.

TMDL/303(d) list

Steve Kirk said that they will be announcing soon that there will be a public meeting of the TMDL Advisory Committee.

Legislative/Legal Subcommittee Report

Barbara Scott-Brier said that the subcommittee wants to walk through the thinking process of the state and do their own checks and balances to see if they come up with the same conclusion at the Department of Justice. The U.S. DOJ does not feel there are any insurmountable issues that would require legislation. They would like to see a comparison of Chapter 539, the statute and the rules as they occur in the adjudication. This would be a comparison of the process laid out under Chapter 539 with HB 2525 and its model rules, which established the central hearings panel. This would allow them to see if there are any inconsistencies or conflicts that may arise between the two. They hope to have the basic groundwork brought forward by the next meeting.

ADR Expectations

Paul Cleary said he was still struggling with what the expectations are of the ADR process. Can settlements that are reached in this forum be exported or imposed in other forums? He thinks they can be exported but not imposed on. The Bureau is not going to give up their jurisdiction due to a decision from the ADR. If there could be some common ground, fine. If the ADR is going to be the process to develop solutions, he needs to know so he can talk to legal counsel and find out whether he has authority to deliver. He believes in under promising and over delivering. He expressed his concern that there could be some unrealistic expectations about the functions and authority of the ADR.

Paul Simmons said that the expectation or hope was that the state can have a role in fostering settlement opportunities.

Someone said that continued participation in the ADR process is going to rely on a good faith effort by the federal agencies, particularly the DOI. He asked what the Water Resources Department is going to do in terms of protecting those people who have state irrigation rights. How is the Department going to preserve the state's interests?

Paul Cleary indicated that, since the Bureau is releasing down the Klamath River without state water right protection, it is deemed to be natural flow, if someone with a right or a claim wanted to intercept those in Oregon, the state would not regulate against them.

Someone asked, what if the federal government orders such users to shut-off?

Jim Bryant said the September 2 letter was sent out asking for voluntary compliance. Many "B" districts said they would shut-off. Some were noncommital. That issue has not been discussed.

Someone said that the ADR holds great potential for long-term solutions because of time and collective agreement on things. Short-term solutions seem to be more difficult because there is a lack of time and resources.

Someone said that the ADR helps the long-term decision making to see the short-term responses.

Paul Cleary asked what would be the best way to restore the break down. How do we accomplish that? Every six months, a check is to be made to assure that the ADR objectives are being met.

Steve West said that Governor Kitzhaber has never been bashful about getting involved in natural resource issues, and the Governor should step up his involvement in issues regarding water in the Klamath Basin.

Paul said that as far as the state's involvement and the Governor's involvement, the Water Resources Department has put this issue as a high priority, and he has personally devoted more time to the Klamath than any basin in the state. This was done with the backing and support of the Governor and the Legislature.

Someone said that because of the Federal Governments actions, it creates a great deal of mistrust. He would like to know what are the waters of the State vs. the waters of the United States.

Paul Cleary said that the State's definition is in Statute. He said he would bring the two definitions to the next meeting. There will be a slight variation.

Paul said that if there are issues that the people want to see addressed and the ADR is not the place to address them, the Department will help direct them to the appropriate forum. If the ADR is the proper place, they will devote the time and energy to it.

There being no further business, the meeting was adjourned.