Meeting Summary - Klamath Basin Alternative Dispute Resolution
June 12, 2001
Reed Marbut welcomed everyone and went over what was on the day's agenda.
Update on Ground Water Development - Oregon
Paul Cleary, Director, Water Resources Department, gave an update on the ground water
development in Oregon. He said that since the Governor's drought declaration, the end of
March, there have been approximately 65 applications for emergency ground water permits. To
date, 60 have been approved for approximately 75,000 acre feet. Twelve limited licenses have
also been approved. Drought permits are being turned around in 10 days. Each application is
reviewed for potential interference with other ground water wells, for interference with surface
water rights, for general availability of ground water and for well construction. There are
permitting staff from the Salem office in Klamath Falls every week along with ground water staff
when necessary. Ned Gates will hold a geology meeting at 6:00 p.m. at the Watermaster's Office
in Klamath Falls.
The Oregon Water Resources Department in conjunction with the BOR, USGS and other
entities, have spent $1.7 million have been spent on ground water evaluations on the Oregon
side. He said they want to make sure the information developed is used for the current ground
water development and for the longer-term development. Approximately $160,000 has been
spent on updating the water information database. A computer station has been set up in the
watermaster's office for the public's use.
The Department was budgeted $75,000 to rebate the emergency permit application fees. The
average application fee is approximately $800. Paul said that the emergency well permits are
only good during the period of the declared drought.
Update on Ground Water Development - California Dan McMannis, California WRD
Geologist, Dwight Russell, Department of California Water Resources, informed the group that
the Department has an ongoing status report on their website. Dwight said that $5 million has
been set aside from the Governor's Office of Emergency Services in California to drill wells.
The intent is to provide enough water to get a cover crops. The California Governor's Office has
set aside some money to help the growers pay for their electricity for the first six months of
operation. The wells will be owned by the Tulelake Irrigation District. Long-term monitoring
for declines and interferences will be monitored by the California WDR and Oregon WRD staff.
CDWR's monitoring grid is online also.
Diversion Control Devices and Water Use Measuring
Bill Schroeder, attorney for several Upper Basin water users, noted that there are special requirements in Oregon Law concerning measuring devices. If the expectation of the headgate/measuring devices
Agenda item is to be expand beyond what is stated in the Agenda, then he would like to register
an objection. This forum (the ADR) is not an adjudication process. Reed noted that Bill is
correct.
Reed reminded the group that when the ADR was established, there were three goals:
1) Information and exchange forum;
2) Settle adjudication claims/contests; and
3) Negotiate settlement of Basin-wide water allocation issues if possible.
Reed said that the headgate/measuring device topic falls under goal #1 (information and
exchange forum).
Reed gave a brief introduction on diversion control and water use measuring devices. The
Department has received a number of allegations that if the illegal water use in the Upper Basin
ceased, there would be more water for the Project. The Department has not made a technical
evaluation of those allegations. Most of the allegations are very general, almost abstract. The
Department has also heard that the water use in the Upper Basin is efficient because of the nature
of the hydrology. Water may be diverted out-of-the-stream in excess of the legal right.
However, the return flows are such that the net water use is only what the crops use. In addition,
the adjudication claims cover so many acres, it would be pretty hard for someone to be using
water beyond the extent of their claim.
The Department's objective is to have a community discussion about the general idea of the use
of control and measuring devices. The Department has the ability to require control and
measuring devices at every diversion point. This is clearly laid out in the statutory provisions
and implemented in the Departments administrative rules.
Roger Nicholson asked if the Department can order installation of measuring devices or does it
take a Commission decision after a public hearing. Reed said the initial authority is vested in the
Commission, but the Commission has delegated that authority to the Director (Paul Cleary).
Roger Nicholson asked if requiring control and measuring devices have been part other
adjudication decrees. Will it be required at the time the adjudication is complete? Reed said that
boiler-plate language about legal headgates requirements is often included in decrees. As for
whether or not it will be required in the Klamath decree will be up to the Adjudicator and the
Court.
Ed Bartell said that according to statute, the landowners will be provided an opportunity to give
alternative methods within the public hearing process. It concerns him that the issue is being
prejudged. Reed said that he doesn't feel that the issue is being prejudged. He said he presumes
that when the adjudication is complete, everyone will have to have a control and measuring
device because it is impossible to regulate water use without such facilities.
Roger Nicholson asked what the definition would be of measurement. Is it the attorney general's
opinion on measurement that it be made for the benefit of the Forest Service claims? Or is
measurement going to mean one thing in one place and something else in another? Reed said no.
Measurement of instream flows should be included in the discussion.
Ed Bartell said that under statute, the state is required to measure the discharge of the stream.
The state is defining a measuring device as a computer model. If the computer model is good for
measuring instream flow which will determine everyone's future, why isn't a computer model
perfectly fine to measure the discharge for agriculture needs. Reed said if there is a computer
model that will handle that, and give a reasonable expectation of accuracy, we would like to see
it.
Reed projected a number of overheads that show the plans on how to build measuring and
control devices. The plans include: weir box, short Parshall flume, long Parshall flume, and a
one way turnout box. Reed provided a memorandum explaining the Water Resources
Department Authority for Diversion Control and Measuring Devices. Attached to this document,
is a copy of that memo. This memo is merely informational. There are 1,100 inspection reports
on diversions in the Basin, including inspections on many of the federal claims. The
Department has a listing of all claims over 1.0 cfs.
Ed Bartell noted, the Forest Service has filed about 400 claims for .25 cfs. He finds it disturbing
that the Department hasn't looked through these claims the same. If there are inspection reports
for these claims, he would like to see them. Reed pointed out that the Adjudication files contain
extensive reports on investigations of the USFS claims.
Paul noted that all permits issued since 1993 require measuring devices and included a condition
that record keeping on diversions greater between .10 cfs and 1.5 cfs may be required. Less than
.10 cfs may require provisions similar across the board for regulation purposes. Permits for
greater than 1.5 cfs, require measuring devices, record keeping and provisions that we may
require reporting. All municipal diversions will require reporting. Irrigation Districts can require
reporting and measurement. The Department has 19 watermasters, with 80,000 water rights and
125,000 points of diversion. The Department relies on the water users to appropriately regulate
themselves. The area that requires more regulation activity is the area that is fully appropriated,
there are conflicting uses, or the need to have a more detailed view of the water use.
Paul said that for those areas of the state that have gotten into comprehensive measurement
program, the water users are saying that they have seen some reduced costs and have been able to
stretch supplies and increase crop yields. He noted that the key is finding ways to marry the
individual benefits to the water users to the more basin-wide benefits of appropriate water
measurement.
Ed Bartell asked if the Department was willing to revisit the issue where persons without any
water rights are breaching dikes and flooding around Klamath Lake to flood an area. When these
areas are drained, the area settles because it is drained. Overtime it settles as much as 10 feet.
Bob Main the issue of the dike modification had been reviewed and that no water right is
required because the individual is not attempting to control or use water.
Roger Nicholson asked if the Department intended to raise the requirement for control and
measuring devices in the Upper Basin in the federal mediation (Adair case). Paul said that the
control and measuring was offered up as something the state could pursue.
Jim Bryant noted that all the districts measure.
Wally Watkins asked if mandating control and measuring in the Upper Basin, you would take
into consideration the fact that a lot of the water that is diverted, goes back into the River or the
Lake. Reed said that is why the installation of river gages along various stages of the river would
be important, to understand diversion and return flow rates.
Benefits to measuring water are include:
Reed stated that this exchange is the input that is needed. He noted that every water user must be
treated the equally. Roger Nicholson said that it would be more practical to give the watermaster
the help, give him duties, go out into the system, and measure the water. If he sees misuse then
mandate measuring devices in those systems, rather than put this big capital expenditure on
everyone. Paul asked Roger to record his thoughts so that he could add them to the Department's
add-back list for the budget. He said he would appreciate Roger's endorsement in this matter.
Ed Bartell says that he thinks it is ridiculous for the Department to require such expensive
accurate measuring devices just to get within the +/- 2%. He questions whether or not the
Department has an open mind on this matter. Is there really a local based approach or is it from
the top down approach? Reed said the Director has been delegated the authority to order
measuring devices at every point of diversion. The question is how and when should the
Director act on this authority?
Ed Bartell showed line graphs that showed water flows over the past 85 years on the Sprague
River.
Diversion Control and Measuring in Wood River
Bob Hunter, WaterWatch of Oregon, said that WaterWatch has long advocated statewide
measurement of water use. Where water is such a critical resource in the Klamath Basin, people
can no longer afford to have anyone take more water than they need or are legally entitled to.
Bob said in 1998, in Washington's Yakima River Basin, there was a Yakima River Basin Water
Enhancement Project Conservation Advisory Group was formed because of water shortages.
This group consisted of irrigators, Yakima Indian Nation, Environmentalists, and the State. The
Yakima group found that an effective program of measuring and reporting is necessary to
eliminate illegal water use, to insure that water users do not exceed their diversion limits and to
curtail junior priority water rights to satisfy senior water rights. The recommendation was that all
surface water and non-exempt ground water in the basin require measurement and reporting.
Bob reported that a judge in Washington found that the Washington State Department of Ecology
was not implementing the statutory metering requirements.
Bob said that WaterWatch was concerned of the lack of water management and regulation in the
Wood River Basin. In the mid-90's, a hydrologist was hired to measure several water diversions.
The hydrologist compared the results with the water rights of record, and found that water was
being diverted in excess of the permitted and certificated rights. The findings were turned over
the Water Resources Department. The Department responded in 1997, and issued headgate
notices and required measuring devices on diversions in the Wood River and Seven Mile Creek.
In 1998, another hydrologist was retained to see if the measuring devices were indeed helping in
the Wood River Basin. Measuring stations were set up, and with the data, they were able to
compare findings. The results of the study found that streamflow between Dixon Road and
Highway 62, indicated that the installation of locking headgates reduced irrigation diversions in
the reach by 20 - 30 cfs compared to unregulated conditions in the early 1990's. Streamflow
records indicated that irrigation diversions in the Wood River between Dixon Road and Highway
62 exceeded their entitlements during the 1991 - 1995 period. In contrast, these same diversions
have been documented in 1998 as taking exactly or just less than their permitted amounts. The
installation of headgate control structures in 1997 are the obvious reason for the compliance in
1998.
Roger Nicholson, President of the Resource Conservancy, Inc., discussed the Wood River
Streamflow Analysis report that Bob Hunter made available. He commented that the 1998
contractor said that the 1997 and earlier analysis was inconclusive. Roger said that the 20-30 cfs
savings described in the report are a figment of someone's imagination. Staff gages were
installed previously and have been monitored. He said that there were never any measurements
on the ditches. Instead, there was a measurement of two segments of a river and it is determined
that there was an illegal usage of water.
There was a analysis done on the section from Weed Road to Loosely Road. The savings for all
of the Wood River are tremendous under entitlement. He said there is one irrigation system with
three canals that are entitled to 270 cfs of water that would regularly drain Wood River. The
irrigators do not do that in Fort Klamath. Roger said that there was never any consideration
taken for seepage, evaporation, or other uses. There is a dam that backs the water up to the two
diversions that provide back-pressure on some springs. Roger said that perhaps there is a goal
to find a demon or pass legislation for the benefit of WaterWatch.
Bob Hunter said he strongly disagrees with Roger's interpretation of the report. He re-clarified
what the report said. Bob indicated he would make the executive summary or the full report
available to anyone who requests.
Roger noted that Water Resources Department contested some of the data and emphasized that
the report's analysis was inconclusive from 1997 forward. He said that he would characterize it
as voodoo science.
Bob Main explained the process used to inventory structures. He said that when WaterWatch
made their request to Martha Pagel, Director of the Water Resources Department, he and Del
Sparks (District 17 Watermaster) inventoried each diversion all along the Wood River Valley.
They reported back to Martha, as to which diversions had headgates. Most of the ditches had
headgates. Seven Mile Creek was included in this inventory. Bob Main said that the letter that
was written in response to WaterWatch's letter, said that staff agreed that there would be
instream flow benefits within certain reaches of Wood River.
Paul asked how many headgates and measuring devices had to be installed after the inventory
was done. Bob Main said 7 or 8 on Wood River and Seven Mile Creek.
Ed Bartell asked if in the Department's budget, there will be money for instream measuring
devices. The Department hopes to have community support for governmental funding of control
and measuring structures.
Where Do We Go With The ADR
Reed Marbut said the Administrative Subcommittee met and discussed how the ADR fits in with
the Adair suit, the federal Mediation, the Fisheries Task Force, the Compact Commission
activities, etc. He said that the Department is here to serve the community. There have been
people who asked why are the meetings occurring. The meetings are occurring because people
show up for an opportunity for community discussion. Reed noted that there has been a great
deal of information exchange at the meetings. These meeting will continue to be offered the
second Tuesday of every month. Agenda's for these meetings will continue to be put together
with items the Department believes are of interest to the community. If people have other issues
that they would like to have discussed, they need to bring them forward.
Paul said that at the next meeting, there will be a report on the federal mediation (Adair).
Ed Bartell says it is unfortunate that some people have to show up because they have a gun held
at their head. For example, because they could be facing $50,000 in measuring device costs.
Why not have the ADR meeting in the area where the issue are important. Reed said that the
Department would like to work with him and others on meeting location. The Department has
no objection to holding the meetings in various locations in the subbasins. However it should be
noted that here is currently no cost for this meeting facility.
Ed Bartell asked if is really necessary to have the meeting every month. Reed responded that
maybe we don't need to meet that often; however, this should be left up to the participants.
There being no further business, the meeting was adjourned.