Meeting Summary - Klamath Basin Alternative Dispute Resolution

June 12, 2001


Welcome

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:

  1. When the parties get to the evidentiary finding in the adjudication, the historic use can be verified;


  2. It will be a much easier to make proof in court; and


  3. If the Project irrigators, or anyone else is will pay for someone for water, it will be necessary to know exactly what has been used (to transfer).


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.