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DateNameCompanyComment
 Gregory DyerJones & DyerCalifornia Waterfowl Association(CWA) supports the proposed transfer and urges that the Oregon Water Resources Department (OWRD) approve the application in full measure. CWA is leading a task force to secure reliable water for the Klamath National Wildlife Complex which includes the Lower Klamath and Tule Lake combined national refuges. Lower Klamath was the nation's first National Wildlife Refuge. But there is a major problem that has persisted since the refuge was founded in 1908--lack of reliable water. The lack of sufficient water affects brood water (raising waterfowl) and molting water (when birds annually change their feathers). Smaller amounts of water for nesting means fewer ducks. But low water in late summer when the molt occurs turns the refuge into a killing machine caused by avian botulism. Data from the Lower Klamath and Tule Lake refuges estimates that as many as 100,000 birds were killed by botulism in 2020. By helping to secure water rights North of Klamath Lake, CWA seeks to bring more water to the refuge to solve this terrible problem of avian botulism in the heart of the Pacific Flyway. The transfers would result in much fewer cattle being in the Agency Lake area which would result in better water quality for Upper Klamath Lake. The water quality improvement will help the endangered species in the lake, and allow waterfowl to survive in their historic brooding and molting grounds. Without this water transfer, the refuge will get ZERO water. Perhaps KWUA can explain how it concludes "LKNWR already has perfectly good water rights." KWUA has never agreed that LKNWR claim 312 from 1905 for 35000 A.F. is valid. Hopefully, OWRD will get past such disingenuous comments, and approve the transfer.
 Paul SimmonsKlamath Water Users AssociationKlamath Water Users Association (KWUA) appreciates the opportunity to comment on Transfer Application T-13673. The application requests approval in a change of point(s) of diversion for Klamath Basin Adjudication determined claim KA-67, from locations in the Wood River Valley to diversion at Ady Canal and use in Lower Klamath National Wildlife Refuge (LKNWR). The application seeks approval of temporary transfer of the full rate and duty for the determined claim to the transferee points of diversion. KWUA urges that the Oregon Water Resources Department (OWRD) deny the application in its current form. BACKGROUND KWUA is a nonprofit corporation whose members are irrigation districts and similar water delivery agencies who are contractors of the Bureau of Reclamation’s Klamath Project. KWUA members deliver live flow and stored water from Upper Klamath Lake and the Klamath River to approximately 175,000 acres of irrigated land. KWUA member districts Klamath Irrigation District (KID), Tulelake Irrigation District (TID), and Klamath Drainage District (KDD) operate, or own and operate, diversions at A Canal and Miller Hill Pumping Plant, Station 48, and North and Ady Canals, respectively. TID- and KDD-operated facilities are the sole means by which LKNWR does or can receive any water. For nearly the first 100 years after the authorization of the Project in 1905, Project irrigators had reliable, adequate water deliveries, and provided substantial water to LKNWR. That changed dramatically in 2001. Then, and since that time, regulation under the Endangered Species Act (ESA) has resulted in severe curtailments in several years, and this year in a disastrous, essentially absolute, curtailment of Project diversion and delivery. LKNWR has suffered along with the irrigation community. This problem has been compounded because OWRD regulates water under an entirely separate set of rules such that the Project and LKNWR cannot enforce their water rights against juniors merely because of an ESA-caused shortage, effectively resulting in the Project and LKNWR having the most “junior” entitlement to water in the basin, irrespective of the water rights system. In the recent past, the U.S. Fish and Wildlife Service (USFWS) and some refuge advocates have promoted a strategy under which LKNWR would become the transferee of water rights in an effort to bypass irrigators’ and LKNWR’s shared ESA problem. Under this approach, uniquely for LKNWR, water diverted under transferee water rights would be treated differently than water diverted under all the other state water rights and federal reserved water rights under which water is currently diverted. KWUA has discussed its concern about this issue with USFWS and OWRD. COMMENTS ON APPLICATION Turning to Transfer Application T-13673, KWUA urges that the application as presented be denied. Its approval, and diversion of the full rate and duty from the new point of diversion, would harm Klamath Project irrigators. It is widely known and accepted that the amount of water “freed up” in a system from withholding irrigation is not the same as the rate and duty for the applied water right. Rather, the amount of water freed up is the net change in consumptive use on the transferor parcel. Thus, a transfer of the full rate and duty to a downstream location will deprive intervening diverters (here, those reliant on A Canal, Miller Hill Pumping Plant, Station 48, North Canal, and non-LKNWR) of water that is available to them when the diversion occurs at the original, upstream point of diversion. Under the current ESA regulatory regime, the Project must maintain certain minimum flows below Iron Gate Dam and certain minimum elevations in Upper Klamath Lake. If the transfer reduces the amount of water available for this purpose (and it inevitably would), Project irrigators would be in a position of subsidizing the transfer by reducing diversion for irrigation. Transfers from the Wood River Valley are a poignant example of this reality. In 2014, OWRD, and multiple other parties, entered into the Upper Klamath Basin Comprehensive Settlement Agreement. A key element of that agreement was the transfer of irrigation water rights to instream use. To determine the quantity of “wet water” actually transferred, the parties engaged in detailed technical analysis. The attached calculations for three ranches in the Wood River Valley are representative. The net change in consumptive use for each of those transfers was calculated as being less than 0.5 acre-feet per acre. Assuming historic application of the full rate and duty on the transferor property, such application inevitably has resulted in substantial return flow, whether surface or subsurface. OWRD must conduct a rigorous analysis of the net change in consumptive use that would result from the transfer under Transfer Application T-13673 using current and the best available science. This analysis requires denial of the application, or at minimum that it be conditioned to allow diversion of only change in net consumptive use less any conveyance losses between the transferor and transferee point(s) of diversion. In addition, any approval should be conditioned on the transfer reaching an agreement with Klamath Drainage District (which operates the transferee point of diversion and associated conveyance system) for diversion and wheeling of the transferred water. KWUA is concerned that OWRD, while aware of the negative impact to Project irrigators, may not regard the impact as an “injury.” We disagree. The transfer would reduce the amount of water available for diversion under the Project’s water rights as compared to the status quo. In addition, as OWRD is aware, there have been years where the amount of live flow at Project’s points of diversion was insufficient to meet demand. In those circumstances, Project water right calls have been validated and enforced against juniors. Thus, it would be incorrect to assume that there will be sufficient live flow at the Project points of diversion for irrigation irrespective of whether or not the transfer is approved. There are additional policy overlays. KWUA has been assured by the proposed transferor, transferee USFWS, and the nongovernmental organization engaged in fundraising to pay for the transfer, that those parties are committed not to do harm to Project irrigators. Indeed, we have received assurances of intent that transfers for LKNWR also benefit Project irrigation. The application as proposed would be directly at odds with those commitments. Finally, as discussed above, the common problem for Project irrigators and LKNWR is ESA regulation, a significant part of which is attributable to USFWS (relative to endangered sucker species in Upper Klamath Lake). LKNWR already has perfectly good water rights. We believe there are far better, and far more effective, ways to improve LKNWR’s water supply than to transfer additional rights to that place of use. We have substantial legal disagreements about the way the ESA is currently administered (and waive no arguments with respect to those issues). But incessant regulation of Project and refuge diversions is not the solution for listed species. Paul Simmons Executive Director and Counsel Klamath Water Users Association
 Reagan DesmondClyde Snow & Sessions, PC As general counsel to Klamath Drainage District (“KDD”), we submit these comments on behalf of KDD, explaining its concerns and recommendations regarding T-13673, Temporary Transfer from the Thomas Family Limited Partnership (“Thomas”) to Lower Klamath National Wildlife Refuge (“Refuge”) (“Transfer Application”). Generally, KDD supports and encourages water delivery to the Refuge in support of waterfowl and wildlife. As a neighbor to the Refuge, KDD sees firsthand the detrimental impact to the flyway from years of water curtailment in Lower Lake. However, despite numerous attempts to confer with the United State Fish and Wildlife Service (“USFWS”) regarding its intent to utilize water under this transfer, many questions remain; without answers to certain of these issues, the Oregon Water Resources Department (“OWRD”) cannot make affirmative findings to approve the transfer. Operations The subject Transfer Application proposes to move up to 30.01 cfs of water from the Upper Klamath Lake basin (“UKL”) to the Lower Lake region, bypassing approximately 230,000 acres of irrigation comprising the Klamath Reclamation Project (“Project”). The water right underlying this Transfer Application originates under the Klamath Basin Adjudication claim KA-67 with an 1864 priority. The water right is senior to the Project’s 1905 adjudicated right. Accordingly, the transferred water would be conveyed through Project facilities, potentially at times when the Bureau of Reclamation (“Reclamation”) curtails water deliveries to the Project itself, either by operation of state water law or, as is most currently the case, pursuant to Reclamation’s interpretation of the Endangered Species Act (“ESA”). Specific to KDD, the water would ostensibly be conveyed from the Klamath River to the Refuge via the Ady Canal. In 1940, KDD and the United States entered into a contract to expand the Ady Canal (then known as the “South Canal”) for the purposes of delivering existing water rights to the Refuge. The contract provides the “intake structures and South Canal shall at all times be under the control and supervision of the Board of Supervisors of the Klamath Drainage District.” (1940 Contract – KDD & Fish and Wildlife Service Concerning the Ady Canal (“1940 Contract”), page 3, para. 8 (available upon request).) Notwithstanding this provision, Reclamation historically has controlled the Ady headworks that feed the canal. In times of water curtailment, Reclamation has either requested KDD close its intake or has locked the Ady headworks. The proposed transfer raises important questions regarding operation of the 1940 Agreement and KDD’s right and obligations. For example, the transfer water is senior to Project water—how will it be delivered if Reclamation closes the Ady headworks? The transfer application also identifies the North Canal for potential delivery of water, but to date, USFWS has not brokered an agreement with KDD for use of the canal. So far, USFWS has not made any attempt to make arrangements for delivery of this water through KDD or to consider the pumping, policing, maintenance, operational and financial burdens delivery of additional, senior water will impose on KDD. Without a clear mode for delivery of this water, the transfer is speculative at best and potentially injurious to KDD at least. Potential for Injury Regulation on the Wood/Crooked River system, the original point of diversion and place of use of the subject water right, is historically unique and differs from regulation of water rights on or below UKL. KDD has identified an injury issue that could be easily rectified with a transfer condition. Considering the Klamath Tribes’ instream rights and the fact that they have called on those rights annually (in this case, KA 668), OWRD should assess that this transfer in effect will add an equivalent amount of water to the stream that historically was diverted at the original POD. As a result, an additional 30.01 cfs (as proposed in the transfer) will remain instream and will be measured accordingly for purposes of regulating the Wood River for KA 668. This scenario means that an additional 30.01 cfs will be afforded the opportunity to irrigate upstream on the Wood River. As an example, in April, out-of-stream uses up to an 1864 priority date were regulated off on the Wood River because of the riparian flows identified in the Klamath Tribes call for water (KA 668). Stream flows after regulation occurred on the Wood River averaged approximately 275 to meet a 286 cfs instream right. Eventually, regulation of all out-of-stream uses on the Wood River occurred to meet instream needs in early May. However, should this transfer be approved at the value proposed (30.01 cfs), flows in the Wood River would have been increased by an equivalent amount resulting in regulation not occurring, or certainly being less stringent to allow water use to occur longer and by an equivalent amount upstream. Accordingly, by approving this transfer, the actual out-of-stream use would be doubled by the amount proposed in the transfer (30.01 cfs upstream and 30.01 cfs on the refuge). This outcome would be classified as enlargement which would injure all rights downstream. Solution to Prevent Injury A simple solution would be to condition this transfer to subtract an equivalent amount of the proposed transfer rate from the actual measured flow on the Wood River above Crooked Creek (Station ID: 11504103). Technically, the transferred water right would be used daily at this rate, therefore this approach would ensure regulation of the Wood River would occur as if the transfer has not occurred, and regulation would not result in more water being diverted from the system. Again as an example, using April’s data above at an average flow of 275 cfs, after this transfer the flow would be regulated at 245 cfs (275 minus 30.01). OWRD must carefully account and condition this transfer to avoid injury to UKL levels and downstream users. Further, the proposed transfer must consider actual use of the right, not the entire water right claim of record. OWRD also must consider conveyance loss through UKL and through the KDD system. KDD emphasizes its support for the wildlife and waterfowl community and it seeks to continue its partnership with the Refuge to this end. KDD is obligated, however, to serve its patrons and to protect water resources. Finally, KDD looks to OWRD to conduct the required analysis and potential for injury in considering this Transfer Application.
 Dominic CarolloCarollo Law Group LLCMay 27, 2021 Oregon Water Resources Department 725 Summer Street NE, Suite A Salem OR, 97301 Re: Comments of Ft. Klamath Critical Habitat Landowners, Inc., et al. In Opposition to Application for Temporary Transfer T-13673 Our file: 2013-K I. Summary of Comments Fort Klamath Critical Habitat Landowners, Inc., NBCC, LLC, Agri Water, LLC, Roger Nicholson, Martin Nicholson, Goose Nest Ranches, LLC, Randall Kizer, Gerald Hawkins, Harlowe Ranch, LLC, and E. Martin Kerns (“Protestors”) offer the following comments opposing T-13673, on multiple grounds. First, approval of T-13673 would injure Protestors and the permitted, certificated, and/or adjudicated water rights appurtenant to their properties by allowing the Thomas Family Limited Partnership (“Applicant”) to divert an existing irrigation water right out of the State of Oregon for instream uses and at a much higher rate than the net consumptive use (“NCU”) rate at which Applicant is currently, and has historically, put the water rights at issue to beneficial use. Approval of the transfer would subject upstream water right holders, such as Protestors, to new, additional, and more severe curtailments of the use of their water rights increasing instream flow requirements. Second, T-13673 proposes the temporary transfer of a significant amount of surface water to an area of use outside the state of Oregon, and thereby outside the jurisdiction of the Oregon Water Resources Department (“OWRD”), in addition to proposing a change in character of use outside the purview of of a temporary transfer. Protestors question whether OWRD has statutory authority to allow such an interstate transfer of water rights. Third, this temporary transfer is being proposed during a historic drought with particular severity within the subject basin, while most of the subject surface water is currently under call by the Klamath Tribes pursuant to time immemorial instream water rights on Wood River and Crooked Creek that are held by the United States Bureau of Indian Affairs (“BIA”). Protestors consider the disposition of this application to be a matter of public concern for all irrigators with surface water rights upstream from Applicant’s points of diversion, and respectfully request that they be provided an electronic copy of any notice, action, or proposed order issued in relation to T-13673 to the undersigned counsel at dcarollo@carollolegal.com. Consistent with the foregoing, Protestors request that OWRD issue a proposed order and, ultimately, a final order denying T-13673 in order to protect Protestors, and those similarly situated, from substantial injury. II. Commenter’s Interests and Statement of Relevant Facts T-13673 pertains to a surface water right recognized in KA-67, which has a priority of October 14, 1864, and authorizes a diversion of 14.51 cfs from the Wood River for the irrigation of 725.5-acres, and a diversion of 15.5 cfs from Crooked Creek for the irrigation of 775-acres. In addition to a total combined rate of use of 30.01 cfs, T-13673 carries a duty allowing a maximum diversion of three (3) acre-feet per acre, per irrigation season, resulting in a total maximum duty of 4,501.5 acre-feet of water that may be used between April 1 and October 1, annually. The approved places of use for KA-67 are all on privately-owned ranch lands traditionally used by Applicant for cattle pasture, watered by flood irrigation. The alleged purpose of the temporary transfer is “to provide additional water to Lower Klamath National Wildlife Refuge[,]” (“LKNWR”) in the State of California and claims “multiple benefits, including improving water quality and improving fish and wildlife habitat.” Like Applicant, Protestors are the owners of real property in the Wood River Valley in Klamath County, Oregon. Protestors’ properties enjoy appurtenant water rights for irrigation and stock watering, and all of Protestors’ properties are upstream from Applicant’s property and points of diversion. Like Applicant, some of Protestors’ water rights have been provisionally recognized in the Klamath Basin Adjudication as having a priority date of 1864. Some Protestors hold water rights that were adjudicated in the prior adjudication of the Wood River, with pre-1909 priority dates, while some Protestors hold water rights that were issued by OWRD after 1909. Within the last few years, Protestors have all been issued written shut-off orders which have resulted from senior calls on the river by instream water rights held by the BIA and have, in many cases, required Protestors to cease all irrigation and stock water use from Wood River and/or its tributaries (e.g. Fort Creek, Crooked Creek, Annie Creek, and Sun Creek). Approval of T-13673 would increase the frequency, duration, and severity of such curtailments by increasing instream flow requirements that could be called on for fulfillment, and at a rate and duty that far exceeds what Applicant has ever legally and beneficially used for irrigating pastures and actually consumed by the land. III. Argument and Authorities A. Approval of T-13673 Will Injure Protestors When analyzing applications for temporary transfers, OWRD is to consider, among other considerations, any injury to existing water rights. OAR 690-380-8002(2); ORS 540.523(2). Temporary transfers are only permitted when approval will not cause injury to any other water right. ORS 540.523(2). Approval of this temporary transfer application will cause injury to existing water rights by virtue of the fact that transferring these 1864 rights instream will result in increased regulation and curtailment of Protestor’s water rights by virtue of increasing instream flow requirements. The total duty permitted under KA-67 is 4,501.5 acre-feet per irrigation season, with an aggregated rate of use of 30.01 cfs, 14.5 cfs of which is from Wood River. Historically, and especially in the last several years, much of Applicant’s ranch lands have been authorized for irrigation for only part of the year due enforcement of the BIA instream water rights on Wood River. If this temporary transfer is approved, the baseline instream flow on Wood River at the location of Applicant’s points of diversion would increase by 14.5 cfs, despite the fact that the rate does not reflect the reality of what Applicant can normally divert in order to meet existing instream flows. This is also true in Crooked Creek, where in at least some years, Applicant could not divert the full rate of 15 cfs without violating instream flow requirements on Crooked Creek. Thus, increasing surface flow requirements in Wood River and Crooked Creek would injure Protestors and their upstream water rights, as it will result in even less water being available for surface appropriation from Wood River and Crooked Creek in an area where the existing instream flow requirements already make it very difficult to accommodate surface appropriations for non-Tribal water rights. It is well-established that an individual cannot divert water from a source to the detriment of an individual holding a water right in that source. See Harvey v. Campbell, 107 Ore. 373, 438 (1923); Norden v. State by & Through Water Resources Dep't, 158 Ore. App. 127, 129 (1999); see also Hough v. Porter, 51 Or. 318, 438 (1909) (water rights are limited to the “specific tracts upon which it has heretofore been applied, except in such instances as where it may be practicable to change the place of use without substantial injury to others whose rights are here determined[.]”). Although injury due to a change in place of use most commonly arises when the change will result in changed or diminished return flows that affect downstream water right holders, see Hough v. Porter, supra, the same rationale applies for upstream water right holders when a change in place of use by a downstream water right holder will result in a decrease in the available water supply to the