The Klamath Basin: The Tricky Business of Water Rights in the West

By Dan Tarlock and Holly Doremus, Center for Progressive Reform

February 10, 2009

Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts.

Usually, claims of ownership are made to recover a resource from someone else. But that's not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United States to pay them for having limited deliveries from the Project in the drought year of 2001 in order to protect threatened and endangered fish. Having failed so far to get that result in the federal courts, they are now using procedural maneuvering to get another bite at the apple from the Oregon courts.

We detailed the complex history of water use in the Upper Klamath Basin in our 2008 Island Press book, Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics. In a nutshell, in the critically dry summer of 2001, the federal Bureau of Reclamation closed the headgates of the Klamath Project because the U.S. Fish and Wildlife Service and National Marine Fisheries Service had determined that the needs of endangered suckers in Upper Klamath Lake and threatened salmon in the Klamath River left no water available for irrigation use.

Despite virulent protests and even scattered episodes of violence, Klamath Project deliveries were reduced by 90 percent that year. By 2002, however, normal deliveries were resumed, thanks to heavier rains and the Bush administration's creative (and, the Ninth Circuit later found, illegal) interpretations of the Endangered Species Act, which put the desires of irrigators ahead of the needs of the ecosystem.

The 2001 "train wreck" spawned litigation on a variety of fronts. The irrigators went the takings route. They have long gotten the benefit of almost all the water in the basin, and have decided to stand on their claimed rights to that water even as the ground shifts from under them. Shortly after the water shut-off, they hired lawyers known for aggressive pursuit of property rights claims, and soon were claiming that the United States owed them a billion dollars (far more than any documented losses) under the Fifth Amendment for having "taken" their water in 2001. The United States Court of Claims ruled for the United States, finding that the irrigators did not have property rights that would support a takings claim, and that their contracts for water delivery were subservient to the Endangered Species Act. On appeal of the takings claim, the Federal Circuit decided that the property issue depended "upon complex issues of Oregon property law." It certified three questions to the Oregon Supreme Court, essentially requesting that the state court resolve those issues, which it has now agreed to do.

The tribes and environmental groups, which had prevailed in the lower federal court, obviously would have preferred that the state court not be dragged into this dispute. The Federal Circuit could easily have concluded (as one dissenting judge did) that the arcane questions certified were not relevant to the takings determination, or even that the plaintiffs, who began with the claim that they had property rights under federal reclamation law, should not be allowed to switch midstream to a claim of rights under state law.

The choice of the Oregon Supreme Court to consider the questions asked by the Federal Circuit should not be read as necessarily presaging a determination that the irrigators actually have state law property rights. The Oregon court may simply be showing a kind of professional courtesy to the federal court, which has after all requested its views. Or it may want to be sure that it, rather than the federal courts, has the last word on Oregon property law. That might well be a good thing from the environmentalist perspective, given the tendency of the Federal Circuit to favor broad interpretations of property rights. Indeed, preliminary indications in the ongoing state administrative adjudication of water rights in the Klamath Basin are that the United States, not the irrigators, holds the relevant state property rights.

The issue here is familiar to water lawyers. For decades, water users have tried to turn their inherently insecure rights to use water into secure, exclusive property rights like those of landowners. Courts and academics have long reminded them that water is different. Ownership simply doesn't fit the reality of water use. To control access and use, the western states "own" the water in trust for the public. Individuals such as the Klamath water users can obtain the right to use water, but never classic ownership of it.

This latest litigation twist illustrates just how complex, time-consuming, and expensive it can be to resolve these sorts of property claims, and how such claims can stand in the way of ecosystem restoration efforts. There are good reasons for guaranteeing compensation to those deprived unexpectedly of their property rights by government action. Stable property rights encourage investment, both economic and emotional, in the development of land and water resources. But at the same time, too much deference to property rights enhances the tyranny of the status quo, inhibiting the necessary evolution of rules in response to changed circumstances and changed societal goals. Ultimately, most takings plaintiffs lose on their claims that they must be compensated for the costs imposed on them by new environmental regulations, but they can often force the government into protracted, expensive litigation. The mere threat of takings litigation can chill legitimate regulatory initiatives, especially in a time of ever-shrinking government budgets.

In the end, the Oregon court's decision will not help the irrigators. Whatever word is used to describe their entitlements, the takings issue boils down to whether they were treated so unfairly as to trigger an obligation to compensate. The insistence of Klamath project irrigators that they must be paid for any change to the status quo seems particularly unjustified. Millions of dollars have been poured into the Basin since 2001, much of it going to farmers. Some water has been reallocated to environmental purposes, but only through water banks that have paid farmers for giving up their water. A recent negotiated deal on hydropower dam re-licensing on the Klamath River manages to be highly favorable to the irrigators while still calling for environmental improvement through dam removal. None of that seems to be enough, however. The irrigators continue to pursue what they see as their "rights" to their full limit. That choice is good only for lawyers, not for the environment, not for the Basin's Indian tribes, who have long been denied their much longer established rights, and not for the public fisc.

In the end, it won't even be much help to the irrigators themselves. They are unlikely to ultimately win their case. Even if they do, the courts cannot save them from the real threats to farming in the area, global economic and climatic change.

By definition, ecosystem restoration must displace the status quo to some extent. Sometimes, the losers may deserve some help in dealing with transitions. But takings litigation is too crude a tool for calibrating that help. It tells us little about the extent of the pain caused by change, the extent to which that pain is properly charged to the government or (as is clearly the case in the Klamath) has other causes, or about the appropriate way to distribute its costs.

Dan Tarlock and Holley Doremus are co-authors of "Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics," published by Island Press in 2008.

 

I am a research scientist who from 1987 to 2006 served at the Oregon State University Klamath Experiment Station as Superintendent and agronomist responsible for row crop research. I have a bachelor's degree from Cornell University in Agricultural Engineering, a master's degree from Cornell University in Agronomy, and a doctorate degree from Oregon State University with a major in soil science and a minor in civil engineering with emphasis on water quality and hydrology. I have participated in the water issues in the Klamath Basin throughout my tenure in the area. I currently serve on the Board of Directors and Science Committee for the Klamath Water Users Association, and the Board of Directors for the Enterprise Irrigation District which serves the suburbs of the eastern portion of the bedroom community adjacent to the City of Klamath Falls. I have completed a three year term of service on the Klamath County Natural Resource Advisory Council. I participated in both NAS-NRC Committees which reviewed the science behind the Klamath water issues, including service as an invited reviewer of the 2007 Draft Committee Report. I provided several documents to the NRC Committees and have submitted reviews of numerous reports, biological assessments, biological opinions, and operations plans that have served as the basis for Klamath Reclamation Project management since the early 1990s.

Why do I care?

For over 15 years I have studied all of the significant reports and documents related to the science behind the Klamath water issues and provided review comments on many of them. Some of the most cited documents that have served as benchmarks for policy decisions are gray literature that has never been subjected to critical peer review. Two of the most grievous examples are a report on water quality in Upper Klamath Lake from studies by Kann and Walker (Nutrient and Hydrologic Loading to Upper Klamath Lake, Oregon, 1991-1998) submitted to the Bureau of Reclamation in draft form in 1999 and never revised, and the Balance Hydrologics Inc.1996 report; Initial Assessment of Pre- and Post-Klamath Project Hydrology and Impacts of the Project on Instream Flows and Fisheries Habitat by Kamman and Hecht. Kann and Walker has been cited hundreds of times, including more than 10 times in the 2007 Biological Assessment prepared by the Bureau of Reclamation as the baseline for 2008 Biological Opinions by the NOAA Fisheries and US Fish and Wildlife Service. Kamman and Hecht set the precedent for using Klamath River flows at Keno Oregon from 1905 through 1912 as the basis for natural conditions of the river prior to Klamath Reclamation Project. That precedent has been used by Hardy Phase I and by the Bureau of Reclamation in their Natural Flow Study as the best indication of historical river conditions pre-project, even though the period is one of the two wettest periods on record during the past 120 years in the upper basin, and it ignores major changes in the hydrology of the upper basin that resulted in increased flows in the Klamath River compared to actual historical conditions before any changes in natural conditions. Your treatment of the Klamath issues; in spite of the statement in your second paragraph that "Science has been a special focus of our work", completely ignores these and many other scientific facts that must be a part of any in depth analysis of the Klamath issues.

The tone of your treatise is easily discernable by reviewing the list of contributors and their organizations and some of the citations, including those bastions of scientific excellence Glen Spain and Michael Milstein. Discussions of sucker and salmon problems are focused solely on perceived affects of the irrigation project operations while virtually ignoring all other factors that -2- have contributed to declining populations. You frequently refer to production based on renewable resources as an "extraction" industry while failing to use that term in reference to the harvest of species for commercial, recreational, or tribal fisheries. In fact it is overharvest of suckers and salmon; including by predators, above all other factors, which has contributed to their population declines over several decades, a fact you conveniently ignore.

Finally, in the Preface you point the finger at President George W. Bush and his administration as the source of improper "dirty" interference with the implementation of congressional mandates. You have failed to point out that in fact the draft biological opinions that led to the crisis in 2001 were released by the responsible agencies on the last day of the Clinton administration; January 19, 2001. It was these BOs, formally implemented on April 6, 2001, that led to the NRC Committee's conclusion that lake levels and flows imposed by those BOs were not scientifically justified. This imposition was made by the same administrative team that has tied up the only US source of low sulfur coal by the establishment of the Grand Escalante Staircase National Monument in Utah and thwarted any development of natural resources toward solutions to the US energy dependence on foreign sources.

Where is your Science?

One of the documents you cite frequently for various points is the OSU/UC Davis report "Water Allocation in the Klamath Reclamation Project: 2001". This comprehensive compilation of information has many authors with a variety of disciplinary backgrounds and very divergent opinions on some of the important issues. Although there was some degree of review of each other's sections, there are many major differences of opinion of statements concerning various issues. On page 7 you cite Woodward and Rohm as the source for a statement that massive algae blooms on Upper Klamath Lake are largely a result of agricultural runoff. These authors have no expertise in the field of water quality or affects of agricultural activities on water quality. I find similar examples of misrepresentation of sources for strong statements - mostly pointing a finger at agriculture as the evil source of all problems in the watershed. Shame on you!

On the same page you state "oxygen levels in the upper Klamath River fell low enough to kill thousands of fish in 1986". It is a well known fact that oxygen levels in the stretch of the Klamath River between Link River and Keno fall to very low levels every summer from mid-June through September. Wood debris decomposition; a left over result from decades of log decking for use in a mill, is a leading cause of the biological oxygen demand that produces conditions unsuitable for fish. The other most important oxygen demand is from the biological decomposition of the blue green algae that migrate from Upper Klamath Lake into this reach of the Klamath River. These are important facts that a treatise on science would not ignore, especially when making such a strong statement about a fish die-off.

Several statements in your Culture Wars (page 9-11) segment warrant comment. Prior to development, the Klamath Basin area ultimately converted to the irrigation project was dominated by two shallow lakes and associated wetlands. At times Tule Lake and Lower Klamath Lake and their wetland margins occupied over 150,000 acres. These water bodies had "consumptive use", commonly referred to as evapotranspiration, which exceeded consumptive use of any of the crops currently grown on these lands. In the Klamath Basin, development of the irrigation project was not an expansion of irrigation to arid lands but the drainage of lakes and wetlands to develop very productive croplands. In fact the Klamath Project is often referred to as a drainage project rather than an irrigation project. In their "Natural Flow Study" the Bureau of Reclamation seemed puzzled by the fact that the conversion of wetlands to irrigated croplands was accompanied by an increase in flows out of the upper basin down the river. This is totally predictable because the average consumptive use of crops in the project is about 2 acre-feet per acre compared with evapotranspiration from wetlands and evaporation from open water bodies under local conditions is in excess of 3.0 acre-feet per acre.

The reference to long declines in salmon populations due to upstream dams and diversions fails to credit any of the other important factors leading to population declines. First and foremost was the great expansion of commercial fishing brought on with government subsidized financing of the commercial fleet. Loss of spawning beds to very extensive mining, overharvest by tribes of dwindling supplies, predation by a burgeoning population of seals and sea lions, sedimentation associated with logging and road building in major tributaries, affects of the 1964 flood, and disease are all widely recognized contributors to salmon declines. Yet nowhere do you credit any of these factors as important to the salmon problem. Why not?

Here and in other sections you downplay the value and sustainability of the agricultural industry in the Klamath Basin. Yes, the industry does have limitations imposed by distance to markets, lack of local processing facilities, and weather limitations including susceptibility to summer frosts and limited rainfall. However, the climatic conditions in the region have some very significant affects on crop quality for the crops we do grow. While sugarbeets were produced in the region, our crop had the highest sugar content of any production region in the US. Our mint oil has much superior quality which is taken advantage of by blending our oil with poorer quality oils from other regions. Our alfalfa hay is recognized as the highest of quality for the dairy industry. Grain quality as based on test weights is superior to grain produced in almost all other regions. All of the quality benefits are attributable to our moderate daily high temperatures and the cool nights and plentiful sunshine of the semi-arid region. As a result, local crops often command premium prices which offset somewhat lower yields than those obtained by crops in areas with longer growing seasons. Another benefit is a lack of important disease and pest problems that plague other production areas. For example, potatoes are not damaged by the Colorado potato beetle which costs growers up to $200/acre to control in other production areas. With the exception of two years, late blight control at costs up to $300/acre in many production areas is a non-issue in the Klamath Basin. Disease and pest problems are also less important in onion, cereal, and alfalfa crops.

Although our sugarbeet production never exceeded 12,000 acres, for several years the farm gate value of this crop exceeded the off-boat value of the salmon harvest for Oregon's entire fishery. Farm gate value of the crop production in the Klamath Project has exceeded the off-boat value of Oregon's commercial fishery for all species in most recent years. It is inappropriate to compare pasture or hay crops with so-called high value crops as you have done. Input costs must be included in the analysis and when thrown into the mix pastures may be more profitable than onions or potatoes. Over 50 percent of the farm gate in the basin as well as in the project has historically been from sale of livestock. Pastures are the base of that industry.

By far the highest value crop currently produced in the basin is strawberry plantlets. This crop, grown on about 3,500 acres, is the plantlet source for over one-half of the California berry crop. Gross value of the crop is about $30,000/acre. Thus this crop alone generates nearly a $100 M in farm gate value. In the past two years production of leafy vegetables has doubled to nearly 1,000 acres with a gross value similar to that of strawberry plantlets. Both of these crops have found a niche here because of freedom from important pests and diseases.

For these and other reasons your treatment of the economics of agriculture in the Klamath Basin and in the Klamath Irrigation Project is totally inappropriate and inadequate. It is not however, surprising as you have failed to consult with individuals in a position to know the facts of the local industry.

Science wars.

I was hoping to finally read about science in this section. Sadly there was very little about science here and the only fact that was presented was the repeat of a myth that has been promulgated by many folks many times over. You state unequivocally that up to 90 percent of the Trinity River is diverted to the Sacramento. This statement has been made publicly by the head hydrologist in the Klamath Reclamation Project office more than once, was made twice in print in the IMST report on the Klamath Crisis of 2001, and is cited in many other venues. The fact is that in the past up to 90 percent of the North Fork of the Trinity River above the dam at Lewiston has been diverted to the Sacramento. In recent years the percentage has been significantly reduced. An analysis of the river flow data for all the years of record, including over 30 years before and after the dam was built, reveals that the average annual diversion during the high years was about 1 million acre-feet out of a total flow of about 6 million acre feet, or about 15 percent of the Trinity flow. There is no diversion of flows in the South Fork of the Trinity River. When the hydrographs of the river are com pared for the years before and after the dam was constructed they suggest that the timing affect on river flows was a significant reduction during April through June and little affect on flows during the remainder of the year. Since this is the period of out-migration of salmon smolt this is indeed an important factor for salmon success, but it may be offset by hatchery production and management.

You mention the toxic algae problem that has been observed in two reservoirs on the Klamath mainstem. You fail to mention that this same species has occurred in several of the lakes in the Oregon Cascades at elevations well above any agricultural activities. In fact this week the local newspaper mentioned that this problem is currently affecting water quality in three Oregon Cascade lakes including Lemola Lake.

More Erroneous Facts.

In Chapter 3 on page 50 two very large factual errors are stated. You identify the water diversion to the Reclamation Project at 1,345,000 acre-feet. That number is in fact the approximate annual discharge from the upper basin at Iron Gate Dam. The diversion to the Klamath Project is approximately 400,000 acre-feet, ranging from about 300,000 in high rainfall years to around 425,000 acre-feet in very dry years with little precipitation during the growing season. Although you later correct this error, you will have lost many readers before they get to the corrected figure. One of the problems with factual errors such as this is that they become accepted fact when repeated often enough. The myth about the Trinity River diversion is a prime example of this problem to the point that the lead hydrologist in the Reclamation Office has misstated that fact on a number of occasions.

A more serious error is made in the next paragraph. As previously pointed out, potato is not the highest value crop grown in the basin. Strawberry plantlets hold that distinction and have for several years. But your water consumption numbers are way out of line. Potato has a consumptive use of less than 2.0 acre-feet per acre. Applications above 2.0 acre feet are likely to lead to serious disease problems and rot breakdown in storages. The Bureau of Reclamation maintains a service for the western states identified as Agricultural Meteorology or AgriMet for short. This service is based on over 150 weather stations strategically located throughout the west to monitor weather parameters and predict irrigation requirements for a range of crops based on local conditions. There have been four of these stations situated in the Klamath Basin since 2001, including one established at the OSU Klamath Experiment Station in 2000. Our crop research at the station has confirmed the accuracy of this service in predicting irrigation requirements for the crops we grow in the region. Alfalfa has the highest consumptive use of the crops grown locally. It requires about 2.8 to 3.0 acre-feet per acre. In contrast, evaporation from an open body of water is slightly higher than 3.0 acre-feet per acre and evapotranspiration from emergent vegetation in a wetland consisting of Cattails and Tules can be considerably higher than from open water. Figures published by one of the members of the 2007 NRC Committee indicated this vegetation can exceed open water evaporation by up to 180 percent.

Even more puzzling is the statement that water use in the Klamath Project is inefficient by western standards. Several studies of project efficiency have been conducted over the years. A recent University of California - Davis study found just the opposite; the project is among the most efficient projects in water use. An efficiency of over 92 percent was reported. The high efficiency was attributed to the reuse of tail water at many points in the system. Over 600 miles of drain canals within the project pick up subsurface flows contained by impermeable confining soil layers and these return flows are reused over and over again. Solid data from years of records indicate the average consumptive use for the project is very close to 2.0 acre-feet per acre. Consumption above that amount is confined to the lakes and wetlands in the upper basin. This would include substantial evapotranspiration and evaporation from Klamath Lake, the Upper Klamath Marsh, the Sycan Marsh, Clear Lake and Gerber Reservoir.

This points to a second myth that is promoted extensively by the environmental community. That is that converting agricultural properties back to wetlands will enhance water supply. In fact the opposite is the case. Evaporation and evapotranspiration from open water and wetlands will always exceed crop consumptive use. Declining inflow to Upper Klamath Lake during the past 20 years is at least partly the result of large increases in the acreage in Klamath Marsh and Sycan Marsh wetlands. Recent conversions from agricultural use to wetland of properties adjacent to Upper Klamath Lake will further reduce water availability for irrigation and flows down river.

Further is this discussion you talk about the marketing of potatoes. One of the main factors in the decline of potato production in the basin was the 2001 reduction in acreage resulting from curtailment of water supplies. While those growers with contracts for chipping potatoes were mostly able to find fields with well water and were able to produce a crop - albeit at much greater expense for land rent, very few acres were grown for fresh market, the main market for local potatoes at that time. With a short crop throughout the US and Canada in 2001, potato prices remained high for fresh market crops throughout the marketing of the 2001 crop. Average prices for the year were about $8.00/cwt for fresh market crops, nearly double production costs. Unfortunately local growers had no crop to sell. Some were also out the cost of seed and other expenses already invested when the water cut-off was announced. Markets lost to other production areas as a result have not been recaptured and several local fresh packaging businesses were bankrupted. Today about 50 percent of the potato production in the Klamath Basin is chipping potatoes marketed through chip processors in California and Nevada. Klamath Pearl represents less than 10 percent of the basin potato production. As an aside, I conducted potato research in New Brunswick, Canada for 11 years for the major potato processing company which processes over 50 percent of the production in New Brunswick and Maine. Yields in that region are about 60 percent of the yields achieved in the Klamath Basin. Their fresh market access in the eastern seaboard is about the same distance for the production base in northern Maine as are the San Francisco or Portland markets for local crops.

Summary.

I could go on and point out many more areas where this treatise misrepresents important facts about the Klamath Basin and it's issues. A big problem exists with the basis for requirements for high lake elevations to protect suckers both in terms of water quality and survival of adult
-6- suckers and recruitment of new suckers to the population. I submitted an analysis of these facts to the 2002 NRC Committee and I believe their assessment of the inadequacies of the data to support lake level requirements imposed by the BO bears out my opinion of this data. The basis for high flows at Iron Gate Dam is also highly suspect. I believe the flows called for based on Hardy, the Natural Flow study by the Bureau of Reclamation, and the most recent BO draft by NOAA Fisheries are far above historical flows realized before any changes to the hydrology of the upper basin. These topics are a possible future book which would tell a very different story than the one you are trying to sell in this treatise.

I hope, but I'm not confident, that you will have taken the time to read my comments. I doubt you will have an interest or take the time to consider them in depth and reply in any way. I believe you, as many others, do a disservice to the local community as well as the scientific community by publishing one-sided material such as this. It will no doubt serve as additional fodder in the future by those wishing to obscure facts and promote an agenda.

Your book brings to mind a bumper sticker that I displayed on my last vehicle for several years. "If you like imported fuel, you will love imported food!"

Cheers, Dr. Kenneth A Rykbost