Sen. Whitsett's chat with Craig Tucker at a Senate hearing
transcribed by Katherine Lehman
Talent Irrigation District's loss of their 30,000 acre foot
diversion, which includes the KBRA citation.
Section 17.3.1. Technical Investigation
B. Rogue Basin Project (page 90)
"Within one year of the Effective Date, the Klamath Basin
Coordinating Council shall identify a lead entity to undertake a
study to evaluate the feasibility of replacing or otherwise
reducing the diversion from the Klamath River Basin to the Rogue
River Basin such that existing uses and users of that diversion
are kept whole.
Upon completion of the study, the lead entity shall recommend to
the Parties further action pursuant to Section 17.3.2.
17.3.2. Use of Additional Storage.
Consistent with Reclamation planning directives, policies and
standards, and the National Environmental Policy Act (NEPA),
Reclamation shall not determine the specific design,
beneficiaries, etc. of such projects before completion of a NEPA
decision document. Reclamation shall identify the range of
alternatives identified in the Feasibility Study to enhance water
management flexibility in providing for irrigation, fish and
wildlife purposes, as well as the furtherance of Reclamation's
tribal trust responsibilities.
Subject to Reclamation's and OWRD's reservations of
responsibilities and obligations, the Parties shall support use of
water from these facilities in accordance with this paragraph.
i. Such water will be a resource to be employed as needed to
achieve the objectives of this Agreement as related to fisheries.
ii. When first available, such water will be used to realize the
increase in diversions to the Klamath Reclamation Project as
described in Section 15.1.1 and provided in Appendix E-
1, if that increase has not otherwise occurred.
iii. Water will be used to implement the provisions of
18.2.2.B.ii (which states, "The use of stored water available
under Section 17.3;")
iv. Water may otherwise be used in accordance with recommendations
of the TAT and decisions of the Klamath Basin Coordinating
v. In addition, the TAT may recommend the use of any such water
for Klamath Reclamation Project irrigation and/or fish and
wildlife Refuges if circumstances so warrant. In that
circumstance, an increase in water diversion as a result of such
storage could not occur merely because additional storage has
become available and there would be transparent public processes
prior to any increase."
The Oregon Senate subcommittee did not prepare a written
transcript of the hearing testimony on SB 76, held back on Feb. 3,
and it took me a while to find and transcribe this conversation I
told you about between Sen. Whitsett and Craig Tucker:
First, Tucker's comments (about 2 hours 30 minutes into the
hearing) - "Someone mentioned that the KBRA would affect
irrigation diversions to the Talent Irrigation District. That's
not true. I'd be willing to meet with folks and confer and go
through the Klamath Basin Restoration Agreement and point that
Whitsett (about 2 hours 40 minutes into the hearing) - "You wanted
to comment, and to hold the Talent Irrigation District harmless,
would then, it would be like, you know, with water law you have to
make a claim on the top drawer, and then the second drawer, and
the third drawer, and the fourth drawer, and so forth. They're,
the Talent Irrigation District, is in the middle; you can't do
that and make them whole without making everybody whole up the
line. So I think there's some problems there, Dr. Tucker, and I
think your comment there needs some explanation, and we'll talk
about it. Thank you."
Tucker - "Well, I'll be more than happy to clarify that issue and
discuss with interested parties a way that we can include language
in the Final Draft of KBRA that addresses those concerns."
Whitset - "One other question for Dr. Tucker, and that is that you
made the comment that the Talent Irrigation District would not be
negatively affected. One of the cornerstones of the Klamath
Restoration Agreement is to take the difference between the
Project historical use and the Project paper claim, transfer that
into the river as "environmental" water, which would be patent,
with the same priority date, which would be a patent abrogation of
Oregon water laws. It's an illegal enlargement of a water right.
Having said that, if that came to pass, as the Agreement is
currently written, then the water right, instream water right for
the Klamath River, that would be transferred into the river, would
be have a priority date considerably better than the Talent
Irrigation District's diversions from Hyatt Lake and Howard
Prairie, and I can't see how they couldn't have a call on that
water. It's simply Prior Appropriations Doctrine 101."
Dr. Tucker nodded, and the hearing continued.