Time to Take Action
Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
 

Senator Doug Whitsett
R- Klamath Falls, District 28

Website: http://www.leg.state.or.us/whitsett
State Seal
E-Newsletter  8/1/13

It has become increasingly evident, over the past several years, that the Oregon Water Resources Department is no longer a friend of agriculture.

Perhaps their position was best demonstrated by the lack of support for the Departmentís budget. On the day their budget was to be voted on the Senate floor, the only letter of support was from the Oregon Conservation Network. There was no letter of support from any farm, ranch, nursery, groundwater or industrial water users..... NONE!

A companion Department fee bill, HB 2259, was returned to the Senate Rules Committee from the Senate floor because there were not enough votes to pass the bill. The Committee significantly reduced the requested fee increases. Our bipartisan coalition forced that nearly unprecedented action, because we believed the fee increases were absurdly excessive and the purpose of many of the fee increases were counterproductive to Oregonís economy.

The Oregon Conservation Network is a coalition of more than 40 mostly extreme environmentalist organizations. Some of the Networks stated priorities for the recently concluded legislative session included:

  • To promote a tax on each water right in order to support more stringent water regulation.
  • To manage Oregon waters to encourage more transfers from agricultural use to in stream flows for the benefit of fish.
  • To create a ban on suction dredge gold mining in Oregon.
  • And, to expand Oregon Scenic Rivers to include not only rivers but creeks and small tributaries.

Most of the Networkís legislative agenda was either introduced or supported by the Oregon Water Resources Department. The Department actively promoted a mosaic of legislation that, in its entirety, would have significantly changed existing Oregon water law.

Virtually all proposed bills would have either further regulated out of stream water use or enhanced the Departmentís ability to authorize transfers of existing irrigation water rights to in stream flows. Several attempts were introduced to provide the Department authority to buy and sell water rights through contracts with little regard for priority dates or potential injury to other water right holders.

The Departmentís efforts to increase their revenue included new and increased fees for services, a substantial new fee to change the name on a water right certificate or permit, and a new annual $100 tax on all water rights. They explained that they needed the extra money to help implement their proposed changes.

It appears that the Conservation Networkís primary purpose for supporting the expansion of scenic rivers is to restrict the use of private land and water resources. Current law provides that all uses of private land within a quarter of a mile of a scenic river are strictly regulated. No new surface water diversions are allowed from any Oregon Scenic River. No new wells for irrigation are allowed, without bucket for bucket mitigation in the event that the groundwater aquifer is considered to be connected to the scenic waterway.

In fact, any existing well may be ruled-off if the well is constructed within a mile of the scenic river or a tributary of the scenic river. The Department has the legal authority to shut down any such well, regardless of the priority date of the well.

With the current drought conditions in Southern Oregon, and the Klamath River adjudication being implemented, you may not have noticed that the Oregon Water Resources Department is already doing these things in the Klamath River Basin. The Department has refused to permit or delayed the permitting of a number of new wells that were constructed in the upper basin during the past four years.

At the same time, the Department was working on a modeled analysis of the regional aquifer in the upper basin. That four year modeling study has recently been completed. To no onesí great surprise, the Department has concluded, from the model, the aquifer is connected with the scenic Klamath River.

The Department now believes they have established the legal authority to refuse to permit those existing new irrigation wells. They also appear to have no intention of permitting any future irrigation wells in the Upper Klamath River Basin.

Moreover, the Department is now contemplating shutting down any number of existing irrigation wells that are constructed within a mile of the scenic Klamath River, or any tributary to that scenic river. This action will essentially complete the dewatering of virtually all irrigated land in the Sprague, Williamson and Wood River watersheds.

The Departmentís final determination and implementation of the Klamath River Adjudication is also telling.

Following the direction of the Ninth Circuit Court of Appeals, the Department rightfully determined the state has authority to adjudicate Tribal and federal reserved water rights. They also followed the Ninth Circuitís direction determining the Tribes hold a water right adequate to support their retained treaty rights to hunt, fish and gather, on their former reservation lands. That Tribal water right is the most senior priority water right possible, dated to ďtime immemorialĒ.

However, the Department inexplicably ignored another major part of the Ninth Circuit Courtís order. That Court ruled that the amount of the water provided to the Tribeís in their time immemorial water right must be the amount that they formerly used to maintain a moderate living standard. No more and no less!

Instead of following the Ninth Circuit Courtís order and direction, the Departmentís final determination in the adjudication gave essentially all the water tributary to Upper Klamath Lake to the Klamath Tribes. Further, they gave the Tribes the right to force the maintenance of an Upper Klamath Lake level that, arguably, could not be achieved without the storage capacity enabled by the Link River Dam.

Less than four months later, the Tribes exercised their newly determined ďtime immemorialĒ water rights. They issued a call for virtually all of the water currently used for irrigation in the Sprague, Williamson and Wood River watersheds.

The Department has nearly finished enforcing that call, effectively shutting off all surface irrigation. They have, in effect, transferred all the water to in stream flow for the benefit of maintaining riparian and aquatic habitat to support the Tribal rights to hunt, fish and gather. More than 250 water users holding Allottee and Walton water rights dating to 1864 are being forced to turn off their irrigation water.

Unfortunately, the same result is most likely to occur in any future year, even with normal amounts of precipitation and normal stream flows. The Departmentís final determination gave the Tribes such a huge amount of water that virtually no additional water will be available for irrigation in a normal year.

         The Department has made clear to some irrigators their intent to start shutting down their irrigation wells in the near future. The dewatering of the Sprague, Williamson and Wood River watersheds will be virtually completed when existing wells that are constructed within a mile of any tributary to Upper Klamath Lake are forced to stop pumping water. If that is the Departmentís purpose they are certainly achieving their goal.

From my perspective, the Oregon Water Resources Department has lost its way. It is now following the directions of some of the most radical environmental organizations. Their legislative agenda this year was by far the most anti-agriculture in its history. That agenda was a mosaic, of methods and regulations, aimed at reducing the out of stream use of water.

It is time for Oregonís industrial and agricultural interests to be united in their opposition to the Departmentís activities and direction. In my opinion, this is an agency that should be focusing its efforts on enhancing the Stateís economic progress through the effective use of our water resources. Instead, the agencyís activities and direction appear to be diametrically opposed to that desired focus.

We had good success in actively opposing most of the Departmentís agenda during the recently concluded Legislative Assembly. Most of their agenda was either defeated or significantly amended to achieve fairness and equity. We will continue to actively oppose the Departmentís agenda as long as it remains under its current leadership and direction.

 

 Please remember, if we do not stand up for rural Oregon no one will.

 

Best Regards,

 

Doug

 

 

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