Bush Administration and Federal Legislators Sharpen Focus on Klamath Basin

By Steven L. Shropshire

In the last few months, the Bush Administration and Oregon's congressional delegation have taken significant steps in their efforts to avert a repeat of the 2001 Klamath River Basin crisis. Senators Ron Wyden and Gordon Smith, and Representatives Greg Walden and Peter DeFazio have all proposed legislation specifically directed at relief, conservation, and restoration efforts in the Klamath Basin. In addition, President Bush has created a cabinet-level task force to develop long-term solutions for the basin's problems related to water availability. This article provides a brief overview and status report on these Washington-based efforts.

2002 Farm Bill

In December 2001 Senator Wyden introduced a proposed amendment to the Senate's 2002 Farm Bill (S. 1731) that would commit $175 million to restore aquatic ecosystems in the Klamath Basin and to reduce water demand by promoting conservation efforts and improved agricultural practices. The proposal passed as part of the farm bill on February 13, 2002, with Senator Smith's support. Senator Wyden's proposal would create a Klamath Basin interagency task force to address the long-term concerns regarding water quantity and quality in the Klamath Basin and to consider long-term resolutions to other basin issues. The task force would consider a number of approaches including: improvements in irrigation efficiency, water conservation, or other agricultural practices; wetland restoration; alternative storage sites; and the purchase of agricultural land from distressed sellers.

The House passed its own version of the farm bill in October 2001, without a similar funding mechanism for resolution of Klamath Basin issues. Differences between the House and Senate versions of the bill are now being reconciled in a conference committee first convened on February 28, 2002. In its first meeting, the conference committee trimmed conservation funding, potentially effecting the amount of money allocated for Klamath Basin programs. The conference committee had its second meeting on April 9, 2002 and was reportedly nearing a compromise when this newsletter was going to press.

Meanwhile, on March 15, 2002, Representative Walden introduced his own amendment to the farm bill, meant to build on the program proposed by Senator Wyden. Congressman Walden introduced his amendment for the purpose of bringing the Klamath Basin farm bill provisions up to date with recent events, including the release of the Bureau of Reclamation's biological assessment on Klamath Project operations, the National Academy of Sciences interim report on the Klamath Basin, and the creation of the Klamath River Basin Federal Working Group (see discussion below). The Walden amendment sets forth several specific uses for the $175 million fund, such as improved flows and habitat conditions on Klamath River tributaries, creation of a Sucker hatchery in Upper Klamath Lake, a pilot oxygenation study, mitigation for the loss of family wells in the Klamath Basin community, and creation of a water bank. Additionally, the Walden amendment calls for specific projects designed to ensure the delivery of irrigation water for agriculture.

Klamath Basin Emergency Operation and Maintenance Refund Act of 2001

Another piece of Klamath-related legislation still before Congress is the Klamath Basin Emergency Operations and Maintenance Refund Act (HR 2828). The bill was introduced by Representative DeFazio, Representative Walden and others in August 2001. It passed the House in November 2001. Senators Smith and Wyden subsequently introduced a companion bill in the Senate in December 2001 (S. 1824). The bills would allocate up to $5 million to compensate Klamath Basin irrigators for the costs of maintaining canals in the Klamath Reclamation Project during the 2001 irrigation season. These costs were incurred despite the fact that the canals did not carry water. Initial estimates indicate the legislation would generate a refund to Klamath Project irrigators of more than $4 million. The bills were referred to the Senate committee on Energy and Natural Resources on December 13, 2001, where they have remained without further action.

Klamath Basin Federal Working Group

In addition to these legislative efforts, the Bush administration has launched a Klamath Basin initiative of its own. On March 1, 2002, President Bush created a cabinet-level task force to develop immediate and long-term solutions to the basin's problems related to water availability. The Klamath Basin Federal Working Group is chaired by Interior Secretary Gale Norton, and includes Agriculture Secretary Ann Veneman, Commerce Secretary Don Evans, and the Chairman of the Council on Environmental Quality James Connaughton.

The Working Group is charged with advising the president on immediate and long-term actions the federal government can take to resolve many of the conflicts between competing water interests in the Klamath Basin. The Working Group has indicated that it intends to carry out this mission by interacting with stakeholders in the farming and fishing communities, residents of the Basin, representatives of conservation, environmental, and water use organizations, Tribes, and state governments.

Working Group Initiatives. At its first meeting on March 6th, the Working Group announced a number of conservation actions that are designed to enhance both the quality and quantity of water available for competing water interests in the Klamath Basin. The measures announced are specific to the Departments of Agriculture, Interior, and Commerce. The Agriculture Department will:

• Provide more than $1.6 million to accelerate the delivery of conservation, technical and financial assistance for irrigation water management, filter strips and creation of wildlife habitat.
• Extend the sign-up period for the Emergency Conservation Program through September 2002.
• Work with the agricultural community to explore opportunities for delaying loan repayments, rescheduling or consolidating loans or even writing down of some indebtedness.
• Initiate 22 special projects in the Wimena-Fremont National Forest through the U.S. Forest Service to provide more than 20 miles of stream improvement, decommission nearly 45 miles of roads and provide for meadow enhancement and spring protection.

The Commerce Department pledged to make Endangered Species Act consultation for the Klamath Project its highest priority. White House press releases indicated that Secretary Evans has directed the National Marine Fisheries Service to make the production of a biological opinion for the Bureau of Reclamation's Klamath Project operating plan the agency's highest priority.

The Department of Interior has made the same pledge with respect to the parallel consultation duties being carried out by the U.S. Fish and Wildlife Service. Additionally, the Department's Bureau of Reclamation will accelerate the construction of proposed fish screens at the Klamath Project's major water diversion point out of Upper Klamath Lake.

Interior Department Negotiations with Klamath Tribes. In addition to these initiatives, on March 20, 2002, Secretary Norton announced that senior Interior Department officials would soon open formal negotiations with the Klamath Tribes to discuss long-term solutions to a range of natural resource issues in the Klamath Basin. Central to the discussions will be the role of the Klamath Tribes' water rights in recovering historic tribal fisheries and resolving Klamath Basin water conflicts. These discussions will also address the possible return of public lands that once comprised part of the 2.2 million acre Klamath Indian Reservation, which was liquidated in 1954, when Congress terminated the Klamath Tribes' tribal status. Of the historical total, 690,000 acres are now part of the Winema-Fremont National Forest. The Secretary's announcement came just two weeks after Judge Owen Panner issued the Oregon District Court's most recent opinion in Adair v. United States of America, reaffirming the preeminent priority date for tribal water rights in the Klamath Basin.

Upper Basin Water Acquisition Projects. On April 2, 2002 Working Group member James Connaughton came to Klamath Falls to announce a partnership agreements with the Klamath Basin Rangeland Trust and The Nature Conservancy to make upper basin water available for agricultural and wildlife purposes. Together, it is estimated that the projects could free up as much as 30,000 acre-feet of relatively clean, cold water for agriculture and wildlife.

The partnership agreement with the Rangeland Trust is a one-year agreement with ranchers along the Wood River, an upper basin tributary to the Klamath River. In exchange for lease payments of $50 per acre-foot from the Bureau of Reclamation, participating ranchers in the Wood River valley would forego summer irrigation of pasture land, reduce herd sizes on the resulting non-irrigated pasture, and fence streams to minimize riparian damage from the cattle. The Bureau of Reclamation would then deliver the water to downstream irrigators in the Klamath Project. At the time of the announcement, two ranchers had agreed to place 2,500 acres into the program. There are fifteen ranchers that graze about 60,000 head of cattle on approximately 30,000 acres in the Wood River Valley.

The agreement with The Nature Conservancy involves a proposal under which the Conservancy will forego the diversion of approximately 13,000 acre-feet from the Williamson River during the 2002 and 2003 irrigation seasons. The water is currently being diverted onto former agricultural lands the Conservancy is converting to wetlands at the north end of Upper Klamath Lake. The conversion process is to the point where the water is no longer essential. The Williamson River water will instead be permitted to flow down the River and into the lake for the benefit of fish and wildlife.

Summary

These efforts appear to substantiate the Klamath Basin's ascendance to the national political agenda. The Bush administration has acknowledged that last summer's events could easily be repeated in any number of basins throughout the West. Only time will tell if this concerted effort by the Bush administration and Oregon's congressional delegation will be effective. With dedication and hard work, however, it appears they may be able to generate some solutions that until now have eluded the parties most intimately connected with the Klamath Basin.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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