Ridenbaugh Press/Water Rights

The Bureau of Reclamation announces that sealed bids for agricultural leasing of 6 parcels of federal lease lands, totaling 723 acres, were received until April 22 at the Klamath Basin Area Office.

Open for bid in Area K on the Lower Klamath federal lease lands in Oregon is one grain lot which is pre-irrigated. Open for bid on the Tule Lake federal lease lands in California are Sump 3 – 5 lots which are pre-irrigated. These lots are suitable for grain and/or potatoes & onions. Bidders are encouraged to inspect the available lots prior to bidding.

Bidding forms and instructions, lease information, sample copy of the lease contract, location maps are available at the Klamath Basin Area Office, 6600 Washburn Way, Klamath Falls, OR 97603.
Appropriate bidding documents must be used when submitting bids.

Information on the Lease Lands Program is available on the Klamath Basin Area Office website at http://www.usbr.gov/mp/kbao/operations/land_lease/index.html.

From the Department of Water Resources legislative report, May 9:

During January 2013, Oregon’s 77th Legislative Assembly convened in Salem. This session has been a busy one for water. The Department has a number of policy bills moving through the process, and legislative members and committees have submitted water-related bills as well.

From February through April, policy bills made their way through their first committee. Bills that were heard, worked, and approved are still considered to be viable bills. This update includes details about the status of water-related bills.

Governor’s Water-Related Bills

Water-related bills that are still considered viable include three bills that originated with the Department:
Senate Bill 199A (Split Season Leasing)
The adopted amendment delays the program sunset to January 2, 2024, and clarifies statutory language describing the program.
Passed through Senate unanimously. Assigned to House Agriculture & Natural Resources Committee for public hearing and worksession.

Senate Bill 200A (Split a Permit into Multiple Ownerships)
The adopted amendment clarifies that this bill is for agricultural types of water use and requires the applicant to produce specific documentation. Passed Senate Floor 28?1?1 (excused). Assigned to House Agriculture & Natural Resources Committee for public hearing and worksession.

House Bill 2259 (Transaction Fees)
The adopted amendment removes the sunset and authorizes the commission to increase fees each year by 2 percent or the Consumer Price Index, whichever is lower. WRD requires this bill to maintain adequate customer service levels. Passed House Agriculture and Natural Resources Committee 8-0-1 (excused). Subsequent referral to Ways and Means’ Natural Resources Subcommittee.
A fourth bill—Senate Bill 217, proposing an annual water right management fee—has been sent to an interim workgroup, with direction to bring back in 2014 a consensus-based bill that would
help stabilize the Department’s funding. For each of these bills, the Department has provided bill language and a bill summary on-line.
Go to: http://www.oregon.gov/owrd/pages/law/legislative_updates.aspx.

Other Water-Related Bills Still Considered Viable Include Four from the Senate:
Senate Bill 401 (Sen. Bates—Designation of Scenic Waterways)
The adopted amendment converts this to a study bill only, with Oregon Parks as the lead, analyzing 27 stream reaches for potential scenic waterways designations; Water Resources Department will play a supporting role.
The Department’s fiscal requests one NRS4 staff for 8 months. Passed Senate Environment and Natural Resources, 3-2. Subsequent referral to Ways and Means’ Natural Resources Subcommittee. Senate Bill 837 (Sen. Johnson—In-Conduit Hydro Bill)

The adopted amendment addresses a current obstacle to in-conduit hydro development, by allowing projects a choice: install fish passage when required by the Oregon Department of Fish and Wildlife, OR pay into a statewide fish passage account that will fund fish passage at ODFW-identified priority locations. The in-conduit hydropower program resides with the Water Resources Dept. No fiscal impact. Passed Senate Environment and Natural Resources, 5-0.
Subsequent referral to Ways and Means’ Natural Resources Subcommittee.
\Senate Bill 839 (SENR—Establishes Water Supply Development Fund)
The adopted amendment lays out criteria for public funding of water development projects. Defines eligible projects, public benefit requirements, application and evaluation process, and funding/process for determining “seasonally varying flow” requirements for a water storage project.
Tied to the Department’s Package #204, $10 million+ for grants, loans, debt service, and fund administration. Passed Senate Environment and Natural Resources, 4-1. Subsequent referral to Ways and Means’ Natural Resources Subcommittee.

Senate Bill 846 (Sen. Hansell—Development of a Umatilla Basin Water Storage Program)
Referred to Senate Committee on Rules for further work.
The Senate bills noted above have passed through the Senate Environment and Natural Resources Committee , which is chaired again this session by Senator Jackie Dingfelder (D-Portland).

The Oregon Water Resources Department on March 7 delivered a key adjudcation document to the Klamath County Circuit Court. With this delivery, the Department has completed Phase One of the Klamath River Basin Adjudication.

The Final Order of Determination in the Klamath River Basin Adjudication, delivered to the Klamath County Circuit Court on March 7, represents the culmination of 38 years of work to determine the validity of 730 claims to the use of surface water in the Klamath River Basin. Since 1975, the
Department has systematically reviewed and determined these claims. The Department also received and resolved 5,660 contests to these claims.

During this phase, administrative law judges from Oregon’s Office of Administrative Hearings issued proposed orders for certain contested claims, making recommendations about the validity of these claims. With the Department’s issuance of the Final Order of Determination, the administrative phase of the Klamath River Basin Adjudication is now complete.

March 7 marked the beginning of the second phase in the Klamath River Basin Adjudication. Adjudication claimants or contestants who dispute the Department’s determinations will have an opportunity to file
exceptions with the Klamath County Circuit Court. The Court will review those exceptions, and issue a water rights decree, either affirming or modifying the Final Order of Determination.

Most of the active Klamath River Basin Adjudication claims — those not voluntarily withdrawn — were recognized, at least in part. Forty of the original 730 claims were completely denied. One hundred sixty?eight of the original 730 claims were voluntarily withdrawn.

The most senior determined claims in the Klamath River Basin Adjudication are claims held by the United States in trust for the Klamath Tribes. These claims carry a priority date of “time immemorial.”

The tribal claims were recognized for certain reaches of the major tributaries to Upper Klamath Lake, and for Upper Klamath Lake itself. Other tribal claims were denied for streams outside the boundaries of the former Klamath Indian Reservation. For example, the Klamath Tribes’ claim for portions of the Klamath River was denied.

In general, the recognized claims with the next most senior priority dates are “allottee” claims and “Walton” claims. Both types of claims are for land within the boundaries of the former Klamath Indian
Reservation. They are based on the 1864 Klamath Treaty and carry an 1864 priority date. Allottee claimants are members of the Klamath Tribes who received allotments of land within the boundaries of the former Klamath Indian Reservation. Walton claimants are non?Indian purchasers of Indian
allotments.

The Final Order of Determination includes a review of both proposed settlements and proposed orders, and either affirms or modifies them. The Final Order of Determination contains numerous modifications to the previously?issued proposed orders; three of the most significant modifications are as follows:

(1) While the proposed orders for the Klamath Tribes’ instream claims allowed water rights for off?reservation stream reaches, the Final Order of Determination denies these claims.

(2) Although the proposed order for the Klamath Reclamation Project1 claims determined that the United States was the owner of the water rights for the Project, the Final Order of Determination concludes that the beneficial users of the Project water hold the Project water rights for the purpose of beneficial use.

(3) The proposed orders for the Walton claims limited the scope of those claims. The Final Order of Determination modifies the proposed orders, resulting in an increase in the number of acres for which Walton rights are recognized.

Oregon follows the “prior appropriation” doctrine of water use, like most western states. When there is not enough water to satisfy all the water rights, water users with senior priority dates will receive water, while water users with relatively junior rights will not. Simply stated, water users who are “first in time” are “first in right.”

The completion of the Final Order of Determination means that the recognized claims are now a part of Oregon’s “first in time, first in right” prior appropriation system. Water users with recognized claims
may now make calls for regulation of junior water users if doing so will result in additional water being available to the senior user.

One practical effect of the Adjudication is that some water users who have regularly been able to make use of the full amount of water under their claims, water right certificates, or water use permits may no longer be able to in certain years, while some water users who have not always been able to make use of the full amount water under their claims may now be able to. Regulation of water rights is normal practice in most other basins in Oregon. Water management in the Klamath River Basin will now operate in the same manner as most other parts of the state.

The Klamath Reclamation Project provides water for roughly 200,000 acres of agricultural land south of Klamath Falls on both sides of the Oregon – California border. The Project was jointly developed by the United
State Bureau of Reclamation, irrigation districts, and water users.

The Bureau of Reclamation will release additional water from Trinity Reservoir to supplement flows in the Lower Klamath River in 2012 to help protect a possible record-breaking run of adult Chinook salmon from disease outbreak and mortality. Releases from Lewiston Dam will begin in the early morning hours of August 13 and end in the last week of September.

Flows in the Lower Klamath River will be targeted at 3,200 cubic feet per second during this period, and Lewiston Dam releases will be adjusted accordingly. Current river flow forecasts indicate that Lewiston Dam releases will increase from the current rate of 450 cfs on August 13 and will vary between about 1,000 and 1,200 cfs prior to dropping to 450 cfs in late September.

The rate of increasing releases could be as high as 250 cfs every two hours, and the rate of flow reductions could be as high as 100 cfs every four hours. The public is urged to take all necessary precautions on or near the river while flows are increased.

An Environmental Assessment and Finding of No Significant Impact were prepared in accordance with the National Environmental Policy Act. The draft documents were released for public review July 17-27, and public comments have been addressed in the Final EA/FONSI.

On July 11, a Jackson County Circuit Court Jury convicted Eagle Point resident Gary A. Harrington on nine counts, each related to the unauthorized use of water. Under Oregon law, all water is publicly owned, and those who wish to use it for their own purposes must obtain a water right permit issued by the Oregon Water Resources Department. State law grants various exceptions to this requirement, including an exception for collecting precipitation water that gathers on an artificial impervious surface, such as a rooftop or parking lot; in rain barrels, for example.   
           
Harrington stored and used water illegally by placing dams across channels on his property and preventing the flow of water out of these artificial reservoirs without obtaining a water right permit. The height of each dam varies; two dams stand about ten feet tall and the third stands about 20 feet tall. The total amount of water collected behind these dams totals about 40 acre feet; enough to fill almost 20 Olympic?sized swimming pools. These man?made reservoirs feature boat docks, boats, and were stocked by Harrington with trout and Bluegill for recreational fishing.

The state first identified Harrington’s illegal water use more than ten years ago and initiated enforcement action to discontinue his illegal use of water. After numerous attempts by OWRD and the Watermaster to achieve voluntary compliance, the Department enlisted the assistance of the Oregon State Police in 2002. Citations were issued, and Harrington pleaded guilty to several violations. He was assessed a nominal fine and ordered to drain the three reservoirs, which he did. However, Harrington again closed the headgates in 2004 and refilled the reservoirs. As a result, OWRD and the Oregon State Police submitted reports to the Jackson County District Attorney’s Office alleging additional violations of Oregon water law. That office filed misdemeanor charges against Harrington, and in 2008 he pled guilty to one count. He was issued another fine, placed on one year probation, and was again ordered to drain the reservoirs.  

According to testimony in the most recent trial, the day after Harrington’s probation expired, he again closed the outlet valves and refilled the reservoirs. The District Attorney’s Office enlisted the help of the Oregon Department of Justice, charges were once again filed in Jackson County Circuit Court, and on July 11, 2012, a jury found Harrington guilty of all nine counts.  

The Court sentenced Mr. Harrington to 30 days in jail and three years’ probation, and imposed a $1,500 fine. Judge Timothy Gerking also ordered that the headgates holding back the water be opened and kept open with locks and chains. He also ordered the dams to be breached after the water is drained.

“Mr. Harrington has operated these three reservoirs in flagrant violation of Oregon law for more than a decade,” noted OWRD Deputy Director Tom Paul. “We rely on the judicial system to maintain the rule of law and the Court’s conviction and sentencing in this case has done just that.”

Officials with the Department, in conjunction with the State Police, plan to visit the site during the next several days in order to confirm Harrington’s compliance with court orders.

The Bureau of Reclamation has released the Draft Environmental Assessment and Draft Finding of No Significant Impact to use Trinity Reservoir-stored water to supplement flows in the Lower Klamath River to help protect returning adult salmon from a disease outbreak and mortality during late-summer 2012.

Projections of a near record-breaking run of adult fall Chinook salmon to the Klamath River Basin have prompted requests to supplement flows to the Lower Klamath River between August 15 and September 21. Reclamation estimates up to 92,000 acre-feet of water could be used to supplement flows in the Lower Klamath River. Of this total, approximately 48,000 acre-feet could be used as a precautionary increase in flows to the Lower Klamath River, and up to 44,000 acre-feet could be used if an emergency situation were to occur. Any use of the emergency water would be informed by real-time environmental and biological monitoring by federal, state and tribal biologists.

The EA/FONSI were prepared in accordance with the National Environmental Policy Act and are available at http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=10230.

The Bureau of Reclamation reports that although the upper Klamath Basin received a large influx of snow in March and early April, warmer than normal conditions have caused an early melt off, resulting in the loss of much of the projected Upper Klamath Lake inflows due to operational requirements. The most recent calculation of available water supply suggests a shortage of approximately 70,000 acre-feet of expected demand through the end of the irrigation season.

It is possible that a significant amount of this shortage could be mitigated with incentives through Klamath Water and Power Agency’s mitigation programs, to both pump groundwater and to fallow certain lands later in the irrigation season. However, at this time, not enough lands have been identified for fallowing to avoid having to curtail water deliveries later in the year. The deadline for the land fallowing program is June 1 and Klamath Project contractors are encouraged to apply if they wish to be considered.

If water shortages are expected after consideration of the applications received, Klamath Project contractors will be notified in accordance with the 2012 Drought Plan.

The Bureau of Reclamation released the draft Umatilla Basin Water Supply Appraisal Report for a 30-day public review period from October 7 through November 10. The report identifies alternatives aimed at satisfying treaty and reserved water-rights water claims of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), while keeping existing Umatilla basin water users whole.

A number of potential alternatives were identified. Of those, five alternatives were selected for a more detailed evaluation; four describe water supply, and one focuses on a water delivery. The Umatilla Project is located in north-central Oregon and supplies water to the Hermiston, West Extension, Westland, and Stanfield irrigation districts.

The complete report is available for download at Umatilla Basin Water Supply Study Appraisal Report . In addition, a limited number of printed copies are available on request by sending an email to UBWSS@usbr.gov or calling (208)378-5087.

One of the Pacific Northwest’s foremost water policy experts has written a new book detailing water law and water rights in Oregon.

Tonkon Torp attorney Janet Neuman is the author of Oregon Water Law: A Comprehensive Treatise on the Law of Water and Water Rights in Oregon. The book provides an overview of the state’s water resources, a history of Oregon water rights law and a comprehensive discussion of the types of water rights in the state and how they are obtained, used, regulated and reallocated. It also discusses environmental issues, public rights to use bodies of water and court adjudications related to Oregon water use.

The book is designed as a reference for policy makers and a guide for lawyers practicing in such diverse areas as real estate, trusts and estates, tax, land use and environmental law. It is available through Portland State Bookstore’s Odin Ink website.

Neuman is a former professor and Associate Dean of Faculty at Lewis & Clark Law School. She also co-directed the Natural Resources Law Institute. She is past president of the Oregon Water Trust and a former member of the State Board of Forestry. Neuman served on the Western Water Policy Review Advisory Commission, appointed by President Clinton, which in 1998 released recommendations on the future role of the federal government in western water management. She currently serves on the board of The Freshwater Trust.

Neuman works with attorneys in Tonkon Torp’s Water Law Practice Group who handle water rights transactions, water project development, permitting and litigation of water rights disputes for both government entities and private sector clients.

The Bureau of Reclamation today released for public review the draft environmental documents for the Klamath Irrigation District’s hydroelectric project. The project would involve Reclamation issuing a lease to the Klamath Irrigation District to install a hydroelectric power generating facility on the Klamath Project’s C-Canal. This project promotes the development of clean and renewable energy sources for public use.

The Draft Environmental Assessment and Draft Finding of No Significant Impact (Draft EA/FONSI) propose to grant a Lease of Power Privilege (LOPP) to the Klamath Irrigation District (District) for development of the hydroelectric facility. A LOPP is a congressionally authorized alternative to the Federal Energy Regulatory Commission licensing for hydroelectric power development. This LOPP grants the District the right to use, consistent with Klamath Project purposes, water or facilities for non-federal electric power generation and sale by the District.

The hydroelectric plant would consist of an intake structure, forebay, a powerhouse containing generating equipment, and a 150-foot transmission line. The initial anticipated maximum water flow is 550 cubic feet per second (cfs), but a turbine with a 700-cfs hydraulic capacity would be installed to accommodate increased flow in the future.

The Draft EA/FONSI were prepared in accordance with the National Environmental Policy Act and are available for public review and comment. The documents may be viewed online at http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=8141. If you encounter problems accessing the documents, please call 916-978-5100 or e-mail mppublicaffairs@usbr.gov.