INTRODUCTION

1. Too Many Hands In the Cookie Jar: Law, Politics, and the Flow of Water in the Klamath Basin Prepared by: Aaron Crockett INTRODUCTION The purpose of this poster is to provide a legal and political backdrop to the hydrogeological environment of the Upper Klamath Basin. National attention was drawn to this area in 2001 when a severe drought lead to the Klamath Reclamation Project cutting water to a large number of its clients, effectively putting them out of business. The problem was not a shortage of water; that was only a trigger. This poster briefly illustrates a few of the legal and political factors that lead to institutional collapse in the Basin and put this area on the national map. California and the Trinity River The major tributary to the Klamath River is the Trinity, which unlike the Klamath, lies entirely within California. The Trinity River is part of the massive Central Valley Project which provides irrigation water to the Sacramento Valley. Neither Oregon law nor The Klamath Project have any control over the flow of the Trinity. Any water taken by the Central Valley Project can only be compensated for by the Klamath Project. The water California takes represents a major variable in flows at the end of the Klamath River, and thus the whole basin (Braunworth, et al, 2003). Figure 3. Map depicting the entire Klamath Basin. Note the size of the Trinity River. This is the river that the Central Valley project diverts for agriculture in the Sacramento Valley. US Bureau of Reclamation Oregon Water Law: Prior Appropriation Oregon, like most western states, bases its water allocation law on the principle of prior appropriation. This is essentially a first come, first served principle in which the oldest claim to water has priority over any newer claim (OWRD). Crisis of 2001: Unbalanced Response 2001 saw a record drought. Water flow throughout the basin was very low. Salmon in the lower basin, and sucker in the upper, were at risk. Both needed a minimum water level to survive. To meet minimums, something had to give up water. The Klamath Project and its client farmers, which caused only a small fraction of the shortfall, were forced to provide 100% of the solution. Farmers in the Klamath Basin went without and the local economy effectively collapsed (Braunworth, et al, 2003). Klamath River Political Fallout The ESA is not universally popular. A small but powerful lobby in national politics has been trying for years to roll back, or eliminate entirely, the protections it provides. The crisis provided a perfect opportunity to paint the ESA as too costly. It also made for a resonant, if simplistic and inaccurate, narrative: a federal agency hurting local farmers to save a few fish. The Bush administration, seeing a political opportunity, came to the rescue and declared that farmers will henceforth have priority. The subsequent fish-kill has had repercussions, with commercial fishermen on the coast now struggling with restrictions on the salmon harvest due to low numbers. You can insert images throughout poster Trinity River Fig 1. Diagram describing Prior Appropriation. Oregon Water Resources Department The Klamath Reclamation Project The Klamath Reclamation Project, run by the Bureau of Reclamation, is the primary water control agency in the Upper Basin. Its purpose is drain and irrigate 225,000 acres for agriculture. Without it, commercial agriculture in the basin would be impossible. Adjudication Prior Appropriation was established as law in 1909. Any water claim predating that date must be prioritized and quantified in a process called adjudication. Adjudication in the Upper Klamath Basin began in the 1970s, but it wasn't until the 1990s that the federal government, by far the largest potential claimant, was compelled by court order to participate in the state-level proceedings (Marbut, in Braunworth, et al, 2003). The adjudication process is still ongoing. The ambiguity this leaves, with major claims waiting to be quantified, leaves two major claimants in opposition: the federal Klamath Reclamation Project and the Klamath Tribe. Conclusion: Root Causes and National Implications The crisis of 2001 was not caused by the Endangered Species Act, nor was it caused by the drought. These merely triggered the crisis. The fundamentally unstable institutional relationships in the basin, and the rigid solutions produced by judicial intervention, are the real culprits. Since the crisis of 2001, new ideas like water banks have been explored, but can still only be considered short-term solutions (USGS, 2005). It will take a commitment to real fundamental change from the local level to the federal, to produce a lasting solution to the Klamath dilemma. The implications of the ultimate outcome, whatever it may be, for Tribal power, the ESA, and the role of federal agencies at the state and local level, will be felt nation-wide. • Power vs. Authority • The Upper Klamath Basin is characterized by conflict. For the last 30 years, since the beginning of the adjudication process, conflicts over water have been dealt with through the courts instead of mediation and cooperation. This leads to winner/loser outcomes that perpetuate rather than resolve conflicts. One of the fundamental conflicts in the period leading up to 2001 was one between power and authority in the sociological sense. • Power: the ability of a faction or group to make and impose decisions upon the wider polity. In this situation, the power lies with the joined legal force of the Klamath Tribe and the ESA. This block’s priorities define appropriate water levels. (Woodward and Romm, in Braunworth, et al, 2003) • Authority: the capacity to actually implement decisions. The Klamath Project sits on the spigot, so to speak, and has the sole ability in the upper basin to actually modulate flow. Fig 2. Table breaking down the current state of the adjudication process. Oregon Water Resources Department The Klamath Tribe and the ESA The oldest water claim in the basin belongs the Klamath Tribe. The tribe's claim dates to the original treaty in 1864 and promises enough water in Upper Klamath Lake to maintain traditional lifeways, such as the harvest of the culturally significant, and endangered, Lost River Sucker. The date of the claim means that it supersedes all subsequent claims under state law, including other federal claims. The claim is undermined, however, by the fact that the ongoing adjudication process has yet to put concrete numbers on just how much water this is. This is where the Endangered Species Act comes into play. The ESA is a very clear, thoroughly tested federal law protecting endangered species like the Lost River Sucker. The ESA effectively backs the Klamath Tribe's interests at both the state and federal level, and vice versa (Woodward and Romm, in Braunworth, et al, 2003). References Cited Braunworth, et al, 2003. Water Allocation in the Klamath Reclamation Project: An Assessment of Natural Resource, Economic, Social, and Institutional Issues with a Focus on the Upper Klamath Basin. Special Report 1037, Oregon State University Extension Service. USGS, 2005. Assessment of the Klamath Project Pilot Water Bank: A Review from a Hydrologic Perspective. USGS, Oregon Water Science Center. ORWD. Oregon Water Law: Internet Web Resource, URL: http://www.wrd.state.or.us/OWRD/PUBS/aquabook_laws.shtml