Transcript 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.

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.
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).
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
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).
Klamath River
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).
You can insert images throughout poster
Trinity 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.
Fig 1. Diagram describing Prior Appropriation. Oregon Water Resources Department
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.
Fig 2. Table
breaking
down the
current state
of the
adjudication
process.
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.
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.
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).
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.
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