After 38 years of examining claims, Oregon has issued an order stating that the Klamath tribes hold an enforceable senior right to the water in Klamath Lake and several of its tributaries.
It’s a decision that gives the Klamath Tribes and other senior claim holders the power to limit irrigation deliveries in the high desert basin in years when there is too little water to meet everyone’s need.
Attorney Bill Ganong has been working on the Klamath water adjudication since he graduated from law school in 1978. He says the adjudication could mean changes in water deliveries this spring.
“Our snowpack is well below normal and if that doesn’t improve, I expect there are going to be a number of people, especially upstream of Klamath lake, that are going to be shut off at some point,” he says.
Jeff Mitchell, a chairman of the Klamath Tribes and a lead water negotiator, says the tribes remain committed to a 2010 settlement, the Klamath Basin Restoration Agreement. It lays out a plan for sharing water in dry years, restoring fish habitat, and removing dams.
“Adjudication doesn’t really solve the basin’s problems. It creates some winners and losers, but if we want long term stability and predictability in the basin, an agreement like KBRA really needs to move forward,” he said.
But Mitchell did not rule out the possibility that the tribes might use their senior right at some point. The tribes want more water to remain in Klamath Lake to protect endangered C’waam, or suckerfish, which were once a staple food.
“We have a fishery that’s on the brink of extinction and we need to protect those interests,” he said.
In Oregon, like most Western states, the person with the oldest right gets first dibs on water for irrigation and other uses.
At least in theory. Attorney Bill Ganog says in practice,
“What has happened in the past in the basin is that person who first gets the straw in the river at the top of the river gets all their water. And then the next straw down the river gets whatever is left, till you get to the end of the river.”
The problem, in part, was establishing who had a senior right when many claims, in particular those of tribes, predated Oregon’s Water Code of 1909 and the documentation system it established.
On Thursday, the state concluded that 522 water users in the Klamath Basin held valid, or partially valid claims.
Ganong represents the Klamath Irrigation District, a group of farmers who are part of the federal Klamath Basin Irrigation Project. He says his clients also emerged in a strong position; the project’s water right was dated back to 1873.
However, the adjudication process is far from over. The Oregon Water Resources Department’s decisions can now be challenged in court, and the appeals process will likely continue for decades.
Similar water rights adjudications are taking place for the Yakima River in Washington and the Snake River in Idaho, and the Oregon Water Resources Department has yet to determine who holds senior water rights on the Willamette River and in many other basins west of the Cascades.