Water Line by Herald and News

Herald and News — January 11, 2015

Water Line Kl amath Basin agreements

From conflict to compromise: Now dissolution? Water agreement could come down like a ‘house of cards’

A inside: Culmination of Three agreements Senate Bill 2379: The Klamath Basin Water Recovery and Economic Restoration Act involves three key Basin agreements — the KBRA, KHSA and UKBCA. — Page 2

the future of Klamath’s Dams Without a settlement, four controversial Klamath River dams will likely remain in place, creating financial and legal risk for PacifiCorp and its customers. — Page 3

Last in line: a refuge without water Lower Klamath National Wildlife Refuge was the nation’s first wildlife refuge. During low water years, this key stop on the Pacific Flyway receives no water. — Page 3

opportunity to fix what is broken If three bills that make up the Klamath settlements are not approved by Congress, Klamath Tribes Chairman Don Gentry says it’s ‘an opportunity lost.’ — Page 4

restoring the watershed, fisheries Karuk Tribe Spokesman Craig Tucker says the Klamath agreements can make the biggest watershed restoration effort in U.S. history possible. — Page 4

Neutral position on the KBRA Langell Valley and Horsefly Irrigation District managers say East Side irrigators have little to gain from the Klamath settlements. — Page 5

Economic impact Klamath Basin business owners relate how everyone in the Basin is affected when there is a lack of water for agriculture. — Page 5

What’s next for senate bill 2379? If Senate Bill 2379 doesn’t pass, no other good option for Klamath Basin water stakeholders exists, according to a spokesman for Sen. Ron Wyden. — Page 6

fter years of contentious water conflict, dozens of stakeholders finally sat together and hammered out a complex package of water use compromises. The resulting 2010 Klamath Basin Restoration Agreement and related Klamath Hydroelectric Settlement Agreement, guaranteed water for the Klamath Project and the Klamath Basin National Wildlife Refuge Complex in return for removing four Klamath River dams and restoring fisheries for Basin tribes. Conditions of the two agreements rely heavily on each other — where one party gives, another takes, and vice versa. The benefits stakeholders fought for cannot be hand-picked out of the settlements, nor can a lone party withdraw. It’s all or nothing. Either everyone moves forward together, or the whole thing comes down like a house of cards. The KBRA sun set on Dec. 31. Because Congress did not pass Senate Bill 2379, which encompasses the KBRA, the KHSA, and the Upper Klamath Basin Comprehensive Agreement, in 2014, parties can begin taking steps to terminate the KBRA. If a party believes the bargained-for benefits are no longer achievable and the agreement should terminate, the party must submit a dispute initiation notice within 60 days of Dec. 31 to begin the termination process. According to the KBRA, the agreement can terminate if federal legislation — needed for financial backing and infrastructure support — has not been enacted or the parties do not agree to amend the settlement. If a dispute notice is not given within the 60-day period, and the agreement has not terminated, the expiration date will be extended until Dec. 31, 2015. By LACEY JARRELL: H&N Staff Reporter

Water Line ❙ Klamath Basin Agreements

Sunday, Jan. 11, 2015, Herald and News

Water agreement primer The Klamath Basin Restoration Agreement five-step dispute resolution process:

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Terminating the agreements The KBRA sun set on Dec. 31. Because Congress did not pass Senate Bill 2379, which encompasses the Klamath Basin Restoration Agreement, the Klamath Hydroelectric Settlement Agreement, and the Upper Klamath Basin Comprehensive Agreement, in 2014, parties can begin taking steps to terminate the KBRA. If a party believes the bargained-for benefits are no longer achievable and the agreement should terminate, the party must submit a dispute initiation notice within 60 days of Dec. 31 to begin the termination process.

Submit a dispute initiation notice within 60 days of Dec. 31, 2014. In the notice, the party must describe the matter in the dispute, the identity of any other party alleged to have not performed an obligation, and the specific relief sought.

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Disputing parties must hold at least two informal meetings to resolve the dispute, within 30 days of when the dispute notice was submitted.

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In the absence of resolution, the disputing parties shall refer a dispute to the Klamath Basin Coordinating Council (KBCC), which will attempt to resolve the dispute within 60 days of the referral.

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If the dispute is not resolved in informal meetings or during the KBCC process, the parties will decide whether to use a neutral mediator. The mediation process will be concluded within 60 days after a mediator is selected.

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Disputing parties will provide a notice of the dispute resolution procedure's results, stating whether resolution was achieved, and stating the specific relief agreed to as part of the resolution.

Adjudication: first in time; first in right

he process to rein in water use and establish Klamath Basin landowners’ water rights began in 1957. Since 1909, when the Oregon Water Resources Department established a permit process for capturing or harvesting water, Klamath is one of the last basins in Oregon to be regulated — nearly twothirds of Oregon has water rules. 2013 marked the end of the Basin’s decades-long process. Some say adjudication leads to greater security, predictability and flexibility for water users; others consider it a stranglehold on a valuable resource. The first year of adjudication in the Klamath River Basin saw 590 water rights for 350 users, according to OWRD watermaster Scott White. A priority date is assigned by the date a landowner’s application for a water permit or rights was submitted. Following the water law “first in time; first in right” maxim, the Klamath Tribes were awarded a “time immemorial” right, and the ability to have their water needs met first. Other significant priority dates harken back to 1864 — when much of the Klamath Tribes'

territorial land was seized and tribal members were constrained to a 2 million acre reservation — and to 1905, the year the Bureau of Reclamation was approved to construct the Klamath Project. All three dates — among the most senior in the Basin — can “call” or restrict water from junior water users upstream to meet their needs. Initiating the water rules was the first phase of adjudication. Now the second phase — review of the Final Order of Determination — is underway. More than 180 landowners are contesting the OWRD’s determination, and have filed claims that will be reviewed by Judge Cameron F. Wogan in Klamath County Circuit Court. Trial Court Administrator John Powell said the next step will occur in January, when parties can make requests and recommendations for how court proceedings should move forward. Powell explained that the court will review the exceptions, and ultimately issue a water rights decree affirming or modifying the OWRD Final Order of Determination. Powell declined to wager a guess as to when the decrees will be finalized.

Three agreements make up Senate Bill 2379 — the Klamath Basin Water Recovery and Economic Restoration Act of 2014: ❯❯ The 2010 Klamath Basin Restoration Agreement ❯❯ The 2010 Klamath Hydroelectric Settlement Agreement ❯❯ The 2014 Upper Klamath Basin Comprehensive Agreement

Klamath Basin Restoration Agreement & Klamath Hydroelectric Settlement Agreement ❯❯ Irrigators on the Klamath Reclamation Project are slated to receive 340,000 acre-feet in dry years. More water will be available in wet years. ❯❯ Tule Lake National Wildlife Refuge and Lower Klamath National Wildlife Refuge are slated to receive 48,000 acre-feet in dry years. ❯❯ Remove four Klamath River hydroelectric dams — Iron Gate, J.C. Boyle, Copco 1 and Copco 2 — to give coho salmon, Chinook salmon, steelhead and Pacific lamprey access to an additional 300 miles of habitat. ❯❯ Accommodate large-scale habitat restoration in and along tributaries of Upper Klamath Lake and the Klamath River. ❯❯ Provide counties through which the Klamath River flows financial assistance for economic development and compensation for loss of property tax revenue from dam removal. ❯❯ Establish affordable power options for the agricultural community. The Upper Klamath Basin Comprehensive Agreement ❯❯ Create water certainty for upper Klamath Basin irrigators through formation of community groups and water management entities. ❯❯ Voluntary water right retirement and Klamath Tribes water demand reduction for fisheries will increase instream flows to Upper Klamath Lake by at least 30,000 acre-feet through voluntary water retirement. ❯❯ Establish a riparian restoration program to restore and maintain sustainable fisheries in streams feeding Upper Klamath Lake. ❯❯ Provide a $40 million economic development package for the Klamath Tribes to fund a timber mill and other related economic activities. The package will help the Tribes harvest timber on the 92,000-acre Mazama Forest and grow its economic base.

Agreement could guarantee water for nation’s oldest wildlife refuge By LACEY JARRELL H&N Staff Reporter

n 1908, President Theodore Roosevelt carved out a chunk of land along the OregonCalifornia border and designated it as the nation’s first wildlife Greg Austin refuge dedicated solely to of avian botulism are compreserving waterfowl. For more than a century, the Lower Klamath National Wildlife Refuge has provided forage and habitat for millions of migrating birds. But in recent years, water has become more sporadic and the birds less numerous. Instead, some move on, and thousands of others concentrate in marshes and wetlands at neighboring Tule Lake National Wildlife Refuge, putting them at risk for disease. Outbreaks

mon. According to Greg Austin, acting manager of the Tule Lake NWR and Klamath Refuge Complex, as of Dec. 5, only one-eighth of the 51,000 acre Lower Klamath NWR was flooded wetland. “The last time Lower Klamath received any water off the river or directly off Upper Klamath Lake, was Nov. 1, 2013,” Austin said. “We’re habitat-based. If

we don’t have habitat, we don’t have anything.” Last in line Austin said during low water years, Lower Klamath’s priority date makes it a struggle to get water. “We are last in line,” he said. The Klamath Basin Restoration Agreement could change that. According to Austin, Tule Lake refuge has a 1905 priority date equal to the Klamath Project, which allows water deliveries to refuge lease lands to continue as long as Project irrigators receive water. Austin said Lower Klamath has a federal reserve water right for flooding the wetlands, but those date to 1925 — much more junior. Under the KBRA, Austin said, Tule Lake and Lower Klamath refuges could receive between 48,000 and 60,000 acre-feet of water — possibly a little less in

Here’s what they do

severe drought years, but still substantially more than they receive now. The KBRA also will establish a co-equal water priority with the Klamath Project, and the refuge’s fish and wildlife success will become a purpose of the Project. “We’ll be better off than we’ve been in a long time,” Austin said. Counting birds In November, an aerial survey identified 125,000 ducks and geese on Lower Klamath. Austin said at maximum production, the refuge can support more than three times that — about 500,000 birds. “If we can have an allocation of water, and we know when we are going to get it, we can do a really good job with that,” Austin said. “Without it, we’re last in line unless something changes.” ljarrell@heraldandnews.com; @LMJatHandN

Conservation groups: Water agreements bad for refuges The KBRA and related legislation are bad for Klamath refuges, according to John DeVoe, executive director of WaterWatch of Oregon, because they attempt to lock in 22,000 acres of refuge land for commercial agricultural use. DeVoe said refuge management should focus on maintaining waterfowl and migratory bird habitat and wetlands, not promoting commercial agricultural use on public lands. “The fundamental problem in the Klamath Basin is that too much water has been promised to too many interests. Rather than solve this problem, the KBRA perpetuates the problem by attempting to guarantee too much water to Klamath Project irrigators,” he said. Oregon Wild Conservation Director Steve Pedery said Oregon Wild opposes the KBRA because it doesn’t do enough to guarantee minimum water levels for fish and wildlife in Upper Klamath Lake and salmon in the Klamath River, and it will perpetuate problems for the refuges. Pedery said to alter that position, Oregon Wild would need to see revisions that allow for a reduction or phase out of agriculture on the refuges, and the development of water rights for the refuges with a more meaningful priority date. Pedery said he considers the question “What's the alternative to the settlement?” a “cop-out KBRA backers have used to avoid hard questions about why they have continued to spend time and resources on a proposal that is clearly going nowhere.” — By Lacey Jarrell

❙ Klamath Basin water history ❙ 1882: Farmers begin irrigating in the Klamath Basin.

1917: 175 homesteaders file for 42 tracts of land. Klamath Falls begins to grow rapidly; other towns, including Merrill, Malin and Midland, grow more slowly or lose residents.

May 1905: Secretary of Interior Ethan Hitchcock authorizes $4.4 million to build the Klamath Project. The government immediately allocates $1 million to begin construction.

March 1905: The Klamath Water Users Association is organized.

Klamath Falls 1909

❯ 1882 ❯ 1905 1902: Congress passes Reclamation Act. The U.S. Reclamation Service becomes the Bureau of Reclamation.

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1906 ❯

1904: Reclamation Service Director Fredrick H. Newell visits the Klamath Basin and says the Interior Secretary is likely to approve a federal irrigation project.

1906: Construction on the first Klamath Project irrigation canal begins using horse teams.

1907

A Canal headgates — 1907

❯ 1908 1908: President Theodore Roosevelt establishes the Lower Klamath National Wildlife Refuge, the nation's first waterfowl refuge.

1911 1911: Clear Lake National Wildlife Refuge established. Construction begins on the Lost River Diversion Dam and Lost River Diversion Channel.

Water Line ❙ Klamath Basin Agreements

Sunday, Jan. 11, 2015, Herald and News

Without settlement: Future of dams would be costly By LACEY JARRELL H&N Staff Reporter

Without a settlement, four controversial Klamath River dams will likely remain in place. The financial and legal risk to PacifiCorp, which owns the dams, and its customers, just isn’t worth it, according to PacifiCorp spokesman Bob Gravely. He said the certainty and security provided by the closely connected Klamath Basin Restoration Agreement (KBRA) and Klamath Hydroelectric Settlement Agreement (KHSA) cannot be matched outside a settlement. The agreements provide provisions for removing four Klamath River dams — J.C. Boyle, Iron Gate, Copco 1 and Copco 2 — owned by PacifiCorp, the parent company of Pacific Power. Their removal could open 300 miles of Klamath watershed habitat and re-establish salmon runs into the upper reaches of the Klamath Basin. “We know a free-flowing river is much better for fish passage,” said Bill Tinniswood, assistant fish biologist for the Oregon Department of

Fish and Wildlife. The dams produce 168 megawatts, or only 1.5 percent of the company’s power needs to serve its 1.8 million customers. Gravely said removing the dams without state or federal support could open the corporation and its customers to years of legal battles, of which customers would bear the entire cost. Risk and cost Federal agencies say the dams need updates — specifically fish ladders — to comply with environmental regulations that were not in place when the dams were constructed between 1922 and 1962. Under the settlement, the power provider can remove the dams and replace the power for less cost and risk than it would face in relicensing, according to Gravely. “Under the settlement agreement, the cost to PacifiCorp customers to remove the dams is capped at $200 million, and the state of California has agreed to pick up an additional $250 million,” Gravely said. “The cost and risk to our customers of going it alone outweighs the known costs of relicensing.”

Dams & fish

Customer surcharges to remove Klamath dams at $81.9 million

According to Gravely, the estimated cost to install fish ladders in the four dams is about $300 million. He said PacifiCorp has estimated total costs for relicensing the project could be in excess of $400 million. PacifiCorp began a process to relicense and update the dams, including installing fish ladders, around 2002. Gravely said when the KBRA and KHSA were finalized in 2010, the power provider halted the application process, and it’s been on hold ever since. “If we reached a point where the settlement agreements are disbanded or it just becomes completely clear that it’s not happening, then the relicensing process would automatically restart,” Gravely said. The relicensing process is just about complete. According to Gravely, the last two steps are getting approval from Oregon and California under the Clean Water Act and then getting the state permits. Gravely said he believes the certifications could be obtained; however, he emphasized that a settlement approach to river management is preferable.

As of Oct. 31, a PacifiCorp trust account holding customer surcharges had collected $81.9 million toward removing four Klamath River dams. Under the Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement, PacifiCorp’s cost of removing the dams caps at $200 million. “The PacifiCorp customer share of dam removal costs is capped at $200 million — so nearly halfway there,” said PacifiCorp Spokesman Bob Gravely. According to Gravely, Oregon trusts have about $77.6 million and California trust accounts total $4.3 million. He noted that every customer pays the same rate; the difference is that there are 560,000 customers in Oregon and only about 45,000 in Northern California. Gravely added that Oregon customers began contributing to the trust account in March 2010 and California started in January 2012. He said the difference occurred because it took the California Public Utility Commission longer to establish a fund to keep the balances. Gravely said if the settlements dissolve, the Public Utilities Commission will decide what happens to the funds. The two most likely outcomes are that the money is returned to customers or it is used to cover costs to relicense the dams.

Lost river sucker Deltistes luxatus Status: Endangered Listed in 1988 Freshwater species known to occur in Northern California and Oregon

Coho salmon Oncorhynchus kisutch Status: Threatened Listed in 1997 Anadromous species known to occur in Northern California and Oregon

Upper Klamath Lake

4) Iron Gate Dam ●

Klamath Falls

Keno Dam

Shortnose sucker

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Chasmistes brevirostris Status: Endangered Listed in 1988 Freshwater species known to occur in Northern California and Oregon

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Keno

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Green sturgeon Acipenser medirostris Status: Species of concern Anadromous species known to occur from Central California to Washington

Pacific Ocean

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1) J.C. Boyle Dam

Klamath, Calif.

3) Copco No. 1 dam

Pacific eulachon (smelt)

One dam would remain

Thaleichthys pacificus Status: Threatened Listed in 2011 Anadromous species known to occur from Northern California to the Bering Sea

Keno Dam: The construction of the current Keno Dam was completed in 1967. This structure replaced the prior Keno regulating dam, which was a wood timber dam constructed in 1931 just upstream of the current Keno Dam. The dam regulates Keno Reservoir. It does not produce electricity.

Joint biological opinion first in nation By LACEY JARRELL H&N Staff Reporter

or Klamath Basin tribes who rely on robust salmon runs, the weeks between Sept. 18 and Oct. 1, 2002, were two of the most devastating in recent memory. Thousands of salmon killed by the fatal parasite Ich washed up along a 30-mile stretch of the Klamath River. “It was pretty disturbing,” said Wade Sinnen, a senior environmental scientist for the California Department of Fish and Game who wit-

nessed the massive die-off. Scientists estimate as many as 70,000 adult Chinook salmon died in the 2002 Klamath River fish-kill. It is the largest to ever occur in the West. The fish-kill was caused by a combination of overcrowding in low, stagnant water, and warm temperatures, which allowed the deadly parasite Ich, Ceratomyxa shasta, and other lesser known parasites, to proliferate. According to a U.S. Fish and Wildlife Service mortality report, fall-run Chinook accounted for 97 percent of the dead. Chinook, while not protected by the Endangered Species Act, are a precious source of economy and sus-

tenance to Klamath Basin tribes and other Northern California fisheries. To help the Bureau of Reclamation, which manages much of the Basin’s water, meet the needs of protected Klamath River salmon and suckers in Upper Klamath Lake, a 10-year joint biological opinion was drafted by the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service and the U.S. Fish and Wildlife Service. It was released in 2013. Laurie Sada, U.S. Fish and Wildlife Service Field Supervisor, said the joint biological opinion was the first in the country created to accommodate an entire watershed.

❙ Klamath Basin water history ❙ 1920: Construction begins on the Link River Dam

❯ 1920

Link River Dam — 1938

1921: Construction begins on the Lower Lost River Diversion Dam (Anderson-Rose Dam) and the J Canal to serve the Tulelake area.

❯ 1922

Lost River Diversion Dam construction begins 1911

❯ 1924

1922: Homestead entries are opened to World War I veterans.

1924: Construction begins on the Miller Diversion Dam, Gerber Dam and North Canal in Langell Valley.

2) Copco No. 2 dam

2002: Largest fish kill in the west

AP file photo

Hundreds of salmon rot near the Cleveland Wall of the Klamath River Oct. 1, 2002, near Klamath, Calif. Scientists estimate as many as 70,000 adult Chinook salmon were killed by the parasite Ich.

1926: Horsefly, Langell Valley, Sunnyside, Malin and Shasta irrigation districts are formed about this time. Klamath Falls grows to 10,000. Water is being delivered to about 21,000 acres.

❯ 1928 1928: Tule Lake and Upper Klamath national wildlife refuges are established.

1956: The Federal Energy Regulatory licenses a series of dams on the Klamath River. 1958: The Klamath Forest National Wildlife Refuge is established.

❯ 1940 ❯ 1962

1940: Construction begins on the Tule Lake division with the P and P-1 Canals. Workers begin the Sheepy Ridge tunnel, a 6,600-foot east-west culvert that drains Tule Lake into lower Klamath Lake.

1962: Iron Gate Dam is built on the Klamath River.

Water Line ❙ Klamath Basin Agreements

Sunday, Jan. 11, 2015, Herald and News

‘We will lose the opportunity to right the wrong, so to speak, or to fix what’s been broken.’ — Don Gentry, Chairman of the Klamath Tribes

Chairman: Opportunity to implement solutions would be lost Klamath Tribes By LACEY JARRELL H&N Staff Reporter

lamath Tribes Chairman Don Gentry said three words — “an opportunity lost” — to sum up what the Basin will experience if three bills that make up the Klamath settlements are not approved and funded by Congress.

“We will lose the opportunity to right the wrong, so to speak, or to fix what’s been broken,” Gentry said. Under the agreements, the Tribes agree to reduce calls for certain instream water levels in tributaries of Upper Klamath Lake. In return, landown-

Gentry believes the Klamath settlements are the best opportunity for the Tribes to achieve self-sufficiency and to restore salmon and endangered sucker fisheries. Gentry said for years, tribal members have been denied federally affirmed treaty rights because they can’t harvest fish species that have sustained the Tribes for centuries. He noted that Lost River and shortnose suckers were both listed as endangered in 1988, and salmon can Don Gentry only travel inland as far as ers will reduce the amount Iron Gate Dam in California. of irrigation water they draw Like other stakeholders, from the Sprague, Wood and Gentry prefers a settlement. Sycan rivers. The hard-won Without one, he said, the compromise struck a delicate Tribes will be forced to use the balance among entities that only tool they have to restore have been at odds for decades. Klamath fisheries — using But if the settlements, partheir “time immemorial” water ticularly the Upper Klamath right to make full calls on water. Basin Comprehensive Agreement, are not enacted, funding “We will basically be in a position we don’t want to be to help upper Basin irrigators uphold their end of the bargain in,” Gentry said. could disappear. “I think the community

hoopa Tribe

would lose a lot of the positive relationships we’ve developed,” Gentry said. “We would lose the opportunity to really work together to implement a solution that works for all.” Restoration In addition to assurances of riparian and watershed restoration, the upper Basin settlement pact secures funding to help the Tribes acquire the 92,000-acre Mazama Forest and it endows the Tribes with a $40 million economic package. “The economic package does a lot to achieve our goals,” Gentry said. When the Klamath Tribes were terminated in 1954, they were one of the wealthiest tribes in the nation. Even though the Tribes were restored — notably without a land base or reservation — in 1986, many tribal members still struggle today to find family wage jobs.

“We want to be more economically self-sufficient, and viable as we once were when we had the reservation,” Gentry said. Without the settlement, the Tribes have limited opportunity for growth in one of the most economically depressed counties in the state. Gentry noted that the water certainty and economic stability provided by the agreements benefits the entire community — tribal, agricultural, commercial and industrial businesses. “We’re essentially partners trying to move forward with the agreements and supporting legislation. If that goes away, we’ll basically be in court again,” he said. Battling it out in the courts may take another 10 to 20 years: The opportunity will be lost and the whole Basin will continue suffering, Gentry said.

karuk Tribe

A chance to shape their own future By LACEY JARRELL: H&N Staff Reporter

Danielle Vigil-Masten

Creating a dialogue outside of agreements By LACEY JARRELL H&N Staff Reporter

The Hoopa Tribe of California remains opposed to the KBRA, and is voicing opposition to Senate Bill 2379. Hoopa Chairwoman Danielle VigilMasten said the tribe’s opposition is largely a result of feeling snubbed at the negotiation table. She said the tribe was involved in early settlement talks, but it did not help craft legislation. “As it started to get sculpted into a bill, we weren’t able to participate, and it felt like they shut our rights off,” Vigil-Masten said. “If they were more receptive to making sure the Hoopa’s rights weren’t going to be jeopardized in any way, we probably would have been in support.” Vigil-Masten said although the Hoopa reservation only touches a small part of the Klamath River, the 3,200-member tribe has a vested interest in Klamath salmon. The fish must first forge up the Klamath before entering the Trinity River and the Hoopa reservation, where salmon are valued for cultural and economic security. “If we have no say in the Klamath River, then that means we would have no say in any fish at all, period,” Vigil-Masten said. She pointed out that the Hoopa have a treaty right to Trinity River fish and water. The Hoopa reservation, one of California’s largest reservations, straddles 12 miles of the Trinity River. Vigil-Masten said every year they face the possibility of a fish kill, but the tribe’s position isn’t only about salmon. “What people forget is that our drinking water comes out of the Trinity River,” she said. Vigil-Masten said she would like to work with other stakeholders to figure out how to ensure the Hoopa’s sovereignty is protected and the tribe has water in its tributaries in the summer months. “I would like to be able to have the tribes and the parties be able to dialogue in this new year,” she said. Editor’s note: The Yurok Tribe, which has in the past voiced support of the Klamath settlement agreements, declined to comment for this H&N special report.

aruk Tribe member Leaf Hillman said since the Karuk were first contacted by European settlers around 1850, members have had little to no control over what happened to their way of life.

To Hillman, director of natural resources and environmental policy for the Karuk, the Klamath settlements represent the first time in nearly two centuries that tribal members have had a chance to carve out a future for themselves. He said now that they have a voice, the federal government needs to listen. “What we’re trying to do is probably the biggest watershed restoration effort in U.S. history,” said Karuk spokesman Craig Tucker. Much of what the tribe bid for — including removing four Klamath River dams — at the KBRA and KHSA negotiation table, relates to restoring Klamath River salmon fisheries. Food, traditions According to Karuk tribal council member Josh Saxon, being denied access to traditional food only compounds challenges members already face in having access to healthy food and preserving traditions — like dip net fishing at Ishi Pishi Falls — and passing those on to new generations. “It causes stress among the native community when there’s not enough. You have less people gathering, which means less food distributed throughout the community,” Saxon said. “Our access to good, healthy food is in the river and in the forest — and through bad management practices and legacy dams, we’re dealing with a scar-

Leaf Hillman

city issue.” Tucker added that healthy salmon runs aren’t just about having fish to sell, or having fish to eat. It’s about the practice of going to the falls, catching, cleaning and dressing the fish, then distributing them to elders in the community. “All of those activities are an opportunity to share cultural values with the next generation,” Tucker said. Tucker noted that restoring the watershed will improve habitat for other culturally important species, like the Pacific salamander, green sturgeon, lamprey and freshwater mussels, as well. Diminishing returns According to Saxon, fall chinook runs in the Salmon River, a 20-mile-long tributary of the Klamath River in Siskiyou County, have shrunk to about 1,000 fish per year. Spring runs, which rest in cool pools often found in the river’s upper reaches, are even smaller. “They are holding on for dear life,” Saxon said. “There aren’t that many

❙ Klamath Basin water history ❙ 1973: The Endangered Species Act is passed.

1988: The Lost River and shortnose suckers are declared endangered species on July 18.

1975: Oregon begins to adjudicate Klamath River water rights.

1964

❯ 1975

1964: Passage of the Kuchel Act ends homesteading and dedicates the remaining Project acres to “the major purpose of waterfowl management, but with full consideration to optimum agricultural use that is consistent therewith.” The law enrolls 17,000 acres on Tule Lake refuge and 5,000 acres on Lower Klamath refuge in a lease program for farming.

1978 ❯ 1988 1978: The bald eagle is declared a threatened species on Feb. 14. Bear Valley National Wildlife Refuge established to protect bald eagle roost sites.

File photo courtesy of the Karuk Tribe

Prestigious position: Karuk tribal member Ron Reed sweeps a dip net through the water at Ishi Pishi Falls near Orleans, Calif. Karuk Indians use dip nets to harvest salmon that can weigh up to 60 pounds.

Something to aspire to: Fishing Ishi Pishi Falls for the tribe Being a Karuk fisherman is prestigious position. According to Karuk Tribe spokesman Craig Tucker, only certain families have rights to be the harvester of fish at Ishi Pishi Falls on the Klamath River. Those families also have a responsibility to distribute the fish throughout the community. Children who grow up in those families have to work their way up to those positions. “It’s something that kids aspire to,” Tucker said.

accessible cold places below the dams for these fish to spend their summers. The only way that spring fish are going to come back in any kind of significant, harvestable numbers, is if every single dam comes down.” Tucker said even if the settlements fail, the Karuk Tribe is still going “to bring wood to the fire to remove these dams.” Many stakeholders believe U.S. Rep. Greg Walden, R-Ore., is the key to Senate Bill 2379 gaining

support in the House and Senate. Walden has been resistant to supporting the legislation because of the dam removal component. “From where we sit, it looks like Walden just threw his constituents under the bus,” Tucker said. “When you have 90 percent of the stakeholders on the same page, and a Congressman who’s not willing to see that — that to me, is disturbing,” Saxon said. “It’s mind blowing.”

1995: Reclamation begins operating according to an annual plan. Klamath Province steelhead trout are proposed for ESA protection.

❯ 1995

1990s: From 1989 to 2001, a series of biological opinions repeatedly find the Project jeopardizes suckers.

Upper Klamath Lake

❯ 1996 1995-1997: Large numbers of suckers die in a series of fish kills.

1996: Reclamation agrees to meet minimum instream flows below Iron Gate Dam to protect habitat for anadromous fish.

Water Line ❙ Klamath Basin Agreements

Sunday, Jan. 11, 2015, Herald and News

From opposition to neutrality on water agreements meet the refuge allocation,” the districts changed their position from opposing the KBRA to being neutral on By LACEY JARRELL the subject. H&N Staff Reporter “In this 400-page document, that was a major stickast Side irrigators ler for us,” Hammerich said. “We wanted it in black-andhave little to gain white writing, period.” from the Klamath Hammerich said although settlements, district LVID and Horsefly Irrigamanagers said. tion District are part of the Klamath Project, the block of Until 2011, the Langell water the KBRA guarantees Valley Irrigation District in drought years doesn’t ben(LVID) and Horsefly Irrigaefit the East Side. He believes tion District, known colachieving more affordable lectively as the “East Side,” power through the KBRA openly opposed the Klamath is unlikely, and somewhat Basin Restoration Agreeunnecessary. ment. The districts were con “We’re still lower than the cerned about language definnational average,” Hammerich ing where the 48,000-plus said. “The power is not breakacre-feet the KBRA promises ing anybody, in my opinion.” to the Klamath refuge com Hammerich said very few plex would come from each East Side irrigators are proyear. KBRA. “We vehemently protect LVID rancher Jason Nash H&N photo by Lacey Jarrell our water out here, and said he doesn’t believe interthat’s just the way it is,” said KBRA on the East Side: Despite much of the Klamath Project receiving deliveries throughout the ests of all stakeholders were LVID Manager Frank Ham- 2014 season, East Side irrigators got little to no water. The reservoirs that supply the East Side represented at the negotiation were nearly empty, and the Lost River (pictured above), which runs through Bonanza, dried up. merich. table. According to Hammerich, Harpold Dam making up the and News that read: “All we “The KBRA doesn’t fairly More than 200 families the agreement didn’t say take into account the history have sought is a written assurwater shortage,” Hammerich irrigate about 30,000 acres the water would come from of the Project and the true ance that the water we do use said. in the two districts, the ad the East Side districts, but users,” Nash said. from Clear Lake and Gerber said. Written assurance it didn’t explicitly say it reservoirs would not be taken Hammerich said he does wouldn’t, either. After KBRA negotiators In November of that year, in times of shortage to serve not believe the KBRA will took notice and rewrote the the districts took action. “We had some concerns other project purposes that gain anything for East Side agreement, stating “no call about Clear Lake, Lost River Together they purchased a ordinarily depend on water irrigators, and even if it did, from Upper Klamath Lake.” will be made for water … to and Gerber water above half-page ad in the Herald the gains would be limited.

east side irrigators

By LACEY JARRELL H&N Staff Reporter

More than $70,000 has already been put into an upper Basin water retirement and riparian improvement program. Together, the Northwest Fish and Wildlife Foundation and the Oregon Water Enhancement Board have provided $72,000 toward developing two nonprofits that are a product of the pact between the Klamath Tribes and upper Basin irrigators: the Upper Klamath Basin Comprehensive Agreement (UKBCA). Rancher Randall Kizer is chairman of the two groups — the Upper Klamath Landowners Corporation and the Upper Klamath Landowners Improvement District — that make up the “Landowner Entity” assigned a host of duties for moving forward watershed improvements under the UKBCA. Funding for groups Kizer said funding from these groups will be provided through the end of March; after April 1, only money from the Northwest Fish and Wildlife Foundation will be available. Much of the funding is going toward administration and legal fees, he added. According to the pact, upper Basin landowners must retire 30,000 acrefeet of water within five years, and enroll several miles of riverbank into a riparian restoration program. The retired water will provide increased

flows in upper Basin tributaries. If the two programs’ conditions are met, the Klamath Tribes agree to provide water to irrigators at levels based on instream flows specified in the agreement. Landowners were required to retire at least 5,000 acre-feet of water in 2014. “For the first year, I think it went incredibly well,” said Dani Watson, owner of Ranch and Range Consulting. She noted that landowners exceeded all the benchmarks for 2014. According to Kizer, about 6,900 acre-feet has been retired. He said at least 33 landowner entities have signed up for the program. “It’s at least a third of all the irrigated acres in the upper Basin,” Kizer said. And, nearly 70 percent of the required stream mileage has been committed, he said. Meeting benchmarks Watson said landowners have five years to meet the program’s final benchmarks. It’s going to take a lot of funding to get all the benchmarks passed. As of now, funding to complete the programs is limited. Kizer said he doesn’t know what will happen if Senate Bill 2379 doesn’t gain congressional support. “That’s a really, really, good question. We’ll cross that bridge when we get there,” Kizer said.

landowner entity

The landowner entity represents interests from six upper Basin regions: Upper Sprague, Lower Sprague, Sycan, Middle Williamson, Lower Williamson and Wood Valley.

❙ Klamath Basin water history ❙ June 1997: Coho salmon are listed as a threatened species.

2002: 70,000 salmon are found dead in a massive die-off in the Klamath River.

By SAMANTHA TIPLER

❯

1996: An Interior Department solicitor publishes a legal opinion that water for Native American tribal trust obligations and endangered species takes precedence over deliveries of water to farmers and refuges.

KWAPA

H&N Staff Reporter

Whether or not the Klamath water agreements make it through Congress, Klamath Water and Power Agency Executive Director Hollie Cannon is not sure where the programs for land idling and groundwater pumping his agency administers will end up. He’s not sure how the OnProject Plan, a water management tool KWAPA has been tasked with facilitating under the Klamath Basin Restoration Agreement, will proceed. “The only thing that I’m sure of is that the need remains,” he said. “The need for a solution remains.” KWAPA is a joint powers/ inter-governmental agency that provides programs to align water supply and demand within the Klamath Project. Its members are agencies within the project. The On-Project Plan will move irrigators away from inconsistent water allocations by establishing a volume that will be available each year. The volume will be based on water availability, conservation strategies, and demand management, although under the plan, land idling is considered a last resort. Since 2009, KWAPA has provided a major program in helping level out water usage in the Basin: the Water User Mitiga-

HOLLIE CANNON

tion Program, better known as WUMP. WUMP was meant to be the bridge to the On-Project Plan until the agreements were approved. That hasn’t happened yet. Freeing up water In years of low water supply, such as 2010, 2012, 2013 and 2014, WUMP programs allowed some irrigators to idle their land — or forgo using irrigation water — for a fee. That freed up more water for other users. “We were able to pay those who were willing not to irrigate so those who needed to irrigate had a more complete water supply,” Cannon said. Another program KWAPA championed was the groundwater program. As part of the WUMP program, KWAPA paid irrigators to pump groundwater instead of using surface water. “Groundwater pumping was more controlled,” he said. The effect of groundwater

pumping was spread throughout the Basin. Without the program Cannon estimated the same amount of water would have been pumped, but there would have been drastic groundwater impacts in some areas. KWAPA also helped domestic wells. If a domestic well was running dry because of agricultural pumping, KWAPA provided funding opportunities for those domestic wells to drill deeper. What comes next? Cannon said the WUMP program is extended through 2015. “The WUMP program has one year left,” he said. “The need does not go away. We don’t know what replaces WUMP at this point.” If the KBRA had been approved by 2014 as originally planned, WUMP’s extension through 2015 would have been just right. Without approval, Cannon is unsure of what happens next. He said the Bureau of Reclamation is working on what could come after WUMP, but Cannon didn’t know what that is. If the agreements were approved, KWAPA is ready for the next step. “We’re ready to implement the On-Project Plan,” Cannon said. stipler@heraldandnews.com; @TiplerHN

Water loss would devastate businesses economic impact By LACEY JARRELL H&N Staff Reporter

Bob Gasser, co-owner of Basin Fertilizer, said during the water shutoffs of 2001, Basin Fertilizer lost 75 percent of its business. He expects the same to happen if Basin farmers have water losses similar to what they experienced that year.

2008: A draft of the Klamath Basin Restoration Agreement is released.

2006: A 50-year energy contract expires and power rates increase.

Coho salmon Oncorhynchus kisutch

❯ 1997

Program prepares for agreements

2001 ❯ 2006 ❯ 2008

“It would be devastating,” Gasser said. Gasser said it took about 10 years for Basin Fertilizer to reestablish the losses of 2001. Charlie Halvorsen, co-owner of Bob Halvorsen’s Rentals & Sales, said everyone in the Basin — farmers, business owners and homeowners — is affected when there’s a lack of water. He said whether it’s drought or water shutoffs, concerns that the water might not 2010: The Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement are finalized.

KBRA KHSA

2001: The Klamath Bucket Brigade draws 15,000 people along Main Street in downtown Klamath Falls after irrigation deliveries from Upper Klamath Lake are shut off.

❯ 2010

come back, and that the Basin will lose more living-wage jobs, always exist. Gasser said if another situation similar to 2001 arose, he would let several members of the 42-person crew go or cut the business back in other ways. “It’s critical we get some kind of agreement moving forward,” Gasser said. “It’s critical to the survival of ag in the Basin.”

June 2013: State water adjudication is implemented. The first water shutoffs under the new water law occur.

❯ 2013

June 2013: The National Marine Fisheries Service and the U.S. Fish and Wildlife Service release a 10-year biological opinion. The opinion is the first to jointly outline guidelines for protecting threatened California coho salmon and endangered suckers in Oregon.

biological opinion

Spending on water retirement and riparian improvements

Water Line ❙ Klamath Basin Agreements

Sunday, Jan. 11, 2015, Herald and News

Making legislation possible: Klamath Basin Task Force By LACEY JARRELL H&N Staff Reporter

The Klamath Basin Task Force provided the last support stakeholders needed to solidify recommendations for one comprehensive piece of legislation for creating water certainty. Upper Basin Rancher Roger Nicholson said without the task force, it’s not likely a “fair and equitable” settlement would have ever been reached. It started in July 2013, when Sen. Ron Wyden, D-Ore., sent stakeholders back to the drawing board. He said the

existing KBRA and KHSA were too expensive, and a large portion of Basin stakeholders — mostly in the upper Basin — weren’t included in the agreements, which were finalized in 2010. Wyden appointed nearly 30 members to a Klamath Basin Task Force and asked them for concrete results he could take to lawmakers in 10 weeks. Richard Whitman, Wyden’s natural resources policy adviser, led the stakeholders, who represented tribal, agricultural, environmental, and state and federal interests.

“It was pretty amazing to have all the parties on board,” said Klamath Tribes Chairman Don Gentry. A two-week federal government shutdown in October that year slowed the process. The task force met for months, hammering out the details of Wyden’s vision. In January 2014, stakeholders announced they had the potential to reach resolution: The settlement’s initial $800 million price tag had been whittled down to $250 million, and the Klamath Tribes and upper Basin irrigators had reached a tentative

pact, later named the Upper Klamath Basin Comprehensive Agreement. “It was very significant. It was a lot of work and a lot of hours folks put in to get to that point,” Gentry said. Tribal members voted in favor of the pact, 564 to 419, and the Upper Klamath Basin Comprehensive Agreement was signed by state and federal officials, irrigators and the Klamath Tribes in April. Nicholson said now it’s up to lawmakers to place the final piece of the puzzle: pass the bill through Congress.

Focus areas for the Klamath Basin Task Force The Klamath Basin Task Force focused on three key issues:

➊

Finding affordable power for the agriculture community;

➋

Lowering federal costs for the KBRA and KHSA;

➌

Developing a water management plan for the upper Klamath Basin.

Q&A on Senate bill 2379 — lawmakers and klamath county commissioners Editor’s note: After Sen. Jeff Merkley, D-Ore., sponsored a bill in 2011 to resolve the Basin’s contentious water conflicts, other lawmakers said that wasn’t enough. Sen. Ron Wyden, D-Ore., and Merkley tasked stakeholders with reworking the pact to satisfy the needs of

Editor’s note: Klamath County commissioners were asked their opinions on the water agree-

even more stakeholders. Several of the Basin’s water users feel they’ve upheld their end of the agreement — now they are wondering what lawmakers will do to uphold theirs. The H&N asked three of the state’s top lawmakers what they plan to do. Here’s what we found out:

There’s parts of the agreements I think are OK. There’s a lot of things I don’t like about the agreement, but that’s personal feeling. … I don’t like dam removal. If you do not support the settlements, what is your alternative? My alternative is to go back to the negotiating table with something that actually will pass Congress. What’s going to pass? Get everybody on board with it in Washington, D.C., and say, ‘What will you accept?’ … We’re working it in the wrong direction throwing something at Washington, D.C., and asking, ‘What will pass?’ If you can’t make it

through Washington, D.C., ... then make something local. Keep the federal government out of it if they don’t want to play. Will you take action on that alternative? Whose job is it to take action? The irrigators and the Tribes and the ranchers, they have been involved. But they need to be involved, they have to take the action. They need to decide, is this going to go ahead or not. My personal opinion, they’ve seen it’s a no. They need to decide whether they want to get back together and do an agreement that will work. I would help any way I could. But we’re kind of on the sidelines.

I’ve always said there are good parts and pieces of the KBRA and Upper Klamath Basin Comprehensive Agreement. But the numbers don’t fit what’s really needed. If you do not support the settlements, what is your alternative? Off-stream storage needs to be a part of this to have a real viable solution for long-term water. Tom Mallams Zeroing out the debt in the Project and having irrigation What is your opinion on districts take over ownership the water agreements of the Project, that is what I and SB 2379? would consider a very defiThey did not pass and nite direction it should go. they did not pass by There needs to be ESA quite a defining no. … The (Environmental Species way it’s formulated now it’s Act) and biological opinion never going to pass. I am protections. The agreements, hopeful they don’t try to rein- as they are now, have no troduce it. … To gain necesprotections from the ESA. … sary Basin-wide support, And affordable power. There 2379 needs to accept defeat. needs to be affordable power And those who support it. It’s in these agreements. not going to go forward, and Will you take action on a new direction needs to go that alternative? Whose forward.

job is it to take action? We’re hoping they will be added into there. We’re already working on some of them already. We’ve been adamant with our federal legislators that the federal government needs to step out of the Project. We’re accepting applications for a Klamath Basin Water Advisory Committee. … One of the first tasks is going to be looking into offstream storage. There’s a ton of possibilities for off-stream storage in the Klamath Basin. Some of them are big, some are small. We’re in the process of looking into those so we can get some groundwork done when things go forward, it will already take place. Dredging the lake — it doesn’t create any more water — but it would reduce the amount of phosphorous in the water and make Klamath Lake colder.

are not perfect ... I think we need something to move forward. There has been no viable alternative. I think we need to support our friends in ag, and they have indicated to me this is the best way to do it.

ing an effort to tear down all the hard work being done by people who are genuinely trying to find a solution to this very complicated issue. Whose job is it to take action? I think it’s the responsibility of the affected stakeholders: the water users, the Tribes, those with environmental concerns. Those are the folks I think have been, in good faith, working really hard on these issues. As county leaders, we need to support those who are working toward a solution. I think it’s really a challenge when solutions depend on action from federal government.

open to good-faith negotiations in 2015, but he remains optimistic that reason will prevail when there’s such broad local support for a solution.

Sen. Ron Wyden

Responses from Hank Stern, on behalf of Sen. Ron Wyden, D-Ore.

How likely is it that SB 2379 will gain the support it needs to move forward? Several years of hard work by members of the Klamath Tribes, Basin water users and Interior officials led to Sen. Wyden’s historic legislation in the recently concluded (2014) Congress. Because Sen. Wyden knows the region’s longtime water disputes have been so unproductive for so long, he worked in good faith to explore every one of several options for that agreement to move forward, but was blocked at every turn by opponents playing “stall ball.” He cannot predict whether opposition in Washington, D.C., will be more

Sen. Jeff Merkley

How likely is it that SB 2379 will gain the support it needs to move forward? The prospects for the Klamath Basin Act in the Senate seem strong. The bill has gained momentum due to the outpouring of support from community leaders in the Klamath Basin. It is my hope that the growing local support will generate as much support in the U.S. House of Representatives as it has already garnered in the U.S. Senate.

What are you willing to do to move SB 2379 to the president’s desk? I will work closely with U.S. Rep. Greg Walden, Sen. Ron Wyden and Sen. Lisa Murkowski to find the best legislative path forward. Based on the Senate Energy and Natural Resources Committee’s bipartisan support in the last

What are you willing to do to move SB 2379 to the president’s desk? It’s premature to forecast how this agreement gets through the House and Senate to the president’s desk. What Sen. Wyden does know is that he will pull out all the stops to get this long-overdue agreement in place. There’s simply no excuse for inaction when the needs are so great in the Klamath Basin.

If the bill doesn’t pass, what other options exist for the Basin’s water stakeholders?

is no other good A There option. The alternative is

the status quo, which everybody knows from hard-earned experience is unacceptable. When stakeholders have already invested years of sweat equity in reaching a compromise that can be broadly accepted, it makes no sense to start over in a misguided attempt to reinvent the wheel. Congress, my hope is that it will move quickly. I have briefed the Democratic leadership in the Senate, and they are ready to assist in moving a bill forward. I am committed to continuing work with my colleagues across the aisle and in both chambers of Congress to secure passage of this essential legislation.

If the bill doesn’t pass, what other options exist for the Basin’s water stakeholders? Legislation is essential for implementing each of the agreement’s major elements. If Congress fails to pass such legislation, odds are high that the region will experience uncertainty and conflicts over access to water. Uncertainty of future access to water could be economically damaging. How many farmers and ranchers will make major investments facing such uncertainty? In addition, relicensing or retiring the Klamath dams owned by the power utility may become a litigious, controversial and expensive battle. Such outcomes would be worse for the Klamath Tribes, farmers, ranchers, fish and the power utility. This is why we should do all we can to secure the legislation to implement the Klamath settlement agreements early in the next Congress.

Editor’s note: U.S. Rep. Greg Walden, R-Ore., declined to comment.

❯ 2013

Wyden

July 2013: Sen. Ron Wyden appoints Klamath Basin Task Force to refine conditions of KBRA and KHSA, and to create a settlement package for upper Basin stakeholders.

Feinstein

Merkley

❯ May 2014

Jim Bellet

What is your opinion on the water agreements and SB 2379? It went pretty much exactly like I thought it would. I thought 2379 would not make it out of the Senate. And it didn’t even get a vote on the floor of the Senate, let alone go to the House.

Q Kelley Minty Morris

What is your opinion on the water agreements and SB 2379? I think recently seeing … all these groups saying they support these agreements is really big. While these agreements

❙ Klamath Basin water history ❙ April 2014: Upper Klamath Basin Comprehensive Agreement between the Klamath Tribes and irrigators is signed.

ments, SB 2379 and actions that should be taken. Here’s what we found out:

Boxer

June 2014: Testimony supporting SB 2379 is heard in a Senate Energy and Natural Resources subcommittee hearing.

Will you take action on that?

will be there to open A Imindedly listen to

people with differing opinions on these agreements. I will do the best I can to support what’s going to be best for the community as a whole. I respect my fellow commissioners and their positions, but I will not be mak-

Nov. 2014: The Klamath County commissioners vote to send a letter to lawmakers opposing SB 2379. The Klamath County Chamber of Commerce sends a letter in favor of the bill.

❯ June 2014

May 2014: KBRA, KHSA and UKBCA are rolled into one bill — the Klamath Water Recovery and Economic Restoration Act, Senate Bill 2379. Oregon Sens. Ron Wyden and Jeff Merkley and California Sens. Dianne Feinstein and Barbara Boxer, all Democrats, introduce the proposed law in the Senate.

Nov. 2014: SB 2379 gains bipartisan support and passes through the Senate Energy and Natural Resources Committee, 17-5.

Jan. 8, 2015: SB 2379 was introduced in the new Congress as SB 133.

❯ Nov. 2014 ❯ 2015 Dec. 2014: Oregon Cattlemen’s Association supports SB 2379. Klamath Falls City Council sends a letter to lawmakers in favor of the bill. SB 2379 stalls in the final 2014 congressional session.

Senate Bill 2379: Klamath Water Recovery and Economic Restor ation Act