1. Is it true that the Grimes property is being flooded by water backed up from other diverters? If so is this the primary method of irrigation for the past several years? If the property has had water on it has it been excluded from the KBRT project?

   The Grimes property is not being flooded by other irrigators. If flooding does occur inadvertently, that portion of the property which is flooded will be excluded from the KBRT contract.

2. Could the scientific review committee be provided with a copy of the contract KBRT has with landowners, to show among other things the stocking rate and the restoration covered under the contracts?

   Stocking rates on properties participating in KBRT must be reduced by 80% as is specified in KBRT’s contract with the Bureau of Reclamation. In addition, restoration on the participating properties is performed at the discretion of KBRT in consultation with the landowner. The types of restoration activities to be performed by KBRT are specified in KBRT’s contract with Reclamation. The commenter is welcome to request copies of contracts from the individual landowners who can provide them at their discretion.

3. There are historic wetlands between Crooked Creek and Wood River consisting of approximately 1000 acres (depending on mapping), or roughly 1/3 of last year’s project area. How are the wetlands between Crooked Creek and Wood River managed by KBRT? I understand the area was diked and a couple of drains were dug several years ago but it remained wet from irrigation, subsurface water, and water from Squaw Creek. Were the wetlands entirely drained last year? If so did the wetland vegetation suffer and is KBRT concerned about oxidization of the soil? Does KBRT or the landowner have plans to breach the dikes, fill in drains and re-flood the property? If there are plans to re-flood the property how much water will be permanently lost from the system by doing so?

   The "wetlands" referred to were drained and converted to pastureland by the BIA decades ago. Until KBRT, this pasture was managed via irrigation and provided for intensive cattle usage. Last year and in 2003, this pasture has not been irrigated per the landowner's contract with KBRT. Cattle numbers on this pasture have been reduced by 80%. KBRT and the landowner have no current plans to breach any dikes, but the landowner might evaluate that possibility if a management plan for all of the historic wetland fringe including the BLM, BOR, and other private lands was developed. For such a plan to be developed, the government agencies would have to evaluate ET rates under various conditions. Such work is outside the scope of KBRT’s current activities since converted wetlands could not participate in a water lease program, so KBRT has no involvement at this time. Involvement in such activities would pertain only to the individual landowner.

4. What is the source and date of the color aerial photos provided in the report and is there a complete set available for the project area?

These following are initial comments on the KBRT monitoring plan; more comments may be made after it is reviewed further, or upon replies from KBRT.

One main overlying comment is that there is a crucial lack of explanation of what is going to be done with the data after it is gathered, and how conclusions will be drawn. All of the proposed methods for determining if water is gained and nutrient loading should be identified in detail. In a similar format to this; "the stream flow has been measured at Dike Road for x number of years by BOR. This data will be compared with data at Weed Road to determine if KBRT increased flows, and the process for analyzing and comparing the data is explained here."

3. Ground Water Monitoring.

1. The modeling assumed a historic diversion rate of 6.5 acre feet per acre solely because that is the volume assumed by the Bureau of Reclamation science review team in their model. It was necessary to use the same base assumptions in both models so that the models could be compared directly. KBRT’s consultant also ran the model with an assumed 5 acre feet per acre diversion rate, and no significant variation in the results was found due to the large volume of "rejected recharge" that the model indicated. In other words, even at a diversion of 5 ac-ft, a portion of the water was returned rapidly to the streams and ditches as it did not infiltrate into the ground. As a result, when 6.5 ac-ft is the simulated diversion rate, most of the additional water ends up as "rejected recharge".
2. Please review the results presented in the report that you quote at the beginning of this comment. The report does not state that 10% of the water never returns to the system, the report states that the return occurs after the end of the irrigation season.

1. The most obvious error is the assumption that irrigators divert 6.5 feet per acre. This is something that KBRT should have clearly known as incorrect, and greatly skews the numbers in favor of KBRT gaining water. The maximum allowable diversion is 5 acre feet per acre and diverting additional flows would be illegal. Additionally, the maximum allowable diversion should not be assumed to be the actual diversion. The largest landowner accounting for over 1500 acres of the KBRT project only filed for a maximum diversion duty of 3 acre feet per acre in the adjudication. This begs the question of if he was diverting more than three acre feet why would he only file for three acre feet in the adjudication? This action would likely cause a loss of this water after the adjudication, if he in fact was diverting it (late priority water rights are subject to call. Also adjudication claims and existing rights are not additive, one or the other must be surrendered if granted, since a person cannot hold two primary rights on the same acreage).

   Additionally OWRD is proposing a 3.5 acre feet duty as the maximum amount which could be beneficially applied to land for the Klamath Adjudication, (this exceeds the duty OWRD grants wells, of 3 acre feet). Given these facts if one was to assume an actual diversion rate for the lands considered here it would likely be less than 3 acre feet per acre. However this is the problem with assuming, nothing should be assumed for an accurate calculation. The diversion duty should be measured in terms of an actual measurement of the diversions prior to enrollment, in the project, to obtain any degree of accuracy for this calculation.

   As the commenter notes, actual water use is not typically measured in the Wood River Valley, leading to some uncertainty about how much water actually is used on those lands. The 5 acre feet duty is an appropriate value primarily because that is the duty allowed by the certificated rights leased for the pilot project that was included in 2002. As an example, Kurt Thomas leased to the KBRT water rights appurtenant to his land. Those water rights are Certificate of Water Right Nos. 35561, 42934, 42935, 42936, and 65386. Each has a 5 acre foot duty.

   In addition, the 5 acre foot duty is consistent with the 1932 decree for the Wood River, Crane Creek, Seven-Mile Creek, and Four-Mile Creek. That decree settled over 50 claims to water from the sources listed and set 5 acre feet as the duty for each water right decreed. This is not to say that 5 acre feet is the only duty allowed in the Wood River Basin. Over time the Oregon Water Resources Department ("WRD") has begun to apply a lower duty to new rights in the Wood River Basin. In contrast to these new water rights, however, the older water rights included in the pilot project are entitled to a 5 acre foot duty. Indeed, under Oregon water law landowners must generally must use the full amount of their water right to avoid forfeiting some or all of the right, as a result one would expect landowners to have diverted the full 5 ac-ft prior to inclusion in KBRT.

   The other question appears to be about the relevance of certain pre-1909 water right claims in the Klamath Basin General Stream Adjudication ("Klamath Adjudication") that are appurtenant to property in the Wood River Basin. There are a number of unique issues related to these claims. First, claimants have the right to use the water they have claimed, but it is anticipated that the terms of a claim may change through the course of the Adjudication. For example, a claimant may be able to provide sufficient evidence in the Adjudication to be awarded a water right for an amount greater, or priority dates earlier, than claimed.

   Second, although the WRD used a presumptive duty of 3.5 acre feet in conducting preliminary evaluations of claims, that duty is not an upper limit, and the preliminary evaluations are not binding. Each case will be decided on its own facts and a claim may be awarded a duty above 3.5 acre feet if the claimant has put more water to beneficial use.

   Third, in many cases claims in the Adjudication "overlap" with certificated claims. For example, Kurt Thomas has a claim in the Adjudication and certificated water rights for the same land. He currently uses water according to his certificated water rights. It is not uncommon for landowners to "overfile" on their claims in this way to enjoy the benefits of having a certificated water right, even though the certificate is for a water right junior to their claim. Unlike a claim, a certificated water right is enforceable and can be transferred to other locations or types of use. This gives landowners flexibility they do not have with just a claim in the Adjudication.

   Fourth and finally, some lands in the Wood River basin are covered by claims in the Adjudication but not by overfiled water rights. In most cases these claims specify a rate of diversion (usually in cubic feet per second) but not a duty. Until such claims are adjudicated, their holders have a right to divert water at the claimed rate without any annual duty restriction, subject possibly (and this is an open question) to potential judicial restriction if the use amounts to "waste."

   Coming back to the Agreement, in 2002 the owners of the lands covered by the Agreement had rights, consistent with Oregon water law and WRD enforcement policies, to apply 5 acre feet per acre to all of those lands.

    

2. The assumption that 10% of all water diverted will not return to the system is highly questionable. Neither ground water modeling nor the very limited ground water monitoring will support the 10% figure.

3. Evapotransporation, Again this is highly subjective as to where the ET station is placed it is being said this tiny site represents thousands of acres, these acres may include wetlands, hill sides, areas that sub irrigate out of the river etc. The site could be placed to generate any result desired.

   The sites selected for the ET stations were chosen to be as representative as possible of conditions in the valley. The sites are located near the Wood River so that if non-irrigated areas near a river have greater water availability to the plants as you have suggested, this will be accounted for. The sites were also placed in the center of the valley so that climatic parameters will be representative of the largest areas of the valley possible. In addition, a third station has been installed at the north end of the valley since the northern area typically receives more precipitation and more cloud cover than the south end, and therefore may have lower ET rates than the center or south end of the valley. In addition, at least 10 Hobo weather stations are operated in transects across the valley to evaluate any variations that may occur near the valley margins, or near the lake.

4. Nutrient Monitoring, There is not a detailed study plan to show any meaningful comparisons i.e. point x has been monitored for five years by another group therefore we will monitor this year at point x and determine whether there are any changes as a result of our actions. Again in the absence of a detailed study plan it appears baseline data is being gathered, which meaningful conclusions cannot be obtained from.

1. KBRT fails to account for A) wetlands, B) drained or partially drained wetlands, C) lands that have not been effectively irrigated previously, D) lands that sub irrigate from rivers, creeks, streams and the artificial stream. It appears these lands account for a substantial portion if not the majority of lands covered under KBRT contract, but have not been mapped out or excluded.

Wet soil (class IV) was recently reassessed by the Klamath County assessor in the Wood River Valley at a devalued rate because "it was boggy", and the water could not be removed from it causing a lesser quality of forage.

KBRT assumes an across the board ET rate for all lands under contract, historic maps clearly mapped wetlands, these lands should be excluded from areas where water is assumed to be gained from. To the extent pumping stations are stopped or drainage ditches filled there should be a depletion in flow assumed from these lands.

Many people have observed that much of the KBRT land remained green throughout most of the irrigation season last year, this is very indicative that much of the vegetation is obtaining water subsurface resulting in minimal increases in flow.

2) Monitoring last year appears to be full of apples and oranges comparisons i.e. flows from the 1960’s on an upper reach were compared to flows from not only different years but different centuries at a lower reach (the 2000’s)(figures 3-5, 3-8 and page viii). The difference in flows over this period are likely due to less water entering crooked creek from the now abandoned portion of the Fort Creek ditch and different irrigation patterns not anything KBRT has done.

Monitoring fails to establish changes in nutrients flow or temperature on a year to year basis or pre and post KBRT project i.e. monitoring of fish and invertebrate was done in Crooked Creek, they found healthy populations. However, they may have always been healthy and in fact likely were, since they probably would not have appeared in such a short period since the last irrigation season. This really tells nothing about the effect of the project.

It appears the piezometer sites were arbitrarily selected and compared to sites in a completely different area.

3) KBRT is seeking to prove it is doing a variety of good things, rather than trying to determine what is happening in the ecosystem. By putting forth a series of hypothesis, KBRT admits it has a bias toward a pre-determined conclusion. This presents a major problem because earth science is very subjective and conclusions can be greatly varied by what data is inputted.

In order to assure there is no bias in the work, the monitoring moneys and monitoring activities should be turned over to a nonbiased third party (such as USGS), with no ties to the principals of KBRT or any other financial stake in the outcome of scientific monitoring.

4) The Data from last year does not support the conclusions; in a letter dated February 13, 2003 on behalf KBRT Kurt Thomas states that "Crooked Creek stream flows were increased by 10-15 cfs on average relative to available historic discharge data throughout the period May 1 to October 31". Yet when one looks at the flow data (figure 3-5) one finds that Crooked Creek had one of the worst flow on record in fact flows were worse than in the severe drought of 2001. The only year that had worse flow was in 2000. In talking to locals it appears the 2000 low flow was due to a supply canal to crooked creek being washed out, this is supported by the anomaly on the hydrograph. Given KBRT’s own data it appears one could reach a completely opposite conclusion being that KBRT is depleting flows.

KBRT should provide the precise scientific calculations utilized to support the 10-15 cfs gain, in a manner that can be replicated by other scientists. If the data cannot be replicated by scientifically viable methods the 10-15 cfs gain should be removed from the report.

On page viii of the Executive Summary in the 2002 Pilot Project Monitoring Report it is specifically stated that the 10-15 cfs increase in discharge in the Crooked Creek System is a preliminary estimate and that additional data are necessary to confirm this estimate. The 2002 Pilot Project Monitoring report (Page 9, last section) describes in detail the 3 methods used to derive the average 10-15 cfs increase in discharge on Crooked Creek due to the cessation of irrigation in the pilot project area. While each method of analysis produced a different value for the estimated increase in streamflow on Crooked Creek 10-15 cfs seems to be a reasonable value.