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http://www.heraldandnews.com/articles/2005/02/28/news/top_stories/top1.txt

Water deal may aid restoration efforts

February 28, 2005

By DYLAN DARLING

An agreement between the Klamath Tribes and ranchers above Upper Klamath Lake announced Friday not only settles a long-standing legal dispute over water, but also addresses habitat improvement, endangered species and water storage.

"Now we can both work on constructive things and not be stuck in the court system," said Fort Klamath rancher Roger Nicholson.

The agreement concerning water rights was announced Friday by Nicholson, Klamath Tribes Chairman Allen Foreman, and former state Sen. Steve Harper, who facilitated a series of meetings that led to the agreement.

Nicholson and Foreman were part of a group that drafted a conceptual agreement to be signed by tribal leaders and landowners.

The agreement, which will require federal and state approval, is designed to become a "stipulated settlement" in the state of Oregon's adjudication of water rights in the Klamath Basin. As part of the settlement, the tribes and landowners will agree to not contest each other's conflicting claims for water.

Harper said the agreement could affect water rights on about 280,000 acres of agriculture land above Upper Klamath Lake.

"It's a tremendous step forward for everyone in the Basin," Foreman said.

In the four-page agreement, the parties agree to the following:

1. Withdraw challenges to each other's water right claims.

2. Establish a "joint restoration committee" that would identify, evaluate, recommend and implement streamflow and habitat restoration projects on the Sprague, Williams and Wood rivers. The committee would be made up of three representatives from the Tribes and three from the irrigators.

3. Not seek the listing of additional species under the Endangered Species Act.

4. Support the development of new water storage.

The agreement doesn't involve irrigators in the Klamath Reclamation Project, and would not apply to use of groundwater.

Under the agreement, ranchers recognize the Tribes' water right, with a priority date of "time immemorial," for maintaining high flows in streams and rivers.

In exchange, the Tribes will agree to not exercise its right in a way that would affect landowners with a water right dating to before July 1, 1961 - a date arrived at through the process of negotiation, Nicholson and Foreman said.

Harper said Nicholson and the Tribes will seek federal funding to purchase water rights from landowners with a priority date after July 1, 1961. The buy-out, which would be voluntary for landowners, could affect up to 15,000 acres, Harper said.

Landowners involved in the agreement announced Friday are either members of or contributors to the Resource Conservancy, the Fort Klamath Critical Habitat Landowners or the Sprague River Water Resources Foundation, all nonprofit groups.

Numerous individuals and groups above the lake have already settled their contests in other agreements, while others are still negotiating or pursuing their interests through the contested case process.

Harper and Foreman said they have been in touch with groups involved with the adjudication from the Klamath Reclamation Project, and that an agreement could be forthcoming between them and the Tribes.

The Oregon Water Resources Department launched an adjudication of water rights in the Klamath Basin in 1975. It soon became bogged down in legal issues, including an unsuccessful attempt by the Klamath Tribes to challenge the state's authority to administer its water rights.

Once those issues were settled, the state resumed the adjudication, issuing a call for claims in 1996.

In 1997, the state received about 700 claims for water rights in the Klamath Basin. That was followed by a period in which any individual or organization could contest someone else's claim to water. About 5,600 contested cases were filed.

Although 85 percent of the contests have been resolved, the most difficult cases remain, said Reed Marbut, a Water Resources Department official who has been involved in the Klamath Basin for several years.

Even with the signatures of Foreman and irrigators, the agreement announced Friday won't be final. State officials will need to approve it as part of the adjudication, and federal officials will have to approve funding for the buyout program and restoration efforts.

In their agreement, the Tribes and the irrigators above Upper Klamath Lake agreed to the spend time and money they would have spent in court on working on habitat restoration and developing water storage.

Foreman and Nicholson plan to go to Washington, D.C., this week to meet with members of Oregon's congressional delegation and federal officials about the agreement. Their goal is to get federal support and funding.

The deal hinges on the federal government supplying money to buy out water rights dated later than July 1, 1961, and to fund efforts of the joint restoration committee.

Harper said meetings leading to the agreement started last summer, involving about a dozen people.

Participants included Foreman, tribal council members Helen Crume-Smith and Bobby David, and ranchers Nicholson, Bartel and Ambrose McAuliffe. Harper facilitated the meetings that were held in various locations, mostly at Melita's Cafe and a conference room at Crater Lake Realty in Chiloquin.

At the meetings there were "no lawyers and no federal bureaucrats," Harper said.

"If you have people who are going to live with these decisions, and children who are going to live with these decisions, then I think you have got something you can work with," Harper said.

Harper, who served in the Legislature from 1997 until last fall, said he set up the meetings because he wanted to fix something that was broken in his hometown. He said too much time has been spent talking about the issues and not enough time has been spent resolving them.

"We've been yapping about this for twice the length of time that it took us to get to the moon," Harper said. "It was time to quit yapping."