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Klamath Basin Restoration Agreement  Jan 7, 2010

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Groundwater plan

Page 70

15.2.4. Measures Related to Groundwater For the purpose of the On-Project Plan and the Contractual Obligations of Sections 15.2.4.A through 15.2.4.D, the definitions of “Adverse Impact” and


responses to “Adverse Impact,” and other provisions related to groundwater are as follows.

A. Objective of No Adverse Impact

 i. Definition For the purpose of this provision, Adverse Impact shall mean: a 6% reduction in the flow of any of the following springs. The definition applies to springs individually or collectively:

a. Individual springs (Barkley Spring #1, Barkley Spring #2, Sucker Springs, Ouxy Spring) along the east shore of Upper Klamath Lake from Hagelstein Park to Modoc Point, both as to the named springs individually, and to other, unnamed springs in this geographic area collectively;

b. The following springs associated with the northwest portion of Upper Klamath Lake: Harriman, Malone, Crystal, Fourmile, and Camporee Springs;

c. Springs in the Wood River valley spring network, including springs feeding Wood River, Fort Creek, Crooked Creek, and Sevenmile Creek;

d. Spring Creek, tributary to the Williamson River, and springs feeding the Williamson River from Spring Creek to Kirk Reef (the above limitation is applicable to an individual spring or the network collectively);

e. The springs in the Klamath River in the J.C. Boyle bypass reach;

f. The springs which enter Copco I Reservoir;

g. The springs under Copco I Reservoir;

h. The springs which enter Shovel Creek;

i. The springs which enter Spencer Creek; or

j. The springs under J.C. Boyle Reservoir. Determination of Adverse Impact will be based on the most probable value for a specific location provided by USGS modeling and monitoring, regardless of associated confidence intervals or expressions of uncertainty or imprecision.


 ii. Baseline for Determination of Adverse Impact For purposes of the Contractual Obligations of Sections
15.2.4.A through 15.2.4.D, the baseline magnitude, frequency and duration of groundwater use in the OPPA, as well as groundwater use outside the OPPA, for determination of Adverse Impacts shall be the year 2000. Use of models and monitoring to evaluate effects of groundwater use under the On-Project Plan will involve explicitly accounting for the effects of climate and hydrologic variability, as well as use and change of use of groundwater outside the OPPA, such that the characterization of effects of groundwater use under the On-Project Plan is limited to only such use as specifically occurs under the On-Project Plan.

B. Technical Investigation

i. Purpose and Scope The Parties agree that further technical investigations and monitoring of hydrologic and geologic processes shall be conducted to evaluate whether groundwater pumping within the Klamath Reclamation Project under the On-Project Plan will have or has an Adverse Impact as defined and if so to provide a basis for remedial measures including Plan modification as described in Section 15.2.4.B.v and vi. The investigative and evaluative measures shall include modeling or other predictive tools, monitoring, test wells or other appropriate procedures. The Non-Federal Parties support the scope of work for technical investigations and monitoring attached as Appendix E-2 and shall pursue funding to accomplish the work.

ii. Lead Agency The USGS, in cooperation with OWRD, shall be the Lead Agency to conduct the technical investigations and monitoring. The Parties shall fully cooperate with any technical investigations developed by the Lead Agency. All data and analysis generated by the Lead Agency shall be made available to all Parties in the same form and at the same time. The Lead Agency shall conduct the technical investigations described in Appendix E-2 as expeditiously as possible to inform the development and implementation of the On-Project Plan.


 iii. Funding for Investigation The Non-Federal Parties shall support authorization and appropriation of funds, in the amounts estimated in Appendix C-2, for USGS and OWRD to complete the studies and provide the monitoring described in Appendix E-2 and further investigations necessary to fulfill the purpose stated in Section

iv. Cooperation among Parties and Use of Results Although KWAPA has sole authority for development, adoption, implementation and administration of the On-Project Plan, except as provided in Sections 15.1.2.D.i and 15.2.2.B.i, KWAPA shall in the development of the Plan collaborate with OWRD and other interested Parties to develop approaches to groundwater use consistent with the objective of no Adverse Impact and the technical investigations.

a. At a minimum, KWAPA will meet with OWRD and other interested Parties once during development of the On-Project Plan and once at least 30 days prior to completion of the On-Project Plan.

b. In development of the initial On-Project Plan, KWAPA shall incorporate the work by USGS regarding groundwater use in existence at that time; adequately consider and utilize all other information provided by USGS or any Party regarding whether, how and when groundwater pumping under the On-Project Plan may cause an Adverse Impact; and make best efforts (including Dispute Resolution Procedures pursuant to Section 6.5) to reach Consensus with Parties on reasonable and appropriate treatment of groundwater pumping in the On-Project Plan to avoid Adverse Impact, as defined in this Section 15.2.4.A.i.

v. Periodic Amendment of Plan Based on Investigations and Monitoring

a. If investigations or monitoring by the Lead Agency identify an Adverse Impact caused by groundwater use under the On-Project Plan, or that groundwater use under the On-Project Plan is predicted to cause an Adverse Impact, KWAPA shall remedy the Adverse Impact or avoid the predicted Adverse Impact as quickly as practicable. KWAPA will use Best Efforts


to effect the remedy before the next irrigation season and other Parties shall render appropriate assistance in effecting such remedy, provided that, if the Lead Agency’s work shows that groundwater pumping under the On-Project Plan is causing an Adverse Impact and immediate and serious harm to the fisheries, interested Parties will meet and confer immediately (notwithstanding any provision for additional time under Section 6.5) to provide a remedy during the current irrigation season. The remedy may include modification of the On-Project Plan as necessary, subject to Section 15.1.2.D.i; provided that any amendment shall be approved by Reclamation. However, actions to avoid or remedy an Adverse Impact under Sections 15.2.4.B.iv and v are not limited to modification of the On-Project Plan or actions within the OPPA. While KWAPA may take action outside of the OPPA to offset impacts of pumping under the On- Project Plan, nothing in this Agreement creates any regulatory authority over groundwater that does not currently exist; provided that the Contractual Obligations in Section 15.2.4 are enforceable.

 b. KWAPA, USGS, OWRD, and the TAT shall annually meet and confer before December 15 of each year regarding the long-term monitoring information, and specifically to evaluate annually whether the On-Project Plan is meeting the no Adverse Impact objective, whether the Plan may be leading to an Adverse Impact in future years or whether the Plan is causing or will cause an Adverse Impact in the upcoming irrigation season. vi. Costs Associated with Remedy for Adverse Impact or Other Modification of Plan To the extent funding realized pursuant to Section 15.2.2.A is inadequate, and consistent with Applicable Law, the Non- Federal Parties shall seek other funding to mitigate costs of remedying or avoiding Adverse Impacts provided that, seeking or securing such funding shall not be a prerequisite to the obligation for KWAPA to remedy or avoid an Adverse Impact.


vii. Further Consideration of Results of Investigation and Monitoring If so determined by the KBCC, the frequency or degree of monitoring or consultation among Parties may be modified or terminated.

C. Existing Wells

The scope of work for the Lead Agency’s investigation, attached as Appendix E-2, shall include monitoring of existing wells to determine whether Adverse Impacts from groundwater pumping in the OPPA are occurring. The scope of work shall also analyze mitigation scenarios for any effects of such existing wells. The Parties shall meet and confer in good faith to mitigate any Adverse Impacts during the USGS’ analysis prior to adoption of the On-Project Plan.

D. New Wells

The On-Project Plan and funds to implement the Plan shall not be used to develop new wells unless KWAPA or other proponent of the well first shows no Adverse Impact as defined in Section 15.2.4.A.i to the satisfaction of the KBCC. The On-Project Plan, plan funds, and Participants in plan implementation shall not employ surface water forbearance agreements that allow new production irrigation wells on property subject to a forbearance agreement or similar encumbrance.

E. Use of Further Investigations Related to Fisheries

The Parties anticipate that future scientific investigations may further inform understanding of the relationship of flows in the springs identified in Section 15.2.4.A.i and fisheries of the Klamath River and Upper Klamath Lake. i. If such further investigations demonstrate that an increase in the percentage value stated in Section 15.2.4.A.i would not be detrimental to the fisheries of Upper Klamath Lake or the Klamath River, with the recommendation of the TAT and approval by the KBCC, the Parties will amend this Agreement, and KWAPA shall modify the On-Project Plan to increase such value accordingly. ii. If such investigations demonstrate that, notwithstanding the absence of an Adverse Impact as that term is defined in Section 15.2.4.A.i, groundwater use under the On-Project Plan results in material adverse effects on water quantity or quality of Upper Klamath Lake or the Klamath River, or to springs whether specifically listed or not listed in Section


15.2.4.A.i, in a manner of consequence to fisheries of Upper Klamath Lake or the Klamath River: a. Upon the recommendation of the TAT and with the approval of KBCC, KWAPA will reduce groundwater use under the On-Project Plan to avoid or reduce such material adverse consequence if additional water from new storage under Section 18.3.2.B.v is provided for use in the OPPA (beyond such amount as may become available as described in Sections 15.1 and 18.3.2.B.ii) in an amount equal to the amount of reduction of the groundwater use; or b. The Parties, with assistance of the USGS and OWRD, shall collaborate in identifying other measures that could reduce the adverse effects of other influences on the flow of the relevant springs. Identified measures will be implemented upon the recommendation of the TAT, approval of the KBCC, and with the agreement of affected Parties.

iii. Evaluations of the effects of groundwater use under the On- Project Plan under this Section 15.2.4.E only will be based on the same stipulated baseline and consideration of other factors as identified in Section 15.2.4.A.ii. Nothing in Section 15.2.4.E.ii.a shall limit the quantity of water which may potentially be available to the OPPA under Section


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