Jump to Navigation

Adapting to Drought and Climate Change in the Upper Klamath Basin Comprehensive Agreement

July 1, 2015

Oregon’s Klamath Basin has long been known as a hotbed for water conflict. The limited water resources in this high desert region are subject to myriad conflicting pressures, including irrigated agriculture (from large-scale federal Reclamation projects to small, family ranches), municipal water demands, out-of-basin transfers, and fish and wildlife needs for National Wildlife Refuges and to meet strict Endangered Species Act requirements. When large, senior instream flow rights for the Klamath Tribes (“Tribes”) were determined by the Oregon Water Resources Department’s adjudicator in 2013, the system’s over-appropriation became even more pronounced.

When the Tribes first enforced their instream flow rights in the summer of 2013, hundreds of irrigated ranches above Upper Klamath Lake faced curtailment for the first time, including many with water rights dating back to the 1800’s.[1] Faced with the prospect of such restrictions becoming a regular fact of life, representatives of the irrigation community, the Klamath Tribes, and the state and federal governments came together in an attempt to resolve the situation in a manner that addressed Tribal needs associated with economic development and protection of fish and wildlife values, while allowing irrigated agriculture to continue in the Upper Klamath Basin in a more predictable, sustainable manner. As a result of these efforts, the Upper Klamath Basin Comprehensive Agreement (Comprehensive Agreement) was signed in April 2014.[2]

The full implementation of the Comprehensive Agreement remains contingent upon federal authorizing legislation and funding. However, the agreement establishes a transition period, in which the parties are now working to meet certain benchmarks established for the next several years. While not explicitly designed to address climate change, the framework of the Comprehensive Agreement includes adaptive management measures that, if fully implemented, may also assist the region in adapting to expected temperature increases and alterations in water availability. If so, perhaps the Klamath Basin can finally be known as a success story for collaborative processes and adaptive management, instead of a poster child for the West’s propensity to perpetuate conflict over water issues.

Background on the Klamath Basin Adjudication

In March 2013, the long-awaited conclusion of the administrative phase of the Klamath Basin Adjudication resulted in the confirmation of a number of instream flow right claims of the Klamath Tribes (held in trust by the United States) on rivers and streams within the boundaries of the former Klamath Indian Reservation. While the judicial phase of the adjudication is still in its initial stages, the administratively-determined claims are now enforceable. As approved, the Tribal rights require minimum flow levels (in cfs) to be met in the individual rivers and streams of the Upper Klamath Basin. These instream flow rights, with “time immemorial” priority dates, are the senior rights on the system. Under general principles of prior appropriation codified under Oregon law, enforcement of the Tribal instream rights means that the established flow levels must be met before any out-of-stream diversion or consumptive use may occur.

The Tribal instream flow rights affirmed through the adjudication process establish flow levels for each stream that must be maintained each month, each year, in perpetuity. While different flow levels are set for each month, the same monthly flow value is enforceable each year, regardless of hydrologic conditions. In a time of changing climate conditions, however, the enforcement of such rights may pose unforeseen difficulties.

For example, during the summer irrigation season, the minimum flow levels in some streams are set as high as 89% of calculated natural median monthly flows. In other words, based on historical probability, 11% or more of natural stream flow is projected to be available for diversion in only half the years. In the other half of years, less than 11% of natural streamflow would be available for consumptive use. In many years, streamflows would likely fall below the Tribal instream flow rights, and all diversions would be required to cease. While this largely affects irrigation users, hundreds of whom were forced to halt irrigation as a result of enforcement of many of the Tribal rights during the summer of 2013, other water users also face potential curtailment to meet the Tribal instream rights. For example, Crater Lake National Park derives its water from Annie Creek, a tributary to the Wood River, which is subject to a Tribal instream flow right. In the summer of 2013, enforcement of the Tribal instream flow rights lead to the complete curtailment of Crater Lake’s water supply, and the park was forced to truck in water, turn off campground showers, and set up 120 portable toilets throughout the park.

The 2015 Drought

By most measures, 2015 is shaping up to be a drought year of historical proportions in the State of Oregon. The Natural Resources Conservation Service (NRCS) reports that statewide, Oregon’s snowpack this winter peaked at the lowest levels measured in the last 35 years. In western Oregon, the snowpack peaked 60–90% below the normal amounts and the snow melted up to 3 months early. The snowpack in the eastern part of the state was only slightly better, peaking 30%–80% below normal levels and up to 2 months earlier than normal. Many snow monitoring sites set records for the lowest peak snowpack and earliest melt-out date since measurements began. Consequently, streamflow is projected to be well below normal through the end of summer 2015, especially in some of the more arid regions of the state, including the Klamath Basin.

Oregon’s Water Availability Committee, comprising members of both state and federal agencies, have determined that drought is “unavoidable” in 17 of Oregon’s 18 administrative water supply basins, while drought is merely “likely” in the Grande Ronde Basin in Oregon’s remote northeastern corner. The U.S. Drought Monitor for June 23, 2015 shows 100% of the state as abnormally dry (or worse), with 98.6% of the state in a moderate drought (or worse), 81.72% of the state in a severe drought (or worse), and 34.09% of the state in an extreme drought. The Klamath Basin is largely under extreme drought conditions. For now, at least, none of the state is classified as experiencing “exceptional drought”; however, with 46.73 % of California under that highest drought category, including the northeastern portion of California near the Oregon border, it would not be surprising if exceptional drought conditions creep north across the Oregon border before the 2015 summer comes to an end.

Climate Change and the “New Normal”

If the drought conditions facing Oregon water users including farmers, fisherman, and recreationalists was a result of a historically dry winter, that would be one thing. But unfortunately, that is not the case. Instead, overall precipitation to date across the state has been only slightly below average for the water year – 88% of normal. Warmer-than-average temperatures, however, have resulted in more of this precipitation falling as rain, rather than snow, as compared to most years.

This type of shift is largely in line with climate change projections. For example, in the Climate Change in the Northwest Report published by the Oregon Climate Change Research Institute in 2013, the authors stated, “[g]iven the likelihood of increased winter air temperatures, snowmelt dominant and mixed rain-snow watersheds are projected to gradually trend towards mixed rain-snow and rain-dominant, respectively.” In particular, because the mixed rain-snow elevations common at mid-range elevations east of the Cascades generally have average mid-winter temperatures close to freezing, they are “particularly sensitive to the trend of increasing temperatures that shift winter precipitation toward more rain and less snow.” In other words, Oregon watersheds are generally projected to experience “less snow and more rain during the winter months,” resulting in “reduced peak streamflow, increased winter flow, and reduced late summer flow,” due to less snow and more rain during the winter months.

While one must be cautious about attributing a single event or season to climate change, water managers should pay particularly close attention to this year’s drought. Whether or not the current drought conditions are caused by climate change, the weather patterns are generally in line with what regional climate models have projected - the hydrograph has been shifted forward, with higher winter and early spring stream flows resulting in a reduced snowpack reservoir needed to support late spring and summer flows. If projections are accurate, this situation may become more and more common in the coming years.

In the Klamath Basin, despite near-average levels of winter precipitation,[3] high winter flows, as well as several rain-on-snow events, saw the mountains quickly stripped of any snowpack reservoir. By March 31, 2015, average snowpack throughout the Klamath Basin was just 6% of normal, and water users were already bracing for a long, dry summer. Klamath County declared a drought emergency in mid-March, and Oregon Governor Kate Brown followed with a similar declaration on April 6, 2015.

The Upper Klamath Basin Comprehensive Agreement

In addition to important economic development measures, including establishing a Tribal economic development fund and support for the acquisition of a substantial Tribal land base, the Comprehensive Agreement also establishes a Water Use Program and Riparian Program to govern water use and riparian management actions in the Upper Basin. While not explicitly intended as a climate change adaptation strategy, the adaptive framework of the Comprehensive Agreement could ultimately assist the region towards that end.

The Water Use Program requires the retirement of irrigation water rights and adoption of other management measures to increase stream flows into Upper Klamath Lake by 30,000 acre-feet per year. It also adopts Specified Instream Flows (SIFs) to govern Tribal enforcement of the instream flow rights. Instead of a preset table of minimum flows that remains static from year to year, the SIFs are calculated on a month-by-month basis, based on actual hydrologic conditions. Accordingly, in wet years, the SIFs will match the approved Tribal instream flow rights, but in drier conditions, the SIF levels will drop somewhat to permit some out-of-stream uses. Thus, the SIF levels should provide a more accurate reflection of the annual variability in Western stream systems than the administratively-approved Tribal rights. To ensure that flows do not drop below critical levels needed to maintain fish populations, each SIF has a minimum floor that must be maintained regardless of hydrologic conditions. SIF levels may also be adjusted upwards due to irrigator non-compliance with water right retirement obligations or the Riparian Program, as discussed below.

The Riparian Program requires agricultural landowners to establish Riparian Management Areas along at least 80% of the stream length in designated areas where adjacent lands are irrigated. While management measures and restoration actions are still being developed, the efforts are intended to restore Proper Functioning Conditions, an indicator of riparian health. Among the expected environmental benefits are increased shading to reduce stream temperatures, reduced nutrient loading, and structural improvements in stream habitat. Stream shading, in particular, is important for moderating stream temperatures, particularly critical to Tribal efforts to restore salmon species above Upper Klamath Lake. This type of passive temperature control could prove beneficial in moderating some of the expected stream warming effects expected from climate change.

Conclusion

The stated purposes of the Comprehensive Agreement are to support Tribal economic development, provide a stable, sustainable basis for continued agriculture, manage and restore riparian corridors, and resolve litigation over water rights claims. However, the Water Use Program and Riparian Program include elements that may also assist the region’s agricultural producers, Tribal members, and fish and wildlife in adapting to changing hydrologic conditions expected as a result of climate change. Full implementation of the agreements remains contingent on federal legislation and funding. But the settling parties continue to make strides towards developing the institutions and framework needed to implement the on-the-ground riparian management and restoration efforts and to utilize the adaptive SIF levels for enforcing Tribal water rights. If these efforts are successful, the region should be better equipped to handle expected hydrographic changes from climate change, with benefits for Tribes, fish and wildlife, and the agricultural community. The approaches adopted for the Klamath Basin may be usefully applied in other Western water basins that face periodic droughts and the uncertainties posed by climate change.

For more information, please contact any the attorneys in Marten Law’s Water Resources or Climate Change practice areas.

[1] See T. Hearden, Latest Klamath Water Crisis Continues Century of Conflict, Capital Press (Aug. 22, 2013), http://www.capitalpress.com/article/20130822/ARTICLE/130829914.

[2] See D. MacDougal, Landmark Agreement Near in Klamath Basin: Implementation Uncertain, Marten Law Environmental News (Apr. 1, 2014).

[3] According to the Oregon Water Resources Department’s Klamath Basin Outlook report, overall precipitation to date in the Klamath Basin (from October 1, 2014 to June 22, 2015) has been 91% of normal.

This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.