Herald and News
Klamath Falls, OR
June 14, 2004
Water trades work elsewhere:
Why not in the Basin?
By Jane S. Shaw
We used to hear the expression “Let George do it” to describe the very human tendency to leave the
solution of a problem to someone else. Today, we tend to let the federal government be “George.”
Specifically, some people think that the federal government should fix the conflicts over who owns the water in the Klamath River
Blaine Harden, a Washington Post writer, recently pointed out that “local pressure is mounting on federal regulators to
somehow find enough water to maintain a system that everyone now agrees has too many users.”
But decades of government intervention have shown that the federal government isn’t up to the task. Indeed, political
decision-making in the Klamath Basin has been inconsistent. In 2001, the U.S. Interior Department created a firestorm by
cutting off water to the Klamath Basin farmers. After severe protests, the Interior Department restored the water, but
was unable to come up with assurances of water for the future.
The solution lies within the local region, not the federal government. A few ideas to help Oregonians think constructively
about solutions have come from the Property and Environment Research Center. This nonprofit institute in Bozeman, Mont.,
seeks to improve environmental quality through property rights and markets.
In a 2003 paper, two of the research center’s associates, Roger E. Meiners and Lea-Rachel Kosnik, pointed out that the
problem in the Klamath Basin is not simply a conflict between endangered fish and farmers, as the national media tend
to portray the problem. Rather, it stems from a long-standing failure to establish and clarify legitimate rights to
the Klamath Basin water.
Competing water claims create a grab bag of potential rights and stir up conflict. The conflicting claims stem from
- Oregon (like most other western states) has not formally adjudicated – that is, officially clarified – all claims to
water under the prior appropriation doctrine. There are tens of thousands of claims, and the process, which started
in 1976, is moving at a slow pace.
- In 1905, the federal government claimed all available water in the Klamath River and Lost River for the Klamath
Reclamation Project. But it wasn’t clear at the time how much water was available in 1905 – nor is it today.
American Indians in the Klamath Basin have strong fishing rights through the Winters legal doctrine and other
U.S. Supreme Court precedents. But implementation of these claims is difficult because the tribal water rights
have not been quantified.
- The federal government claims water for two wildlife refuges in the region. However, the dates of the claims are
junior to those of the Klamath Project and the Endangered Species Act. The latter gives powerful rights to species
protection, which is what actually initiated the 2001 crisis over water: A court had decided that the Bureau of
Reclamation had failed to follow appropriate procedures under the Endangered Species Act.
So, clarifying the claims in the Klamath is essential. Once these rights are clear, anther process can
begin: trading. When people have secure rights, they can usually work out cooperative trade with others.
After all, our society is based on exchange.
Trade helped settle a conflict in the Walla Walla Basin near the boarder of Oregon and Washington. There, the
Confederated Tribes of the Umatilla had rights to fish in the area. Irrigating farmers were using the water,
too. There was enough water until the 1990s, when the federal government said that more water had to stay in
streams to protect endangered species. That threat could have meant a cutoff of water to irrigators.
The tribes and the farmers worked out an exchange of water. Now, to protect salmon migrations, at certain times
the farmers leave water in the Umatilla, diverting water from the Columbia River instead. This satisfies the
federal government and allows the Confederated Tribes to continue to fish in the Umatilla.
Can such trades, or even a water bank that could oversee many trades, work in the Klamath Basin? Maybe so.