Water trades work elsewhere:

Why not in the Basin?

Author: 
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 Basin.

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 the following:

  • 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.

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Before joining PERC, Jane Shaw was a journalist who had developed an uneasy feeling that much of the commentary about environmental policy that she read--and even some that she wrote--was tilted in the wrong direction. The usual solution to an environmental problem was to turn it over to the government. She had become uncomfortable with this...
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