The Klamath Basin is suffering the worst drought in the state. Competing need for the water by local tribes seeking to sustain endangered fish populations, farmers and ranchers, and commercial and tribal fisheries has been a persistent issue, and has led to conflicts in the past. The Klamath Basin Restoration Agreement, which took 10 years to plan, was a turning point and a compromise for the parties needing access to the water. The KBRA was ultimately not successful in Congress, but some say the relationships forged when crafting those agreements persist and can be built on to revisit new solutions. We’re joined by two geography professors at Oregon State University, Hannah Gosnell and Aaron Wolf, who tell us about the possibilities for mediating this issue.
This transcript was created by a computer and edited by a volunteer
Dave Miller: From the Gert Boyle studio at OPB, this is Think Out Loud. I’m Dave Miller.
The Klamath Basin is in the middle of the worst drought in more than 100 years. There is simply not enough water to sustain endangered fish populations, farmers and ranchers. It’s an Oregon story, but it is a harbinger of water conflicts that are expected throughout the American West in the coming years. We’re going to get more perspectives on this today from two people who focus on these conflicts. They’re both professors of geography at Oregon State University. Hannah Gosnell has been studying competing claims over water in the Klamath Basin for the last 15 years. Aaron Wolf has mediated water conflicts all around the world. Welcome to you both.
Hannah Gosnell: Thank you.
Aaron Wolf: Good to be here.
Miller: Hannah Gosnell, first, let’s start with the basics here. In the big picture, this is a case where different groups are all asserting their different kinds of rights to water, when there’s probably not enough water for any one of these groups, let alone all of them. So what are the different groups?
Gosnell: Well, first of all, thanks for having me on here, this is a really important issue and things are just really getting tense down there this summer, so I’m glad there’s some attention being directed there.
You’ve got lots of different interests. First of all, of course are the tribal groups in the upper basin, the Klamath tribes and in the lower basin, the Karuk, the Yurok, and the Hoopa Valley tribes. They all have very senior water rights, and they are all sovereign nations who need to be considered very carefully in any kind of negotiations.
The white settlers came on in the 1800s. So you’ve got the off-project irrigators, people that have water rights in the tributaries to upper Klamath Lake through the State’s prior appropriation system. And you have the on-project water users, the Klamath Irrigation Project, which was established in the early 1900s, one of the first federal projects under the Bureau of Reclamation.
And of course you’ve got the National Wildlife Refuges, which are very important habitats for migrating birds, species and other wildlife.
Those are the big ones. The tribes, the irrigators, the off-project users and the National Wildlife Refuge.
Miller: How does the Endangered Species Act fit into this?
Gosnell: Well, the Endangered Species Act has a whole bunch of different parts to it. The part that’s most infamous is Section 7 of the Endangered Species Act, and that prohibits any kind of federal action that will further jeopardize a listed species. So that’s the big hammer that is sort of notorious around the West and will become more and more of a factor. So anytime you have a federal decision,whether that’s to authorize a federal project or authorize a plan for releasing water, you have to make sure that it complies with Section 7. Any federal action cannot further jeopardize a listed species. So that’s where a lot of the trouble comes in on the Klamath.
Miller: How are these different, (all of them old, though some older,) legal claims, how have courts determined precedence? And in a very, very dry year, who gets whatever water is available? What do courts say about these competing claims?
Gosnell: Well, the courts have been pretty clear that the tribes in the upper basin, the Klamath tribes, have a right to water that goes back to time immemorial. Those are due to their hunting and fishing treaty rights. So, in 1864, when the government signed a treaty with them, the tribes actually ceded 20 million acres of land to the United States, but they reserved their right to hunt and fish the way they have always hunted and fished. Those fishing rights include not only the right to fish, but they include, the courts have determined that that includes the right to enough water to sustain those fisheries.
In the 80s, there was an important court case, Adair, that determined that those rights went back to time immemorial. And then more recently, in 2012, those rights were quantified. Since 2012 there’s been an increased level of tension because the courts determined that the tribes have the right, they’re the most senior water holders on the tributaries and in the lake and they have been able to call their water rights several times, which has left the irrigators, who are used to running the show, high and dry
Miller: Aaron Wolf, I want to bring you in here, another professor of geography at Oregon State University. There’s so much more history to get into, recent history, which is directly applicable to what’s happening right now. But you’ve studied, and you’ve also mediated water conflicts all around the world. What does the situation in the Klamath Basin right now look like when you put it in that global perspective?
Wolf: Thanks Dave, and thanks again for having us here, as Hannah said it’s an important issue.
It looks familiar. I think the way Hannah kind of laid out the situation, that’s where most negotiations start, whether it’s “I’ve been using the water longest”, or “I’m upstream and more rain falls in my territory”, or “I’m downstream and I’ve been using the water forever”, I think most negotiations start with that. What are my rights? What do I deserve? And then through a long process of negotiation and dialogue, you end up moving to needs. “Okay, you may have these rights, but what do you actually need? And when do you need it? Can we play with timing a little bit? Are there ways that we can manage water upstream that would benefit you downstream? Where are the flex points in the system?” In the process of doing that, you end up building relations, just as the folks in the Klamath did in 2001, and those relations themselves then end up having momentum of their own until finally you end up past rights and needs into shared values.
I think everybody down there wants a healthy economy, everybody wants vibrant farms, everybody wants the ecosystem to thrive. Everybody wants to respect tribal history. And so moving in that direction over time can help build a more resilient system, where there is something for everybody, if not everything for anybody.
Miller: I imagine, almost by definition, serious water conflicts, they arise when there’s not enough water for these competing providers, competing groups. That’s why there is a conflict, because there’s some kind of scarcity. But what happens when the scarcity gets truly extreme? When there may not even be enough for one party? How does that change everything?
Wolf: Well, you’d have to rephrase the question, what happens when there’s not even enough for one party to do the things they’ve always done? Because that’s how that’s always posed.
So take the Jordan basin, for example, they literally ran out of water in 1968, and this is between Arabs and Israelis and all of the same tensions that are here, farmers and environmentalists, and people who have been using it longer, people have been using it less.
Miller: And people who had been literally at war with each other.
Wolf: Literally at war, thank you for reminding us, yes. And then really painful droughts, where supply dropped by 40% over a couple of years in the 1990s. And so everybody had to rethink what they were doing.
And so there’s a kind of sequence, on the supply side, you increase supply where you can. Can you move to reclaiming wastewater? Can you move to managing surface water and groundwater together? Can you think about other crops? Can you think about other irrigation methods? Then, over time, you start to think about the more expensive things, like desalination, or shifting what you’re doing profoundly, to where people who had been farmers were now becoming fish farmers, or protectors of the wetlands.
And so all of this stress happened, and they’re still all out of water. All of this stress happened in the absence of violence between between Arabs and Israelis. It’s not good by any means, but they do have a joint management body, and they’re able to rethink the water system as a way to help rethink the political system.
Miller: Hannah Gosnell, let’s go back to you because this gets to something that Aaron Wolf touched on briefly, but we should remind ourselves more about it. In 2001 and 2002, there were some hugely important dry year events that affected the next decade and a half or even today. So what happened in 2001 and then in 2002?
Gosnell: Yeah, this is really feeling reminiscent to those times for sure. It was a really severe drought year, and you had the Section 7 of the Endangered Species Act kicking in, determining how the Bureau of Reclamation could allocate its water. The Bureau of Reclamation decided that it would have to curtail water to the irrigators on the Klamath Irrigation Project in order to allow enough water in the system for the endangered fish in the upper basin, the Lost River Sucker and the Shortnose Sucker, which are the fish that the Klamath tribes are closely connected to.
And that created a huge outrage, upheaval, all kinds of tragedy. A lot of farms went out of business, bankrupt because they didn’t have water that year. And as a result of that, there were marches in the streets and protests and a lot of violence and hatred. Tribes were hung in effigy by irrigators and people that did not like that outcome. And as a result, the federal government decided the next year, well, we better not let that happen again.
So they decided to release water to the project in 2002, even though the biological opinion still said “Nope, there’s really not enough water in the system.” And what happened then is that that meant there was not enough water to go downstream to the lower basin, where salmon are an issue where the Coho Salmon is listed as threatened under the Endangered Species Act. And so, that led to a huge salmon die off in 2002. That affected the fisheries, that affected the fishermen who work in the Pacific Ocean. It affected the tribes who are culturally connected, they’re salmon people. And it’s just this rotating cycle of pain. First the tribes are feeling it, and the irrigators are feeling it. And then the lower basin, the salmon tribes are feeling it. And so there’s just an incredible lack of coordination and a lack of a system-wide approach.
Miller: And then what happened next was really crucial, because in some ways it seems more unusual than a bad water year. It was collaboration. What happened?
Gosnell: Well, it’s just fascinating. That’s really what I went there to do some research on. When I first came to OSU in 2006, I was interested in the Klamath Basin and the conflict between the Endangered Species Act and irrigated agriculture.
When I went down there to start looking around and try to understand what was happening, what I found was the emergence of collaborative conservation kind of bubbling up in several different forums, around the upper basin mostly. And I was curious, how on Earth could you have a collaborative conservation in the wake of the most vitriolic event, in 2001? And through a series of interviews, what I came to understand was that a lot of the local stakeholders just got sick and tired of trying to wait for the federal government to solve their problems for them. The federal government really is to blame for a lot of the problems by over-allocating, over-promising water. A lot of people were sort of expecting the federal government to solve the problem by getting rid of the ESA, or not honoring the tribes sovereignty or their hunting and fishing treaty rights.
But they came to realize, “We just need to solve these problems ourselves.” So some really charismatic, innovative, open-minded irrigators and tribal members and environmentalists came together and just started saying “What can we do to solve these problems on our own?” And there were a series of forums around the basin, in both the upper basin, the lower basin, where people came together. They came to be known as the Chadwick talks. [They] sort of became famous as a place for people to come together. There was a very skilled facilitator who created space for people to talk about their fears and their hopes.
[It was] just the beginnings of identifying, as Aaron said, a shared vision. As Aaron said, at the end of the day, everyone wants healthy ecosystems, they all want healthy economies, they all have kids that they care about in the next generation. The skilled facilitator was able to create these spaces for people to come together.
Some really important negotiations happened between some leading ranchers in the basin and some leading tribal members. And I think I really feel like those small conversations, behind closed doors, really created a space for the emergence of the Klamath Basin Restoration Agreement in 2010, where there are 28 key stakeholders from the upper basin and the lower basin, who came together and said “We can figure out how we can all sacrifice. We can all find ways to cut back and we can find a way to have certainty for the irrigators. We can have ecological restoration, we can have rectification and get some land back to the tribes. We can make sure there’s economic development.”
They really spent a lot of time to figure out a plan that would solve a lot of these problems. And unfortunately, Congress didn’t want to fund it. It was going to cost about a billion dollars, the plan that came up with, and Congress decided not to do it.
Miller: What difference would that have made? If Congress had said “Yes, we will fund this,” and then if you fast forwarded to today, how different would the situation look like? We can imagine that mother nature wouldn’t have been different. This would still be a historic drought, a drought that we haven’t seen in hundreds of years. So what would be different?
Gosnell: Well, I think that would be different was you had a Klamath Basin Coordinating Council, an institutional entity that would have been coordinating things with representatives from all the major stakeholder groups. There was a plan, there was a plan put in place for how to deal with times of shortage, and how to share. And as Aaron has proven many times with his research around the world, it’s not so much how much water you have, it’s whether you have a plan, whether you have the right institutional arrangements in place, that’s what determines whether there’s conflict or collaboration.
And so, the KBRA put in place an institutional arrangement, a structure to cope in times of shortage, and figure out how to share. That’s not there now. And so you’ve got chaos, you’ve got people going back to their corners. There is a small group, they call themselves the Coalition of the Willing. There’s a small remnant group of those stakeholders that were involved in the KBRA that are still getting it together and still trying to figure out ways to share. In the last 10 years, there’s been real retrenchment, and a much more polarized situation than there was in 2010, unfortunately.
Miller: Aaron Wolf, as we talked about, last week, this has become national news because two farmers bought land right next to the closed head gates of the main irrigation canal, to try to build this political movement with a significant amount of interest from people who are outside of the area.
What does it tell you that, according to reporting, very few farmers or ranchers have actually been joining the tent shows that are adjacent to those head gates? That for the most part, farmers and ranchers have not been showing broad support for the potential lawbreaking action of breaching that canal?
Wolf: I think what [it] has described nicely is [that] the relationships have changed dramatically since 2001, and all of that effort that goes into hammering out. I mean, it’s really one of the most extensive agreements that I know of. We bring people literally from all over the world, through the Klamath basin, from the Nile, from the Mekong. We have a program in Water Conflict Management here at OSU. And we study the agreement. We study the history as an example of how people of goodwill, and [who are] willing to work hard can really come to an agreement. And so what I think it says is a broad based recognition of two things.
One, if you focus on your rights, you might get what you want, but your neighbor is not going to. So, the only way, the only way for the basin to thrive as a whole is through cooperation.
And the other thing I think it suggests is that instead of only thinking about your rights, you’re also thinking about the community. That whoever isn’t getting water is also your neighbor, also shares your watershed, also shares your shared future.
So I’m not surprised. Always, in any of these disputes, there’s going to be outside forces who are trying to take advantage for one aspect or another. And it’s oftentimes people have something to gain by one outcome or another. But it’s going to be the people in the basin who are ideally going to lead, as they have been since 2001, and lead the basin through even a time as difficult as this.
Miller: Hannah Gosnell, we just have about two minutes left, but can you walk us through the outlines of possible solutions here? As you said, no one is going to be made whole here, or made fully happy. But what are the contours of what workable solutions might look like?
Gosnell: The million dollar question? I’m not sure anyone knows for sure what the answer to that is, but I’ll just take a quick stab.
I think really, at the end of the day, you have to have a functional ecosystem if you want to deliver those ecosystem services that everyone depends on. Ecosystem services include provisioning services to grow crops, that’s what the irrigators want. It includes the supporting services to support habitat for fish, that’s what the tribes want. There’s all kinds of ecosystem services associated with the functional ecosystem. And if you don’t have a functional ecosystem, nobody is going to benefit. So, there has to be a shared commitment to a restoration plan to restore this ecosystem, so that it can provide the services that everybody wants. That’s number one, you have to have a proper functioning condition before you can argue about who’s going to do what with that scarce water.
Beyond that, there’s just no way around the fact that the tribes are sovereign nations, and have the most senior water rights, for not only legal reasons, but for moral and ethical reasons, their rights and their concerns need to be acknowledged. And so those fish in the upper basin, the Lost River and Shortnose Suckers, and the salmon in the lower basin, a huge priority is to save these fish from extinction. So, what that might mean is that there may not be as much water as we would like for irrigated agriculture, and that’s a tough pill to swallow for sure.
The federal government has a lot of money. It may be that we need to buy out some of the irrigated ag, make them whole, because there were a lot of promises made to them too. They have every right to be upset that the government promised them enough water to be able to grow their horseradish and hay and mint and parsley and, there’s now not enough water. So the federal government needs to make them whole. That’s possible, to do buyouts. It could be voluntary buyouts. There are people who would be willing to give up their water rights in exchange for payment.
Miller: Hannah Gosnell and Aaron Wolf, we are out of time, but I want to thank you both very much for joining us and helping us understand what’s happening in the Klamath basin. Thank you.
Aaron Wolf and Hannah Gosnell are both professors of geography at Oregon State University.
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