Oregon could glean lessons from Colorado River compromise

In the Klamath Basin, many different interests have struggled to get the water they need. Meanwhile, Colorado River users have agreed to use less water as supply has dwindled over time. As water users across the West continue to face uncertainty over water levels, how can stakeholders compromise on limited resources? Adell Amos is a Clayton R. Hess Professor of Law and the Executive Director for the Environment Initiative at the University of Oregon. She joins us to explain what a larger agreement over the Colorado River could mean for Oregon communities battling similar issues.

The following transcript was created by a computer and edited by a volunteer:

Geoff Norcross: This is Think Out Loud on OPB. I’m Geoff Norcross. You can’t find a more optimistic and possibly delusional example of water allocation in a dry climate than the Colorado River Basin. 100 years ago, the government decided how much water would go to the seven states that rely on the Colorado. It turned out to be exceptionally bad math. Ignoring the science at the time, the allocators divided up the water based on the assumption that the Colorado could provide about 20 million acre feet of water per year. It’s actually more like 12. Adell Amos is a law professor and the executive director of the Environment Initiative at the University of Oregon. And we’re going to talk with her about a compromise among the states along the Colorado that’s in place right now and if there could be some lessons for the Klamath River in Southern Oregon and Northern California. Adell Amos, welcome to Think Out Loud.

Adell Amos: Thank you for having me.

Norcross: Do you see similarities between the Colorado River Compact of 1922 that divided up that river and the way the Klamath is allocated or maybe misallocated?

Amos: There are similarities and differences between the Colorado and the Klamath. There is a compact. We have an interstate compact on the Klamath River between California and Oregon. But that compact does not designate volumes the way that the Interstate Compact on the Colorado designated volumes. And it turns out that having those numbers associated with how states will share amongst the states ended up being a pretty big driver in terms of what got the lower basin states to the table in this most recent effort to conserve water on the Colorado.

Norcross: What did they use on the Klamath, if not actual numbers?

Amos: It’s just an agreement between the states and it doesn’t provide precise deliveries at the border. The mechanism that we have in Oregon on the Klamath, that starts to get at numbers, is associated with the state’s Klamath Basin adjudication, the general stream adjudication that the State of Oregon has initiated. And so through that process, we are on our way to having numbers associated with water deliveries, at least for the water users pre-1909 that are in Oregon. And that does provide a really powerful driver to have a collaborative framework in which to talk about saving water in the system.

One of the things that’s similar about the Colorado and the Klamath is a story of optimism, I guess, overpromising on water amounts. And that was before we even understood the way in which drought was going to be exacerbated by climate change. So, in both basins, the future is one that involves significantly less water. And so the need to look at ways to use less water in an over promised environment are really profound.

Norcross: How does that happen? How does a body of water get over overpromised?

Amos: I teach water law here at the University of Oregon and there’s always this sort of amazing moment when we talk about paper water and wet water, which is a funny term. Not until I became a water lawyer, did I use the phrase “wet water.” But it’s a process of allocating water rights and interests in water on paper that doesn’t correlate with hydrology. And on the Colorado, it was also that negotiation, historically, around the Colorado occurred at an abnormally wet hydrologic period in the record. And so the irony was that there may have been some data that indicated there was more water in the system. But if you look over the arc of the hydrologic record, that was a really abnormally wet period. So how we ended up allocating that water during an abnormally wet period has led to much of the trouble today. But the Klamath is similarly over allocated, layers of promises made to different interests, all of which have deep claims to the water and the water is really essential to carrying out the uses.

Norcross: And there is now this agreement on the Colorado. It was announced in May. Some states have agreed to take less water, at least for now. Might there be some lessons for the Klamath?

Amos: There are. The Colorado is divided into an “upper” basin and a “lower” basin and because of the risk of reaching what’s known as “deadpool” in the reservoirs that regulate the water between the upper and lower basin. A deadpool is when the water level drops below the infrastructure in the dam to move the water into the lower basin. So the drought conditions are quite significant in the Colorado River Basin. Because of those dynamics, the Department of the Interior that manages those reservoirs was put in a situation where they had to begin to develop options for what to do to avoid getting to deadpool. And it was really the impetus of the Department saying, “We are planning to do X,Y, and Z,” or, “These are the alternative things that we might do in response to this.” That really motivated the “lower basin” states to come together and come up with this negotiated agreement about using less water in the system.

And then, that came along at a time where there were dollars being allocated. It was mentioned in the previous segments that you had dollars being allocated through bipartisan infrastructure legislation and the Inflation Reduction Act that could provide funding for these kinds of water saving efforts. And so certainly, many folks believe that in 2010, we were in a similar situation in the Klamath Basin and a similar kind of agreement was negotiated. That agreement was dependent upon Congress passing legislation that would fund it and that never happened. That agreement expired in 2015. And so we’ve been there once in the Klamath where the motivation was significant enough that the parties came together and the parts of that agreement from 2010 persist. But the overall Klamath Basin Restoration Agreement was not funded.

This deal on the Colorado will have some funding associated with it and a lot of those dollars are moving through the funding streams that are associated with the BIL and the IRA which is great, But, like the Klamath deal, the Colorado deal is just until 2026. And so it is time limited in the same way. So many commentators and researchers say, “Yes, we’re benefiting from a wet year where some pressure came off the Colorado River. But by 2026 we could be right back at this same conversation.” The amount of water savings that are accounted for during these next three years, most folks [agree], it’s not enough

to be where we need to be by 2026.

Norcross: You had mentioned the sorry state of the reservoirs on the Colorado. And it reminds me that there are reservoirs on the Klamath too, but they are going to empty because we’re taking four dams down. Does that affect the calculation of water allocation?

Amos: Well, that’s really interesting. A lot of people refer to the Klamath Basin as a flipped basin. So when I teach water law, I talk about how you have to draw a map of every river and you have to understand where the interests are at, in every river. And this is a really good demonstration of that because those dams and reservoirs sit in the lower part of the basin. And where those dam removal projects are associated with really important habitat restoration areas, in those reservoirs there was hydropower being generated off those dams. But those were not storage reservoirs for irrigated agriculture. The storage for irrigated agriculture is up in Plymouth Falls at upper Klamath Lake and Clear Lake.

Norcross: A critical difference. I get that and I also understand there’s a difference between the two rivers and that the federal government is basically in charge of the Colorado. It’s like the rivermaster here through the Department of the Interior. And the Feds don’t have that kind of authority over the Klamath. Can you explain the difference?

Amos: Yeah, the federal government plays a significant role in the Klamath Basin. They run the Klamath Basin Irrigation Project, a reclamation project. And so the federal government is present. But the allocation of the water in the Klamath River system overall, outside of that irrigation project, is a function of the State allocation system and the water rights that the federal government may hold.

Whereas on the Colorado, just because of the size of it, it’s important to remember that in the Klamath, we’re talking about two states and for the Colorado [River], we’re talking about seven. 250,000 square miles in the Colorado Basin, 15,000 in the Klamath. And because of the breadth of federal infrastructure and the role of the federal government and federal legislation about the operation of those reservoirs, the Department of Interior and the Secretary of Interior play a much more significant role in the Colorado.

Norcross: Should the federal government be more involved in the Klamath dispute, in just a few seconds please?

Amos: Yeah, that is a topic for a much longer discussion. I’m sure there are people that would like to see that and people who would not. And I don’t think, at this point, it’s really a function of the history of the Colorado.

Norcross: Yeah, Adell Amos, thank you for teasing this out for us. I appreciate it.

Amos: You bet. Thank you for having me.

Norcross: Adell Amos is the Clayton R. Hess Professor of Law and the Executive Director for the Environment Initiative at the University of Oregon.

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