An agreement to implement the largest river restoration project in the United States was signed last week on a fish cleaning table at the mouth of the Klamath River in northern California. The agreement hasn't garnered much national attention, but serves as a model for negotiating a complex stakeholder agreement over water resources. This week I've been running negotiation simulations in my Natural Resources Law and Ocean and Coastal Law classes to drive home the significance of multi-party conflicts over natural resources, and the challenges of coming to a mutually beneficial agreement when so many parties have an interest in the resource. The Klamath River is a textbook example of a multiple use resource conflict.
The river and its network of dams provide irrigation to farmers in Oregon's upper basin and California's lower basin, hydropower to energy markets, instream flows to federal public lands, domestic water and aquatic species for several tribes, and sustain a diverse ecosystem that includes three species listed under the federal Endangered Species Act (including the Coho Salmon). The operator of the dams is owned by Berkshire Hathaway, the river provides recreation and tourism opportunities to local communities, and its path crosses the state boundary between Oregon and California. In other words, stakeholders include large-scale farmers, small-scale farmers, federal agencies, endangered species, tribal governments, conservationists, corporate interests, two western states, and watershed communities. For many years the dynamic of the conflict pitted the dam operator and farmers benefiting from the irrigated water dams provide against the downstream tribes and conservationists who were critical of the cumulative impacts dams were having on the watercourse as a whole. There has been extensive litigation and political wrangling in the last several decades, intensifying the conflict. Compounding these issues is a decline in the absolute quantity of water resources available in recent years.
It seems remarkable, then, that this diverse group of stakeholders could have come to an agreement. Upon closer inspection, it seems that ancient doctrines of water law and the judicial system may have played a necessary role in getting the parties to the negotiating table. The United States federal government holds a reserved water right to sustain federal public lands, from which it must also protect and preserve the water rights of the several tribes. In this case, the Klamath Tribes (established by the Klamath Treaty of 1864), had priority water rights. In the western water law system of prior appropriation, senior water users have priority over junior water users, but it can take many years of legal battles to validate senior water rights. In 2013, an arbitration court finally validated the tribes senior water rights over upstream farmers using the dams. In a previous case, United States v. Adair, the judge concluded:
"Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation."
That court decision prompted the stakeholders to negotiate an agreement that would operationalize the tribes' legal victory. And it didn't hurt, I suppose, that the dam operator's financial projections were ambivalent: it might have been more expensive to continue maintaining and licensing the dams than removing them. These new legal and financial developments gave the parties the mutual reality needed to get the deal done, which included a second agreement designed to compensate farmers and ranchers who stand to lose from dam removal.
The Klamath River restoration agreement is remarkable in its scope, representing the largest river restoration project in the country. It is remarkable in its promise, providing hope to tribes, conservationists, and local communities dependent on the health of the river's ecosystems. But it might be most remarkable in its resolution, providing a fascinating example of a multi-party stakeholder negotiation that will likely result in a ground-breaking restoration agreement. While centuries-old water laws are much maligned, it is clear they still have a powerful role to play in twenty-first century water management.