5900. The Legislature of the State of California hereby ratifies
and approves that certain compact designated as the "Klamath River
Basin Compact between the States of Oregon and California," as set
forth in Section 2 of Chapter 113 of the Statutes of 1957, which was
approved at Klamath Falls, Oregon, on the seventeenth day of
November, 1956, by the California Klamath River Commission, under
authority of and in conformity with the provisions of Government Code
Sections 8110-8119 (California Stats. 1953, Ch. 1473, p. 3085), and
by a similar commission representing the State of Oregon under
legislative authority of that state, and the provisions of said
compact shall become the law of this State upon said compact becoming
effective as provided in Article XIII of said compact.
5901. The provisions of said Klamath River Basin Compact are as
follows:
Article I. Purposes
The major purposes of this compact are, with respect to the water
resources of the Klamath River Basin:
A. To facilitate and promote the orderly, integrated and
comprehensive development, use, conservation and control thereof for
various purposes, including, among others: the use of water for
domestic purposes; the development of lands by irrigation and other
means; the protection and enhancement of fish, wildlife and
recreational resources; the use of water for industrial purposes and
hydroelectric power production; and the use and control of water for
navigation and flood prevention.
B. To further intergovernmental co-operation and comity with
respect to these resources and programs for their use and development
and to remove causes of present and future controversies by
providing (1) for equitable distribution and use of water among the
two states and the Federal Government, (2) for preferential rights to
the use of water after the effective date of this compact for the
anticipated ultimate requirements for domestic and irrigation
purposes in the Upper Klamath River Basin in Oregon and California,
and (3) for prescribed relationships between beneficial uses of water
as a practicable means of accomplishing such distribution and use.
Article II. Definition of Terms
As used in this compact:
A. "Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries within the States of California
and Oregon and all closed basins included in the Upper Klamath River
Basin.
B. "Upper Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries upstream from the boundary
between the States of California and Oregon and the closed basins of
Butte Valley, Red Rock Valley, Lost River Valley, Swan Lake Valley
and Crater Lake, as delineated on the official map of the Upper
Klamath River Basin approved on September 6, 1956, by the commissions
negotiating this compact and filed with the Secretaries of State of
the two states and the General Services Administration of the United
States, which map is incorporated by reference and made a part
hereof.
C. "Commission" shall mean the Klamath River Compact Commission as
created by Article IX of this compact.
D. "Klamath Project" of the Bureau of Reclamation of the
Department of the Interior of the United States shall mean that area
as delineated by appropriate legend on the official map incorporated
by reference under subdivision B of this article.
E. "Person" shall mean any individual or any other entity, public
or private, including either state, but excluding the United States.
F. "Keno" shall mean a point on the Klamath River at the present
needle dam, or any substitute control dam constructed in Section 36,
Township 39 South, Range 7 East, Willamette Base and Meridian.
G. "Water" or "waters" shall mean waters appearing on the surface
of the ground in streams, lakes or otherwise, regardless of whether
such waters at any time were or will become ground water, but shall
not include water extracted from underground sources until after such
water is used and becomes surface return flow or waste water.
H. "Domestic use" shall mean the use of water for human
sustenance, sanitation and comfort; for municipal purposes; for
livestock watering; for irrigation of family gardens; and for other
like purposes.
I. "Industrial use" shall mean the use of water in manufacturing
operations.
J. "Irrigation use" shall mean the use of water for production of
agricultural crops, including grain grown for feeding wildfowl.
Article III. Distribution and Use of Water
A. There are hereby recognized vested rights to the use of waters
originating in the Upper Klamath River Basin validly established and
subsisting as of the effective date of this compact under the laws of
the state in which the use or diversion is made, including rights to
the use of waters for domestic and irrigation uses within the
Klamath Project. There are also hereby recognized rights to the use
of all waters reasonably required for domestic and irrigation uses
which may hereafter be made within the Klamath Project.
B. Subject to the rights described in subdivision A of this
article and excepting the uses of water set forth in subdivision E of
Article XI, rights to the use of unappropriated waters originating
within the Upper Klamath River Basin for any beneficial use in the
Upper Klamath River Basin, by direct diversion or by storage for
later use, may be acquired by any person after the effective date of
this compact by appropriation under the laws of the state where the
use is to be made, as modified by the following provisions of this
subdivision B and subdivision C of this article, and may not be
acquired in any other way:
1. In granting permits to appropriate waters under this
subdivision B, as among conflicting applications to appropriate when
there is insufficient water to satisfy all such applications, each
state shall give preference to applications for a higher use over
applications for a lower use in accordance with the following order
of uses:
(a) Domestic use,
(b) Irrigation use,
(c) Recreational use, including use for fish and wildlife,
(d) Industrial use,
(e) Generation of hydroelectric power,
(f) Such other uses as are recognized under the laws of the state
involved.
These uses are referred to in this compact as uses (a), (b), (c),
(d), (e) and (f), respectively. Except as to the superiority of
rights to the use of water for use (a) or (b) over the rights to the
use of water for use (c), (d), (e) or (f), as governed by subdivision
C of this article, upon a permit being granted and a right becoming
vested and perfected by use, priority in right to the use of water
shall be governed by priority in time within the entire Upper Klamath
River Basin regardless of state boundaries. The date of priority of
any right to the use of water appropriated for the purposes above
enumerated shall be the date of the filing of the application
therefor, but such priority shall be dependent on commencement and
completion of construction of the necessary works and application of
the water to beneficial use with due diligence and within the times
specified under the laws of the state where the use is to be made.
Each state shall promptly provide the commission and the appropriate
official of the other state with complete information as to such
applications and as to all actions taken thereon.
2. Conditions on the use of water under this subdivision B in
Oregon shall be:
(a) That there shall be no diversion of waters from the Upper
Klamath River Basin, but this limitation shall not apply to
out-of-basin diversions of waters originating within the drainage
area of Fourmile Lake.
(b) That water diverted from Upper Klamath Lake and the Klamath
River and its tributaries upstream from Keno, Oregon, for use in
Oregon and not consumed therein and appearing as surface return flow
and waste water within the Upper Klamath River Basin shall be
returned to the Klamath River or its tributaries above Keno, Oregon.
3. Conditions on the use of water under this subdivision B in
California shall be:
(a) That the waters diverted from the Klamath River within the
Upper Klamath River Basin for use in California shall not be taken
outside the Upper Klamath River Basin.
(b) That substantially all of the return flows and waste water
finally resulting from such diversions and use appearing as surface
waters in the Upper Klamath River Basin shall be made to drain so as
to be eventually returned to the Klamath River upstream from Keno,
Oregon.
C. 1. All rights, acquired by appropriation after the effective
date of this compact, to use waters originating within the Upper
Klamath River Basin for use (a) or (b) in the Upper Klamath River
Basin in either state shall be superior to any rights, acquired after
the effective date of this compact, to use such waters (i) or any
purpose outside the Klamath River Basin by diversion in California or
(ii) for use (c), (d), (e) or (f) anywhere in the Klamath River
Basin. Such superior rights shall exist regardless of their priority
in time and may be exercised with respect to inferior rights without
the payment of compensation. But such superior rights to use water
for use (b) in California shall be limited to the quantity of water
necessary to irrigate 100,000 acres of land, and in Oregon shall be
limited to the quantity of water necessary to irrigate 200,000 acres
of land.
2. The provisions of paragraph 1 of this subdivision C shall not
prohibit the acquisition and exercise after the effective date of
this compact of rights to store waters originating within the Upper
Klamath River Basin and to make later use of such stored water for
any purpose, as long as the storing of waters for such later use,
while being effected, does not interfere with the direct diversion or
storage of such waters for use (a) or (b) in the Upper Klamath River
Basin.
Article IV. Hydroelectric Power
It shall be the objective of each state, in the formulation and
the execution and the granting of authority for the formulation and
execution of plans for the distribution and use of the waters of the
Klamath River Basin, to provide for the most efficient use of
available power head and its economic integration with the
distribution of water for other beneficial uses in order to secure
the most economical distribution and use of water and lowest power
rates which may be reasonable for irrigation and drainage pumping,
including pumping from wells.
Article V. Interstate Diversion and Storage Rights; Measuring
Devices
A. Each state hereby grants for the benefit of the other and its
designees the right to construct and operate facilities for the
measurement, diversion, storage and conveyance of water from the
Upper Klamath River Basin in one state for use in the other insofar
as the exercise of such right may be necessary to effectuate and
comply with the terms of this compact. The location of such
facilities shall be subject to approval by the commission.
B. Each state or its designee, exercising within the jurisdiction
of the other a right granted under subdivision A of this article,
shall make provision for the establishment, operation, and
maintenance of permanent gaging stations at such points on streams or
reservoir or conveyance facilities as may be required by the
commission for the purpose of ascertaining and recording the volume
of diversions by the streams or facilities involved. Said stations
shall be equipped with suitable devices for determining the flow of
water at all times. All information obtained from such stations shall
be compiled in accordance with the standards of the United States
Geological Survey, shall be filed with the commission, and shall be
available to the public.
Article VI. Acquisition of Property for Storage and Diversion; In
Lieu Taxes
A. Subject to approval of the commission, either state shall have
the right (1) to acquire such property rights in the other state as
are necessary for the diversion, storage, conveyance, measurement and
use of water in conformity with this compact, by donation or
purchase, or (2) to elect to have the other state acquire such
property rights for it by purchase or through the exercise of the
power of eminent domain. A state making the latter election shall
make a written request therefor and the other state shall
expeditiously acquire said property rights either by purchase at a
price satisfactory to the requesting state, or, if such purchase
cannot be made, then through the exercise of its power of eminent
domain, and shall convey said property rights to the requesting state
or its designee. All costs of such acquisition shall be paid by the
requesting state. Neither state shall have any greater power to
acquire property rights for the other state through the exercise of
the power of eminent domain than it would have under its laws to
acquire the same property rights for itself.
B. Should any diversion, storage or conveyance facilities be
constructed or acquired in either state for the benefit of the other
state, as herein provided, the construction, repair, replacement,
maintenance and operation of such facilities shall be subject to the
laws of the state in which the facilities are located, except that
the proper officials of that state shall permit the storage, release
and conveyance of any water to which the other state is entitled
under this compact.
C. Either state having property rights other than water rights in
the other state acquired as provided in this article shall pay to
each political subdivision of the state in which such property rights
are located, each and every year during which such rights are held,
a sum of money equivalent to the average annual amount of taxes
assessed against those rights during the 10 years preceding the
acquisition of such rights in reimbursement for the loss of taxes to
such political subdivisions of the state. Payments so made to a
political subdivision shall be in lieu of any and all taxes by that
subdivision on the property rights for which the payments are made.
Article VII. Pollution Control
A. The states recognize that the growth of population and the
economy of the Upper Klamath River Basin can result in pollution of
the waters of the Upper Klamath River Basin constituting a menace to
the health and welfare of, and occasioning economic loss to, people
living or having interests in the Klamath River Basin. The states
recognize further that protection of the beneficial uses of the
waters of the Klamath River Basin requires co-operative action of the
two states in pollution abatement and control.
B. To aid in such pollution abatement and control, the commission
shall have the duty and power:
1. To co-operate with the states or agencies thereof or other
entities and with the United States for the purpose of promoting
effective laws and the adoption of effective regulations for
abatement and control of pollution of the waters of the Klamath River
Basin, and from time to time to recommend to the governments
reasonable minimum standards for the quality of such waters.
2. To disseminate to the public by any and all appropriate means
information respecting pollution abatement and control in the waters
of the Klamath River Basin and on the harmful and uneconomic results
of such pollution.
C. Each state shall have the primary obligation to take
appropriate action under its own laws to abate and control interstate
pollution, which is defined as the deterioration of the quality of
the waters of the Upper Klamath River Basin within the boundaries of
such state which materially and adversely affects beneficial uses of
waters of the Klamath River Basin in the other state. Upon complaint
to the commission by the state water pollution control agency of one
state that interstate pollution originating in the other state is not
being prevented or abated, the procedure shall be as follows:
1. The commission shall make an investigation and hold a
conference on the alleged interstate pollution with the water
pollution control agencies of the two states, after which the
commission shall recommend appropriate corrective action.
2. If appropriate corrective action is not taken within a
reasonable time, the commission shall call a hearing, giving
reasonable notice in writing thereof to the water pollution control
agencies of the two states and to the person or persons which it is
believed are causing the alleged interstate pollution. Such hearing
shall be held in accordance with rules and regulations of the
commission, which shall conform as nearly as practicable with the
laws of the two states governing administrative hearings. At the
conclusion of such hearing, the commission shall make a finding as to
whether interstate pollution exists, and if so, shall issue to any
person or persons which the commission finds are causing such
interstate pollution an order or orders for correction thereof.
3. It shall be the duty of the person against whom any such order
is issued to comply therewith. Any court of general jurisdiction of
the state where such discharge is occurring or the United States
District Court for the district where the discharge is occurring
shall have jurisdiction, on petition of the commission for
enforcement of such order, to compel action by mandamus, injunction,
specific performance, or any other appropriate remedy, or on petition
of the person against whom the order is issued to review any order.
At the conclusion of such enforcement or review proceedings, the
court may enter such decree or judgment affirming, reversing,
modifying, or remanding such order as in its judgment is proper in
the circumstances on the basis of the rules customarily applicable in
proceedings for court enforcement or review of administrative
actions.
D. The water pollution control agencies of the two states shall,
from time to time, make available to the commission all data relating
to the quality of the waters of the Upper Klamath River Basin which
they possess as the result of studies, surveys and investigations
thereof which they may have made.
Article VIII. Miscellaneous
A. Subject to vested rights as of the effective date of this
compact, there shall be no diversion of waters from the basin of
Jenny Creek to the extent that such waters are required, as
determined by the commission, for use on land within the basin of
Jenny Creek.
B. Each state shall exercise whatever administrative, judicial,
legislative or police powers it has that are required to provide any
necessary reregulation or other control over the flow of the Klamath
River downstream from any hydroelectric powerplant for protection of
fish, human life or property from damage caused by fluctuations
resulting from the operation of such plant.
Article IX. Administration
A. 1. There is hereby created a commission to administer this
compact. The commission shall consist of three members. The
representative of the State of California shall be the Department of
Water Resources. The representative of the State of Oregon shall be
the State Engineer of Oregon who shall serve as ex officio
representative of the State Water Resources Board of Oregon. The
President is requested to appoint a federal representative who shall
be designated and shall serve as provided by the laws of the United
States.
2. The representative of each state shall be entitled to one vote
in the commission. The representative of the United States shall
serve as chairman of the commission without vote. The compensation
and expenses of each representative shall be fixed and paid by the
government which he represents. Any action by the commission shall be
effective only if it be agreed to by both voting members.
3. The commission shall meet to establish its formal organization
within 60 days after the effective date of this compact, such meeting
to be at the call of the governors of the two states. The commission
shall then adopt its initial set of rules and regulations governing
the management of its internal affairs providing for, among other
things, the calling and holding of meetings, the adoption of a seal,
and the authority and duties of the chairman and executive director.
The commission shall establish its office within the Upper Klamath
River Basin.
4. The commission shall appoint an executive director, who shall
also act as secretary, to serve at the pleasure of the commission and
at such compensation, under such terms and conditions and performing
such duties as it may fix. The executive director shall be the
custodian of the records of the commission with authority to affix
the commission's official seal, and to attest to and certify such
records or copies thereof. The commission, without regard to the
provisions of the civil service laws of either state, may appoint and
discharge such consulting, clerical and other personnel as may be
necessary for the performance of the commission's functions, may
define their duties, and may fix and pay their compensation. The
commission may require the executive director and any of its
employees to post official bonds, and the cost thereof shall be paid
by the commission.
5. All records, files and documents of the commission shall be
open for public inspection at its office during established office
hours.
6. No member, officer or employee of the commission shall be
liable for injury or damage resulting from (a) action taken by such
member, officer or employee in good faith and without malice under
the apparent authority of this compact, even though such action is
later judicially determined to be unauthorized, or (b) the negligent
or wrongful act or omission of any other person, employed by the
commission and serving under such officer, member or employee, unless
such member, officer or employee either failed to exercise due care
in this selection, appointment or supervision of such other person,
or failed to take all available action to suspend or discharge such
other person after knowledge or notice that such other person was
inefficient or incompetent to perform the work for which he was
employed. No suit may be instituted against a member, officer or
employee of the commission for damages alleged to have resulted from
the negligent or wrongful act or omission of such member, officer or
employee or a subordinate thereof occurring durng the performance of
his official duties unless, within 90 days after occurrence of the
incident, a verified claim for damages is presented in writing and
filed with such member, officer or employee and with the commission.
In the event of a suit for damages against any member, officer or
employee of the commission on account of any act or omission in the
performance of his or his subordinates' official duties, the
commission shall arrange for the defense of such suit and may pay all
expenses therefor on behalf of such member, officer or employee. The
commission may at its expense insure its members, officers and
employees against liability resulting from their acts or omissions in
the performance of their official duties. Nothing in this paragraph
shall be construed as imposing any liability upon any member, officer
or employee of the commission that he would otherwise not have.
7. The commission may incur obligations and pay expenses which are
necessary for the performance of its functions. But it shall not
pledge the credit of any government except by and with the authority
of the legislative body thereof given pursuant to and in keeping with
the constitution of such government, nor shall the commission incur
any obligations prior to the availability of funds adequate to meet
them.
8. The commission may:
(a) Borrow, accept or contract for the services of personnel from
any government or agency thereof, from any intergovernmental agency
or from any other entity.
(b) Accept for any of its purposes and functions under this
compact any and all donations, gifts, grants of money, equipment,
supplies, materials and services from any government or agency
thereof or intergovernmental agency or from any other entity.
(c) Acquire, hold and dispose of real and personal property as may
be necessary in the performance of its functions.
(d) Make such studies, surveys and investigations as are necessary
in carrying out the provisions of this compact.
9. All meetings of the commission for the consideration of and
action on any matters coming before the commission, except matters
involving the management of internal affairs of the commission and
its staff, shall be open to the public. Matters coming within the
exception of this paragraph may be considered and acted upon by the
commission in executive session under such rules and regulations as
may be established therefor.
10. In the case of the failure of the two voting members of the
commission to agree on any matter relating to the administration of
this compact as provided in paragraph 2 of this subdivision A, the
representative from each state shall appoint one person and the two
appointed persons shall appoint a third person. The three appointees
shall sit as an arbitration forum. The terms of appointment and the
compensation of the members of the arbitration forum shall be fixed
by the commission. Matters on which the two voting members of the
commission have failed to agree shall be decided by a majority vote
of the members of the arbitration forum. Each state obligates itself
to abide by the decision of the arbitration forum, subject, however,
to the right of each state to have the decision reviewed by a court
of competent jurisdiction.
11. The commission shall have the right of access, through its
authorized representatives, to all properties in the Klamath River
Basin whenever necessary for the purpose of administration of this
compact. The commission may obtain a court order to enforce its right
of access.
B. 1. The commission shall submit to the governor or designated
officer of each state a budget of its estimated expenditures for such
period and at such times as may be required by the laws of that
state for presentation to the legislature thereof. Each state pledges
itself to appropriate and pay over to the commission one-half of the
amount required to finance the commission's estimated expenditures
as set forth in each of its budgets, and pledges further that
concurrently with approval of this compact by its legislature the sum
of not less than $12,000 will be appropriated by it to be paid over
to the commission at its first meeting for use in financing the
commission's functions until the commission can prepare its first
budget and receive its first appropriation thereunder from the
states.
2. The commission shall keep accurate accounts of all receipts and
disbursements, which shall be audited yearly by a certified public
accountant, and the report of the audit shall be made a part of its
annual report. The accounts of the commission shall be open for
public inspection during established office hours.
3. The commission shall make and transmit to the legislature and
governor of each state and to the President of the United States an
annual report covering the finances and activities of the commission
and embodying such plans, recommendations and findings as may have
been adopted by the commission.
C. 1. The commission shall have the power to adopt, and to amend
or repeal, such rules and regulations to effectuate the purposes of
this compact as
in its judgment may be appropriate.
2. Except as to matters involving exclusively the management of
the internal affairs of the commission and its staff or involving
emergency matters, prior to the adoption, amendment or repeal of any
rule or regulation the commission shall hold a hearing at which any
interested person shall have the opportunity to present his views on
the proposed action in writing, with or without the opportunity to
present the same orally. The commission shall give adequate advance
notice in a reasonable manner of the time, place and subject of such
hearings.
3. Emergency rules and regulations may be adopted without a prior
hearing, but in such case they may be effective for not longer than
90 days.
4. The commission shall publish its rules and regulations in
convenient form.
Article X. Status of Indian Rights
A. Nothing in this compact shall be deemed:
1. To affect adversely the present rights of any individual
Indian, tribe, band or community of Indians to the use of the waters
of the Klamath River Basin for irrigation.
2. To deprive any individual Indian, tribe, band or community of
Indians of any rights, privileges, or immunities afforded under
federal treaty, agreement or statute.
3. To affect the obligations of the United States of America to
the Indians, tribes, bands or communities of Indians, and their
reservations.
4. To alter, amend or repeal any of the provisions of the Act of
August 13, 1954, (68 Stat. 718) as it may be amended.
B. Lands within the Klamath Indian Reservation which are brought
under irrigation after the effective date of this compact, whether
before or after Section 14 of said Act of August 13, 1954, becomes
fully operative, shall be taken into account in determining whether
the 200,000-acre limitation provided in paragraph 1 of subdivision C
of Article III has been reached.
Article XI. Federal Rights
Nothing in this compact shall be deemed:
A. To impair or affect any rights, powers or jurisdiction of the
United States, its agencies or those acting by or under its
authority, in, over and to the waters of the Klamath River Basin, nor
to impair or affect the capacity of the United States, its agencies
or those acting by or under its authority in any manner whatsoever,
except as otherwise provided by the federal legislation enacted for
the implementation of this compact as specified in Article XIII.
B. To subject any property of the United States, its agencies or
instrumentalities, to taxation by either state or any subdivision
thereof, unless otherwise provided by act of Congress.
C. To subject any works or property of the United States, its
agencies, instrumentalities or those acting by or under its
authority, used in connection with the control or use of waters which
are the subject of this compact, to the laws of any state to an
extent other than the extent to which those laws would apply without
regard to this compact, except as otherwise provided by the federal
legislation enacted for the implementation of this compact as
specified in Article XIII.
D. To affect adversely the existing areas of Crater Lake National
Park or Lava Beds National Monument, or to limit the operation of
laws relating to the preservation thereof.
E. To apply to the use of water for the maintenance, on the scale
at which such land and water areas are maintained as of the effective
date of this compact, of officially designated water-fowl management
areas, including water consumed by evaporation and transpiration on
water surface areas and water used for irrigation or otherwise in the
Upper Klamath River Basin; nor to affect the rights and obligations
of the United States under any migratory bird treaty or the Migratory
Bird Conservation Act (45 Stat. 1222), as amended to the effective
date of this compact.
Article XII. General Provisions
A. Each state and all persons using, claiming or in any manner
asserting any right to the use of the waters of the Klamath River
Basin under the authority of either state shall be subject to the
terms of this compact.
B. Nothing in this compact shall be construed to limit or prevent
either state from instituting or maintaining any action or
proceeding, legal or equitable, in any court of competent
jurisdiction for the protection of any right under this compact or
the enforcement of any of its provisions.
C. Should a court of competent jurisdiction hold any part of this
compact to be contrary to the Constitution of either state or the
United States, all other provisions shall continue in full force and
effect, unless it is authoritatively and finally determined
judicially that the remaining provisions cannot operate for the
purposes, or substantially in the manner, intended by the states
independently of the portions declared unconstitutional or invalid.
D. Except as to matters requiring the exercise of discretion by
the commission, the provisions of this compact shall be
self-executing and shall by operation of law be conditions of the
various state permits, licenses or other authorizations relating to
the waters of the Klamath River Basin issued after the effective date
of this compact.
E. The physical and other conditions peculiar to the Klamath River
Basin constitute the basis for this compact, and neither of the
states hereby, nor the Congress of the United States by its consent,
considers that this compact establishes any general principle or
precedent with respect to any other interstate stream.
Article XIII. Ratification
A. This compact shall become effective when ratified by the
legislature of each signatory state, and when consented to by an act
of Congress of the United States which will, in substance, meet the
provisions hereinafter set forth in this article.
B. The act of Congress referred to in subdivision A of this
article shall provide that the United States or any agency thereof,
and any entity acting under any license or other authority granted
under the laws of the United States (referred to in this article as
"the United States"), in connection with developments undertaken
after the effective date of this compact pursuant to laws of the
United States, shall comply with the following requirements:
1. The United States shall recognize and be bound by the
provisions of subdivision A of Article III.
2. The United States shall not, without payment of just
compensation, impair any rights to the use of water for use (a) or
(b) within the Upper Klamath River Basin by the exercise of any
powers or rights to use or control water (i) for any purpose
whatsoever outside the Klamath River Basin by diversions in
California or (ii) for any purpose whatsoever within the Klamath
River Basin other than use (a) or (b). But the exercise of powers and
rights by the United States shall be limited under this paragraph 2
only as against rights to the use of water for use (a) or (b) within
the Upper Klamath River Basin which are acquired as provided in
subdivision B of Article III after the effective date of this
compact, but only to the extent that annual depletions in the flow of
the Klamath River at Keno resulting from the exercise of such rights
to use water for uses (a) and (b) do not exceed 340,000 acre-feet in
any one calendar year.
3. The United States shall be subject to the limitation on
diversions of waters from the basin of Jenny Creek as provided in
subdivision A of Article VIII.
4. The United States shall be governed by all the limitations and
provisions of paragraph 2 and subparagraph (a) of paragraph 3 of
subdivision B of Article III.
5. The United States, with respect to any irrigation or
reclamation development undertaken by the United States in the Upper
Klamath River Basin in California, shall provide that substantially
all of the return flows and waste water finally resulting from such
diversions and use appearing as surface waters in the Upper Klamath
River Basin shall be made to drain so as to be eventually returned to
the Klamath River upstream from Keno, unless the Secretary of the
Interior shall determine that compliance with this requirement would
render it less feasible than under an alternate plan of development,
in which event such return flows and waste waters shall be returned
to the Klamath River at a point above Copco Lake.
C. Upon enactment of the act of Congress referred to in
subdivision A of this article and so long as such act shall be in
effect, the United States, when exercising rights to use water
pursuant to state law, shall be entitled to all of the same
privileges and benefits of this compact as any person exercising
similar rights.
D. Such act of Congress shall not be construed as relieving the
United States of any requirement of compliance with state law which
may be provided by other federal statutes.
Article XIV. Termination
This compact may be terminated at any time by legislative consent
of both states, but despite such termination, all rights then
established hereunder or recognized hereby shall continue to be
recognized as valid by the states.
5900. The Legislature of the State of California hereby ratifies
and approves that certain compact designated as the "Klamath River
Basin Compact between the States of Oregon and California," as set
forth in Section 2 of Chapter 113 of the Statutes of 1957, which was
approved at Klamath Falls, Oregon, on the seventeenth day of
November, 1956, by the California Klamath River Commission, under
authority of and in conformity with the provisions of Government Code
Sections 8110-8119 (California Stats. 1953, Ch. 1473, p. 3085), and
by a similar commission representing the State of Oregon under
legislative authority of that state, and the provisions of said
compact shall become the law of this State upon said compact becoming
effective as provided in Article XIII of said compact.
5901. The provisions of said Klamath River Basin Compact are as
follows:
Article I. Purposes
The major purposes of this compact are, with respect to the water
resources of the Klamath River Basin:
A. To facilitate and promote the orderly, integrated and
comprehensive development, use, conservation and control thereof for
various purposes, including, among others: the use of water for
domestic purposes; the development of lands by irrigation and other
means; the protection and enhancement of fish, wildlife and
recreational resources; the use of water for industrial purposes and
hydroelectric power production; and the use and control of water for
navigation and flood prevention.
B. To further intergovernmental co-operation and comity with
respect to these resources and programs for their use and development
and to remove causes of present and future controversies by
providing (1) for equitable distribution and use of water among the
two states and the Federal Government, (2) for preferential rights to
the use of water after the effective date of this compact for the
anticipated ultimate requirements for domestic and irrigation
purposes in the Upper Klamath River Basin in Oregon and California,
and (3) for prescribed relationships between beneficial uses of water
as a practicable means of accomplishing such distribution and use.
Article II. Definition of Terms
As used in this compact:
A. "Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries within the States of California
and Oregon and all closed basins included in the Upper Klamath River
Basin.
B. "Upper Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries upstream from the boundary
between the States of California and Oregon and the closed basins of
Butte Valley, Red Rock Valley, Lost River Valley, Swan Lake Valley
and Crater Lake, as delineated on the official map of the Upper
Klamath River Basin approved on September 6, 1956, by the commissions
negotiating this compact and filed with the Secretaries of State of
the two states and the General Services Administration of the United
States, which map is incorporated by reference and made a part
hereof.
C. "Commission" shall mean the Klamath River Compact Commission as
created by Article IX of this compact.
D. "Klamath Project" of the Bureau of Reclamation of the
Department of the Interior of the United States shall mean that area
as delineated by appropriate legend on the official map incorporated
by reference under subdivision B of this article.
E. "Person" shall mean any individual or any other entity, public
or private, including either state, but excluding the United States.
F. "Keno" shall mean a point on the Klamath River at the present
needle dam, or any substitute control dam constructed in Section 36,
Township 39 South, Range 7 East, Willamette Base and Meridian.
G. "Water" or "waters" shall mean waters appearing on the surface
of the ground in streams, lakes or otherwise, regardless of whether
such waters at any time were or will become ground water, but shall
not include water extracted from underground sources until after such
water is used and becomes surface return flow or waste water.
H. "Domestic use" shall mean the use of water for human
sustenance, sanitation and comfort; for municipal purposes; for
livestock watering; for irrigation of family gardens; and for other
like purposes.
I. "Industrial use" shall mean the use of water in manufacturing
operations.
J. "Irrigation use" shall mean the use of water for production of
agricultural crops, including grain grown for feeding wildfowl.
Article III. Distribution and Use of Water
A. There are hereby recognized vested rights to the use of waters
originating in the Upper Klamath River Basin validly established and
subsisting as of the effective date of this compact under the laws of
the state in which the use or diversion is made, including rights to
the use of waters for domestic and irrigation uses within the
Klamath Project. There are also hereby recognized rights to the use
of all waters reasonably required for domestic and irrigation uses
which may hereafter be made within the Klamath Project.
B. Subject to the rights described in subdivision A of this
article and excepting the uses of water set forth in subdivision E of
Article XI, rights to the use of unappropriated waters originating
within the Upper Klamath River Basin for any beneficial use in the
Upper Klamath River Basin, by direct diversion or by storage for
later use, may be acquired by any person after the effective date of
this compact by appropriation under the laws of the state where the
use is to be made, as modified by the following provisions of this
subdivision B and subdivision C of this article, and may not be
acquired in any other way:
1. In granting permits to appropriate waters under this
subdivision B, as among conflicting applications to appropriate when
there is insufficient water to satisfy all such applications, each
state shall give preference to applications for a higher use over
applications for a lower use in accordance with the following order
of uses:
(a) Domestic use,
(b) Irrigation use,
(c) Recreational use, including use for fish and wildlife,
(d) Industrial use,
(e) Generation of hydroelectric power,
(f) Such other uses as are recognized under the laws of the state
involved.
These uses are referred to in this compact as uses (a), (b), (c),
(d), (e) and (f), respectively. Except as to the superiority of
rights to the use of water for use (a) or (b) over the rights to the
use of water for use (c), (d), (e) or (f), as governed by subdivision
C of this article, upon a permit being granted and a right becoming
vested and perfected by use, priority in right to the use of water
shall be governed by priority in time within the entire Upper Klamath
River Basin regardless of state boundaries. The date of priority of
any right to the use of water appropriated for the purposes above
enumerated shall be the date of the filing of the application
therefor, but such priority shall be dependent on commencement and
completion of construction of the necessary works and application of
the water to beneficial use with due diligence and within the times
specified under the laws of the state where the use is to be made.
Each state shall promptly provide the commission and the appropriate
official of the other state with complete information as to such
applications and as to all actions taken thereon.
2. Conditions on the use of water under this subdivision B in
Oregon shall be:
(a) That there shall be no diversion of waters from the Upper
Klamath River Basin, but this limitation shall not apply to
out-of-basin diversions of waters originating within the drainage
area of Fourmile Lake.
(b) That water diverted from Upper Klamath Lake and the Klamath
River and its tributaries upstream from Keno, Oregon, for use in
Oregon and not consumed therein and appearing as surface return flow
and waste water within the Upper Klamath River Basin shall be
returned to the Klamath River or its tributaries above Keno, Oregon.
3. Conditions on the use of water under this subdivision B in
California shall be:
(a) That the waters diverted from the Klamath River within the
Upper Klamath River Basin for use in California shall not be taken
outside the Upper Klamath River Basin.
(b) That substantially all of the return flows and waste water
finally resulting from such diversions and use appearing as surface
waters in the Upper Klamath River Basin shall be made to drain so as
to be eventually returned to the Klamath River upstream from Keno,
Oregon.
C. 1. All rights, acquired by appropriation after the effective
date of this compact, to use waters originating within the Upper
Klamath River Basin for use (a) or (b) in the Upper Klamath River
Basin in either state shall be superior to any rights, acquired after
the effective date of this compact, to use such waters (i) or any
purpose outside the Klamath River Basin by diversion in California or
(ii) for use (c), (d), (e) or (f) anywhere in the Klamath River
Basin. Such superior rights shall exist regardless of their priority
in time and may be exercised with respect to inferior rights without
the payment of compensation. But such superior rights to use water
for use (b) in California shall be limited to the quantity of water
necessary to irrigate 100,000 acres of land, and in Oregon shall be
limited to the quantity of water necessary to irrigate 200,000 acres
of land.
2. The provisions of paragraph 1 of this subdivision C shall not
prohibit the acquisition and exercise after the effective date of
this compact of rights to store waters originating within the Upper
Klamath River Basin and to make later use of such stored water for
any purpose, as long as the storing of waters for such later use,
while being effected, does not interfere with the direct diversion or
storage of such waters for use (a) or (b) in the Upper Klamath River
Basin.
Article IV. Hydroelectric Power
It shall be the objective of each state, in the formulation and
the execution and the granting of authority for the formulation and
execution of plans for the distribution and use of the waters of the
Klamath River Basin, to provide for the most efficient use of
available power head and its economic integration with the
distribution of water for other beneficial uses in order to secure
the most economical distribution and use of water and lowest power
rates which may be reasonable for irrigation and drainage pumping,
including pumping from wells.
Article V. Interstate Diversion and Storage Rights; Measuring
Devices
A. Each state hereby grants for the benefit of the other and its
designees the right to construct and operate facilities for the
measurement, diversion, storage and conveyance of water from the
Upper Klamath River Basin in one state for use in the other insofar
as the exercise of such right may be necessary to effectuate and
comply with the terms of this compact. The location of such
facilities shall be subject to approval by the commission.
B. Each state or its designee, exercising within the jurisdiction
of the other a right granted under subdivision A of this article,
shall make provision for the establishment, operation, and
maintenance of permanent gaging stations at such points on streams or
reservoir or conveyance facilities as may be required by the
commission for the purpose of ascertaining and recording the volume
of diversions by the streams or facilities involved. Said stations
shall be equipped with suitable devices for determining the flow of
water at all times. All information obtained from such stations shall
be compiled in accordance with the standards of the United States
Geological Survey, shall be filed with the commission, and shall be
available to the public.
Article VI. Acquisition of Property for Storage and Diversion; In
Lieu Taxes
A. Subject to approval of the commission, either state shall have
the right (1) to acquire such property rights in the other state as
are necessary for the diversion, storage, conveyance, measurement and
use of water in conformity with this compact, by donation or
purchase, or (2) to elect to have the other state acquire such
property rights for it by purchase or through the exercise of the
power of eminent domain. A state making the latter election shall
make a written request therefor and the other state shall
expeditiously acquire said property rights either by purchase at a
price satisfactory to the requesting state, or, if such purchase
cannot be made, then through the exercise of its power of eminent
domain, and shall convey said property rights to the requesting state
or its designee. All costs of such acquisition shall be paid by the
requesting state. Neither state shall have any greater power to
acquire property rights for the other state through the exercise of
the power of eminent domain than it would have under its laws to
acquire the same property rights for itself.
B. Should any diversion, storage or conveyance facilities be
constructed or acquired in either state for the benefit of the other
state, as herein provided, the construction, repair, replacement,
maintenance and operation of such facilities shall be subject to the
laws of the state in which the facilities are located, except that
the proper officials of that state shall permit the storage, release
and conveyance of any water to which the other state is entitled
under this compact.
C. Either state having property rights other than water rights in
the other state acquired as provided in this article shall pay to
each political subdivision of the state in which such property rights
are located, each and every year during which such rights are held,
a sum of money equivalent to the average annual amount of taxes
assessed against those rights during the 10 years preceding the
acquisition of such rights in reimbursement for the loss of taxes to
such political subdivisions of the state. Payments so made to a
political subdivision shall be in lieu of any and all taxes by that
subdivision on the property rights for which the payments are made.
Article VII. Pollution Control
A. The states recognize that the growth of population and the
economy of the Upper Klamath River Basin can result in pollution of
the waters of the Upper Klamath River Basin constituting a menace to
the health and welfare of, and occasioning economic loss to, people
living or having interests in the Klamath River Basin. The states
recognize further that protection of the beneficial uses of the
waters of the Klamath River Basin requires co-operative action of the
two states in pollution abatement and control.
B. To aid in such pollution abatement and control, the commission
shall have the duty and power:
1. To co-operate with the states or agencies thereof or other
entities and with the United States for the purpose of promoting
effective laws and the adoption of effective regulations for
abatement and control of pollution of the waters of the Klamath River
Basin, and from time to time to recommend to the governments
reasonable minimum standards for the quality of such waters.
2. To disseminate to the public by any and all appropriate means
information respecting pollution abatement and control in the waters
of the Klamath River Basin and on the harmful and uneconomic results
of such pollution.
C. Each state shall have the primary obligation to take
appropriate action under its own laws to abate and control interstate
pollution, which is defined as the deterioration of the quality of
the waters of the Upper Klamath River Basin within the boundaries of
such state which materially and adversely affects beneficial uses of
waters of the Klamath River Basin in the other state. Upon complaint
to the commission by the state water pollution control agency of one
state that interstate pollution originating in the other state is not
being prevented or abated, the procedure shall be as follows:
1. The commission shall make an investigation and hold a
conference on the alleged interstate pollution with the water
pollution control agencies of the two states, after which the
commission shall recommend appropriate corrective action.
2. If appropriate corrective action is not taken within a
reasonable time, the commission shall call a hearing, giving
reasonable notice in writing thereof to the water pollution control
agencies of the two states and to the person or persons which it is
believed are causing the alleged interstate pollution. Such hearing
shall be held in accordance with rules and regulations of the
commission, which shall conform as nearly as practicable with the
laws of the two states governing administrative hearings. At the
conclusion of such hearing, the commission shall make a finding as to
whether interstate pollution exists, and if so, shall issue to any
person or persons which the commission finds are causing such
interstate pollution an order or orders for correction thereof.
3. It shall be the duty of the person against whom any such order
is issued to comply therewith. Any court of general jurisdiction of
the state where such discharge is occurring or the United States
District Court for the district where the discharge is occurring
shall have jurisdiction, on petition of the commission for
enforcement of such order, to compel action by mandamus, injunction,
specific performance, or any other appropriate remedy, or on petition
of the person against whom the order is issued to review any order.
At the conclusion of such enforcement or review proceedings, the
court may enter such decree or judgment affirming, reversing,
modifying, or remanding such order as in its judgment is proper in
the circumstances on the basis of the rules customarily applicable in
proceedings for court enforcement or review of administrative
actions.
D. The water pollution control agencies of the two states shall,
from time to time, make available to the commission all data relating
to the quality of the waters of the Upper Klamath River Basin which
they possess as the result of studies, surveys and investigations
thereof which they may have made.
Article VIII. Miscellaneous
A. Subject to vested rights as of the effective date of this
compact, there shall be no diversion of waters from the basin of
Jenny Creek to the extent that such waters are required, as
determined by the commission, for use on land within the basin of
Jenny Creek.
B. Each state shall exercise whatever administrative, judicial,
legislative or police powers it has that are required to provide any
necessary reregulation or other control over the flow of the Klamath
River downstream from any hydroelectric powerplant for protection of
fish, human life or property from damage caused by fluctuations
resulting from the operation of such plant.
Article IX. Administration
A. 1. There is hereby created a commission to administer this
compact. The commission shall consist of three members. The
representative of the State of California shall be the Department of
Water Resources. The representative of the State of Oregon shall be
the State Engineer of Oregon who shall serve as ex officio
representative of the State Water Resources Board of Oregon. The
President is requested to appoint a federal representative who shall
be designated and shall serve as provided by the laws of the United
States.
2. The representative of each state shall be entitled to one vote
in the commission. The representative of the United States shall
serve as chairman of the commission without vote. The compensation
and expenses of each representative shall be fixed and paid by the
government which he represents. Any action by the commission shall be
effective only if it be agreed to by both voting members.
3. The commission shall meet to establish its formal organization
within 60 days after the effective date of this compact, such meeting
to be at the call of the governors of the two states. The commission
shall then adopt its initial set of rules and regulations governing
the management of its internal affairs providing for, among other
things, the calling and holding of meetings, the adoption of a seal,
and the authority and duties of the chairman and executive director.
The commission shall establish its office within the Upper Klamath
River Basin.
4. The commission shall appoint an executive director, who shall
also act as secretary, to serve at the pleasure of the commission and
at such compensation, under such terms and conditions and performing
such duties as it may fix. The executive director shall be the
custodian of the records of the commission with authority to affix
the commission's official seal, and to attest to and certify such
records or copies thereof. The commission, without regard to the
provisions of the civil service laws of either state, may appoint and
discharge such consulting, clerical and other personnel as may be
necessary for the performance of the commission's functions, may
define their duties, and may fix and pay their compensation. The
commission may require the executive director and any of its
employees to post official bonds, and the cost thereof shall be paid
by the commission.
5. All records, files and documents of the commission shall be
open for public inspection at its office during established office
hours.
6. No member, officer or employee of the commission shall be
liable for injury or damage resulting from (a) action taken by such
member, officer or employee in good faith and without malice under
the apparent authority of this compact, even though such action is
later judicially determined to be unauthorized, or (b) the negligent
or wrongful act or omission of any other person, employed by the
commission and serving under such officer, member or employee, unless
such member, officer or employee either failed to exercise due care
in this selection, appointment or supervision of such other person,
or failed to take all available action to suspend or discharge such
other person after knowledge or notice that such other person was
inefficient or incompetent to perform the work for which he was
employed. No suit may be instituted against a member, officer or
employee of the commission for damages alleged to have resulted from
the negligent or wrongful act or omission of such member, officer or
employee or a subordinate thereof occurring durng the performance of
his official duties unless, within 90 days after occurrence of the
incident, a verified claim for damages is presented in writing and
filed with such member, officer or employee and with the commission.
In the event of a suit for damages against any member, officer or
employee of the commission on account of any act or omission in the
performance of his or his subordinates' official duties, the
commission shall arrange for the defense of such suit and may pay all
expenses therefor on behalf of such member, officer or employee. The
commission may at its expense insure its members, officers and
employees against liability resulting from their acts or omissions in
the performance of their official duties. Nothing in this paragraph
shall be construed as imposing any liability upon any member, officer
or employee of the commission that he would otherwise not have.
7. The commission may incur obligations and pay expenses which are
necessary for the performance of its functions. But it shall not
pledge the credit of any government except by and with the authority
of the legislative body thereof given pursuant to and in keeping with
the constitution of such government, nor shall the commission incur
any obligations prior to the availability of funds adequate to meet
them.
8. The commission may:
(a) Borrow, accept or contract for the services of personnel from
any government or agency thereof, from any intergovernmental agency
or from any other entity.
(b) Accept for any of its purposes and functions under this
compact any and all donations, gifts, grants of money, equipment,
supplies, materials and services from any government or agency
thereof or intergovernmental agency or from any other entity.
(c) Acquire, hold and dispose of real and personal property as may
be necessary in the performance of its functions.
(d) Make such studies, surveys and investigations as are necessary
in carrying out the provisions of this compact.
9. All meetings of the commission for the consideration of and
action on any matters coming before the commission, except matters
involving the management of internal affairs of the commission and
its staff, shall be open to the public. Matters coming within the
exception of this paragraph may be considered and acted upon by the
commission in executive session under such rules and regulations as
may be established therefor.
10. In the case of the failure of the two voting members of the
commission to agree on any matter relating to the administration of
this compact as provided in paragraph 2 of this subdivision A, the
representative from each state shall appoint one person and the two
appointed persons shall appoint a third person. The three appointees
shall sit as an arbitration forum. The terms of appointment and the
compensation of the members of the arbitration forum shall be fixed
by the commission. Matters on which the two voting members of the
commission have failed to agree shall be decided by a majority vote
of the members of the arbitration forum. Each state obligates itself
to abide by the decision of the arbitration forum, subject, however,
to the right of each state to have the decision reviewed by a court
of competent jurisdiction.
11. The commission shall have the right of access, through its
authorized representatives, to all properties in the Klamath River
Basin whenever necessary for the purpose of administration of this
compact. The commission may obtain a court order to enforce its right
of access.
B. 1. The commission shall submit to the governor or designated
officer of each state a budget of its estimated expenditures for such
period and at such times as may be required by the laws of that
state for presentation to the legislature thereof. Each state pledges
itself to appropriate and pay over to the commission one-half of the
amount required to finance the commission's estimated expenditures
as set forth in each of its budgets, and pledges further that
concurrently with approval of this compact by its legislature the sum
of not less than $12,000 will be appropriated by it to be paid over
to the commission at its first meeting for use in financing the
commission's functions until the commission can prepare its first
budget and receive its first appropriation thereunder from the
states.
2. The commission shall keep accurate accounts of all receipts and
disbursements, which shall be audited yearly by a certified public
accountant, and the report of the audit shall be made a part of its
annual report. The accounts of the commission shall be open for
public inspection during established office hours.
3. The commission shall make and transmit to the legislature and
governor of each state and to the President of the United States an
annual report covering the finances and activities of the commission
and embodying such plans, recommendations and findings as may have
been adopted by the commission.
C. 1. The commission shall have the power to adopt, and to amend
or repeal, such rules and regulations to effectuate the purposes of
this compact as
in its judgment may be appropriate.
2. Except as to matters involving exclusively the management of
the internal affairs of the commission and its staff or involving
emergency matters, prior to the adoption, amendment or repeal of any
rule or regulation the commission shall hold a hearing at which any
interested person shall have the opportunity to present his views on
the proposed action in writing, with or without the opportunity to
present the same orally. The commission shall give adequate advance
notice in a reasonable manner of the time, place and subject of such
hearings.
3. Emergency rules and regulations may be adopted without a prior
hearing, but in such case they may be effective for not longer than
90 days.
4. The commission shall publish its rules and regulations in
convenient form.
Article X. Status of Indian Rights
A. Nothing in this compact shall be deemed:
1. To affect adversely the present rights of any individual
Indian, tribe, band or community of Indians to the use of the waters
of the Klamath River Basin for irrigation.
2. To deprive any individual Indian, tribe, band or community of
Indians of any rights, privileges, or immunities afforded under
federal treaty, agreement or statute.
3. To affect the obligations of the United States of America to
the Indians, tribes, bands or communities of Indians, and their
reservations.
4. To alter, amend or repeal any of the provisions of the Act of
August 13, 1954, (68 Stat. 718) as it may be amended.
B. Lands within the Klamath Indian Reservation which are brought
under irrigation after the effective date of this compact, whether
before or after Section 14 of said Act of August 13, 1954, becomes
fully operative, shall be taken into account in determining whether
the 200,000-acre limitation provided in paragraph 1 of subdivision C
of Article III has been reached.
Article XI. Federal Rights
Nothing in this compact shall be deemed:
A. To impair or affect any rights, powers or jurisdiction of the
United States, its agencies or those acting by or under its
authority, in, over and to the waters of the Klamath River Basin, nor
to impair or affect the capacity of the United States, its agencies
or those acting by or under its authority in any manner whatsoever,
except as otherwise provided by the federal legislation enacted for
the implementation of this compact as specified in Article XIII.
B. To subject any property of the United States, its agencies or
instrumentalities, to taxation by either state or any subdivision
thereof, unless otherwise provided by act of Congress.
C. To subject any works or property of the United States, its
agencies, instrumentalities or those acting by or under its
authority, used in connection with the control or use of waters which
are the subject of this compact, to the laws of any state to an
extent other than the extent to which those laws would apply without
regard to this compact, except as otherwise provided by the federal
legislation enacted for the implementation of this compact as
specified in Article XIII.
D. To affect adversely the existing areas of Crater Lake National
Park or Lava Beds National Monument, or to limit the operation of
laws relating to the preservation thereof.
E. To apply to the use of water for the maintenance, on the scale
at which such land and water areas are maintained as of the effective
date of this compact, of officially designated water-fowl management
areas, including water consumed by evaporation and transpiration on
water surface areas and water used for irrigation or otherwise in the
Upper Klamath River Basin; nor to affect the rights and obligations
of the United States under any migratory bird treaty or the Migratory
Bird Conservation Act (45 Stat. 1222), as amended to the effective
date of this compact.
Article XII. General Provisions
A. Each state and all persons using, claiming or in any manner
asserting any right to the use of the waters of the Klamath River
Basin under the authority of either state shall be subject to the
terms of this compact.
B. Nothing in this compact shall be construed to limit or prevent
either state from instituting or maintaining any action or
proceeding, legal or equitable, in any court of competent
jurisdiction for the protection of any right under this compact or
the enforcement of any of its provisions.
C. Should a court of competent jurisdiction hold any part of this
compact to be contrary to the Constitution of either state or the
United States, all other provisions shall continue in full force and
effect, unless it is authoritatively and finally determined
judicially that the remaining provisions cannot operate for the
purposes, or substantially in the manner, intended by the states
independently of the portions declared unconstitutional or invalid.
D. Except as to matters requiring the exercise of discretion by
the commission, the provisions of this compact shall be
self-executing and shall by operation of law be conditions of the
various state permits, licenses or other authorizations relating to
the waters of the Klamath River Basin issued after the effective date
of this compact.
E. The physical and other conditions peculiar to the Klamath River
Basin constitute the basis for this compact, and neither of the
states hereby, nor the Congress of the United States by its consent,
considers that this compact establishes any general principle or
precedent with respect to any other interstate stream.
Article XIII. Ratification
A. This compact shall become effective when ratified by the
legislature of each signatory state, and when consented to by an act
of Congress of the United States which will, in substance, meet the
provisions hereinafter set forth in this article.
B. The act of Congress referred to in subdivision A of this
article shall provide that the United States or any agency thereof,
and any entity acting under any license or other authority granted
under the laws of the United States (referred to in this article as
"the United States"), in connection with developments undertaken
after the effective date of this compact pursuant to laws of the
United States, shall comply with the following requirements:
1. The United States shall recognize and be bound by the
provisions of subdivision A of Article III.
2. The United States shall not, without payment of just
compensation, impair any rights to the use of water for use (a) or
(b) within the Upper Klamath River Basin by the exercise of any
powers or rights to use or control water (i) for any purpose
whatsoever outside the Klamath River Basin by diversions in
California or (ii) for any purpose whatsoever within the Klamath
River Basin other than use (a) or (b). But the exercise of powers and
rights by the United States shall be limited under this paragraph 2
only as against rights to the use of water for use (a) or (b) within
the Upper Klamath River Basin which are acquired as provided in
subdivision B of Article III after the effective date of this
compact, but only to the extent that annual depletions in the flow of
the Klamath River at Keno resulting from the exercise of such rights
to use water for uses (a) and (b) do not exceed 340,000 acre-feet in
any one calendar year.
3. The United States shall be subject to the limitation on
diversions of waters from the basin of Jenny Creek as provided in
subdivision A of Article VIII.
4. The United States shall be governed by all the limitations and
provisions of paragraph 2 and subparagraph (a) of paragraph 3 of
subdivision B of Article III.
5. The United States, with respect to any irrigation or
reclamation development undertaken by the United States in the Upper
Klamath River Basin in California, shall provide that substantially
all of the return flows and waste water finally resulting from such
diversions and use appearing as surface waters in the Upper Klamath
River Basin shall be made to drain so as to be eventually returned to
the Klamath River upstream from Keno, unless the Secretary of the
Interior shall determine that compliance with this requirement would
render it less feasible than under an alternate plan of development,
in which event such return flows and waste waters shall be returned
to the Klamath River at a point above Copco Lake.
C. Upon enactment of the act of Congress referred to in
subdivision A of this article and so long as such act shall be in
effect, the United States, when exercising rights to use water
pursuant to state law, shall be entitled to all of the same
privileges and benefits of this compact as any person exercising
similar rights.
D. Such act of Congress shall not be construed as relieving the
United States of any requirement of compliance with state law which
may be provided by other federal statutes.
Article XIV. Termination
This compact may be terminated at any time by legislative consent
of both states, but despite such termination, all rights then
established hereunder or recognized hereby shall continue to be
recognized as valid by the states.
5900. The Legislature of the State of California hereby ratifies
and approves that certain compact designated as the "Klamath River
Basin Compact between the States of Oregon and California," as set
forth in Section 2 of Chapter 113 of the Statutes of 1957, which was
approved at Klamath Falls, Oregon, on the seventeenth day of
November, 1956, by the California Klamath River Commission, under
authority of and in conformity with the provisions of Government Code
Sections 8110-8119 (California Stats. 1953, Ch. 1473, p. 3085), and
by a similar commission representing the State of Oregon under
legislative authority of that state, and the provisions of said
compact shall become the law of this State upon said compact becoming
effective as provided in Article XIII of said compact.
5901. The provisions of said Klamath River Basin Compact are as
follows:
Article I. Purposes
The major purposes of this compact are, with respect to the water
resources of the Klamath River Basin:
A. To facilitate and promote the orderly, integrated and
comprehensive development, use, conservation and control thereof for
various purposes, including, among others: the use of water for
domestic purposes; the development of lands by irrigation and other
means; the protection and enhancement of fish, wildlife and
recreational resources; the use of water for industrial purposes and
hydroelectric power production; and the use and control of water for
navigation and flood prevention.
B. To further intergovernmental co-operation and comity with
respect to these resources and programs for their use and development
and to remove causes of present and future controversies by
providing (1) for equitable distribution and use of water among the
two states and the Federal Government, (2) for preferential rights to
the use of water after the effective date of this compact for the
anticipated ultimate requirements for domestic and irrigation
purposes in the Upper Klamath River Basin in Oregon and California,
and (3) for prescribed relationships between beneficial uses of water
as a practicable means of accomplishing such distribution and use.
Article II. Definition of Terms
As used in this compact:
A. "Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries within the States of California
and Oregon and all closed basins included in the Upper Klamath River
Basin.
B. "Upper Klamath River Basin" shall mean the drainage area of the
Klamath River and all its tributaries upstream from the boundary
between the States of California and Oregon and the closed basins of
Butte Valley, Red Rock Valley, Lost River Valley, Swan Lake Valley
and Crater Lake, as delineated on the official map of the Upper
Klamath River Basin approved on September 6, 1956, by the commissions
negotiating this compact and filed with the Secretaries of State of
the two states and the General Services Administration of the United
States, which map is incorporated by reference and made a part
hereof.
C. "Commission" shall mean the Klamath River Compact Commission as
created by Article IX of this compact.
D. "Klamath Project" of the Bureau of Reclamation of the
Department of the Interior of the United States shall mean that area
as delineated by appropriate legend on the official map incorporated
by reference under subdivision B of this article.
E. "Person" shall mean any individual or any other entity, public
or private, including either state, but excluding the United States.
F. "Keno" shall mean a point on the Klamath River at the present
needle dam, or any substitute control dam constructed in Section 36,
Township 39 South, Range 7 East, Willamette Base and Meridian.
G. "Water" or "waters" shall mean waters appearing on the surface
of the ground in streams, lakes or otherwise, regardless of whether
such waters at any time were or will become ground water, but shall
not include water extracted from underground sources until after such
water is used and becomes surface return flow or waste water.
H. "Domestic use" shall mean the use of water for human
sustenance, sanitation and comfort; for municipal purposes; for
livestock watering; for irrigation of family gardens; and for other
like purposes.
I. "Industrial use" shall mean the use of water in manufacturing
operations.
J. "Irrigation use" shall mean the use of water for production of
agricultural crops, including grain grown for feeding wildfowl.
Article III. Distribution and Use of Water
A. There are hereby recognized vested rights to the use of waters
originating in the Upper Klamath River Basin validly established and
subsisting as of the effective date of this compact under the laws of
the state in which the use or diversion is made, including rights to
the use of waters for domestic and irrigation uses within the
Klamath Project. There are also hereby recognized rights to the use
of all waters reasonably required for domestic and irrigation uses
which may hereafter be made within the Klamath Project.
B. Subject to the rights described in subdivision A of this
article and excepting the uses of water set forth in subdivision E of
Article XI, rights to the use of unappropriated waters originating
within the Upper Klamath River Basin for any beneficial use in the
Upper Klamath River Basin, by direct diversion or by storage for
later use, may be acquired by any person after the effective date of
this compact by appropriation under the laws of the state where the
use is to be made, as modified by the following provisions of this
subdivision B and subdivision C of this article, and may not be
acquired in any other way:
1. In granting permits to appropriate waters under this
subdivision B, as among conflicting applications to appropriate when
there is insufficient water to satisfy all such applications, each
state shall give preference to applications for a higher use over
applications for a lower use in accordance with the following order
of uses:
(a) Domestic use,
(b) Irrigation use,
(c) Recreational use, including use for fish and wildlife,
(d) Industrial use,
(e) Generation of hydroelectric power,
(f) Such other uses as are recognized under the laws of the state
involved.
These uses are referred to in this compact as uses (a), (b), (c),
(d), (e) and (f), respectively. Except as to the superiority of
rights to the use of water for use (a) or (b) over the rights to the
use of water for use (c), (d), (e) or (f), as governed by subdivision
C of this article, upon a permit being granted and a right becoming
vested and perfected by use, priority in right to the use of water
shall be governed by priority in time within the entire Upper Klamath
River Basin regardless of state boundaries. The date of priority of
any right to the use of water appropriated for the purposes above
enumerated shall be the date of the filing of the application
therefor, but such priority shall be dependent on commencement and
completion of construction of the necessary works and application of
the water to beneficial use with due diligence and within the times
specified under the laws of the state where the use is to be made.
Each state shall promptly provide the commission and the appropriate
official of the other state with complete information as to such
applications and as to all actions taken thereon.
2. Conditions on the use of water under this subdivision B in
Oregon shall be:
(a) That there shall be no diversion of waters from the Upper
Klamath River Basin, but this limitation shall not apply to
out-of-basin diversions of waters originating within the drainage
area of Fourmile Lake.
(b) That water diverted from Upper Klamath Lake and the Klamath
River and its tributaries upstream from Keno, Oregon, for use in
Oregon and not consumed therein and appearing as surface return flow
and waste water within the Upper Klamath River Basin shall be
returned to the Klamath River or its tributaries above Keno, Oregon.
3. Conditions on the use of water under this subdivision B in
California shall be:
(a) That the waters diverted from the Klamath River within the
Upper Klamath River Basin for use in California shall not be taken
outside the Upper Klamath River Basin.
(b) That substantially all of the return flows and waste water
finally resulting from such diversions and use appearing as surface
waters in the Upper Klamath River Basin shall be made to drain so as
to be eventually returned to the Klamath River upstream from Keno,
Oregon.
C. 1. All rights, acquired by appropriation after the effective
date of this compact, to use waters originating within the Upper
Klamath River Basin for use (a) or (b) in the Upper Klamath River
Basin in either state shall be superior to any rights, acquired after
the effective date of this compact, to use such waters (i) or any
purpose outside the Klamath River Basin by diversion in California or
(ii) for use (c), (d), (e) or (f) anywhere in the Klamath River
Basin. Such superior rights shall exist regardless of their priority
in time and may be exercised with respect to inferior rights without
the payment of compensation. But such superior rights to use water
for use (b) in California shall be limited to the quantity of water
necessary to irrigate 100,000 acres of land, and in Oregon shall be
limited to the quantity of water necessary to irrigate 200,000 acres
of land.
2. The provisions of paragraph 1 of this subdivision C shall not
prohibit the acquisition and exercise after the effective date of
this compact of rights to store waters originating within the Upper
Klamath River Basin and to make later use of such stored water for
any purpose, as long as the storing of waters for such later use,
while being effected, does not interfere with the direct diversion or
storage of such waters for use (a) or (b) in the Upper Klamath River
Basin.
Article IV. Hydroelectric Power
It shall be the objective of each state, in the formulation and
the execution and the granting of authority for the formulation and
execution of plans for the distribution and use of the waters of the
Klamath River Basin, to provide for the most efficient use of
available power head and its economic integration with the
distribution of water for other beneficial uses in order to secure
the most economical distribution and use of water and lowest power
rates which may be reasonable for irrigation and drainage pumping,
including pumping from wells.
Article V. Interstate Diversion and Storage Rights; Measuring
Devices
A. Each state hereby grants for the benefit of the other and its
designees the right to construct and operate facilities for the
measurement, diversion, storage and conveyance of water from the
Upper Klamath River Basin in one state for use in the other insofar
as the exercise of such right may be necessary to effectuate and
comply with the terms of this compact. The location of such
facilities shall be subject to approval by the commission.
B. Each state or its designee, exercising within the jurisdiction
of the other a right granted under subdivision A of this article,
shall make provision for the establishment, operation, and
maintenance of permanent gaging stations at such points on streams or
reservoir or conveyance facilities as may be required by the
commission for the purpose of ascertaining and recording the volume
of diversions by the streams or facilities involved. Said stations
shall be equipped with suitable devices for determining the flow of
water at all times. All information obtained from such stations shall
be compiled in accordance with the standards of the United States
Geological Survey, shall be filed with the commission, and shall be
available to the public.
Article VI. Acquisition of Property for Storage and Diversion; In
Lieu Taxes
A. Subject to approval of the commission, either state shall have
the right (1) to acquire such property rights in the other state as
are necessary for the diversion, storage, conveyance, measurement and
use of water in conformity with this compact, by donation or
purchase, or (2) to elect to have the other state acquire such
property rights for it by purchase or through the exercise of the
power of eminent domain. A state making the latter election shall
make a written request therefor and the other state shall
expeditiously acquire said property rights either by purchase at a
price satisfactory to the requesting state, or, if such purchase
cannot be made, then through the exercise of its power of eminent
domain, and shall convey said property rights to the requesting state
or its designee. All costs of such acquisition shall be paid by the
requesting state. Neither state shall have any greater power to
acquire property rights for the other state through the exercise of
the power of eminent domain than it would have under its laws to
acquire the same property rights for itself.
B. Should any diversion, storage or conveyance facilities be
constructed or acquired in either state for the benefit of the other
state, as herein provided, the construction, repair, replacement,
maintenance and operation of such facilities shall be subject to the
laws of the state in which the facilities are located, except that
the proper officials of that state shall permit the storage, release
and conveyance of any water to which the other state is entitled
under this compact.
C. Either state having property rights other than water rights in
the other state acquired as provided in this article shall pay to
each political subdivision of the state in which such property rights
are located, each and every year during which such rights are held,
a sum of money equivalent to the average annual amount of taxes
assessed against those rights during the 10 years preceding the
acquisition of such rights in reimbursement for the loss of taxes to
such political subdivisions of the state. Payments so made to a
political subdivision shall be in lieu of any and all taxes by that
subdivision on the property rights for which the payments are made.
Article VII. Pollution Control
A. The states recognize that the growth of population and the
economy of the Upper Klamath River Basin can result in pollution of
the waters of the Upper Klamath River Basin constituting a menace to
the health and welfare of, and occasioning economic loss to, people
living or having interests in the Klamath River Basin. The states
recognize further that protection of the beneficial uses of the
waters of the Klamath River Basin requires co-operative action of the
two states in pollution abatement and control.
B. To aid in such pollution abatement and control, the commission
shall have the duty and power:
1. To co-operate with the states or agencies thereof or other
entities and with the United States for the purpose of promoting
effective laws and the adoption of effective regulations for
abatement and control of pollution of the waters of the Klamath River
Basin, and from time to time to recommend to the governments
reasonable minimum standards for the quality of such waters.
2. To disseminate to the public by any and all appropriate means
information respecting pollution abatement and control in the waters
of the Klamath River Basin and on the harmful and uneconomic results
of such pollution.
C. Each state shall have the primary obligation to take
appropriate action under its own laws to abate and control interstate
pollution, which is defined as the deterioration of the quality of
the waters of the Upper Klamath River Basin within the boundaries of
such state which materially and adversely affects beneficial uses of
waters of the Klamath River Basin in the other state. Upon complaint
to the commission by the state water pollution control agency of one
state that interstate pollution originating in the other state is not
being prevented or abated, the procedure shall be as follows:
1. The commission shall make an investigation and hold a
conference on the alleged interstate pollution with the water
pollution control agencies of the two states, after which the
commission shall recommend appropriate corrective action.
2. If appropriate corrective action is not taken within a
reasonable time, the commission shall call a hearing, giving
reasonable notice in writing thereof to the water pollution control
agencies of the two states and to the person or persons which it is
believed are causing the alleged interstate pollution. Such hearing
shall be held in accordance with rules and regulations of the
commission, which shall conform as nearly as practicable with the
laws of the two states governing administrative hearings. At the
conclusion of such hearing, the commission shall make a finding as to
whether interstate pollution exists, and if so, shall issue to any
person or persons which the commission finds are causing such
interstate pollution an order or orders for correction thereof.
3. It shall be the duty of the person against whom any such order
is issued to comply therewith. Any court of general jurisdiction of
the state where such discharge is occurring or the United States
District Court for the district where the discharge is occurring
shall have jurisdiction, on petition of the commission for
enforcement of such order, to compel action by mandamus, injunction,
specific performance, or any other appropriate remedy, or on petition
of the person against whom the order is issued to review any order.
At the conclusion of such enforcement or review proceedings, the
court may enter such decree or judgment affirming, reversing,
modifying, or remanding such order as in its judgment is proper in
the circumstances on the basis of the rules customarily applicable in
proceedings for court enforcement or review of administrative
actions.
D. The water pollution control agencies of the two states shall,
from time to time, make available to the commission all data relating
to the quality of the waters of the Upper Klamath River Basin which
they possess as the result of studies, surveys and investigations
thereof which they may have made.
Article VIII. Miscellaneous
A. Subject to vested rights as of the effective date of this
compact, there shall be no diversion of waters from the basin of
Jenny Creek to the extent that such waters are required, as
determined by the commission, for use on land within the basin of
Jenny Creek.
B. Each state shall exercise whatever administrative, judicial,
legislative or police powers it has that are required to provide any
necessary reregulation or other control over the flow of the Klamath
River downstream from any hydroelectric powerplant for protection of
fish, human life or property from damage caused by fluctuations
resulting from the operation of such plant.
Article IX. Administration
A. 1. There is hereby created a commission to administer this
compact. The commission shall consist of three members. The
representative of the State of California shall be the Department of
Water Resources. The representative of the State of Oregon shall be
the State Engineer of Oregon who shall serve as ex officio
representative of the State Water Resources Board of Oregon. The
President is requested to appoint a federal representative who shall
be designated and shall serve as provided by the laws of the United
States.
2. The representative of each state shall be entitled to one vote
in the commission. The representative of the United States shall
serve as chairman of the commission without vote. The compensation
and expenses of each representative shall be fixed and paid by the
government which he represents. Any action by the commission shall be
effective only if it be agreed to by both voting members.
3. The commission shall meet to establish its formal organization
within 60 days after the effective date of this compact, such meeting
to be at the call of the governors of the two states. The commission
shall then adopt its initial set of rules and regulations governing
the management of its internal affairs providing for, among other
things, the calling and holding of meetings, the adoption of a seal,
and the authority and duties of the chairman and executive director.
The commission shall establish its office within the Upper Klamath
River Basin.
4. The commission shall appoint an executive director, who shall
also act as secretary, to serve at the pleasure of the commission and
at such compensation, under such terms and conditions and performing
such duties as it may fix. The executive director shall be the
custodian of the records of the commission with authority to affix
the commission's official seal, and to attest to and certify such
records or copies thereof. The commission, without regard to the
provisions of the civil service laws of either state, may appoint and
discharge such consulting, clerical and other personnel as may be
necessary for the performance of the commission's functions, may
define their duties, and may fix and pay their compensation. The
commission may require the executive director and any of its
employees to post official bonds, and the cost thereof shall be paid
by the commission.
5. All records, files and documents of the commission shall be
open for public inspection at its office during established office
hours.
6. No member, officer or employee of the commission shall be
liable for injury or damage resulting from (a) action taken by such
member, officer or employee in good faith and without malice under
the apparent authority of this compact, even though such action is
later judicially determined to be unauthorized, or (b) the negligent
or wrongful act or omission of any other person, employed by the
commission and serving under such officer, member or employee, unless
such member, officer or employee either failed to exercise due care
in this selection, appointment or supervision of such other person,
or failed to take all available action to suspend or discharge such
other person after knowledge or notice that such other person was
inefficient or incompetent to perform the work for which he was
employed. No suit may be instituted against a member, officer or
employee of the commission for damages alleged to have resulted from
the negligent or wrongful act or omission of such member, officer or
employee or a subordinate thereof occurring durng the performance of
his official duties unless, within 90 days after occurrence of the
incident, a verified claim for damages is presented in writing and
filed with such member, officer or employee and with the commission.
In the event of a suit for damages against any member, officer or
employee of the commission on account of any act or omission in the
performance of his or his subordinates' official duties, the
commission shall arrange for the defense of such suit and may pay all
expenses therefor on behalf of such member, officer or employee. The
commission may at its expense insure its members, officers and
employees against liability resulting from their acts or omissions in
the performance of their official duties. Nothing in this paragraph
shall be construed as imposing any liability upon any member, officer
or employee of the commission that he would otherwise not have.
7. The commission may incur obligations and pay expenses which are
necessary for the performance of its functions. But it shall not
pledge the credit of any government except by and with the authority
of the legislative body thereof given pursuant to and in keeping with
the constitution of such government, nor shall the commission incur
any obligations prior to the availability of funds adequate to meet
them.
8. The commission may:
(a) Borrow, accept or contract for the services of personnel from
any government or agency thereof, from any intergovernmental agency
or from any other entity.
(b) Accept for any of its purposes and functions under this
compact any and all donations, gifts, grants of money, equipment,
supplies, materials and services from any government or agency
thereof or intergovernmental agency or from any other entity.
(c) Acquire, hold and dispose of real and personal property as may
be necessary in the performance of its functions.
(d) Make such studies, surveys and investigations as are necessary
in carrying out the provisions of this compact.
9. All meetings of the commission for the consideration of and
action on any matters coming before the commission, except matters
involving the management of internal affairs of the commission and
its staff, shall be open to the public. Matters coming within the
exception of this paragraph may be considered and acted upon by the
commission in executive session under such rules and regulations as
may be established therefor.
10. In the case of the failure of the two voting members of the
commission to agree on any matter relating to the administration of
this compact as provided in paragraph 2 of this subdivision A, the
representative from each state shall appoint one person and the two
appointed persons shall appoint a third person. The three appointees
shall sit as an arbitration forum. The terms of appointment and the
compensation of the members of the arbitration forum shall be fixed
by the commission. Matters on which the two voting members of the
commission have failed to agree shall be decided by a majority vote
of the members of the arbitration forum. Each state obligates itself
to abide by the decision of the arbitration forum, subject, however,
to the right of each state to have the decision reviewed by a court
of competent jurisdiction.
11. The commission shall have the right of access, through its
authorized representatives, to all properties in the Klamath River
Basin whenever necessary for the purpose of administration of this
compact. The commission may obtain a court order to enforce its right
of access.
B. 1. The commission shall submit to the governor or designated
officer of each state a budget of its estimated expenditures for such
period and at such times as may be required by the laws of that
state for presentation to the legislature thereof. Each state pledges
itself to appropriate and pay over to the commission one-half of the
amount required to finance the commission's estimated expenditures
as set forth in each of its budgets, and pledges further that
concurrently with approval of this compact by its legislature the sum
of not less than $12,000 will be appropriated by it to be paid over
to the commission at its first meeting for use in financing the
commission's functions until the commission can prepare its first
budget and receive its first appropriation thereunder from the
states.
2. The commission shall keep accurate accounts of all receipts and
disbursements, which shall be audited yearly by a certified public
accountant, and the report of the audit shall be made a part of its
annual report. The accounts of the commission shall be open for
public inspection during established office hours.
3. The commission shall make and transmit to the legislature and
governor of each state and to the President of the United States an
annual report covering the finances and activities of the commission
and embodying such plans, recommendations and findings as may have
been adopted by the commission.
C. 1. The commission shall have the power to adopt, and to amend
or repeal, such rules and regulations to effectuate the purposes of
this compact as
in its judgment may be appropriate.
2. Except as to matters involving exclusively the management of
the internal affairs of the commission and its staff or involving
emergency matters, prior to the adoption, amendment or repeal of any
rule or regulation the commission shall hold a hearing at which any
interested person shall have the opportunity to present his views on
the proposed action in writing, with or without the opportunity to
present the same orally. The commission shall give adequate advance
notice in a reasonable manner of the time, place and subject of such
hearings.
3. Emergency rules and regulations may be adopted without a prior
hearing, but in such case they may be effective for not longer than
90 days.
4. The commission shall publish its rules and regulations in
convenient form.
Article X. Status of Indian Rights
A. Nothing in this compact shall be deemed:
1. To affect adversely the present rights of any individual
Indian, tribe, band or community of Indians to the use of the waters
of the Klamath River Basin for irrigation.
2. To deprive any individual Indian, tribe, band or community of
Indians of any rights, privileges, or immunities afforded under
federal treaty, agreement or statute.
3. To affect the obligations of the United States of America to
the Indians, tribes, bands or communities of Indians, and their
reservations.
4. To alter, amend or repeal any of the provisions of the Act of
August 13, 1954, (68 Stat. 718) as it may be amended.
B. Lands within the Klamath Indian Reservation which are brought
under irrigation after the effective date of this compact, whether
before or after Section 14 of said Act of August 13, 1954, becomes
fully operative, shall be taken into account in determining whether
the 200,000-acre limitation provided in paragraph 1 of subdivision C
of Article III has been reached.
Article XI. Federal Rights
Nothing in this compact shall be deemed:
A. To impair or affect any rights, powers or jurisdiction of the
United States, its agencies or those acting by or under its
authority, in, over and to the waters of the Klamath River Basin, nor
to impair or affect the capacity of the United States, its agencies
or those acting by or under its authority in any manner whatsoever,
except as otherwise provided by the federal legislation enacted for
the implementation of this compact as specified in Article XIII.
B. To subject any property of the United States, its agencies or
instrumentalities, to taxation by either state or any subdivision
thereof, unless otherwise provided by act of Congress.
C. To subject any works or property of the United States, its
agencies, instrumentalities or those acting by or under its
authority, used in connection with the control or use of waters which
are the subject of this compact, to the laws of any state to an
extent other than the extent to which those laws would apply without
regard to this compact, except as otherwise provided by the federal
legislation enacted for the implementation of this compact as
specified in Article XIII.
D. To affect adversely the existing areas of Crater Lake National
Park or Lava Beds National Monument, or to limit the operation of
laws relating to the preservation thereof.
E. To apply to the use of water for the maintenance, on the scale
at which such land and water areas are maintained as of the effective
date of this compact, of officially designated water-fowl management
areas, including water consumed by evaporation and transpiration on
water surface areas and water used for irrigation or otherwise in the
Upper Klamath River Basin; nor to affect the rights and obligations
of the United States under any migratory bird treaty or the Migratory
Bird Conservation Act (45 Stat. 1222), as amended to the effective
date of this compact.
Article XII. General Provisions
A. Each state and all persons using, claiming or in any manner
asserting any right to the use of the waters of the Klamath River
Basin under the authority of either state shall be subject to the
terms of this compact.
B. Nothing in this compact shall be construed to limit or prevent
either state from instituting or maintaining any action or
proceeding, legal or equitable, in any court of competent
jurisdiction for the protection of any right under this compact or
the enforcement of any of its provisions.
C. Should a court of competent jurisdiction hold any part of this
compact to be contrary to the Constitution of either state or the
United States, all other provisions shall continue in full force and
effect, unless it is authoritatively and finally determined
judicially that the remaining provisions cannot operate for the
purposes, or substantially in the manner, intended by the states
independently of the portions declared unconstitutional or invalid.
D. Except as to matters requiring the exercise of discretion by
the commission, the provisions of this compact shall be
self-executing and shall by operation of law be conditions of the
various state permits, licenses or other authorizations relating to
the waters of the Klamath River Basin issued after the effective date
of this compact.
E. The physical and other conditions peculiar to the Klamath River
Basin constitute the basis for this compact, and neither of the
states hereby, nor the Congress of the United States by its consent,
considers that this compact establishes any general principle or
precedent with respect to any other interstate stream.
Article XIII. Ratification
A. This compact shall become effective when ratified by the
legislature of each signatory state, and when consented to by an act
of Congress of the United States which will, in substance, meet the
provisions hereinafter set forth in this article.
B. The act of Congress referred to in subdivision A of this
article shall provide that the United States or any agency thereof,
and any entity acting under any license or other authority granted
under the laws of the United States (referred to in this article as
"the United States"), in connection with developments undertaken
after the effective date of this compact pursuant to laws of the
United States, shall comply with the following requirements:
1. The United States shall recognize and be bound by the
provisions of subdivision A of Article III.
2. The United States shall not, without payment of just
compensation, impair any rights to the use of water for use (a) or
(b) within the Upper Klamath River Basin by the exercise of any
powers or rights to use or control water (i) for any purpose
whatsoever outside the Klamath River Basin by diversions in
California or (ii) for any purpose whatsoever within the Klamath
River Basin other than use (a) or (b). But the exercise of powers and
rights by the United States shall be limited under this paragraph 2
only as against rights to the use of water for use (a) or (b) within
the Upper Klamath River Basin which are acquired as provided in
subdivision B of Article III after the effective date of this
compact, but only to the extent that annual depletions in the flow of
the Klamath River at Keno resulting from the exercise of such rights
to use water for uses (a) and (b) do not exceed 340,000 acre-feet in
any one calendar year.
3. The United States shall be subject to the limitation on
diversions of waters from the basin of Jenny Creek as provided in
subdivision A of Article VIII.
4. The United States shall be governed by all the limitations and
provisions of paragraph 2 and subparagraph (a) of paragraph 3 of
subdivision B of Article III.
5. The United States, with respect to any irrigation or
reclamation development undertaken by the United States in the Upper
Klamath River Basin in California, shall provide that substantially
all of the return flows and waste water finally resulting from such
diversions and use appearing as surface waters in the Upper Klamath
River Basin shall be made to drain so as to be eventually returned to
the Klamath River upstream from Keno, unless the Secretary of the
Interior shall determine that compliance with this requirement would
render it less feasible than under an alternate plan of development,
in which event such return flows and waste waters shall be returned
to the Klamath River at a point above Copco Lake.
C. Upon enactment of the act of Congress referred to in
subdivision A of this article and so long as such act shall be in
effect, the United States, when exercising rights to use water
pursuant to state law, shall be entitled to all of the same
privileges and benefits of this compact as any person exercising
similar rights.
D. Such act of Congress shall not be construed as relieving the
United States of any requirement of compliance with state law which
may be provided by other federal statutes.
Article XIV. Termination
This compact may be terminated at any time by legislative consent
of both states, but despite such termination, all rights then
established hereunder or recognized hereby shall continue to be
recognized as valid by the states.
