[Federal Register Volume 82, Number 248 (Thursday, December 28, 2017)]
[Pages 61582-61584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28050]



Office of the Secretary

[189A2100DD/AAKC001030/A0A501010.999900 253G]

Notice Regarding Upper Klamath Basin Comprehensive Agreement

AGENCY: Office of the Secretary, Interior.

ACTION: Notice.


SUMMARY: The Secretary of the Interior (Secretary) is publishing this 
Notice under subsection 10.2 of the Upper Klamath Basin Comprehensive 
Agreement (UKBCA), executed by the Klamath Tribes (Tribes), State of 
Oregon (State), and numerous irrigators in the Upper Klamath Basin. The 
UKBCA contains measures to address the needs of water users in the 
Upper Klamath Basin, who are not affiliated with the Bureau of 
Reclamation's Klamath Project (Project). The UKBCA also contains 
conditions that must be achieved before the UKBCA can become permanent. 
Despite the efforts of the UKBCA parties, one or more conditions in 
subsection 10.1 of the UKBCA have failed to occur. Accordingly, 
pursuant to the terms of subsection 10.2 of the UKBCA and as further 
described below, this statement serves as a ``Negative Notice'' that 
the UKBCA is terminated as set forth in UKBCA subsection 10.2.

DATES: The termination of the UKBCA is effective on December 28, 2017 
or, if judicial review of the termination is timely sought, then the 
effective date of the termination shall be the date on which the 
termination is sustained following any and all appeals.

ADDRESSES: The Upper Klamath Basin Comprehensive Agreement (UKBCA) is 
available at www.oregon.gov/gov/policy/environment/taskforce/Pages/Final_Upper_Klamath_Basin_Comprehensive_Agreement_Documents.aspx.

FOR FURTHER INFORMATION CONTACT: Address all comments and requests for 
additional information to Christina Kalavritinos, Senior Advisor, 
Commissioner's Office, Bureau of Reclamation, (202) 513-0509.

SUPPLEMENTARY INFORMATION: On February 18, 2010, the Tribes joined more 
than 60 other parties in signing the Klamath Basin Restoration 
Agreement (KBRA). A subset of those parties signed a second agreement, 
the Klamath Hydroelectric Settlement Agreement (KHSA), that same day. 
Those two agreements aimed to restore the Basin fisheries and sustain 
local economies by restoring fish habitat and implementing a water-
sharing agreement among the parties who rely upon water from Upper 
Klamath Lake (Lake) and the Klamath River. A majority of the water 
users living above (upstream of) the Lake did not agree to this water-
sharing agreement, so the KBRA provided only general direction on a 
possible Upper Basin water-sharing agreement.
    In spring 2013, the Oregon Water Resources Department (OWRD) ruled 
that the Tribes and United States held water rights for maintaining 
water levels in the major tributaries above the Lake. The Klamath 
County Circuit Court subsequently determined that enforcement of those 
determined in-stream flow rights should not be stayed. In summer 2013, 
at the request of the Governor of Oregon and several Congressional 
representatives, the Tribes began negotiating with the State and the 
non-Indian water users who are upstream of the Lake and not affiliated 
with the Project (referred to as ``Off-Project irrigators''), in an 
effort to reach a water-sharing and habitat restoration agreement that 
would benefit their respective interests. The resulting agreement, the 
UKBCA, was executed on April 18, 2014.
    The UKBCA included:
     A Water Use Program that would increase inflow into the 
Lake by an annual average of at least 30,000 acre feet by reducing 
consumptive water use in key reaches of the tributaries above the Lake, 
while also providing a stable, sustainable basis for the continuation 
of irrigated agriculture;
     A Riparian Program designed to improve and protect 
riparian conditions;
     An Economic Development Program designed to create 
economic opportunities for the Tribes and its members;
     Increased opportunities for the exercise of Tribal 
cultural rights; and
     A Transition Period to allow for the elements of the UKBCA 
to be phased in over time.
    The UKBCA established a five-year transition period with interim 
milestones and operating procedures. The parties anticipated that once 
the conditions contained in subsection 10.1 of the UKBCA were achieved, 
the UKBCA would become permanent. During the transition period, the 

[[Page 61583]]

agreed to limit the enforcement of their determined water rights so 
long as the other parties to the UKBCA met specific interim milestones. 
In 2017, those interim milestones were not achieved and the Tribes 
(with the concurrence of the United States as trustee) requested that 
OWRD fully enforce their determined water rights; OWRD complied with 
the request.
    All three settlement agreements (KBRA, KHSA, and UKBCA) have 
interdependencies. For example, the UKBCA was premised in key part on 
Federal funding being provided for certain actions under the KBRA. 
Because the KBRA required congressional approval to become fully 
enforceable and funded, and because Congress failed to act within the 
time frame set by the KBRA, the KBRA expired of its own terms on 
December 31, 2015.
    After the KBRA expired, the Tribes notified the Secretary in a 
January 12, 2016, letter that they believed their bargained-for 
benefits under the UKBCA and KBRA could not be realized. The Tribes 
asked the Secretary to issue a Negative Notice as contemplated under 
subsection 10.2 of the UKBCA. Subsection 10.2 of the UKBCA states that 
the Secretary shall issue a Negative Notice resulting in termination of 
the UKBCA if, after completion of required dispute resolution 
processes, the Secretary determines that there is ``no reasonable 
likelihood'' that all required conditions set out in subsection 10.1 of 
the UKBCA can be met. As noted in the Tribes' letter, several 
conditions listed in subsection 10.1 required the enactment of Federal 
legislation, which did not and has not happened.
    The UKBCA allows the Secretary to make a preliminary determination 
regarding whether the conditions contained in subsection 10.1 can be 
achieved. On April 4, 2016, the Deputy Secretary responded with a 
preliminary determination, tentatively agreeing with the Tribes but 
nonetheless noting that subsection 10.2 of the UKBCA requires a ``meet 
and confer'' process among the parties before a Negative Notice could 
be issued. The Tribes invoked the meet and confer provisions in an 
August 11, 2016, letter, and the parties met and conferred on October 
4, 2016. That meeting was unsuccessful in resolving the issues between 
the parties.
    On December 4, 2016, some Off-Project irrigators invoked the 
mediation provision in subsection 11.2 of the UKBCA in an effort to aid 
the meet and confer process. The Tribes also invoked this mediation 
provision on December 12, 2016. The parties selected a neutral third-
party mediator and held a confidential mediation session on February 
23, 2017. That effort did not resolve the differences between the 
parties. The Tribes sent letters to the Secretary on April 26, 2017, 
and September 11, 2017, reiterating their request that the Secretary 
issue a Negative Notice. The Off-Project irrigators sent a letter to 
the Secretary on April 28, 2017, asking that the Secretary refrain from 
issuing a Negative Notice.
    The Tribes are of the view that all three agreements--the KBRA, the 
KHSA, and the UKBCA--need to be fully implemented in order to receive 
their bargained-for benefits. The Tribes have highlighted this position 
and concern to the other UKBCA parties and in their correspondence 
requesting a Negative Notice. The UKBCA and KBRA were inextricably 
linked. Many of the bargained-for benefits for the Klamath Tribes, 
including funding for fishery and Tribal programs and the purchase of 
land, were embedded in the KBRA. Funding for many of the actions in the 
UKBCA, including water right retirements to achieve 30,000 acre-feet of 
water savings and riparian corridor restoration, was similarly included 
in the KBRA.

Statement of Findings

    Subsection 10.1 of the UKBCA contains fifteen (15) conditions 
(subsections 10.1.1 through 10.1.15) that all must occur before an 
Affirmative Notice can be issued that would make the UKBCA permanent. 
If I find that one or more of these conditions has not or cannot be 
achieved, and thus there is no reasonable likelihood that an 
Affirmative Notice will occur under section 10.1, then section 10.2 
directs that a Negative Notice be published.
    Subsection 10.1.3 of the UKBCA requires enactment of Federal 
legislation authorizing the execution and implementation of the KBRA, 
which the UKBCA defines as ``the agreement dated February 18, 2010, as 
amended December 29, 2012.'' No legislation was passed by Congress 
before December 31, 2015, and the KBRA expired of its own terms. Thus, 
subsection 10.1.3 cannot be met. This fact alone means I will not be 
able to issue an Affirmative Notice, and warrants issuance of a 
Negative Notice.
    I have reached a similar conclusion for subsections 10.1.1, 10.1.2, 
and 10.1.4, which also require enactment of Federal legislation that 
would authorize Federal participation in the UKBCA's Water Use or 
Riparian Protection Programs and Federal participation on the Joint 
Management Entity. No legislation was passed by Congress to enact these 
provisions, and I am not aware of any pending legislation that would do 
so in the foreseeable future. Accordingly, I also conclude that there 
is no reasonable likelihood that these conditions will be met at any 
time in the foreseeable future.
    The lack of Federal legislation as required by subsections 10.1.1 
through 10.1.4 also leads to the conclusion that there is no reasonable 
likelihood that the additional conditions contained in subsections 
10.1.10 through 10.1.13 will be met either. Without legislation 
authorizing the KBRA, the Tribes do not intend to provide a notice of 
willingness to proceed with the UKBCA (subsection 10.1.10). Moreover, 
without authorizing legislation, I cannot sign the UKBCA (subsection 
10.1.13). Similarly, the Landowner Entity and State of Oregon, like the 
Tribes, must determine that Federal legislation authorizing the UKBCA 
is materially consistent with the UKBCA (subsections 10.1.11 and 
    In addition, other conditions in the UKBCA (subsections 10.1.6 and 
10.1.7) require the appropriation of Federal funds to provide an 
economic development fund for the Tribes, as well as funding to enable 
the Joint Management Entity and Landowner Entity to carry out their 
responsibilities under the UKBCA. Those funds have not been 
appropriated, and I am not aware of any plans to provide this funding 
in the foreseeable future.
    Finally, the UKBCA contains a condition requiring the Klamath 
County Circuit Court to enter a decree affirming the Tribes' water 
rights as modified by the UKBCA (subsection 10.1.15). Again, without an 
Act of Congress, there will be no finalized UKBCA, nor the settlement 
it contemplates for the Klamath County Circuit Court to approve. The 
unlikely completion of this final condition is further cause to find 
that no reasonable likelihood remains for me to issue an Affirmative 
    Thus, I conclude that the condition in subsection 10.1.3 cannot be 
met and therefore there is no reasonable likelihood that I can issue an 
Affirmative Notice. Moreover, consideration of all the other 
unsatisfied conditions also leads me to the conclusion there is no 
reasonable likelihood that I can issue an Affirmative Notice under 
section 10.1. Each of the unsatisfied conditions alone is enough for me 
to reach this conclusion and, when taken together as a whole, the same 
is true. Accordingly, under the terms of the UKBCA, this Negative 
Notice denotes the termination of the UKBCA.

[[Page 61584]]

    Therefore, in accordance with section 10.2 of the UKBCA, I find as 
    (A) One or more conditions that must occur before I can issue an 
Affirmative Notice have not been achieved and do not seem reasonably 
likely to be achieved.
    (B) There is no reasonable likelihood that an Affirmative Notice 
can occur under subsection 10.1 of the UKBCA.
    (C) As provided by subsection 10.2 of the UKBCA, I am publishing 
this Negative Notice and stating that an Affirmative Notice under 
section 10.1 will not be published.
    (D) Under the terms of subsection 10.2 of the UKBCA, ``this 
Agreement shall terminate on the date'' of publication of this Negative 
Notice, or in the event that judicial review of the Negative Notice is 
timely sought, on the date on which the Negative Notice ``is sustained 
following any and all appeals.''

    Dated: December 22, 2017.
Ryan Zinke,
Secretary of the Interior.
[FR Doc. 2017-28050 Filed 12-27-17; 8:45 am]