June 1, 2019 Newsletter

This Issue

Just a Day in the Life… P.1
2019 ESA BiOp Litigation & Potential Litigation P.1
Argument Scheduled in Water “Takings” Case P. 2
Who & What are New P.3
What has KWUA been working on P. 4
Hydro Update P.5
Upcoming District Meetings & Monthly District Announcements P.5
KWUA Board Member Spotlight, Position Six P. 6

Just a Day in the Life…

Congratulations to Conner Hartman who was last month’s contest winner. There was an impressive 53 submissions, and many amazing shots. Thank you to everyone that participated your photos are been archived in our Klamath Project Photo Library.

Conner has won a Dutch Bros. gift certificate and a KWUA hat.

Have an awesome farm photo? Submit it in our monthly photo contest!

KWUA’s new photo contest. KWUA is having a monthly photo contest where you will submit your photo on our business Facebook page (Klamath Water Users Association) for a chance to win a gift card and KWUA S.W.A.G.

The winner will receive a Dutch Bro coffee card and a KWUA hat, as well as have their photo featured in our newsletter and on our Facebook page. We’re looking for photos that show farming and ranching life here in the Basin which can even include 4H and FFA.

To submit a photo, include your image in the comments of post, with caption and location. Image must be submitter’s and one image per person per month.

And be sure to check out the following timeline:

– June 1st through 10th: submit your photos.
– June 10th: Submissions close around 5 pm.
– June 11th -15th: We’ll have a separate post showing the submissions the photo with the most likes/loves will be our winner.
– June 15th: Voting closes at 5 pm.
– June 16th: We post the winning photo!
We look forward to seeing what you have to share.

***Staff and their family members may not enter***

2019 ESA Consultation, Biological Opinions; Litigation & Potential Litigation Status

In early April, the Bureau of Reclamation (Reclamation) and the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) completed consultation on the operations of the Klamath Project from 2019-2023 on threatened and endangered species pursuant to section 7 of the Endangered Species Act. For more detailed information on the section 7 process, see KWUA’s April 2019 monthly newsletter, at http:// www.kwua.org/newsletters.html.

Owing to the agencies’ expeditious work, a problematic 2017 court injunction no longer applies to the operation of the Klamath Project. At the same time, the newly-adopted “Proposed Action” and its implementation have generated litigation and threats of more litigation.

KWUA along with several districts and individuals, and Klamath Irrigation District, filed lawsuits in April. In each case, the complaints are not directed specifically or uniquely at Project operations for 2019; it appears likely that there will be sufficient supplies this year. The legal challenges are focused on the significant shortages that will result in years that are not as wet as 2019. KWUA does not believe the operations will provide sufficient water for to maintain a viable irrigation project, and it and the other Project entities concluded that they have no choice but to bring this challenge. Familiar disputes over “how much water do fish need” are not the dominant focus of these cases. Rather, the plaintiffs representing the Project raise fundamental concerns and objections over how Reclamation characterized its legal obligations under the ESA: the plaintiffs do not believe Reclamation is authorized to adopt a plan that would impose the types of shortages that would result from the newly-adopted operations, and do not believe the ESA requires such operations.

In the meantime, the Yurok Tribe has raised objections and concerns, and given notice of potential litigation, based on performance of the action adopted in April. In particular, a May 17, 2019 letter to federal regional managers contends that the flows below Iron Gate have been less than they should be under the adopted action. The Tribe also expresses concerns regarding recent C. shasta spore concentrations. And on May 23, 2019, the Tribe provided a “sixty-day” notice of an alleged violation of the NMFS biological opinion. The Tribe asserts that Reclamation has not completed an assessment that was required on May 1 related to amounts and distribution of flows and their consistency with results of hydrologic modeling that was relied upon for the NMFS biological opinion. If, after the expiration of sixty days after the notice, the Tribe believes that Reclamation is still in violation, it may file a lawsuit to force compliance.

KWUA believes in the merits of its litigation, and is very concerned by a reversion to Klamath Project-focused actions as the federal agencies’ primary means to attempt to address species concerns. At the same time, KWUA does not favor litigation as a singular strategy means to secure long-term stability. KWUA will pursue the lawsuit aggressively but will also continue to work constructively with other parties interested in broader and durable solutions to prevent future conflicts.

Argument Scheduled in Water “Takings” Case

A federal appeals court has set July 8, 2019 as the date for oral argument in a lawsuit of critical importance to Klamath Project irrigators that was filed 18 years ago.

“This hearing will provide local irrigators with an important opportunity to explain why the federal government should be required to compensate Klamath Project farmers and ranchers when it re-allocated water to threatened and endangered fish in 2001,” said Nathan Ratliff, the attorney coordinating local efforts in the case

The case, titled Baley, et al. v. United States, has had a long history since it was filed that year. It has been the subject of several rulings, including one in 2010 by the Oregon Supreme Court when it answered questions about state law upon request of the federal court. The actual trial in the case occurred in early 2017, and U.S. Court of Federal Claims judge Marian Blank Horn issued her ruling after trial in September of 2017. That decision denied the water users’ claims, and the decision was appealed to the U.S. Court of Appeals for Federal Circuit.

In April of 2001, the U.S. Bureau of Reclamation announced that there would be no irrigation water at all for water users who rely on water from Upper Klamath Lake and the Klamath River.

Reclamation had received biological opinions from the National Marine Fisheries Service and Fish and Wildlife Service that stated that all water in the system had to coho salmon and suckers protected by the federal Endangered Species Act 9 (ESA). The controversial decision caused severe local hardship and it received international attention.

“The Baley lawsuit relies on the fact that rights to use water are property rights owned by landowners,” said Mr. Ratliff. “The Fifth Amendment to the U.S. Constitution requires that the government provide just compensation for any taking of private property.”

Judge Horn ruled that some landowners do not have compensable property interests due to particular language in some districts’ water delivery contracts. She also concluded that un-adjudicated and senior tribal instream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations, and therefore the water users did not have the right to the water under the western prior appropriation doctrine.

Klamath Project irrigators, and their representatives pose for a picture in the Court of Federal Claims in Washington (2017) after testifying in the Takings Case

“This ruling was a disappointment, to say the least,” said Lower Klamath farmer Lynn Long.

Mr. Long, who testified in the case, said that the damages in 2001 are less important now than the principle.

“We’re family farms; we want to farm and irrigate,’ he said. “But if the federal government decides to allocate irrigation water to another social purpose, the greater public should bear that cost and pay.”

The case is certified as a class action. Marzulla Law, a Washington, D.C. law firm specializing in Fifth Amendment cases, represents the class. Ratliff said that the issues have generated interest from many other parties in the country.

“We’ve seen ‘friend of the court’ briefs filed by parties as diverse as the State of Oregon and the Middle Rio Grande Conservancy District in New Mexico,” said Mr. Ratliff. “That’s important in helping the appellate court understand western water law, adjudication, and water rights administration that we believe are critical.”

Mr. Ratliff said there is no deadline for a decision by the appellate court after the oral argument occurs.


Solar Facilities Siting

Klamath County is reviewing its land use policies in regard to solar panels on farm land, including in the Klamath Project, and has solicited KWUA’s input on the matter. KWUA’s general understanding that there are more projects in development and under consideration. The Klamath County Planning Commission intends to develop a skeleton plan for consideration and discussion. Deputy Director Mark Johnson attended a workshop sponsored by the Commission on May 15, 2019 and, along with others, provided input for the Commission in its development of the plan. At the present time, KWUA has no policy position; however, KWUA seeks to ensure member districts and interested patrons are informed.

Washington D.C. Update

Work continues in Washington, despite high profile disputes between the White House and Congress.

On the legislative front, as is often the case where there has been a change of power in one chamber, Congress has focused on new members getting oriented, committees organizing and holding hearings, and each political party formulating its legislative agenda.

In the House of Representatives, in addition to the wellpublicized oversight hearings, the new Democratic majority has spent considerable time holding legislative hearings on climate change and infrastructure related legislation (including waterrelated infrastructure), with plans for possible floor action this summer or early fall.

In the Senate, the focus has been on advancing Trump Administration appointees through the confirmation process, with committee action on infrastructure, including water, expected in the summer and early fall.

The FY 2020 appropriations process in both chambers, an important KWUA priority this session, is moving forward. The House Leadership plans to have all 12 appropriations bills passed by the full House in time for the July 4th Recess. The Energy and Water Development Appropriations Bill, which includes funding for the Bureau of Reclamation, was reported out of the House Appropriations Committee in late May. The Senate is expected to ramp up its appropriations activities this summer.

Battles over the federal budget, the need to raise the Nation’s debt ceiling, and another possible government shutdown loom over Congress and the White House, as the leadership of both parties and chambers struggle to reach a long-term spending deal with the president to replace the one soon to expire. Failure to do so could trigger significant “across the board” funding cuts for government agencies and programs after September 30.

In the Administration, the White House has delayed its planned rescission of the 2015 Clean Water Rule over “Waters of the U.S.” (WOTUS) from March until August and the final rewritten WOTUS rule from September until December 2019.

Draft TMDL for Water Temperature in Upper Klamath & Lost Rivers Subbasins in Oregon

On May 15, the Oregon Department of Environmental Quality (ODEQ) issued a draft “Upper Klamath and Lost Subbasins Temperature Total Maximum Daily Load” (TMDL) document, and associated Water Quality Management Plan (WQMP). ODEQ will accept written comments until July 15, 2019, at 5 p.m., and ultimately will publish final documents for U.S. Environmental Agency (EPA) approval of the TMDL. Detailed information is available at https://www.oregon.gov/deq/wq/ tmdls/Pages/TMDLs-Klamath-Basin.aspx. There will also be a public meeting on June 26, 2019, at 5:30 p.m., at the Bailey / Theilsen Room at the Oregon Institute of Technology.

TMDLs are a requirement of section 303(d) of the federal Clean Water Act. States are required to prepare lists of waters where water quality standards are not being achieved (known as the “impaired waters” lists) and prepare a TMDL identifying the maximum level of pollutant loading that can be allowed if the standards are to be met. The TMDLs include “waste load allocations” for so-called point sources and “load allocations” for other sources including irrigation drainage and stormwater run-off from irrigated lands. If the state fails to list, or prepare TMDLs for, impaired waters,s, EPA is obliged to do so. Across the country, there have been many lawsuits by environmental groups claiming that EPA has failed to comply with section 303(d), and these cases have resulted in numerous court orders (usually developed as settlements) that provide deadlines for EPA to either adopt TMDLs for state waters or approve a state-adopted TMDL. This has occurred in the Klamath Basin, resulting in court deadlines for EPA completion or approval of various TMDLs.

In waters of the Upper Klamath and Lost River Subbasins, water quality standards for temperature are not met at various locations at various times. As a result, among other things, the draft temperature TMDL specifies wasteload allocations and load allocations for discharges of heat (heat is a pollutant under the CWA). The CWA itself does not require implementation of load allocations, but state law and regulations followed by both ODEQ and the Oregon Department of Agriculture provide implementation authorities.

As with many TMDLs, an underlying concern for regulated parties is the reasonableness of the underlying water quality standards, which often were adopted without consideration of the feasibility or cost or consequences of implementation. KWUA is reviewing the draft TMDL and will have additional information in the July newsletter.

What has KWUA been working on…

KWUA’s Board of Directors strives to keep member districts and their patrons, and other interested parties, informed. Board members help with the dissemination of information received at our monthly Board meetings, and staff produces a monthly newsletter.

During its May meeting, the KWUA Board addressed many issues facing the Klamath Project in the 2019 Operations season. Below is a recap. If you would like more in depth information, we encourage you to contact your respective district board member, listed on page six.

Operations Committee Report

Demand started very slow; will be driven by weather and crop development. Over the past few months, KWUA has had several discussions regarding the Operations Committee and KWUA operations meetings with Reclamation. KWUA also meet with Jared Bottcher and Jeff Nettleton on this issue recently. Based on that meeting the Board adopted the following on a trial basis:
• The KWUA Operations Committee will not include the entire Board. It will be comprised of district managers and appropriate KWUA staff.
• The Operations Committee, through its chair and with KWUA staff support as needed, will be responsible for keeping the Board informed of Project operations matters of interest, and addressing Board members’ concerns and interests. The frequency of any reports to the Board will be not less than monthly (at regular Board meetings), and more often as needed.
• The Operations Committee will interface with Reclamation’s operators periodically (frequency to be determined) and as needed. Meetings will be informal and focused on joint and productive sharing of information and problem-solving. Relevant written information will be shared in advance of scheduled meetings to the extent possible.
Gene Souza will be chairman for the Operations Committee. Former chairman Brad Kirby will continue to focus on hydrology. The committee held its first meeting on May 22 and will meet again on June 4th.

Science Committee Report

Late-April through mid-May saw C. shasta spore concentrations rise after a surface/deep flushing flow event on the Klamath River during April 8-12. The flow event coincided with flood control releases from Link River Dam after a series of storms created favorable hydrology for flushing flow implementation. This dramatic increase in spore concentrations caused a stir in the scientific community and many parties are apprehensive about possible C. shasta impacts to outmigrating juvenile Chinook and coho in 2019. KWUA continues to monitor the situation and remains engaged with other stakeholders. In the meantime, a significant flushing flow did not reduce spore production and recent events underscore that C. shasta presents a complicated set of issues and there are many unknowns.

KWUA staff and board member Curt Mullis recently met with Farmers Conservation Alliance (FCA) to further discuss irrigation modernization feasibility and related issues. FCA is a nonprofit organization that specializes in planning and facilitating irrigation improvement projects. They are currently engaged in the initial planning phases with Klamath Irrigation District and Enterprise Irrigation District and the Modoc Point

Irrigation District. KWUA and PDIC discussed potential inclusion of PDIC and other districts in FCA’s efforts, as well as how PCA’s work may relate to the on-going Bureau of Reclamation power cost reduction plan and TMDL stewardship KWUA’s goals in relation to all district-related efforts are to be a resource and to ensure all relevant parties are aware of activities that relate to their own actions.

In early May, Mark Johnson attended a Hydrotechnology Workgroup meeting at the Oregon Institute of Technology (OIT). The scope of this workgroup is to assess the measurement needs for on-field utilization, coordinate as a hydrologic community to reduce data duplication, and provide access to low cost measurement devices. Meeting participants included; OIT Water Assessment for Drought Resilience and Sustainability (WADRS) students, nongovernmental organizations, Oregon Water Resources Department, U.S. Geological Survey, and Bureau of Reclamation. The WADRS team is currently analyzing data collected in 2018 from Klamath Irrigation District, PDIC, and Horsefly Irrigation District. They are also developing Standard Operating Procedures for the measurement devices. KWUA has been working closely with the OIT WADRS program by connecting students and landowners/districts to provide low cost water measurements that identify conveyance loss and consumption. Contact Mark Johnson for more information.

On May 15, the Oregon Department of Environmental Quality released a draft “Total Maximum Daily Load” (TMDL) document and associated water quality management plan for water temperature in the Upper Klamath and Lost Subbasins in Oregon. KWUA staff is reviewing the draft and will work with counsel and districts, and coordinate with other parties, to submit comments by the July 15, 2019 comment deadline. See also the related article in the “Who and What are New” Section on page two of this newsletter.

Public Relations Committee Report

The Board approved a proposal to hire Keppen & Associates for PR assistance. The contract will be for May-December of 2019; it can be extended in the future by mutual agreement. Bob Gasser identified potential additional needs in this area. Consensus was to have Dan Keppen complete a draft plan for committee’s consideration and focus on future activities.

As related in KWUA’s May newsletter and elsewhere, there was a change in course at the May 1-2 Coalition of the Willing meeting. In general, KWUA and other non-federal parties informed Mr. Mikkelsen and others that they would like to do business separately and without participation by the government. The creation of this “sub-coalition” would not do away with the larger group, and there would continue to be meetings including the government parties as well. KWUA believes this is a positive development. Coalition parties other than federal and state governments met on May 17th, and will meet again on June 12th. These parties also intend to engage a professional

Hydro Update

As of May 30, 2019

• Water year-to-date precip is near the historical average at SNOTEL sites; month-to-date precip at SNOTEL sites is 111% of average for May
• The Upper Basin water year-to-date SWE is 61% of the historical average, 7% of the median seasonal peak
• Average daily UKL inflow over the last seven days was 4,197 AF (2,116 cfs)
• UKL elevation has continued to increase due to an increase in inflows and a reduction in ag demand, ET, and Link flows (though PC just increased Link releases)
• To date, the Project has utilized 53 TAF from UKL and 16 TAF from LRDC

Photo submitted by Chris Georgiou: Drone overview of field prep.

Project Deliveries (TAF)

Klamath Irrigation District is currently recruiting for the Assistant Manager position in Klamath Falls, Oregon. Please pass this announcement to management professionals who may be ready for this step in their career. First Review: 30 May 2019 (Open Until Filled) Compensation and Benefits: Salary $68,000 – $78,000 (based upon experience) Full-Time, Salaried Position, Medical, Dental, Vision, Life Insurance, & Retirement Plans, Compensation Time, 9 Paid Holidays, Sick Leave, Paid Vacation, Company Vehicle. To view details please visit https://www.linkedin.com/jobs/ view/1270137156/

To subscribe to this monthly newsletter, please email Chelsea at [email protected] or subscribe on our website www.kwua.org


Tulelake Irrigation District will hold its monthly Board of Directors meeting on June 10th @ 8pm
KWUA will hold its monthly Board of Directors meeting on June 11th @ 9am
Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on June 12th @10am in the KWUA boardroom
Klamath Irrigation District will hold its monthly Board of Directors meeting on June 13th @ 1pm
Klamath Drainage District will hold its monthly Board of Directors meeting on June 20th @ 1:30pm
Klamath River Compact Commission will hold a meeting on June 18th @ 11am in the Mount Scott Room at Oregon Institute of Technology

KWUA Board Member Spotlight, Poition 6

Luke Robison is a fourth generation farmer in the Klamath Project.His Great Grandfather was a World War I veteran and homesteader .

In recent years, Luke managed Shasta View & Malin Irrigation District while also farming. With the support of his wife, Angela and their boys, Luke stepped down from the manger role to focus on the family farming operation, in which they increased the operation to 260 acres across the basin. You can generally find Luke in a field covered in dirt with his young son Winston in tow. Luke currently sits as the primary for position 6 which represents Poe Valley Improvement District (PVID).

Jason Chapman is a thirdgeneration cattle rancher. When he returned home after graduating from Oregon State University, he took over the family ranch which was purchased by his grandfather 70 years ago. Chapman Ranch is a member of Country Natural Beef Co-op which services Whole Foods and Burgerville, and is locally served at Mr. B’s Steak House in Klamath. The ranch has grown to 1000 acres with land in Klamath Basin Improvement District, Klamath Irrigation District, and PVID. Currently, he runs 420 head of mother cows.

Jason has served on various irrigation boards in the Basin for well over 20 years. He was appointed to the KWUA board of directors in 2006 as an alternate for PVID and continues to hold that position. Jason currently sits as the alternate for position 6 which represents PVID.


• KWUA offers notary services. Chelsea Shearer is a certified Notary Public and KWUA offers her notary services free to all members and patrons of member districts. To schedule an appointment with Chelsea, call the office at (541) 883-6100.
• The Bureau of Reclamation has announced an opening for the Chief of the Water Operations Division in the Klamath Basin Area Office in Klamath Falls, OR. The deadline for applications is May 31, 2019. For more information, go to https://www.usajobs.gov/GetJob/ViewDetails/534526200.
• Klamath County 4-H invites sponsors for the 2019 Klamath County Fair 4H Awards Program of all species. Sponsorships help support and reward many young people who work diligently all year. Your name/business will be associated with the sponsored 4-H award, and will be announced during the award presentation and be displayed on the awards table each day during the fair. For more information contact Chelsea at KWUA (541) 883-6100.


At the March Board of Directors meeting, the At-Large board members and officers were seated creating the 2019 KWUA Board of Directors.

Position 1– TID: Brad Kirby & Kraig Beasly
Position 2– KID: Jerry Enman & Gene Souza
Position 3– KDD: Luther Horsley & Tracey Liskey
Position 4– At-Large: Gary Wright & Mike Byrne
Position 5– SVID/MID: Rob Unruh & Ryan Hartman
Position 6– Poe Valley: Luke Robison & Jason Chapman
Position 7– Van Brimmer & Sunnyside: Marc Staunton & Dave Jensen
Position 8– Ady & Pioneer: Curt Mullis & Jason Flowers
Position 9– KBID: Ryan Kliewer & George Ranjus
Position 10– At-Large: Tricia Hill & Matt Trotman
Position 11– At-Large: Ben Duval & Bob Gasser

Staff Executive Director: Paul Simmons
Deputy Director: Mark Johnson,
Executive Assistant: Chelsea Shearer
KWUA Officers
Tricia Hill, Vice President: Ben DuVal, Treasurer: Luke Robison, Secretary: Jerry Enman

To subscribe to this monthly newsletter, please email Chelsea at
[email protected] or subscribe on our website www.kwua.org

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Klamath Water User Association