June 2020 Water Works

Trucks at Tractor rally, heading for June 2020 Water Works

Water Users React to “Restored” Project Allocation

Klamath Water Users Association (KWUA) expressed appreciation for the Bureau of Reclamation’s (Reclamation) June 9 announcement that irrigation water supplies from the Upper Klamath Lake / Klamath River system will not dramatically change from the already-limited allocation acre-feet announced in April.

“This is definitely a relief,” said KWUA President Tricia Hill. “Even though available supplies will only meet about 40 percent of our true need, Project irrigators had planned and managed the best that they could, based upon the meager supply announced in April. The possible reduction we heard about in May created chaos and more uncertainty in an already terrible year.”

The June 9 announcement followed a month-long period of uncertainty when it appeared that supplies could be reduced to as low as 80,000 acre feet, a major reduction from an allocation of more than 140,000 acre-feet announced in April. Many local farmers and ranchers had relied upon the
April 1 forecast, and had already sunk investment in the ground based on the earlier announcement of irrigation water supply that would be available. Irrigators are relieved but deeply concerned. “The Project is still drastically short of water,” said Klamath Project Drought Response Agency (DRA) President Marc Staunton.

Over recent decades, the Klamath Project has been subject to regulation under the Endangered Species Act (ESA), with increasing requirements for maintaining Upper Klamath Lake elevations for endangered sucker species and Klamath River flows for any coho salmon in the Klamath River below Iron Gate Dam. “Facts don’t lie: this strategy isn’t helping the species,” said Klamath Irrigation District Board President Ty Kliewer. “Meanwhile, water that was stored under an irrigation water right is being re-allocated to non-irrigation uses, such as flow augmentation.”

The Klamath Project’s demand for irrigation water from Upper Klamath Lake this year is over 350,000 acre-feet. Due to drought and federal operation constraints, the announced Project Supply based on an April 1 runoff-forecast was 147,000 acre-feet, roughly 40 percent of the need. (Of this, 7,000 acre-feet was assumed to be diverted from small diversions on the Klamath River / “Keno Reach,” and the allocation was thus commonly referred to as being 140,000 acre-feet.)

Under the applicable ESA biological opinions (BiOps), the April Project Supply cannot be reduced. Still, during May, and based on updated runoff forecasts, there was concern that the Project Supply allocation could drop to only 80,000 acre-feet. Farmers who had planned their operations based on the April allocation were suddenly at risk of their limited plantings drying up in the field. The impacts on farm families and local communities would have been catastrophic.

Fortunately, forecasted runoff conditions have improved over the past month. In addition, the agricultural community voiced strong concern at a rally on May 29. (See story on page 3.) In a statement released by Reclamation, Commissioner Brenda Burman stated that “although the project remains at a painful, record low allocation, I am pleased that the recent improvement in lake inflow allows Reclamation to stabilize water supplies for Klamath Project water users this year.”

Klamath Drainage District (KDD) President Jason Flowers said that his district and others will do their best to adapt to the latest information. “We will manage intensely and do our best,” he said. “That is what we do.”

Still, local irrigation leaders emphasize that disaster relief assistance is sorely needed for the Project. “We are going to have the worst year ever, even with the confirmation of the approximate Project Supply that we assumed in April,” said Tulelake Irrigation District Board President John Crawford. “Our elected officials need to keep thecommunity whole, especially the young farmers that have come back home to carry on the legacy of this basin.”

KWUA Executive Director Paul Simmons said that the Oregon and California congressional delegations are working aggressively to pursue funding avenues to support activities of the DRA. “We have great bipartisan cooperation and support and are working closely with the members,” he said.

The local irrigation community continues to emphasize that federal agencies must revisit the current practice of reducing Klamath Project water deliveries as the primary means to protect ESA-listed species. “We will continue to push for changes in the regulatory approach and respect for state water rights and sound science,” said Mr. Kliewer. Reclamation also decided on June 9 to provide some further augmentation of Klamath River flows, over and above the minimum flows below Iron Gate Dam allowed under the applicable BiOps. “We have differences of opinion about Klamath River flows,” said KWUA board member Bob Gasser. “But for now, we understand there will be a targeted and carefully managed flow augmentation that won’t further reduce the minor amount of water that we have.”

farming & ranching feeds the klamath basin economy

Between March and September, the amount of water released from Upper Klamath Lake for Klamath River flows will be over 400,000 acre-feet. This is significantly more than will flow into Upper Klamath Lake during that same period, and nearly three times greater than the irrigation supply that will be available from Upper Klamath Lake.

Ms. Hill believes that the Trump Administration inherited a damaging regulatory and scientific approach to the Klamath Project that formed over recent decades, but she expects improvement. “I am optimistic that today’s decision-makers know there are problems and are committed to fixing them very soon,” she said. “In the meantime, we recognize that this is what Reclamation needs to do now.”

KWUA Files Opposition to Proposed Power Rate Increases, Partners with Oregon Farm Bureau

On June 4, KWUA filed written testimony with the Oregon Public Utility Commission (PUC) opposing a proposed 10 percent increase in the cost for power for irrigation and drainage pumping for KWUA members and their patrons. PacifiCorp, the retail power service provider for the Upper Klamath Basin and some other areas of Oregon, requested PUC approval of the increase in February. KWUA intervened in the ensuing rate case before the PUC, and the Oregon Farm Bureau has also joined with KWUA in opposition.

Oregon Farm Bureau logo

Irrigation and drainage pumping in the Klamath Project and the rest of the Upper Klamath Basin enjoyed a very favorable power rate for many decades based on historical relationships between water use, water storage, and power generation. That relationship ended in 2006, and irrigation power users were transitioned to PacifiCorp’s Schedule 41 tariff, which dictates power rates for PacifiCorp retail customers in Oregon. It is estimated that Upper Klamath Basin irrigation customers constitute approximately 50 percent of the power usage subject to that tariff on a state-wide basis.

PacifiCorp proposed the rate increase in February, and no increase can take effect until approved by the PUC. The proposed rate increase is the first since 2013. The proposed irrigation tariff increase is 68 percent higher than the average increase across all customer classes (for example, residential, industrial). Due to a separate proposed adjustment in its “Transition Adjustment Mechanism,” the net increase effective in 2021 would be less than 10 percent (specifically 5.4 percent). But this net change for irrigation is 85 percent higher than the net increase across all customer classes. KWUA and several other parties have intervened in the proceeding, and more recently the Farm Bureau joined with KWUA to present a united and stronger front in the case.

KWUA’s testimony emphasizes that this is a poor time to impose new economic burdens on producers for many reasons. Additionally, it takes issue with much of the analysis used to justify the proposed increase.

There are currently settlement discussions which could result in an agreement among all parties as to modified rates jointly supported for PUC approval. Absent such an agreement, there will be a contested hearing proceeding and ultimately a decision by the PUC based on the parties’ evidence and arguments. KWUA’s written testimony can be viewed here: https://kwua.org/kwua-files-opposition-to-proposed-power-rate

Shut Down & Fed Up tractor rally, Convoy for Change

Shut Down & Fed Up Rally Underscores the Plight of Klamath Basin Agriculture

On May 29, thousands of people – farm and ranch families, the local community, friends and supporters from other areas, and political leaders participated in a peaceful demonstration and rally intended to draw attention to the plight of Klamath Basin agriculture and the need for reform of water policies. The organizers succeeded, well beyond expectations, in bringing focus to our region, the importance of agriculture, and the failures of water management policies that have hurt farm communities without benefit to fishing communities.

The organizers understood the need of the agricultural community and their supporters to express their frustration, anger, and fear over water policies that have harmed Klamath Basin communities in the name of protecting threatened and endangered species without any actual benefit to the species.

At the time of the rally, there was concern that an already-severe shortage announced in April would be cut even more. All in attendance should be relieved and proud that further catastrophic reductions did not actually occur. Still, irrigation supplies are very severely limited, and unacceptably low. There will be significant damage to our community and the wildlife that depend on the same water that is critical for irrigation.

The attendees heard powerful remarks from Tulelake Irrigation District Board President John Crawford, Klamath County Commissioners Kelly Minty Morris, Derrick DeGroot, and Donnie Boyd, Siskiyou County Supervisors Brandon Criss and Michael Kobseff. Other speakers included; Modoc County Supervisors Geri Byrne and Ned Coe, Oregon State Representatives E. Werner Reschke and Vikki Breese-Iverson. Timber Unity president and “Axe Man” Mike Pihl, California Assemblywoman Meghan Dahle, Bruce Ross on behalf of California State Senator Brian Dahle, Oregon Farm Bureau President Barb Iverson, California Farm Bureau President, Jaime Johannson, Congressman Doug La Malfa, Oregon 2nd Congressional District Republican nominee Cliff Bentz, and Congressman Greg Walden. Master of ceremonies Scott Allen also gave heartfelt remarks and guidance for the program.

The rally was a beginning, not an end. The Shut Down & Fed Up rally participants have been heard and KWUA firmly believes that the Administration is committed to address and cure the legacy of regulation for regulation’s sake that it inherited.

Tractor rally for the Convoy For Change
To view more photos taken by Chelsea Shearer of the Convoy For Change tractor rally, please see the links on our post about Shut Down & Fed Up’s rally.

KWUA Washington D.C. Representatives’ Report

As they did in April and continued into May and June, senior Trump Administration officials and the Oregon/California congressional delegations have continued to work closely with KWUA to identify mitigation to address the water shortage crises faced by farmers and ranchers in the Klamath Basin. the DRA will accrue a certain amount of funding under a contract with Reclamation; the amount is uncertain but will be inadequate to address the need. A current focus is to make user of an authority enacted in 2001 that allows for financial assistance through the Commodity Credit Corporation within the US Department of Agriculture. Senator Jeff Merkley has been instrumental in the effort, with Representative Greg Walden and Senator Ron Wyden providing strong support from the Oregon side, with Representative Doug LaMalfa and Dianne Feinstein working from the California side.

TFG logo

Regarding COVID-19 relief legislation, the House has passed a $3 trillion package that included approximately $1 trillion for state and local assistance to address financial shortfalls states have suffered due to the pandemic. The Senate plans to take up its version of a COVID relief bill – which at minimum is expected to include some element of liability protection for companies and others impacted by COVID – sometime in July.

The House and Senate are both planning to complete work on their version of FY 2021 appropriations bills by the end of July. Most agency spending levels, including Reclamation and the Army Corps of Engineers, are expected to be similar to FY 2020 levels, following last year’s budget deal. However, Congress will likely need to pass a temporary continuing resolution (CR) to keep the government open after the end of the fiscal year – September 30 – as we do not expect most FY 2021 spending bills to be enacted into law by that time.

Regarding infrastructure, the House Transportation and Infrastructure (T&I) Committee has released a $500 billion surface transportation package which could be voted on the Floor in July, with additional packages of bills expected to be introduced addressing renewable energy and environment issues in the coming weeks. The House version of a Water Resources Development Act (WDRA) which authorizes Army Corps projects, is also expected to be introduced soon. Senate Floor action on bipartisan transportation and water legislation is expected in the coming weeks.

The Administration has announced it is finalizing its internal review of its rewrite of regulations implementing the National Environmental Policy Act (NEPA). The White House has indicated that the plan would modernize and speed up environmental review for major projects like bridges, highways, and pipelines. The proposed draft NEPA rule attracted more than 1.1 million comments during the public comment period.

Facts about Klamath, Siskiyou and Modoc County ag provided by ShutDownFedUp.org.

From Your Districts

Upcoming Meetings – May change based on the Governor’s gathering limitations

Klamath Irrigation District will hold its monthly Board of Directors meeting on July 9 @ 10 am
Tulelake Irrigation District will hold its monthly Board of Directors meeting on July 13 @ 8 pm
Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on July 8 @ 10 am in the KWUA boardroom
KWUA will hold its monthly Board of Directors meeting on July 8 @ 2 pm
Klamath Drainage District will hold its monthly Board of Directors meeting on July 16 @ 1:30 pm

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 meeting, and staff produces a monthly newsletter.

The KWUA Board convened on June 10, 2020. Below is recap of ongoing activities. If you would like more in-depth information, we encourage you to contact your respective district board member, listed on page seven.

Executive Director’s Report

Paul Simmons reported that an unfortunate amount of time, energy, and money has been devoted to litigation activities recently. The Executive Director’s written report summarized the status of several of those items, digested immediately below.

Litigation in the U.S. District Court for the Northern District of
California (Yurok and PCFFA)

In March of this year, the lawsuit filed by the Yurok Tribe and PCFFA challenging the 2019 BiOp was stayed through the end of the 2022 irrigation season based on Reclamation’s proposed “interim” operations plan that modifies the 2019 BiOp operations in certain ways (none beneficial to the Project). On May 22, the court heard argument on plaintiffs’ motion to lift the stay and impose a temporary restraining order, and denied the motion to lift the stay.

Litigation in the U.S. District Court for the District of Oregon
(Consolidated KID and KWUA et al. Cases)

The two consolidated lawsuits pending in the U.S. District Court for the District of Oregon (one filed by KWUA and other districts, and one filed by KID) raise important legal issues regarding Reclamation’s obligations and authorities under the ESA and state and federal law generally, the resolution of which could have significant consequences.

Information for KWUA patrons

The Hoopa Valley Tribe and Klamath Tribes were allowed to intervene in the cases for the limited purpose of filing motions to dismiss. Magistrate Judge Clarke has recommended that those motions be granted. The plaintiffs have until June 29, 2020, to file objections to that recommendation, and the objections will be resolved by District Court Judge Michael McShane. The board discussed this is further detail in executive session.

Comprehensive Conservation Plan Litigation (Lease Lands and Grazing on Clear Lake Refuge) There were four lawsuits filed concerning the Fish and Wildlife Service’s January 2017 Comprehensive Conservation Plan for the national wildlife refuges in the Klamath Basin. All four relate to agricultural activities on Lower Klamath and Tule Lake Refuges (lease land farming) and Clear Lake Refuge (grazing). Three of the lawsuits were filed by environmental groups, and one, focused on the interpretation of the Kuchel Act, was filed by agricultural parties including KWUA (with Tulelake Irrigation District (TID) in the lead).

The Magistrate Judge recommended ruling in favor of the government in all four cases, and on April 6, 2020, the federal district court adopted the recommendation. The deadline for appeal of this decision was June 5, 2020. All plaintiffs in all of the cases also filed appeals.

“Takings” Litigation
The petitioners in the 2001 “takings” case (Baley case) have filed their final brief in support of their request that the U.S. Supreme Court review the decision of the U.S. Court of Appeals for the Federal Circuit. We expect to know by the end of June whether the Supreme Court will accept review.

Litigation Regarding Temperature TMDL
At the March 11, 2020 board meeting, the board authorized the filing of litigation concerning the Upper Klamath and Lost Sub-basins Temperature TMDL and Water Quality ManagementPlan (Temperature TMDL). The board also instructed that staff and counsel minimize costs to the maximum extent possible, and coordinate with Langell Valley and Horsefly Irrigation Districts, who have filed legal challenges to both the Temperature TMDL and the earlier TMDL for nutrients.

On March 17, 2020, KWUA, TID, Van Brimmer, KDD, and Ady District filed a petition for judicial review of the Temperature TMDL. Counsel for KWUA, et al., stipulated with the State of Oregon to extend the time for DEQ to respond to the petition until after resolution of a motion to dismiss filed regarding the Langell Valley and Horsefly petitions. PacifiCorp also filed a petition for review of the Temperature TMDL.

On June 5, 2020, the Marion County Circuit Court denied DEQ’s motion to dismiss the Langell Valley and Horsefly petition in the nutrient TMDL case, and the court stated that the KWUA et al. petition will be consolidated with the Langell Valley and Horsefly petition. Staff and KWUA counsel will continue to coordinate with Langell Valley and Horsefly to minimize costs and anticipate the next stage of the litigation to include a briefing schedule relating to the major legal issues set forth in the petitions.


Klamath Irrigation District v. Oregon Water Resources

KID dismissed an earlier-filed case against OWRD, and is pursuing a new and more direct approach to require OWRD to enforce state law and prevent release of stored water for non-irrigation purposes (i.e., flows in the Klamath River in California). As of the date of the board meeting, a hearing had been set for June 18 on KID’s motion seeking an injunction against OWRD (that hearing has since occurred).

The Executive Director also brought to the board’s attention that, given the importance of current issues, the number of people and entities concerned, and the complexities of decision-making, there are (unsurprisingly) many voices and many recipients of messages. The board discussed potential means to maximize coordination and effectiveness at this time without silencing any voices.

Deputy Director’s Report

Deputy Director Mark Johnson explained a recent research paper regarding hatchery fish and C. shasta. The study shows a solid correlation between the prevalence of infection of hatchery Chinook salmon and infection of spawners and subsequent-year spore concentrations. Mark provided a
written report describing this research paper.

Mark also discussed the Coalition of the Willing Action Document, which was released a few months ago for consideration by Coalition participants. The KWUA board previously deferred action on this document in light of other pressing business but discussed the document and Coalition process in some detail at the June 10 meeting. Ultimately, staff was directed to draft a statement for circulation to the board that reflects that discussion.

D.C. Activities

Mark Limbaugh from The Ferguson Group, KWUA’s D.C. representative, attended the June 10 board meeting via Zoom. He discussed the status of activities in Washington with both Congress and the Administration, including:
(1) work with the congressional delegation regarding drought funding through USDA to supplement whatever funds are available to the DRA through the Department of the Interior;

(2) status and efforts, in both the Senate and House of Representatives, to secure a technical amendment to existing law that has been drafted so that there will be a sufficiently clear authority to have a water user mitigation plan or something like the “OnProject Plan” in the future, and through Reclamation. That technical correction is likely to pass and become law this year, but the timing is uncertain;

(3) continuing regular contacts with senior Department of the Interior personnel, where there is great attention right now, as well as with staffs from congressional delegation. There is strong bipartisan support in this effort.

Science Consultants

At its May meeting, the board supported KID’s recommendation for an increased scientific presence and activity. Since that time, Mark Johnson has been in communication with two KID board members, and followups are planned. The board directed KWUA staff to prepare a written report and recommendations before the next board meeting, which should also reflect or accommodate whatever actions federal agencies may be taking in regard to scientific fisheries issues.

OWRC Update

Oregon Water Resources Congress (OWRC) Executive Director April Snell attended the June 10 board meeting. She outlined OWRC’s current priorities and strategies, as well as what to be looking for in the Legislature and state agencies, especially OWRD. Ms. Snell also offered to amplify KWUA’s messages at the federal level. OWRC also wants to continue to help make sure Klamath Project districts are current and represented in Salem.

Oregon taxes and lottery dollars are off significantly. State agencies have been directed to cut 17 percent from budgets. OWRD has a significant budget gap. OWRC is advocating for strategic cuts that allow serving the core mission. Ms. Snell stated that overall she expects additional efforts in
the Legislature for funding through fees.

Also, DEQ water quality activities are important now. Finally, OWRC is working along with other organizations on funding for projects in a federal infrastructure package (possibly, as part of a COVID package), and there could be some state match funding. OWRC is interested to know of any needed infrastructure projects that KWUA members may have.

Drought Response Agency Activities

The DRA board met on June 8. There are a number of applications for the groundwater pumping reimbursement, and as of June 8 there were approximately 27,000 acres that had signed up for one of the non-irrigation programs. More sign-ups are needed, and the biggest challenge continues to be to secure more funding. DRA approved a domestic well mitigation program.

Hydro Update

As of June 16, 2020, there was approximately 95,611 acre-feet of Project Supply from Upper Klamath Lake remaining, assuming an allocation of only 140,000 acre-feet.

Muddy boots

District managers have been doing an exceptional job, in very difficult circumstances, monitoring diversions and implementing conservation measures to make the small amount of water go as far as possible. Please be mindful of irrigation practices and closely coordinate with your districts. With the hot and dry forecast for the near future and first cutting largely complete, the demand is anticipated to peak in the next few weeks.

Statement from Deputy Regional Director Jeff Payne on Klamath Project Water Supply.

Upper Klamath Lake Diversions for June

Current 2020 Board Members

  • 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 & Sunnside: Marc Staunton & Mike McKoen
  • Position 8 – Ady & Pioneer: Curt Mullis & Jason Flowers
  • Position 9 – KBID: Ryan Kliewer & George Rajnus
  • Position 10 – At-Large: Tricia Hill & Mat Trotman
  • Position 11 – At-Large: Ben Duval & Bob Gasser
  • Executive Director: Paul Simmons
  • Deputy Director: Mark Johnson
  • Executive Assistant: Chelsea Shearer
  • President: Tricia Hill
  • Vice President: Ben DuVal
  • Treasurer: Gary Wright
  • Secretary: Jerry Enman

Congratulations to Our KWUA Class of 2020 Awardees

TJ Higgins

In a year where our Ag community in the Basin is experiencing incredibly difficult times, it helps to be reminded that our children are struggling as well, especially the next generation Ag Leaders graduating from high school this year. KWUA sought to show our youth that we are here for them, and when times are tough, we will stand strong together. KWUA sponsored a scholarship award for seniors in the Basin. Below are the five recipients of the awards. A special thanks to our generous sponsors whose contributions made possible four $500 awards and one $200 award. Congratulations to all members of the Class of 2020!

Nancy Mantell, Gracie Britton, Mason Graves and Chase Unruh
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