KWUA August Newsletter

KWUA and the Klamath Tribes jointly oppose the extension of the Interim Operations Plan

On July 22, the Klamath Water Users Association (KWUA) and the Klamath Tribes issued a joint letter, signed by Chairman Clayton Dumont, Jr., Klamath Tribes, and Ben DuVal, President KWUA, expressing their shared objection to the U.S. Bureau of Reclamation’s (Reclamation) stated intention to continue following the Interim Operations Plan (IOP) for the Klamath Project beyond the plan’s current expiration date of September 30, 2022. 

The letter was sent to the Departments of Interior and Commerce, as well as the Regional Directors for the U.S. Fish and Wildlife Service (USFWS), Reclamation, and National Marine Fisheries Service, which all play a role in managing water and fish and wildlife resources in the Klamath Basin. 

According to the letter, “though our objections to the IOP are not identical, we both firmly agree the IOP is flawed, unworkable, and that its ‘extension’ would be neither in the public interest nor conducive to reducing conflict in the Klamath Basin and allowing us to dedicate our resources to work toward a more sustainable and harmonious future.”

Reclamation adopted the IOP in 2020, in response to defects in its prior consultation pursuant to Section 7 of the Endangered Species Act (ESA), on the basis that the agency would complete a new consultation and institute new operations by September 30, 2022. In recent months, Reclamation has given indications that it wishes to continue following the IOP indefinitely. 

“We felt it was important to speak with one voice,” Ben DuVal said regarding the letter. “The last three years of operations under the IOP have been the most difficult in the history of the Klamath Project, and yet, as KWUA has pointed out before, for what? According to the Klamath Tribes and the U.S. Fish and Wildlife Service, C’waam and Koptu in Upper Klamath Lake continue to struggle. We hear similar concerns from downriver interests. Clearly, the IOP is not working for anyone.”

The letter advised the federal agencies move “to annual consultations for the foreseeable future.” 

Appellate Court Upholds Management Practices for Agriculture on Wildlife Refuges

On July 18, 2022, the United States Court of Appeals for the Ninth Circuit issued its decisions for four separate lawsuits relating to farming and grazing practices on the Klamath Basin National Wildlife Refuge Complex. Three of the cases had been brought by environmental organizations and one by agricultural interests.

In each case, the appellate court affirmed the decisions of the federal district court, which had ruled in favor of USFWS in all four cases. In effect, the court found that status quo management and management philosophies are consistent with USFWS’s legal obligations.

Clear Lake, Tule Lake, and Lower Klamath National Wildlife Refuges (NWRs) have a long historical, legal, and functional relationship with Klamath Project agriculture. In 2017, USFWS adopted a Comprehensive Conservation Plan (CCP) covering all land in five Klamath Basin NWRs, outlining intended management practices for a fifteen-year period. The four lawsuits challenged the CCP, on varying grounds.

Grazing on Clear Lake NWR

Clear Lake NWR occupies land the federal government condemned in order to expand Clear Lake for the development of the Klamath Project. Land not essential to this purpose is still in federal hands, but available land has both been leased to the original ranching family for over 100 years and, beginning in 1928, was protected as a NWR as well.

LKNR- Photo by Chelsea Shearer

Despite very restrictive constraints on the timing and amount of grazing, the Western Watersheds Project objects to the grazing and to USFWS’s failure to consider a “no grazing” alternative. The federal courts rejected that request. In the meantime, wildfire and wild horses have done tremendous damage on Clear Lake NWR, threatening habitat for the western sage grouse and other species.

Farming on Tule Lake and Lower Klamath NWRs

Both Tule Lake NWR and “Area K” on Lower Klamath NWR occupy land that California and Oregon ceded to the United States for homesteading as part of the Klamath Project development in legislation enacted in 1905. Although much of the ceded land was homesteaded, other land was included in executive orders establishing bird refuges to protect waterfowl from extreme hunting pressure (largely for feathers for hats). All the while, this land in federal ownership was also leased to producers, with the expectation that all of it would eventually be homesteaded.

In the 1950s and 1960s, there was a national debate about whether to homestead the remaining lands versus continue to lease the land. The leased land is more favorable for waterfowl and other wildlife because of the lack of houses, busy roads, dogs, power lines, and all the disturbances that accompany settlement. This debate was resolved in 1964 in favor of continued leasing in lieu of homesteading, in the Kuchel Act.

The NWR leased lands have been leased since that time, and some of the land has been leased since it came into federal ownership over a century ago. Growers bid on lease land units. A portion of the rent (after expenses) is paid to Klamath, Modoc, and Siskiyou Counties, as payment in lieu of taxes (since the land has not entered private ownership via homesteading).

Lease land areas are characterized by world-class soils and are extremely productive. As they have for a century, waterfowl and wildlife feed on green browse and waste grain and crops such as potatoes. With crop rotations and innovative practices such as the “walking wetlands” program, there is a high degree of organic production. In the meantime, producers often also note that the birds and wildlife do not know where the boundary is between the public NWRs/lease lands and privately-owned land, and private farmland provides the same type of benefits as lease lands.

In a second lawsuit, the Audubon Society of Portland and WaterWatch of Oregon (jointly, “ASP”) focused their objections to lease land farming on the lack of water available for other wildlife uses, particularly on Lower Klamath NWR. As a practical matter, and as the courts recognized, the lack of water for application on both irrigation and refuges is primarily a function of ESA regulation that has re-allocated water away from its historic use for irrigation and refuges, to drastic effect. Also, the distribution of water throughout the basin is a function of water rights, delivery contracts, infrastructure, and many other factors. The appellate court rejected ASP’s contentions.

The third lawsuit, brought by Citizens for Biological Diversity (CBD), objected to the use of pesticides to control weeds and insects and argued that USFWS should have evaluated a “no pesticide alternative.” In light of federal law, state laws, a refuge-specific integrated pest management plan, and technical pesticide use proposal process, the range and rate of permissible pesticide use on the lease lands is exceptionally limited (also, some “pesticides” are organic). Nor has there been evidence of injury to wildlife from the very limited uses that are permissible. The court rejected CBD’s claims.

In the final lawsuit, agricultural interests sought an interpretation of the set of federal laws that govern the lease lands uniquely. Boiled to its essence, the issue was whether USFWS could impose constraints on lease land farming that go beyond  Kuchel Act (no homesteading, no more than 25 percent row crops, soil building crops required). The court ruled in favor of USFWS, agreeing that USFWS is to allow farming that it determines to be consistent with proper waterfowl management. USFWS has determined that current practices meet that test.

The Ninth Circuit’s decisions are very likely the end of the four cases. It is possible that one or more parties could ask the Ninth Circuit to rehear the case, or seek review in the U.S. Supreme Court, but it would be very challenging to obtain further review in either venue.

The Ferguson Report- D.C. Report

KWUA and TFG continue to work with your delegation on Capitol Hill and the federal agencies regarding KWUA’s priorities in 2022, which include: the urgent need to address the ESA reconsultation process and realize an adequate, reliable water supply; identify funding opportunities to support the DRA; impacts on operations in 2022 and preparations for 2023 operations; and to address operational needs through legislation. 

Regarding appropriations, while the congressional leaders have not reached agreement on the total funding levels for FY 2023 (i.e. the “top line number”), the House has moved forward and set their own top-line spending amount of about $1.6 trillion.  If that top-line changes later in the year, once agreement is reached, the bills would need to be modified to reflect that change.

In the meantime, the House has recently passed a $402 billion, six-bill appropriations “minibus”, H.R. 8294, which contains the FY 2023 Interior-EPA, Energy-Water (which includes funding for the Bureau of Reclamation and the Corps of Engineers), Transportation-Housing and Urban Development, Agriculture-Rural Development, Financial Services-General Government, and Military Construction-Veterans Affairs spending bills. The final vote was 220-207, along party lines. GOP members offered numerous amendments to decrease spending levels and add policy riders, but all were defeated by House Majority Democrats.

The House leadership is expected to pass a second spending package soon that would likely include the Commerce-Justice-Science, State-Foreign Operations, and Labor, Health & Human Services-Education spending bills. Defense and Homeland Security bills are expected to be delayed indefinitely due to disagreements over spending levels and immigration policies.

The Senate, meanwhile, has yet to move any spending bills. Senate Democrats have released their draft versions of FY 2023 spending bills for public review. It includes $10 million for Klamath Project Drought Response Agency in FY 2023. House and Senate Democrats and Republicans continue negotiations on the FY 2023 topline number.

The delay in the two houses reaching an agreement will very likely require the passage of a continuing resolution (CR) that will fund the federal government at current FY 2022 levels until sometime into the new fiscal year. With an election looming, its expected the initial CR will run through mid—December.  

In the House,  the “Wildfire Response and Drought Resiliency Act,” H.R. 5118, a package of 48 bills related to wildfire, forest management and drought passed on a party line vote.  The legislation would boost spending authorization levels (i.e., a line of credit to spend but no actual appropriations) for wildland fire fighting and forest management projects that make federal forests more fire resilient, as well as several near-term water reuse, recycling, desalination, and ecosystem conservation projects that would increase drought resiliency in the West.  House Republicans derided the measure as incomplete and falling short of addressing the most pressing drought related needs in the West.

The measure faces an uphill battle in the equally divided Senate, although elements of the bill – -particularly those related to wildfire — may become part of a future negotiated bipartisan House-Senate natural resource title later this year.

On the executive agency front, as expected, the U.S. Fish and Wildlife Service recently reversed a key Trump Administration Endangered Species Act (ESA) rule defining critical habitat under the ESA. The agency announced that they are rescinding the ESA critical habitat rule in the Federal Register which starts a 30-day countdown for when the rescission takes effect. 

Under the ESA, critical habitat is considered “essential for the conservation of the species.” The law provides for exclusions from critical habitat designation that are subject to interpretation by the agency, which are at the crux of the Trump-era rule that expanded the use of such exclusions.

PacifiCorp Distribution System Planning Process

KWUA is participating in a process sponsored by PacifiCorp concerning its ongoing Distribution System Planning (DSP). Other participants to date have included the Klamath County Chamber of Commerce, Klamath County Economic Development Association, the Downtown Business Association, Klamath Community College, low-income housing interests, and Farmers Conservation Alliance; others, including the Klamath Tribes, are anticipated to be involved as well.

The “distribution system” is the power delivery system from a transformer to the end-users. Traditionally, utilities do their distribution system planning completely in-house. In 2020, the Oregon Public Utilities Commission ordered investor-owned utilities (IOUs) to engage in a DSP process that includes substantial community participation. The July 7 meeting was part of the outreach in the public process. 

PacifiCorp and the other IOUs are explicitly required to evaluate “non-wire” solutions. For example, if a current power line cannot safely or reliably carry peak loads, the normal solution would be to install a new, higher-capacity wire. “Non-wire” solutions include such things as energy or distributed solar plus batteries in the service area. Klamath Falls and Pendleton are two areas that are the main focus of the current undertaking.

The next scheduled public workshop in this process will be in August. For more information or to get involved, refer to PacifiCorp’s website:  https://www.pacificorp.com/energy/oregon-distribution-system-planning.html.

What the Board Is Doing

KWUA’s Board of Directors strives to keep member districts, 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.

The KWUA board held its most recent regular business meeting on July 13. Below is a recap of the ongoing activities, including the current status. If you would like more in-depth information, we encourage you to contact your respective district board member listed on our website.

Operations Report

In each of KWUA’s monthly board meetings, KID Executive Director and Manager Gene Souza, the Chair of the KWUA Operations Committee, presented slides reflecting current hydrologic conditions and other pertinent information. On the Drought Monitor, Klamath County is at D3, although June was the 23rd wettest on record. Since 2020, there is a deficit in precipitation over 18 inches compared to average. Williamson River inflow in the last three years has been 25% of normal. Upper Klamath Lake is 1.3 feet below average at this time of year. Link River June-July flows and Keno Dam release are both above the historical median.

Mr. Souza created a comparison of the water year 2020 to a comparable water year, 1918, when Link River went dry in July. He also presented data showing that the period 1920 to 1940 was drier than the current period.

Uncertainties regarding end-of-season Upper Klamath Lake elevations and the 2022 Temporary Operations Plan have been causing extreme difficulty for district managers on the west side of the Project.

East side diversions (Horsefly Irrigation District) were scheduled to shut down on July 11, at 4:00 p.m.

DRA Report

The Klamath Project Drought Response Agency (DRA) board of directors met on July 13. The DRA board intends to send out postcards telling applicants who are preliminarily approved that they are preliminarily approved, assuming compliance for the rest of the year, and the amount paid is anticipated to be $450 for a full season, but that number can fluctuate and is not a guarantee. An online mapping tool will also be available to check the proper acreage. Just over 40,000 acres for full season and 94 acres for the partial season has been preliminarily approved.

KWUA Board Composition

Recently, two vacancies arose in the board of directors’ seats. For one of them, the alternate for position 9, the role has just been filled. Nick Oldham will be the alternate for the Klamath Basin Improvement District. Jason Flowers has resigned his primary for position 8. Debbie Duncan is the position 8 alternate, representing Pioneer District Improvement Company. Board members were asked to recommend names for appointment by the end of July. The position will be appointed at the August board meeting. Because position 8 is a Lower Klamath seat, the ideal appointment would be from the Lower Klamath area; however, that is not required under the circumstances where the position 8 districts have not made an appointment.

Link River Power Potential 

Klamath Drainage District Board of Supervisors member Sam Henzel has recently recommended that KWUA and/or districts pursue power generation opportunities at Link River Dam or westside canal or Keno Dam. At the February 2022 KWUA board strategic planning session, one item that was discussed was the degree to which KWUA should allocate staff and financial resources to power issues, and currently, the main activity has been participation in OPUC cases to oppose rate increases. At the February meeting, the board did not feel that power development should be a KWUA priority at the present time. Mr. Henzel’s recommendation is that KWUA first ask its power consultant for his sense of what would be involved in evaluating the power potential. Mr. DuVal noted that Link River potential was part of the Affordable Power Measures (AFM) report completed in 2019-2020. Moss Driscoll noted that the AFM report also talks about having a process and a steering committee, etc. The board directed that the AFP report be sent to the power committee and convene a meeting of the power committee, Mr. Reed, and the Farmers Conservation Alliance. Mr. Henzel was added to the power committee.

Communications / PR

During the last communications committee meeting, the decision was made that the video billboard on Washburn Way that KWUA has rented should primarily promote “my job/business depends on Klamath Basin Ag.” The committee directed Chelsea Shearer to reach out to downtown businesses directly and offer to take a photo of the owner and/or staff and run the photo in conjunction with their logo and the KWUA logo with the above-mentioned message. The Chamber of Commerce has also forwarded an email sent by Chelsea offering the promotion to their membership, and the Downtown Business Association will do so soon. A secondary message (ads can rotate during the year) will deal with food production and the relationship of water policy to food production, but for the local audience and traffic, most of the ads will target the importance of local agriculture to the local economy.

Executive Director Report  

The Executive Director provides a formal, written report to the board of directors each month, as well as updates on important developments between board meetings (typically, by email). At the monthly board meeting, the Executive Director and board discuss items from the written report that require board discussion and/or action.

             Federal Legislation

KWUA has for some time anticipated the introduction of one or more bills in Congress that would propose enactment of the so-called “left-behinds,” the federal legislative measures supported in the Klamath Power and Facilities Agreement that have not yet been enacted. The important elements of the left-behinds include preventing costs to districts for Link and Keno dams and authority (and authorization of appropriations) for Reclamation to engage in activities to actually reduce power costs on a non-reimbursable basis. At this time, we have seen drafts from legislative counsel in both the Senate and House. The state of Oregon has identified some additions or modifications that it would like to see. Mr. Driscoll and Paul Simmons have talked to the state of Oregon about this on July 13, and there are no showstoppers in the state’s requests.

Litigation Concerning Project Operations

There is a recent development Klamath Irrigation District’s (KID) litigation against Reclamation that was brought in Klamath County Circuit Court in April of 2021, in which KID requests that court – the Klamath Basin adjudication court – enjoin Reclamation from releasing stored water in Upper Klamath Lake for any non-authorized purpose. The United States exercised its right to remove the case to the U.S. District Court for the District of Oregon. KID then moved to have the matter remanded back to state court. The district court denied that motion. KID filed a petition for a writ of mandate in the Ninth Circuit Court of Appeals, asking for the appellate court to overrule the district court. On July 12, the Ninth Circuit ordered the federal government to file a response to the petition. Typically, the Ninth Circuit dismisses these kinds of petitions summarily, so the court’s request that the federal government respond is a meaningful development.

Link River- Photo by Chelsea Shearer

At the regular May 2022 board meeting, the KWUA board authorized intervention in the Klamath Tribes’ most-recently-filed litigation, which challenges the 2022 Klamath Project Temporary Operations Plan (among other things). The Klamath Tribes and the federal defendants stipulated to KWUA’s intervention, and KWUA has become a defendant-intervenor. This most recent Klamath Tribes case will be considered together with a case that they filed in 2021, with a briefing to occur this fall.

On July 5, 2022, the federal government filed a lawsuit against Klamath Drainage District (KDD) in the U.S. District Court for the District of Oregon, alleging that KDD is diverting water out of its contractual priority. The case was unanticipated. KDD is the exclusive owner and operator of the North Canal and has water rights for diversion from the North and Ady Canals, in which the federal government claims no interest. See a copy of the complaint here.

On July 15, the Oregon Court of Appeals heard oral arguments in the KID litigation against the Oregon Water Resources Department (OWRD). This is the case in which the trial court ordered OWRD to issue an order to Reclamation requiring that Reclamation not release stored water for purposes other than irrigation. Until the time of the ruling by the court of appeals, the trial court order is stayed.

July 29 is the deadline for OWRD and intervenors (KWUA and KID) to file oppositions to pending motions for summary judgment by the United States and the Yurok Tribe in the litigation in the U.S. District Court for the Northern District of California in which the moving parties contend that the OWRD order, mentioned above, is inconsistent with federal law. In addition, the responding parties can file cross-motions for summary judgment on that issue; this will include KWUA’s filing on its counterclaim against the United States and presumably will include OWRD’s filing on its counterclaim against the United States.

Water Policy Director Report  

The Water Policy Director provides a formal, written report to the board of directors each month, as well as updates on important developments between board meetings (typically by email). At the monthly board meeting, the Water Policy Director and board discuss items from the written report that require board discussion and/or action.

Perspective on the Interim Operations Plan

As part of his monthly report to the board of directors, Mr. Driscoll began by focusing the board on the June 17, 2022, letter from KWUA to Reclamation that formally expressed KWUA’s objections to Reclamation’s stated intent to extend the IOP indefinitely. It may be that the best alternative would be for key parties to negotiate and transmit a proposal for 2023 operations to the federal agencies. Mr. Driscoll recommended that the board approve joining the Klamath Tribes in a joint communication opposing any extension of the IOP. The board voted unanimously to approve the recommended course of action.

Food Matters

Mr. Driscoll recently presented to a group of community leaders and public officials at the Klamath County Library as part of a public speaker series titled “Food Matters.” This series is hosted by Healthy Klamath. The presentation centered around food production in the Klamath Project, in terms of what crops are grown, what foods they produce, and how they are processed, distributed, and sold. Mrs. Shearer helped prepare an excellent slideshow with various pictures she has taken of food production in the Project. 

Onion harvest on the Refuge – Photo Chelsea Shearer

Mr. Driscoll said that the meeting reinforced his perception that people in the community outside the agricultural industry have heard or read a lot about water issues, but they do not understand that they have any connection to those issues and conflicts. It seems to make the issue more personal when people begin with the topic of food and how local farms grow crops that end up, directly or indirectly, in restaurants and grocery stores.

Upcoming Meetings from your Districts

Klamath Irrigation District

Will hold its monthly Board of Directors meeting on August 11 @ 1 pm at the KID office.

Tulelake Irrigation District

Will hold its monthly Board of Directors meeting on August 8 @ 8 pm at the TID office.

Klamath Project Drought Response Agency

Does not have a scheduled meeting at this time. Normal meetings will resume in November 2022.

Klamath Water Users Association

Will hold its monthly Board of Directors meeting on August 10 @ 2 pm at the KWUA office.

Klamath Drainage District

Will hold its monthly Board of Directors meeting on August 18 @ 1 pm at the KDD office.

Pioneer District Improvement Co.

Will hold its monthly Board of Directors meeting on August 8 @ 5:30 pm.

Water Well Abandonment, Repair, and Replacement Fund

The Water Well Abandonment, Repair, and Replacement Fund (Fund) was authorized through the passage of HB 2145 to provide financial assistance to persons or members of a federally recognized Indian tribe in Oregon to permanently abandon, repair, or replace a water well used for household purposes.

Financial assistance is available for low to moderate-income households to abandon, repair, or replace affected wells used for household purposes in areas recently impacted by drought or wildfire.

Questions? Visit the website: https://www.oregon.gov/owrd/programs/GWWL/WARRF/Pages/default.aspx

Email: OWRD.Well.Funding@water.oregon.gov

Call: (503) 779-5763

RCAC Household Water Well and Septic System  Loan/Grant Program*

Low interest loans and grants available to construct, refurbish, or replace individual water well and septic systems!

Program Requirements:

§ Residence must be in a rural area, town, or community in RCAC’s 13-State service area with a population not exceeding 50,000.

§ Applicants must own and occupy the home being improved or be purchasing the home.

§ New home construction and community systems are not eligible.

§ Household income may not exceed $37,730 for California. Please call for other States’ income eligibility.

For information/application, please visit www.rcac.org or contact:

Deborah Almazan, Loan Officer, Rural Community Assistance Corporation (RCAC)

2978 North Fork Road, Fernley, NV 89408  Email: dalmazan@rcac.org  Cell: (725) 221-0474;

Fax: (775) 501-6915

Hydro Update

· The Upper Klamath Basin received, on average, 6.47 inches of precipitation for the water year (WY), bringing the Basin to 66 percent of average for the water year to date

· Cumulative net inflow to Upper Klamath Lake for the WY is 621,000 acre-feet (AF)

· Upper Klamath Lake Elevation is 4139.70.51 ft

· Storage in Upper Klamath Lake is 25,3721 AF (45%)

· Storage in Clear Lake is  45,147 AF (11%)

· Storage in Gerber Reservoir is 1916 AF (1%).

· All out of stream uses on tributaries to Upper Klamath Lake for which the Klamath Tribes have instream water rights have been regulated off until the end of the irrigation season or otherwise notified by OWRD.

District 17 Water Master Office has moved to 3125 Crosby St., Klamath Falls.

If you are experiencing a domestic well issue, please report your well issues to the Water Master’s office, via phone or  the county website.