DEFICIENCIES OF INTERIM OPERATIONS PLAN
Klamath Water Users Association (KWUA) has prepared a comprehensive description of the shortcomings of the Interim Operations Plan (IOP) that currently drives Klamath Project operations. Adopted in April of 2020, the IOP has resulted in dramatic harm to agriculture and wildlife in both 2020 and 2021, with no corresponding benefit to fish populations that have been allocated almost all the water in the Basin. That scenario appears likely in 2022 as well.
The IOP expires on September 30, 2022, but there are concerns that it might be re-adopted for an additional period. But the IOP just does not work, as KWUA’s seven-page analysis explains. See February 1 memorandum here.
A Regulatory Context
KWUA’s recent analysis focuses on the technical dysfunction of the IOP. That problem is itself related to the lack of a coherent regulatory framework. KWUA has, over the past five years, urged federal agencies to step back and gain an understanding of what has gone wrong.
The problem lies in a tortured history that has produced Reclamation’s current approach to compliance with section 7 of the Endangered Species Act (ESA). Reclamation’s obligations are to ensure that its actions do not cause jeopardy or prohibited impacts to critical habitat for ESA listed species. In recent consultations, that principle has been lost, and the process has asked only whether Reclamation is assuring “enough” water in Upper Klamath Lake for endangered suckers and below Iron Gate Dam for coho salmon in the opinion of the Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS), respectively. This is not the right approach.
The right approach requires that the environmental baseline be identified, the consequences of the proposed action are added to that baseline, and the jeopardy question is asked. Reclamation does not have a duty to ensure instream a given water level any more than any individual entity in the Klamath Basin does. Reclamation must ensure that its discretionary actions do not result in jeopardy.
In late 2020 and early 2021, Reclamation completed a reassessment of its approach to ESA consultation, focusing mainly on what activities are and are not discretionary actions subject to section 7. Secretary Haaland withdrew the reassessment last April.
But the withdrawal of the re-assessment does not mean that the applicable regulatory framework, which is federal law, has changed. And it does not mean that Reclamation’s current approach is consistent with the applicable regulatory framework.
There are reasons that recent approaches to ESA compliance have not paid attention to the applicable regulatory framework. They have to do with a mindset born in settlement where parties set aside positions and simply asked if they could live with an outcome.
The 2012-2013 ESA consultation was widely celebrated for the “coordinated” BiOps that left room for flexibility of hydrologic outcomes for instream uses; at the same time, the “Project Supply” under that consultation was less than it might otherwise have been because the listed species would only absorb so much flexibility. Gradually (but quickly), things have degraded to a dysfunctional paradigm. Now, ESA consultation consists of agencies bargaining for blocks of water. And hydrologic model results are treated as rules not to be violated, in effect using model outputs as a surrogate for science-based decision-making.
With this approach, BiOp “requirements” could not be met in 2021. Under both the NMFS and USFWS’ current BiOps, one would conclude that, during the 2021 irrigation season, the Project was causing jeopardy to listed species in Upper Klamath Lake and the Klamath River, and causing unpermitted take of those species, even though there were no Project diversions affecting either of those water bodies.
KWUA’s February 1 memorandum demonstrates that adherence to the IOP has been hydrologically impossible and will remain so through its term (September 30, 2022). It details the futile attempts by Reclamation in 2020 and 2021, the first years of the IOP, to both comply with the “boundary conditions” of the BiOps, while also scrambling to salvage some semblance of the “locked in” supply that the IOP promised for irrigation.
Much like the flawed 2008 USFWS and 2010 NMFS’ BiOps, the 2020 IOP requires river flows that then result in violations of required lake levels, regardless of irrigation deliveries. Only this time, the required flows and lake levels are even higher.
At the front end of the year, NMFS’ 2019 BiOp and USFWS’ 2020 BiOp assume that water surface elevation of Upper Klamath Lake will remain above 4,142.0 feet through April and May, while up to 50,000 acre-feet of water can be released to produce a “surface flushing flow” at Iron Gate Dam of at least 6,030 cfs for 72 hours. The purpose of this flow is to remove certain polychaetes from the bed of the Klamath River due to them being the intermediary host for Cetranova shasta, which infects juvenile and adult salmon. Notwithstanding the science behind this experiment, Reclamation has been unable to manifest those conditions in either 2020 or 2021 – and 2022 certainly does not look any better.
The surface flushing flow in 2020 was modified to reduce the volume released from Upper Klamath Lake, yet it still caused lake levels to drop below USFWS’ boundary condition of 4,142.0 feet in April and May. In 2021, the lake never got above 4,141.0 feet, no surface flushing flow occurred, and without some timely late summer rain, the lake would have ended below 4,138.0 feet, USFWS’ boundary condition for how low the lake may go at any time. For 2022, at this point, conditions look likely to land somewhere between 2020 and 2021 – with the lake barely, if at all, reaching 4,142.0 feet and crashing in the event of a surface flushing flow. Irrigation, meanwhile, will likely be cut off again, notwithstanding the calculated “locked-in” Project Supply under the IOP.
Despite its obvious failings, Reclamation now seems to be hinting that it has no choice but to renew the IOP for some indeterminate period. Apparently, the agency cannot conceive any feasible alternative means of operating the Klamath Project and complying with the ESA. If Reclamation is allowed to proceed on this course, a fair question is how many farms within the Klamath Project will be able to survive these “interim” operations.
IN THE KNOW
- 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.
- KWUA offers meeting room facilities for member districts, Monday– Friday 8 am-5 pm, based on availability. To schedule a meeting, call the office at 541-883-6100.
- KWUA’s Office will be physically closed from February 22-24 so staff may present at the Klamath Farm Expo and attend the Family Farm Alliance Annual Conference.
KWUA WELCOMES MOSS DRISCOLL TO STAFF
At the start of the year, KWUA welcomed Moss Driscoll to its staff, as the new Director of Water Policy. He has found plenty of work to keep him busy so far. Moss brings nine years of experience on the Klamath Project, all as an employee of the Bureau of Reclamation, where he worked on water contracts and right water matters. Prior to moving to the Basin to work for Reclamation, Moss was an attorney in Colorado, working in water law and energy development. He and his wife also spent two years in Tanzania and East Africa, as volunteers for the U.S. Peace Corps.
Moss attended Rhodes College in Memphis, Tennessee, playing Division III football and studying biology and natural resources management. He spent his first year of law school at the University of Oregon before transferring to Tulane University. Moss and his wife, Merritt, have two girls, ages 4 and 7.
COUNTY OFFICIALS WEIGH-IN FOR PUBLIC HEALTH AND SAFETY
In recent weeks, KWUA coordinated with elected leaders from Klamath, Modoc, and Siskiyou Counties in drafting a letter to the Commissioner of Reclamation to communicate their concerns with the impacts of Reclamation’s operations on public health, safety, and welfare. The counties expressed their desire to see the basic needs of local citizens considered and adequately addressed in Project operations.
Of particular concern is the failure of domestic wells throughout the Project’s service area, totaling over 300 wells in Klamath County alone, plus more in California. The fact that the A Canal remains closed and will take several weeks to fill and gradually return to operation is an immediate barrier to addressing the problem of dry domestic wells. The counties are pushing for Reclamation to allow Klamath Irrigation District to begin re-watering the A Canal prior to the regular start date of April 1.
The role the counties have asserted will be a helpful presence in addressing the challenging circumstances facing the Klamath Project this year.
Click here to sign up to receive information on the Klamath County Domestic Well Financial Assistance Grant.
JUDGE STEPHEN BUSHONG TO OVERSEE WATER RIGHTS ADJUDICATION
The Chief Justice of the Oregon Supreme Court has assigned the Klamath Basin Adjudication (KBA) to the Honorable Stephen K. Bushong, Judge of the Multnomah County Circuit Court. Judge
Bushong replaces the Honorable Cameron Wogan of the Klamath County Circuit Court, who retired last year and issued his last order in the KBA in July of 2021. Add photo if can find one
Judge Bushong has served as Circuit Court Judge since 2008 and became the Presiding Judge for Multnomah County in 2018. Between 1994 and 2008, he worked for the Oregon Department of Justice, where he rose to the position of Chief Trial Counsel for the Department’s Trial Division. He worked in private practice for ten years before entering public service.
For various reasons, none of the sitting Klamath County Circuit Court judges are eligible to preside over the KBA. Accordingly, it was necessary for the Chief Justice to assign a judge from outside Klamath County.
Judge Bushong inherits a massive case that began several decades ago. The KBA reached an important milestone in 2013 with the Oregon Water Resources Department’s adoption of an administrative order determining pre-1909 water rights under Oregon law and water rights arising under federal law. That order, modified in 2014, is the basis for priority-based regulation of water rights until the Circuit Court completes its consideration of exceptions to the administrative order and issues a judgment confirming or modifying the administrative order based on litigation of exceptions filed by the parties.
What has KWUA been working on . . .
During January, KWUA staff and our D.C. representatives met with all six offices representing the Klamath Project area (four Senate and two House of Representatives) with regard to priorities for 2022. These meetings focused on: 2022 Project Operations; ESA Re consultation (timing, substance); our request for introduction and passage of legislation supported in Klamath Power and Facilities Agreement; the need for sufficient funds for the Klamath Project Drought Response Agency has proved to be necessary; and the state of federal engagement and prospects for incentivizing negotiations for long-term stability.
In addition, KWUA staff had the opportunity to talk with Representative Bentz during his visit to Klamath Falls on January 29 to attend the Klamath County Chamber of Commerce’s 100th Anniversary Gala. On February 1, Senator Jeff Merkley conducted a virtual Klamath County Town Hall. KWUA Executive Director Paul Simmons commented at the town hall, thanking the Senator and his staff for their continued work for the Klamath Basin and encouraging Mr. Merkley to continue to urge that the Biden Administration designate a hands-on policy person or team to engage with parties in the Klamath Basin.
In the Infrastructure Investment and Jobs Act, the $1.2 trillion spending bill signed on November 15, Congress included an appropriation of $162 million over five years for environmental restoration activities. This welcome measure, initiated by Senator Merkley and championed by Mr. Merkley and Mr. Wyden, is of interest to KWUA, largely because KWUA seeks to ensure that the funding produces tangible benefits.
On February 3, KWUA met with USFW Regional Director Paul Souza and USFWS staff members and obtained a briefing on the anticipated process for considering proposals. Participants also discussed the other significant funding sources that are becoming available for activities in the Basin.
KWUA has sent a request for proposals to three communications firms. The KWUA board will receive a status report at its February 9 meeting. Members of the Communications Committee also recently met with the California Rice Commission regarding their communications efforts and strategies.
Mr. Simmons was a panelist at a well-attended Klamath County “Economic Summit” that was held at the Ross Ragland Theater on January 10. KWUA sponsored a table at the Klamath County Chamber of Commerce 100th Anniversary Gala, which over 500 people attended. KWUA Vice President Ry Kliewer and Executive Director Paul Simmons are both members of the Chamber’s Board of Directors.
Several individuals from the signed on Klamath County Chamber of Commerce 100th Anniversary Gala. Photo by Dan Keppen Klamath Project attended the November 15, Congress included an appropriation of $162 million over five years for environmental restoration activities. This welcome measure, initiated by Senator Merkley and championed by Mr. Merkley and Mr. Wyden, is of interest to KWUA, largely because KWUA seeks to ensure that the funding produces tangible benefits.
California-Great Basin Water Users Conference in Reno
KWUA President Ben DuVal spoke on a panel titled “Dried Up and Disparaged: Is This Rock-Bottom,” which was moderated by KWUA Executive Director and conference planning committee member, Mr. Simmons. Mr. Simmons also provided attendees with the Klamath Project update.
KWUA President Ben DuVal spoke on a panel titled “Dried Up and Disparaged: Is This Rock-Bottom,” which was moderated by KWUA Executive Director Paul Simmons. The conference focused on the California-Great Basin Region of the Bureau of Reclamation (formerly known as the Mid Pacific Region), which includes all reclamation projects in California other than the Colorado River, the Newlands Project, and the Klamath Project. KWUA lobbyist Mark Limbaugh also spoke on a panel with staff members for Senator Feinstein and the House Natural Resources Committee minority, which was moderated by Family Farm Alliance Executive Director Dan Keppen. There were nearly 300 people at this year’s conference.
2022 Goals and Strategic Planning Meeting(s)
The KWUA board will hold a strategic planning meeting on March 3-4. The board has approved a process proposed by staff for soliciting input from member districts before the planning meeting so that member districts’ representatives on the KWUA board can be best informed going into the meeting.
Executive Director Report
Area Office Update
Alan Heck has been hired as Deputy Area Manager in the Klamath Basin Area Office of the Bureau of Reclamation and is also Acting Area Manager. Reclamation interviewed candidates for the permanent Area Manager position in January.
Dam Removal, and Keno and Link River Dams
There is a greatly-accelerated pace of activity related to the proposed removal of hydroelectric dams from the Klamath River. In the recent past, the Klamath River Renewal Corporation has filed numerous planning documents with the Federal Energy Regulatory Commission. Also, USFWS and NMFS have issued ESA “non-jeopardy” BiOps for dam removal. The Oregon Department of Fish and Wildlife has issued a “reintroduction” plan for salmonids in the Upper Klamath Basin. We anticipate that there will soon be public documents related to the transfer of title for Keno Dam, which is currently owned and operated by PacifiCorp, to Reclamation, which is an action contemplated under the Klamath Hydroelectric Settlement Agreement.
District O&M Funding
Klamath Project Drought Response Agency for the distribution of the $4 million in funding for irrigation district assistance in Klamath County. Mr. Simmons has met with the Governor’s office and communicated with the Department of Administration to urge an expeditious process.
Stewardship Planning Process
KWUA is pursuing grant opportunities related to water quality, watershed planning, and wetland development, which we believe could be an avenue for securing infrastructure funding and developing reliable water supplies. The key will be coordinating these various efforts and steering the process so that it, first and foremost, addresses water users’ needs while also attempting to satisfy state and federal government objectives. Mr. Driscoll is playing a very active role in this process.
Water Users-Tribes “Technical Group”
KWUA initiated a series of meetings between Klamath Basin tribes and Project representatives. Mr. Driscoll briefed the KWUA board on the ongoing meetings of a sub-group that consists of technical representatives of KWUA, and the Yurok and Klamath Tribes. The discussions have so far been constructive.
Klamath Irrigation District has submitted a plan to Reclamation for a slow and deliberate filling of A Canal to control risks resulting from the lack of water last year. To date, Reclamation has responded with statements that no water is to be taken until further notice.
At this point in the winter, the hydrology is looking unfortunately dire for the 2022 irrigation season, particularly with Reclamation’s adherence to the flawed IOP. Conditions look likely to land somewhere between 2020 and 2021, meaning the possibility of a delayed start to the irrigation season and supply from Upper Klamath Lake that is woefully inadequate to irrigate the entire Project. There is also a good chance of shortages from Clear Lake and Gerber Reservoir.
KWUA and Project water user representatives are in active discussions with the Klamath Basin tribes to try to identify acceptable alternatives to the formulaic operations under the IOP that have proven so disastrous in the last two years.
To subscribe to this monthly newsletter, please email Chelsea at Chelsea@kwua.org or subscribe on our website www.kwua.org
“AG IN THE BASIN” PHOTOGRAPHY PROJECT COMING TO THE UPPER BASIN
A photography project aimed at sharing the realities of farming and ranching families is coming to the Upper Klamath Basin.
The project is called photovoice – a process where a group works to identify and share their stories through images accessible to consumers, policymakers, researchers, and the general public.
Photovoice has been used to show the effects of flooding on family farms in North Carolina, agricultural development in Rwanda, farming identities in Australia, and the impact of landslides on homesteads in West Virginia. And starting this spring, photovoice will be used to share the strengths and struggles of agriculture families in the Upper Klamath Basin.
The photovoice project, dubbed “Ag in the Basin,” is coordinated by Hannah Whitley, a graduate student from Douglas County, Oregon, who moved to Klamath Falls in September 2021. Hannah received research funds from the USDA National Institute of Food and Agriculture and the College of Agricultural Science at Penn State University to answer two questions: What does it look like to do agriculture in the Upper Basin, and what hurdles and opportunities are farmers and ranchers facing?
Originally from Elkton, Oregon, Hannah grew up on her family’s 500-acre ranch on the banks of the Umpqua River, harvesting beef, organic hay, and Douglas Fir timber. After graduating from Oregon State in 2017, Hannah moved to Pennsylvania to pursue graduate education in rural sociology. Her research focuses on the human dimensions of natural resources. Specifically, she is interested in studying how non-governmental stakeholders are involved (or not involved) in water management decision-making.
In 2019, Hannah partnered with the Pennsylvania Women’s Agricultural Network to create The Female Farmer Photovoice Project, a digital and traveling photography gallery highlighting the experiences of farmers in Pittsburgh, Pennsylvania. Prior to Covid, the gallery was shown at a dozen agricultural, policy, and academic research events in the Northeast.
Coming this April, Hannah will recruit a photovoice cohort of 20-30 farmers, ranchers, and farm/ranching family members to participate in the Ag in the Basin Photovoice Project. Adults and children aged 7+ with some connection to Upper Basin agriculture are encouraged to participate.
All participants will receive a point-and-shoot camera and be asked to take pictures that show their experiences with agriculture. After an orientation meeting, participants will spend a few weeks taking pictures. Next, they will meet for a reflection meeting to share their photos, select which images they want to share with the public, create titles, and write captions for their photographs.
From Districts: Upcoming Meetings
- Pioneer District Improvement Co. will hold its monthly Board of Directors meeting on February 7 @ 5:30 pm at the Keno Fire Department
- Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting February 9 @ 10 am in the KWUA boardroom
- KWUA will hold its monthly Board of Directors meeting on February 9 @ 2 pm in the KWUA boardroom
- Tulelake Irrigation District will hold its monthly Board of Directors meeting on February 14@ 10 am at the TID office
- Klamath Irrigation District will hold its monthly Board of Directors meeting on February 17 @ 10 am at the KID office
- Klamath Drainage District will hold its monthly Board of Directors meeting on February 17 @ 1 pm at the KDD office
To subscribe to this monthly newsletter, please email Chelsea at Chelsea@kwua.org or subscribe on our website www.kwua.org