KWUA Water Works, February 2022, Issue 31

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. 

Technical Deficiencies

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 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 . . .

Washington Activities

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.

Communications Committee

 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.

Operations Committee

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.

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“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

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