November 2019 Issue 09
A Load of Litigation; and Potential Game-Changers
By Paul Simmons
Thirty-one years ago, the shortnose sucker and Lost River sucker were designated as “endangered” under the Endangered Species Act (ESA). Soon following that, Klamath Project farmers and ranchers saw the first ESA lawsuit seeking to re-allocate irrigation water. The designation of coho salmon as threatened led to more regulation and more litigation. The ESA and litigation related to irrigation water supply have cost producers very significant amounts of water and hard-earned money. There has been no positive response in fish populations, but the regulation and litigation continue.
For a period between 2006 and 2015, the litigation subsided; no new lawsuits were filed. But in the last three years, seven new lawsuits have been filed. For Project water users, there was little choice in 2019 but to bring litigation because newly-adopted operations will reduce water far below needed levels. Unlike past regulatory practices and lawsuits that focused on how much water to allocate away from the Project to listed species, the most recent cases by irrigators – filed in federal district court in Oregon – question the basic authority of the Bureau of Reclamation (Reclamation) to re-allocate irrigation supplies generally. To a significant degree, these cases are based on recent legal developments, including in the Klamath Basin Adjudication (KBA) and the evolution of court decisions. The issues raised by water users in these cases could have significant and lasting consequences.
At the same time, two basin tribes (Hoopa Valley and Klamath Tribes) are asserting previously-unasserted theories in an effort to prevent the water users’ cases from going forward at all. And, the Yurok Tribe has filed a case and has a motion for a preliminary injunction pending in a federal district court in California. The cases, their issues, and their implications are complex. KWUA believes it important that affected communities understand what litigation is occurring where, and by whom, and for what end.
Events Triggering New Litigation
Section 7(a)(2) of the ESA requires that federal agencies ensure that their actions not jeopardize the continued existence of threatened and endangered species or destroy or adversely modify designated critical habitat of the species. To assist in compliance with this duty, action agencies prepare a biological assessment (BA) of their proposed action, and obtain the biological opinion (BiOp) of the U.S. Fish and Wildlife Service (USFWS) (for terrestrial species and freshwater fish) or the National Marine Fisheries Service (NMFS) (for anadromous and ocean species) as to whether a proposed action would be consistent with the substantive duty in section 7(a)(2). If “jeopardy” or adverse modification is found, the Service issuing the BiOp must also specify reasonable and prudent alternatives (RPAs) to the proposed action that would not result in jeopardy. After receipt of the BiOp, the federal action agency decides how to proceed.
This process is very familiar to irrigation water users and has resulted in significant hardship for farmers and ranchers whose water supplies have been curtailed by the implementation of RPAs, sometimes inconsistent RPAs derived from more than one BiOp. In 2013, and again in 2019, Reclamation and the Services engaged in a technical dialogue before the BA was written, in order to develop a proposed action that would obtain non-jeopardy BiOps. The latest ESA consultation resulted in non-jeopardy BiOps, but the proposed action itself would result in a significant and frequent shortage of irrigation water supply.
KWUA and Districts’ Litigation
In early April, the Klamath Irrigation District (KID) filed a lawsuit against Reclamation in the U.S. District Court for the District of Oregon. KWUA and several districts and individuals jointly filed a case soon after that, and the two lawsuits are consolidated and pending before the Honorable Mark Clarke, Federal Magistrate Judge, in Medford.
The primary issues, in this case, are not based on the ESA itself or focused on how much water fish do or do not need. Rather, they raise more fundamental issues related to Reclamation’s legal authorities. Key underlying principles include the issuance of the currently-binding Amended and Corrected Findings of Fact and Order of Determination in the KBA, and the now-clear rules that section 7 applies only to discretionary federal actions, and does not create legal authority to do things that the agency does not already have the authority to do, even if the purpose is to protect listed species.
Central arguments in both cases concern the Reclamation Act of 1902, state water law, and Reclamation’s lack of authority under either state water law or federal law to operate Project stored water for the purpose of benefitting listed species. The KWUA case also emphasizes Reclamation’s general lack of discretionary power, under its existing legal authority, to operate or direct the operation of facilities in a manner that results in insufficient water deliveries.
The major legal issues in the case will be briefed after the motion to dismiss, which is discussed below. Attorneys for KWUA, KID, Klamath Drainage District, and Van Brimmer Ditch Company, all of whom are plaintiffs in the consolidated cases, are working in close collaboration to set forward the strongest cases possible. The water users’ arguments are well-supported and, if successful, could result in meaningful change and benefit for Project irrigators for the long term. Of course, nothing is certain, and other parties will make competing arguments. In addition, the water users’ basic right to even prosecute these cases is being called into question, discussed below.
The Hoopa Valley Tribe and the Klamath Tribes have been allowed to intervene in the consolidated KID and KWUA cases for the limited purpose of seeking that the cases be dismissed altogether. The tribes’ arguments are basically that their interests would be affected negatively by the outcomes the water users are seeking, so much so that the cases may not proceed unless the tribes are made parties to the cases, and because the tribes have not waived sovereign immunity to be disease, that should not mean the Klamath Project must provide those flows, from storage or otherwise, unless the specific impacts are attributable to the Project.
Connections Between the Cases
Federal agencies who are defendants in both the new, consolidated Oregon cases and the new California case have suggested that there is a potential that the Oregon and California cases could result in conflicting judgments; that is, if both the water users and the Yurok plaintiffs “win” their respective cases, it may not be possible for the United States to comply with both judgments. As a result of the United States’ position, the issue may receive further attention in either or both courts.
Neither Gone Nor Forgotten: the 2001 “Takings” Case
A very old case still lurks in the background. In the so-call “Klamath takings” case, individual landowners and lessees assert that, when the federal government re-allocated their water rights to ESA-listed species, it took their private property (water rights) and, under the fifth amendment to the United States Constitution, must pay just compensation for that property. The United States Court of Federal Claims ruled against the water users in a 2017 decision, which is currently on appeal to the United States Court of Appeals for the Federal Circuit. Baley, et al. v. United States, et al., 134 Fed. Cl. 619 (2017) (Baley), U.S. Court of Appeals for the Federal Circuit, case nos. 18-1323, 18-1325 (2017). The appellate court could issue its decision at any time, although there is no deadline to do so. In the takings case, the plaintiffs concede for the sake of that case that the federal government had the right, under the ESA, to re-allocate their water, but that it must pay for doing so. In the 2019 cases, the water user plaintiffs do not concede that the ESA confers the powers that the government asserts, at least not in the manner that it asserts them.
KWUA Washington D.C Representatives’ Report
From The Ferguson Group, KWUA’s Washington representative.
The ongoing House impeachment inquiry has created uncertainty over the future of legislative activity in Washington in the longer term – including whether there will be a government shutdown in late November. For now, however, work continues.
The appropriations process continues. As of this writing, the Senate is debating – and is expected to pass – a four-bill spending package that includes the FY 2020 Interior-Environment, Commerce-Justice-Science, Transportation-Housing and Urban Development, and Agriculture spending measures, which would be the first ones the upper chamber has passed this year. The House has passed 10 of the 12 annual spending bills. Congressional leaders have said, while the two chambers continue work on appropriations, another short-term continuing resolution (CR) will be needed to prevent a government shutdown when the current stopgap funding measure expires on November 21.
The Energy and Water bill, which funds Reclamation and the Corps of Engineers, is expected to be paired with military funding legislation in a second package of spending bills the Senate is aiming to pass in the coming weeks.
Meanwhile, behind the scenes, Senate Energy Committee Democrat and Republican members continue negotiations over differences on major pieces of water related legislation. The sharpest differences remain over provisions of S. 1932 – co-sponsored by Sens. Gardner (R-CO) and Feinstein (D-CA) – regarding Congress’ role in approving individual water storage projects.
In the executive branch, President Trump has signed two new executive orders aimed at federal agencies’ use of regulatory guidance in implementing laws, including the Clean Water Act, instead of using a formal rulemaking process. The first executive order, titled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” is intended to stop federal agencies from skirting laws that let the public provide feedback on new government rules. A second executive order, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” would limit the use of such guidance to protect the public from potentially unlawful interpretations or unfair penalties.
Klamath Project to be Featured at Oregon Water Law Conference
A panel at the 28th annual Oregon Water Law Conference, on November 14 and 15, will focus on the Klamath Project and evolving issues related to water rights, the ESA, and ongoing litigation. KWUA Executive Director Paul Simmons will speak on past developments and new litigation and legal policy issues. Steve Shropshire, a partner at the Bend office of Jordan, Schrader, will discuss the Klamath “takings” case (Baley v. United States). Mr. Shropshire, who is counsel for Langell Valley and Horsefly Irrigation Districts, co-authored an amicus curiae brief in that case filed in the U.S. Court of Appeals for the Federal Circuit, along with Stoel Rives partners David Fillipi and Kirk Maag, on behalf of the OWRC.
The Oregon Water Law Conference is sponsored by the Seminar Group, a private company that organizes professional conferences for legal and other professionals. The conference is intended for attorneys, engineers, managers, tribal representatives, agency personnel, board members, and all others interested in water resources law and policy. Other topics covered at the conference will include the Willamette, Grand Ronde, and Deschutes basins, Clean Water Act and federal reserved water rights issues, and others. More information is available from the Seminar Group: https://www.theseminargroup.net/seminardetl.aspx?id=5978
USFWS Sucker Assisted Rearing Program
Over the past several years, the U.S. Fish and Wildlife Service, in partnership with Gone Fishing, has been captively rearing suckers that were collected as larvae in the Williamson River. The suckers are reared for a year or more before being released into the Upper Klamath Lake population, where it is hoped they survive to breeding age. This project is aimed at curbing the downward trajectory of the Lost River and shortnose sucker populations in Upper Klamath Lake while the underlying factors for the declines are being researched. This program has experienced rapid expansion due to the efforts of Senator Merkley.
Due to limited success in releasing the juveniles in the spring months, the 1-2-year-old suckers were held all summer in floating net pens prior to release to evaluate survival during the periods of compromised water quality and then release them in the fall during better water quality conditions going into their first winter. However, when they released these fish, they found only 10 out of the 1,000 suckers alive. It is currently unknown as to the cause of mortality and it could be multiple factors such as a combination of water quality and high parasite load. It was stated that the surviving individuals had high lernea (small threadlike parasite) loads and lamprey wounds.
Previous studies show that the survival of captively propagated suckers from other systems tends to dramatically increase after about age three. The USFWS will continue to try different release strategies and age of release to hopefully move the needle on the status of these endangered species.
Sustainable Northwest 2019 Fall Energy Symposium
On October 17, Sustainable Northwest’s Making Energy Work for Rural Oregon; Fall Energy Symposium took place at the Oregon Institute of Technology. KWUA Deputy Director Mark Johnson gave a presentation on the challenges faced by the Klamath Basin irrigators and current/future irrigation modernization on the Klamath Project during a panel discussion on the “Future of Farming with Irrigation Modernization.” Former KWUA board president Steve Kandra kicked off the event, providing a great history lesson on the Klamath Project and Klamath Basin agriculture. The presentations included everything from wood energy options to mitigating natural disasters with distributed energy and storage. The day prior to the event, Dr. Mason Terry hosted a tour of the irrigation modernization projects occurring on the Modoc Point Irrigation District.
Sustainable Northwest hosts this event at different locations each year throughout Oregon. The symposium is a platform to generate ideas on sustainable energy options and network with funding agencies or individuals from other entities. Other contributors to the event included: EnergyTrust of Oregon, Oregon Department of Energy, Oregon Renewable Energy Center, Klamath Watershed Partnership, Wy’East Resource Conservation and Development, and Wisewood Energy. KWUA looks forward to attending next year.
Congressman Greg Walden To Retire from Public Office after 30 Years of Service
U.S. Rep. Greg Walden, who represents the people of Oregon’s Second Congressional District, which includes 20 counties in central, southern, and eastern Oregon, will retire at the end of this Congress in January 2021. KWUA is greatly indebted to Congressman Walden for his dedicated and persistent work in support of Oregon’s rural farms and ranches and the economies of our rural communities. His long-standing, persistent attention to the plight and concerns of Klamath Project irrigators will never be forgotten. More information will be provided in a future edition of WaterWorks.
PUBLIC COMMENT INVITED ON IRRIGATION POWER COST REPORT
For Release: November 8, 2019
Contacts: Laura Williams, Public Affairs Specialist
Bureau of Reclamation
Paul Simmons, Executive Director & Counsel Klamath Water Users Association firstname.lastname@example.org
Public comment invited on Klamath irrigation power cost reports
KLAMATH FALLS, Ore. – The Bureau of Reclamation and Klamath Water Users Association (KWUA) today announced that two Klamath Project and Upper Klamath Basin power reports are available for public comment. The draft reports, called The Klamath Basin Affordable Power Studies Power Cost Benchmark Report and Klamath River Basin America’s Water Infrastructure Act Affordable Power Measures Report, are available at https://www.usbr.gov/mp/kbao/programs/affordable-power.html.
Congress passed America’s Water Infrastructure Act (AWIA) in 2018. Among other things, AWIA required that Reclamation complete a congressional report that both identifies the average costs paid for power by irrigation water users at similarly situated Reclamation projects in the Pacific Northwest and provides a plan for bringing power costs for local irrigators down to that level.
Irrigation power users in this region operated with power rates based on special contracts with PacifiCorp for around 90 years. Those contracts ended in 2006 and rates increased.
Reclamation, which is planning to have the report completed by the end of this year, has hosted meetings every other week for KWUA’s power committee and other Upper Basin irrigators’ to gather their feedback on this important issue.
“Congress made it clear that we needed to develop a report on power costs for irrigators in the Klamath basin based on local input,” said Jeff Nettleton, Reclamation’s Klamath Basin Area Office Area Manager. “We’ve worked closely with irrigators and other stakeholders to make that happen.”
On Sept. 10, 2019, KWUA and Reclamation jointly hosted a public meeting to inform the public about the process and status of the report.
“We’re very pleased with how Reclamation has managed this process and engaged us,” said KWUA Vice President and Power Committee Chairman Ben DuVal. He also stressed the need to follow through on the work: “Our Congressional delegation gave us a great start by requiring this report; we will need to take that roadmap and use it to get to where we need to be on affordable power.”
Comments for both reports must be submitted by 4:30 p.m. Nov. 22, 2019, if hand delivered or mailed, to Power Report, Bureau of Reclamation, 6600 Washburn Way, Klamath Falls, OR 97603; or by email before midnight Nov. 22, to email@example.com. Contact Mike Neuman at 541-883-6935 or firstname.lastname@example.org or Laura Williams at 541-880-2581 or email@example.com for report questions.
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The Bureau of Reclamation is a federal agency under the U.S. Department of the Interior and is the nation’s largest wholesale water supplier and second largest producer of hydroelectric power. Its facilities also provide substantial flood control, recreation opportunities, and environmental benefits. Visit our website at www.usbr.gov and follow us on Twitter @USBR.
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What has KWUA been working on…
KWUA’s Board of Directors strives to keep member districts and their patrons, and other interested parties, informed. Board members help with the dissemination of information received at our monthly Board meetings, and staff produces a monthly newsletter.
The KWUA Board convened on October 9, 2019. Below is a 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 10.
Operations Committee Report
The total diversion will end up being less than the spring-summer Project Supply of 322,000 acre-feet. Even with the refuge taking all that it can through Ady right now, spring-summer Project Supply will not be exhausted. KID date to close the A-canal for 2019 irrigation season: October 15. Tulelake Irrigation District (TID) will continue into early November. This year’s Project Supply would have been insufficient in many years. A combination of favorable antecedent soil conditions, cool weather, timely storms, and extraordinary management efforts were key to making it through.
Executive Director’s Report
The Executive Director/Counsel’s written report to the board covered the status of litigation, the status of efforts for “water bank” funding and other legislation, Oregon’s 100-Year Water Vision Planning effort, and the Coalition of the Willing. At the KWUA Board meeting and at individual board meetings of KID, Klamath Drainage District, and Poe Valley Improvement District, Paul also discussed several of these items. With respect to the 100-Year Water Vision, KWUA will coordinate with and through Oregon Water Resources Congress (OWRC) and Klamath County. A future edition of WaterWorks will cover this plan in more detail.
Science Committee Report
Myxospore Removal Letter: In August, KWUA sent a letter to state and federal agencies advocating that spawned-out salmon in the upper reaches of the Klamath River be gutted as a means to prevent dispersal of C. shasta myxospores to the water column. The myxopspores are taken up by microscopic worms that excrete C. shasta actinospores that can infect juvenile salmon. Removal of the myxospores would disrupt this pathway. In September, Jerry Enman and Mark Johnson had a conference call with state and federal agency staffs related to the KWUA fish gutting proposal. The agencies appeared not to have a great interest in the proposal, but KWUA believes some items merit clarification and further discussion. KWUA will send a follow-up letter that addresses these issues and emphasizes that water-based strategies to disease mitigation must not be used cavalierly.
TMDL Update: Mark Johnson provided a written report and oral summary to the KWUA Board regarding the final temperature TMDL for Upper Klamath and Lost River basins. As compared to the draft TMDL, there was only limited change, related flow surrogacy on Lost River below Anderson-Rose Dam and Malone Dam. The flow “surrogate” is a major concern for the future, and the other load allocations are not realistic. KWUA is conferring with east side districts Project and OWRC, which should also be very concerned. The Board authorized a challenge (presumably request for re-consideration) be pursued at the least possible cost to [KWUA. All KWUA members will be invited to join individually under the KWUA umbrella document.
2019 BiOp: Questions Regarding “Distance to Cover” Data: Mark provided a memorandum to the KWUA Board regarding issues raised by the Yurok Tribe concerning a potential discrepancy in the information used for modeling in the 2019 BiOp. If the result of this information were to be re-initiation of ESA consultation,, the big issues would likely be scope, timing, and what the 2020 operations will be, especially considering a motion for preliminary injunction in the Yurok Tribe’s litigation and other developments. KWUA also wants to send a “history/educational” letter on these and related issues to regional directors.
Lost River and Shortnose Sucker 5-Year Status Review: 5-year review required by the ESA concludes species are still endangered. The review recommends assisted rearing, phosphorus removal, and adaptive management for the recovery of the species.
Communications Committee Report
Night at the Cemetery: This Klamath County Museum event came to KWUA’s attention subsequent to the last Board meeting. After emails among the Communications Committee, KWUA co-promoted the event through social media and an op-ed. There was a good turn out and members who attended the program found it enjoyable and educational.
· 287 TAF of 322 TAF Project Supply spent to date, Ag total contribution is 341 TAF * (current Nov. 8)
· Refuge = 41 TAF total since March 1
• 30.2 TAF through Ady Canal to date
• ~30 cfs per day through Ady from April 1 through September 30, transferred water right
· D Plant is currently running to supply water to the Refuge at 160– 170 CFS
KWUA Board Member Spotlight, Position 5
Board member Rob Unruh serves as the Primary for KWUA Board of Directors Position 5, representing Shasta View and Malin Irrigation Districts. Rob has been on the board since 2006, serving in multiple capacities over the years, including a three-year term as President. In 1973, Rob took out a loan for his first potato crop, making him a 3rd generation farmer in the Klamath Project. Since then, he has dedicated his life to his family’s legacy and the greater water users’ community through his service with KWUA.
Rob and his wife Cheri run Unruh Farms, which grows chipping potatoes, wheat, alfalfa, and a small crop of industrial hemp. Their operation totals about 800 acres. However, Rob notes while his acres have increased, his farm is relatively small due to ongoing water problems that have forced many small farms, including theirs, to consolidate.
Unruh Farms is a true Family Farm. Working alongside Rob and his wife Cheri is their son Jon and wife Jessi, and Cheri’s father, Jim. Together the family hopes to continue the legacy of farming and ranching in the basin.
Rob’s dedication to the Klamath Basin agriculture sector is deep. Rob credits former board member Garry Derry and current member Bob Gasser for getting him involved in water politic; “seeing what was happening to project Farms and ranches in the basin was wrong, I wanted to try to make it better, and help get most families through the government-caused ‘dry years.’ ”
When asked what he has learned on the KWUA board, Rob stated, “When I was first elected to the KWUA board, I had no idea just how many important and complicated issues the organization dealt with. These difficult issues affect everyone in the Klamath Basin, not just Project irrigators or member districts. The scope and magnitude of the topics range from water supply and shortage to water quality planning, lowering power costs, testifying before Congress, providing comment on Endangered Species Act listings and the economic consequences of federal and state actions, and many more.”
Rob also serves on the Shasta Valley and Malin Irrigation Districts Boards of Directors, and the Klamath Drought Response Agency board, along with sitting on various KWUA committees. When Rob is not in the board room or the fields, he enjoys hunting, spending time with family, and travels with the family. Rob hopes to coach his grandkids in basketball, baseball, and softball, as he did with his kids when they were younger.
Board member Ryan Hartman serves as the Alternate for Position 5. Ryan has been on the KWUA Board of Directors since 2015. Ryan notes that Gandhi said: “Be the change you wish to see in the world.” Ryan got involved in KWUA so that he could stay informed of what’s happening in the Basin first-hand. Being on the KWUA board allows Ryan to be involved in water politics and current/potential regulations, which is imperative to securing his family’s farming legacy. Ryan also holds a seat on the Board of Directors for KID.
Ryan is a 2nd generation farmer, and a 2nd generation KWUA board member as well, following his father Harold. Ryan and his wife Jennifer and their two boys, Carston and Kayden, farm the 700-acre alfalfa and cattle farm that Ryan grew up on. Ryan studied Civil Engineering at Oregon Institute of Technology, and in 2003 he started farming and ranching.
Ryan is the owner of Four H Organics, and partners with Baley-Trotman Farms to grow chipper potatoes. In addition to the family farm, he grows 7,000 acres of organic and conventional grain, hay, potatoes, along with his cattle business. When not working, Ryan enjoys hunting and fishing and watching his boys play sports. He is also involved with Pop Warner football in the basin.
FROM YOUR DISTRICTS– Upcoming Meetings
· Klamath Irrigation District will hold its monthly Board of Directors meeting on December 12 @ 10 am
· Tulelake Irrigation District will hold its monthly Board of Directors meeting on November 10 @ 10 am
· Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on November 13 @10 am in the KWUA boardroom
· KWUA will hold its monthly Board of Directors meeting on November 12 @ 2 pm
· Klamath Drainage District will hold its monthly Board of Directors meeting on November 21 @ 1:30 pm
· Klamath Irrigation District will hold its Annual Board of Directors meeting on January 9 @ 10 am