OVER 60 YEARS OF REPRESENTING FARMERS AND
RANCHERS OF THE KLAMATH PROJECT

September 2020 WaterWorks

WATER YEAR 2020: GOOD RIDDANCE

September 30, 2020, will mark the end of water year 2020.  We hope that abundant – make that excessive – precipitation and snowpack will be the lead story of WY 2021. Unfortunately, the past year will live infamously in the minds of the Klamath Project irrigation community. Too little water, too much uncertainty, and too much hardship. 

KWUA believes that it is darkest before the dawn. There have been notable bright spots that show the irrigation community’s strength and commitment and give us good reason to expect improvement.

Meanwhile, the facts of WY 2020 speak for themselves.

October 18, 2019: The Yurok Tribe and Pacific Coast Federation of Fishermen’s Associations (PCFFA) filed a motion for preliminary injunction, seeking reinstatement of the terms of an injunction that had been issued in 2017 by the U.S. District Court for the Northern District of California. If the motion were to have been granted as filed, the previous (2017) injunction’s operations would have gone into effect rather than the operations established under the 2019 ESA re-consultation completed in April of 2019.

October 28: Representative Greg Walden announced that he would not seek re-election in 2020. When his term ends in 2021, Mr. Walden will have served Oregon’s Second Congressional District, including the Klamath Basin, for 22 years.

January 22, 2020: The Yurok Tribe and PCFFA filed a revision to their motion for preliminary injunction in their lawsuit challenging the April 2019 biological opinion (BiOp) and five-year operations plan. The revised motion seeks an increase in Klamath River flows of 50,000 acre-feet each year above what is provided in the 2019 BiOp.

January 4: Bureau of Reclamation (Reclamation) Commissioner Brenda Burman released her “spending plan” for “plus-up” appropriations  added to Reclamation’s proposed budget by Congress. The plan meets the intentions of the Klamath Project’s congressional delegation by allocation of $9 million to the Klamath Basin Area Office. (Most of the funds were then used for a contract between Reclamation and the Klamath Project Drought Response Agency (DRA).)

January 31: The U.S. District Court for the District of Columbia granted the Bureau of Indian Affairs’ motion to dismiss in a lawsuit by off-Project irrigators.

challenging procedures for tribal water right calls that have curtailed irrigation in that area.  (An appeal is pending.)

February 14: PacifiCorp initiated a new general rate case, seeking Oregon Public Utility Commission (OPUC) approval of a ten percent increase in the rate paid for irrigation and drainage pumping. KWUA intervened in the case jointly with Oregon Farm Bureau Federation. OPUC will make a decision before the end of 2020.

March 10:  The Marion County Circuit Court ruled that, in the Klamath Basin, the Oregon Water Resources Department does not have authority to order curtailment of groundwater use in response to a water right call by a senior surface water right holder.

March 12: California Governor Newsom issued an executive order on social distancing and other measures in response to COVID-19 outbreak.

March 13: President Trump declared the COVID-19 outbreak to be a national emergency.

March 16: KWUA canceled its Annual Meeting for the first time ever, due to COVID-19 directives. The meeting had been planned for April 7.

March 17: KWUA, along with several KWUA member districts, filed a petition for judicial review of the Oregon Department of Environmental Quality’s Total Maximum Daily Load and Implementation Plan for water temperature in the Klamath River and Lost River basins in Oregon.

March 19: Oregon Governor Brown issued a “stay at home” order in response to COVID-19.

March 27: The Yurok Tribe and PCFFA, federal agencies, and KWUA filed a stipulation in the lawsuit brought by Yurok and PCFFA. The stipulation resulted in withdrawal of the Yurok and PCFFA motion for preliminary injunction in light of Reclamation’s anticipated implementation of an interim plan for 2020-2022 that provides for increases in Klamath River flows above the 2019 BiOp, to a lesser extent and with less consequence to the Project than would occur under the motion for preliminary injunction. Plaintiffs can seek to lift the stay if Reclamation is not following the interim plan.

April 3: Klamath Irrigation District (KID) filed a lawsuit against the Oregon Water Resources Department (OWRD) in Marion County Circuit Court, seeking to require OWRD to prevent release of stored water for un-authorized purposes.

April 6: The U.S. District Court for the District of Oregon issued a ruling in favor of the U.S. Fish and Wildlife Service in four lawsuits that challenged the Comprehensive Conservation Plan for Klamath Basin Refuges, particularly as related to farming and grazing on wildlife refuges associated with the Klamath Project. (Appeals are pending in all four cases.)

April 6: KWUA announced that “Project Supply” (water available for diversion from Upper Klamath Lake and the Klamath River during March-October) would be approximately 140,000 acre-feet under the anticipated operations plan of Reclamation. This is less than 40 percent of the need for Project irrigation, not counting needs on Lower Klamath National Wildlife Refuge for refuge purposes.

April 22: Reclamation and Klamath Project Drought Response Agency (DRA) enter contract that will provide up to $8.3 to DRA in exchange for DRA arranging water management by districts to benefit fish and wildlife.

April 23: In response to an order issued to OWRD in KID’s lawsuit, OWRD “took charge” of Link River Dam and issued an order to Reclamation regarding Link River Dam releases.

April 26: A demonstration occurred at Link River Dam based on concern that there had been no actual reduction in Klamath River flows.

May 8: It is reported that, Project Supply would be reduced drastically because the May 1 forecasted inflow to Upper Klamath Lake through September was much less than the April 1 forecast, to as little as 80,000 acre-feet, and that only about 55,000 of that was remaining for the year. Klamath Irrigation President Ty Kliewer reacted to the information in an interview with the Klamath Falls Herald & News: “It went from terrible to beyond impossible.”

May 13: The Yurok Tribe and PCFFA filed a motion with the U.S. District Court for the Northern District of California, asking the court to lift the stay of the litigation that had resulted from the March 27 stipulation and to require Reclamation to release a greater amount of “augmentation” flows than Reclamation had concluded would be feasible after the May 1 inflow forecast.

May 15: Magistrate Judge Clarke of the U.S. District Court for the District of Oregon issued his Findings and recommendation (F&R) in two cases brought by Project districts against federal agencies related to legal issues controlling Project operations. The F&R proposes to grant motions filed by the Klamath Tribes and Hoopa Valley Tribe contending that the cases should be dismissed. The thrust of the motions is that because the relief requested by irrigation water users could, directly or indirectly, affect water availability for tribal fisheries, the tribes are necessary and indispensable parties and, because they have sovereign immunity and did not agree to be parties, the cases must be dismissed. The irrigation parties have filed objections to the proposed dismissal with the district court judge, who has not yet acted on the F&R.

May 18: Senator Jeff Merkley took the floor of the U.S. Senate to explain the extreme hardship of Klamath farmers and ranchers dealing with COVID-19 issues and severe restrictions on water exacerbated by changing information and uncertainty, and the need to provide relief.

May 22: The U.S. District Court for the Northern District of California denied the Yurok Tribe and PCFFA’s motion to lift the stay of their litigation and the motion for a temporary restraining order.

May 29: The Shut Down & Fed Up rally received huge support from farm and non-farm communities alike. A 29 mile caravan ended with strong and passionate remarks from local and regional leadership.

The Shut Down & Fed Up rally. Photo by, Chelsea Shearer

June 8: Reclamation Commissioner Brenda Burman announced that the Project Supply was not changing from the amount announced in April, alleviating the concerns that had arisen in early May about a dramatic reduction. “This is definitely a relief,” said KWUA President Tricia Hill. “Even though available supplies will only meet about 40 percent of our true need, Project irrigators had planned and managed the best that they could, based upon the meager supply announced in April. The possible reduction we heard about in May created chaos and more uncertainty in an already-terrible year.”

June 22: The United States Supreme Court declined to review the decision of the lower courts which denied the claims of the plaintiff landowners in Baley v. United States, commonly known as the “Takings” case, in which water users claimed that the Fifth Amendment just compensation clause required payment for water taken under the Endangered Species Act (ESA) in 2001.

June 30: The United States Senate approved legislation that would provide the technical amendment to existing legislation that the Department of the Interior considers necessary to provide clear authority for programs similar to past “water user mitigation programs.”  Passage in the House of Representatives will depend on when the opportunity exists.

July 9: United States Secretary of the Interior David Bernhardt and Reclamation Commissioner Brenda Burman visited Klamath Falls, met with local water users and basin tribes, and visited the site of the May 29 Shut Down & Fed Up Rally. Representatives Greg Walden and Doug La Malfa spent the day with these two Presidential appointees and introduced them to basin leadership.

July 16: The Federal Energy Regulatory Commission (FERC) issued an order approving transfer of the license for J.C. Boyle, COPCO I and II, and Iron Gate Dams to the Klamath River Renewal Corporation (KRRC), the entity formed to pursue dam removal, but only on the condition that PacifiCorp remain a co-licensee. This development adds significant uncertainty to the prospects for dam removal under the Klamath Hydroelectric Settlement Agreement.

July 29: The Marion County Circuit Court issued a letter ruling in a second lawsuit filed by KID against OWRD. The ruling found that OWRD was to be ordered to stop releasing stored water for any use (e.g., Klamath River flows) without determining that the release is for a permitted purpose with an established right to use the stored water. At present, the court had not issued an order necessary to implement its decision.

July 29: Reclamation announced a “science initiative” to provide better information for upcoming ESA consultations and other purposes. Reclamation will pursue a new study of the natural flow of the Klamath River, which KWUA believes will confirm that Project land consumes less water than it did in pre-development conditions and that recent flow releases to the Klamath River are artificially high. There will also be updated and ongoing re-evaluation of the regulatory basis for Upper Klamath Lake elevations and Klamath River flows that have caused water shortage for irrigation and wildlife refuges served through Project facilities.

August 21: The Yurok Tribe filed a lawsuit in the U.S. District Court for the Northern District of California, challenging Reclamation’s decision not to release additional water from Upper Klamath Lake to provide water levels in the lower river sufficient for the Tribe’s Boat Dance ceremony scheduled for later that month.  A motion for temporary restraining order was avoided when PacifiCorp agreed to operate its lower river reservoirs to provide the water.

Farming amidst the Caldwell Fire. Photos by Scott Seus.
Agriculture causality of the Caldwell Fire.
Photos by Scott Seus

August-September: Unprecedented wildfires have caused terrible loss of life and property, taxed public services to the brink, and filled the sky with smoke.

August 27: The Oregon Water Resources Commission approved an order delegating authority to OWRD to require water users to pay in advance the estimated costs of an assistant water master involved in the distribution or division of water.

September 4: Reclamation announced an augmentation of water supplies for irrigation and wildlife refuge uses from the Klamath system. The augmentation is to be made possible in part by subsequent releases from reservoirs on the Lost River system, which does have potential consequences for irrigators from that system in future years. “We appreciate the efforts taken by Klamath Project water users that allowed the limited supplies of 2020 to stretch through the summer,” stated Commissioner Brenda Burman. “Managing the second-lowest allocation in the history of the Klamath Project was an enormous challenge for both the Project and the refuges. I am pleased that Reclamation, in collaboration with the U.S. Fish and Wildlife Service, can make these operational adjustments to close out the agricultural activities as planned and bring additional relief to the wildlife refuges.”

Presently:  KWUA’s fall harvest tour canceled due to COVID-19 restriction.

Those who were fortunate enough to have their farms and ranches in production are finishing out the 2020 season while planning for 2021 with faith and hope.

Washington D.C. Report

Senior Trump Administration officials and the Oregon/California congressional delegations have continued to work closely with KWUA leadership to pursue remedies to addressing the severe water shortage the Klamath Project has faced this year. Pending in the House of Representatives is Senate-passed legislation strongly supported by the congressional delegation  that would ensure the Bureau of Reclamation has the authority to utilize federal funds directly for water banking and land idling in times of drought in the Klamath Basin.  While chances for House passage before the election are uncertain, it remains the delegation’s goal. In addition, efforts to secure passage during the post-election “Lame Duck” session will also be pursued if necessary.    

Regarding COVID-19 relief legislation, negotiations between the White House and Democratic leaders have been are suspended for the past several weeks, following days of fruitless talks in July.  Most recently, efforts by the bipartisan House “Problem Solvers”  legislative caucus’s estimated $1.5 trillion “framework” proposal to jumpstart negotiations were immediately  rejected by Speaker Pelosi. Therefore, it is widely expected—barring some unforeseen surprise change of position by the two sides – there will be no additional COVID related assistance from Congress before the election.               

On appropriations, Congress and the White House are negotiating the terms of a  continuing resolution – a temporary spending bill that maintains funding of the agencies at FY 2020 levels  — to keep the government open beyond the end of the fiscal year (September 30),  as the Senate has yet to move any of their FY 2021 spending bills.

The most recent action was this Summer,  when the House passed  a $1.3 trillion spending package, H.R. 7617, which includes the FY 2021 Energy-Water, Transportation-Housing, and Urban Development, Commerce-Justice-Science, Defense, Labor-Health and Human Services-Education, and Financial Services-General Government bills. The House has passed 10 of its 12 annual spending bills (minus Legislative Branch and Homeland Security measures). 

Informal negotiations continue between the House and Senate on Water Resources Development Act (WRDA) legislation, which authorizes Army Corps projects —  with plans for a jointly agreed-upon bill passing soon after the election. Of note, the House bill includes several provisions addressing climate change.  Separately, Senate action on bipartisan transportation and water legislation is expected to be voted on sometime after the election as well.  

Poe Valley Annual Meeting Notice

The ANNUAL MEETING OF THE LANDOWNERS OF THE POE VALLEY IMPROVEMENT DISTRICT WILL BE HELD October 29, 2020  AT  5:30 PM  LOST RIVER RANCH HEADQUARTERS OFFICE. 24500 NORTH POE VALLEY ROAD, KLAMATH FALLS, OREGON.

Items to be discussed include: · Election of Director (s),  2020 – 2020 Budget,  Water Issues,  Policy, and  Billing & Invoicing

Farewell AND THANK YOU, AMY AMRHEIN

Amy Amrhein, Southern Oregon Field Representative for U.S. Senator Jeff Merkley, will retire on September 30. We wish her all the best, but are very sorry to see her go.

Amy has worked from Senator Merkley’s Medford Office since 2008. She has been an extraordinary champion for the Klamath Basin, always eager to share information and always eager to help. Amy earned the respect of everyone up and down the basin because of her commitment, hard work, and honesty in dealing with people. She is a friend to farmers and ranchers, and an effective, exemplary public servant.

Amy and husband Mark’s sons and family live in Oregon and Washington. We predict she will be the first person to wear out a lifetime pass to the national parks.

Happy trails, Amy. Job well done.

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 September 9, 2020.  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.

Operations Committee. As of September 9, diversion of Project Supply was 139,000 acre-feet. System managers continue to work to be able to provide water through the end of September. Based on Commissioner Burman’s announcement on September 4, there will be about 100 cubic feet per second of water from east side Project reservoirs provided on the west side; this water will be a credit against diversions that would otherwise count toward Project Supply in the last few weeks or days of September. Water delivery from the east side will affect the amount of carry-over storage in that system, and could have effects next year or beyond. The board also discussed the refuge water delivery situation and Paul Simmons was directed to contact California Waterfowl Association in regard to its ongoing activities, planning, and advocacy.

Science Consultants. A committee will conduct interviews of three firms for ongoing and on-call science support. The firms will also be considered by districts for assistance in the Klamath Basin Adjudication. The KWUA interview team will include the districts’ attorneys, Jerry Enman, Dave Hamel, John Crawford or Gary Wright, Ry Kliewer, and Tracey Liskey.

KWUA Executor Director Report

Executive Director Paul Simmons provided the board with his monthly written report and discussed key items as

Re-Initiated ESA Consultation & Hydro Team. There have been two recent developments of note. First, on August 29, Reclamation hosted a meeting which outlined its intended approach for neutrally facilitated, structured decision-making on science issues. The plan is that there will be both an internal, federal agency phase of the process and a similar process involving stakeholders. Mark Johnson also discussed this process later in the meeting. Second, in a litigation stipulation between the Yurok Tribe, federal agencies, and KWUA from last March, the Tribe indicated that it intends to assemble the “hydro team” approach that was used in the 2012-2013 Biological Assessment and BiOps. The first meeting of that group was in the morning of September 9. Gene Souza and Brad Kirby participated. Based on that meeting and other issues, the board discussed possible concerns about the timing and pace of the consultation. Mr. Simmons is to get in contact with Reclamation to schedule a working meeting. He will work with district managers and Mr. Johnson on an agenda.

OPUC Rate Case. In PacifiCorp’s general rate case at the OPUC, KWUA and Oregon Farm Bureau have reached agreement with other intervenors and PacifiCorp on rate spread and design, which relate to the allocation of total revenues among customer classes. There are still unresolved disputes related to revenue requirements, and a contested case hearing occurred on September 9-11. Because KWUA’s interests on those issues is the same as other intervenors, KWUA was able to avoid unnecessary costs for the hearing on revenue requirements issues. Parties will file post-hearing briefs, and whatever new rates are approved by the OPUC will become effective in January of 2021.

Potential Federal Property Acquisitions. On September 8, a group held a conference call with Paul Souza, Regional Director of the U.S. Fish and Wildlife Service, regarding past

and potential future property acquisitions. The water users identified concerns regarding the performance of past projects and effects on the overall water budget. We believe this was new information for Mr. Souza and he appreciated having that perspective.

KWUA Deputy Director Report

Deputy Director Mark Johnson provided his written monthly report and discussed some items in more detail.

Science Process for ESA Re-Consultation. Mr. Johnson elaborated on Mr. Simmons’s discussion of the facilitated science process being planned by Reclamation, and distributed a summary of the process. He also provided details on Reclamation’s previously-announced science initiative based on a call that occurred on August 21. The science initiative will focus on a revised natural flow study, Upper Klamath Lake elevation/sucker survival/water quality relationships, C. shasta data repository, and juvenile coho habitat quantification on the lower Klamath River.

C. shasta monitoring. Oregon State University (OSU) recently completed its June sentinel trial and the results were summarized in the Deputy Director’s written report.

Sustainable Northwest District Energy Tour. On October 21, Sustainable Northwest will host an On-Farm Energy Efficiency Tour of KID, Tulelake Irrigation District (TID), Klamath Drainage District (KDD), and Shasta View/Malin Irrigation Districts.

Klamath On-Farm Coordination Meeting. Mr. Johnson attended a coordination meeting with the Klamath Watershed Partnership, Sustainable Northwest, Oregon State Extension, and Soil and Water Conservation District to coordinate projects and funding opportunities for 2020. He and district managers have also been participating in other work groups that may submit grant proposals to the Natural Resources Conservation Service this fall.

KWUA 2020 Sponsorship Events

KWUA  invites you to join us as a sponsor of our 2021 community events. This is a valuable opportunity for irrigation interests and community members to see first-hand the impact agriculture has on our local and regional economies, as well as get to know one another. With your cooperation as a partner, KWUA can reach more members of the community and maintain the high standards set by past events.

KWUA hosts two public events each year. Prior to the irrigation season starting, KWUA hosts an Annual Meeting. This event hosts approximately 150 participants including community leaders, businesses, State and Federal agency personnel, elected officials and Klamath Basin farming and ranching operators. Historically, during this meeting KWUA has announced the Klamath Reclamation Project’s yearly water supply and provided presentations from informed leaders related to issues facing patrons of the Klamath Reclamation Project.

Our second event is targeted more toward the general public: the KWUA Fall Harvest Tour showcases basin agriculture and gives participants a glimpse of the important relationship between agriculture and local businesses. Our past tours have been well attended and are quite popular with. Community leaders, businesses, local FFA groups, State and Federal agency personnel, and elected officials take the tour.

This tour provides first-hand exposure to a variety of activities and processes related to irrigated agriculture, including: the history and mechanics of the Klamath Reclamation’s infrastructure, issues related to the Basin’s water quality and quantity, the relationship between agriculture and wildlife, and the production an harvesting of crops such as beef cattle, wheat, mint, horseradish, alfalfa, strawberry plants and much more. Again, a common theme in these tours is the economic importance that irrigated agriculture plays.

This year, KWUA is offering donors a variety of sponsorship levels that fit any budget to give a wide exposure to your business during both events and throughout the year.  We hope that you will consider partnering with us and making KWUA’s Annual Meeting and Fall Harvest Tour as good as, or better than, years past.

Considering the beneficial impacts the KWUA Annual Meeting and Fall Harvest tour have had on the community and the positive feedback we receive each year, KWUA believes that both are vitally important events that bring participants from divergent backgrounds to a better understanding of the importance of agriculture within the Klamath Basin. 

FROM YOUR DISTRICTS

UPCOMING MEETINGS– Meeting may change based on the Governor’s gathering limitations

· Klamath Irrigation District will hold its monthly Board of Directors meeting on October 9 @ 10 am

· Tulelake Irrigation District will hold its monthly Board of Directors meeting on October 12 @ 8 pm

· Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on October 14 @ 9 am in the KWUA boardroom

· KWUA will hold its monthly Board of Directors meeting on October 14 @ 2 pm

· Klamath Drainage District will hold its monthly Board of Directors meeting on October 22 @ 1:30 pm

· Poe Valley Irrigation District will hold it’s annual Board of Directors meeting on October 29 @ 1:30 pm

· Pioneer Irrigation District will hold it’s monthly Board of Directors meeting on October 5 @ 6pm

Klamath Water User Association

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