April 2021 KWUA Newsletter
Devasting Lack of Irrigation Water
From an April 14 press release:
Klamath Water Users Association is sad and severely disappointed with today’s announcement of water availability for the Klamath Project. “Family farms, rural communities, and wildlife are going to suffer beyond imagination,” said KWUA President Ben DuVal.
Under the 2021 Reclamation Temporary Operations Plan, 33,000 acre-feet of water is available for Project water users. This allotment is around six percent of the need and not much more than necessary to fill the canals that convey water to over 175,000 acres that normally produce potatoes, alfalfa, and grass hay, specialty crops such as mint, horseradish, and dehydrated onions and garlic; which is experiencing a critical supply shortage. These irrigated crops support wildlife that is a part of the Klamath landscape.
Depending on hydrologic conditions, there is a slight possibility of additional water, but the actual amount will not be known for several months, making it highly impossible to plan for crops that need to be planted today. Further, the proposed late start of June 1 will jeopardize the full production of those crops.
Many producers have long-term contractual obligations with food processing companies, dairies, shippers and grocery stores. Those contracts may be lost permanently if the grower cannot deliver. With ESA-driven water shortages affecting the entire West Coast, supply issues are almost inevitable.
The devasting lack of irrigation water for yet another year is likely to prove too much to bear for the employees of the farmers and ranchers, who will be facing severely reduced hours or no work at all. This impact is multiplied for the local businesses, the regional economy, and local public agencies that are dependent on the contributions of agriculture into the economy. They are barely recovering from the twin hits of the COVID pandemic and last year’s near-catastrophic irrigation supply.
DuVal attributed the impact to “single-species” management that allocates increasing amounts of water formally used for irrigation to maintain Upper Klamath Lake elevations and increasing Klamath River flows well above natural state. The 130 Billion gallons released down the Klamath River will be stored under an irrigation storage right. DuVal said that in a past year of similar drought, irrigation diversions were over 400,000 acre-feet, with no detrimental effects to fish species being identified.
“It hasn’t worked in 25 years. It won’t work this year, all it will do is create another dust bowl, destroy our farming communities and decimate our wildlife.”
KWUA Executive Director Paul Simmons said the Association is working to minimize the impacts on the irrigation community with funding. “Farmers are called producers for a reason. They would rather produce than be reduced to mitigation funding that will never be sufficient to fill the gap left by the loss of irrigation water,” said Mr. Simmons. “A long-term solution that guarantees a sustainable irrigation supply is the only course of action that provides a future for the Klamath Basin.” ###
A special thank you to Klamath Falls News for broadcasting our 2021 Public Operations Meeting Live.
KLAMATH WATER USERS ASSOCIATION FILES IN FEDERAL COURT TO RESOLVE LEGAL ISSUES REGARDING PROJECT OPERATIONS
On April 19, Klamath Water Users Association filed court papers to re-open a lawsuit and seek a ruling that the Bureau of Reclamation’s recent approach to regulating water deliveries for the Klamath Project is illegal. KWUA filed a motion in federal court asking the court to lift a stay of existing litigation and then rule on critical legal issues that affect irrigation water availability.
KWUA’s Executive Director and Counsel Paul Simmons emphasized that the action will not affect irrigation water supplies this year. “As much as I wish otherwise, there is no litigation path insight that will change our terrible situation this year. KWUA wants to establish sideboards that will control future years’ operations in a more reasonable way.”
The existing litigation was filed in 2019 in the U.S. District Court for the Northern District of California in San Francisco. The Yurok Tribe and Pacific Coast Federation of Fishermen’s Associations (PCFFA) sued the Bureau of Reclamation and National Marine Fisheries Service for alleged violations of the Endangered Species Act (ESA) related to Project operations that had been adopted to control Project operations from 2019-2024. In April 2020, the lawsuit was stayed based on Reclamation’s decision to modify that plan and pursue an “Interim Plan” that would apply in 2020 through 2022.
KWUA submitted two motions to the court. The first argues that the court should lift the stay of litigation. The second, which can be heard only if the stay is lifted, asks for rulings on important legal issues that affect Project irrigators.
Specifically, it requests a ruling that under the current interpretation of the ESA, Reclamation does not have an obligation or authority to curtail irrigation deliveries. It also asks that the court rule that there is no right or obligation to release stored water from Upper Klamath Lake down the Klamath River.
Mr. Simmons said that KWUA and other Project irrigators have been focused on these issues for years. KWUA, Klamath Irrigation District, and other districts tried to raise the issues in a federal lawsuit in early 2019. But their case was dismissed based on arguments by two tribes that they were indispensable parties to the case, and the case could not proceed without them. But because those same tribes have sovereign immunity and could not be joined without their consent and did not give their consent, the case had to be dismissed.
“That was a surprise,” said Klamath Drainage District counsel Reagan Desmond, who represented KDD in the case. “Anyone else can sue the Project to take away water, but we weren’t allowed to sue in order to protect our water.” KID has also pursued the stored water issue in other cases in state court.
In the meantime, the Klamath Tribes have filed a lawsuit in Oregon challenging Reclamation’s plan for 2021 Klamath Project operations. KWUA has filed papers to become an intervenor in that case and argue against the tribe’s claims. A hearing on a motion for preliminary injunction will occur on Monday, April 26, at 9 a.m.
KWUA’s motion to lift the stay of the litigation in San Francisco is scheduled for a hearing on May 26 before Judge William Orrick. According to Mr. Simmons, “we hope the stay will be lifted, and we can litigate in a federal court in a case where the federal government is a party.”
He also emphasized that the litigation will not resolve all of the complex water and resources affecting the Klamath Project. “As much as we need to clarify the rules, we also need to work with other parties for solutions and stability.”
The science steering committee recently met with Cramer Fish Sciences (CFS). CFS will assist KWUA in commenting on the pending proposal to list sprin-run Chinook salmon as threatened or endangered under the ESA. CFS will also engage in the structured decision-making process for ESA reconsultation on behalf of KWUA and review the existing data regarding flow/habitat relationships on the Klamath River.
Klamath Irrigation District is expected to contract with HDR Inc. to review the Upper Klamath Lake sucker survival and water quality analyses that USGS is currently conducting as part of Reclamation’s science initiative
Reclamation is currently looking for prospective reviewers for the natural flow study that is being conducted by the Technical Services Center in Denver. Mark Johnson has made contacts related to this issue and also discussed with MBK Engineers.
Klamath River Fish Health Workshop
Jerry Enman and Mark Johnson recently attended the virtual Klamath River Fish Health Workshop facilitated by USFWS and Oregon State University. Attendees included; tribes, federal, state, and university researchers, non-profits, and others. This workshop summarized data collected in 2020 and ongoing research and monitoring efforts.
Based on sampling conducted last year, the disease risk on the Klamath River is predicted to be high due to the increased annelid worm (intermediate host) counts and high infection rates associated with these worms. At Seiad Valley and I5, the annelid host’s infection rates were reasonably high in the fall, which translates to higher fish infection rates in the spring.
Other topics discussed during the meeting included; “ground-truthing” C. shasta infection ratings, predictive modeling of C. shasta spore concentrations, assessing broodstock fitness of C. shasta infected Chinook Salmon, parasite trends in Upper Klamath Lake chubs, and others.
Lower Klamath Refuge Treatment Wetland Feasibility Study
Brad Kirby and Mark Johnson attended the kick-off meeting for the Lower Klamath National Wildlife Refuge-Analysis of Treatment Wetland Potential facilitated by Randy Turner of the San Francisco Estuary Institute. This project results from the USFWS and North Coast Water Quality Control Board requesting an analysis of the extent to which existing wetlands on the refuge can function as treatment wetlands. The Stillwater Sciences consulting firm will conduct the study. Other stakeholders involved in this effort are; USFWS, Reclamation, DEQ, Tribes, and ODFW.
The meeting was primarily an overview of the project and data sharing amongst the group. The final product should be available by December 31, 2023.
Klamath and Lost River Subbasins Stewardship Planning Efforts
KWUA’s Clean Water Act section 319 grant contract for facilitating TMDL stewardship planning will be available in the coming weeks. Mark I Johnson is currently finalizing the grant’s timeline and budget, and funds should be available later this month. The grant is for 29,000, with a 19,000 non-federal (Mark’s time) match for a total of 48,000.
Oregon State University Grant Discussion
KWUA staff recently met with the Oregon State University Extension office to discuss an Agriculture and Food Research Initiative (AFRI) grant they received. Brian Charlton for the OSU Experiment Station and Gerrod Jones from the OSU Biological & Ecological Engineering Department in the College of Agriculture are co-investigators on “Tracing Landscape Origins of Chemical Signatures Present within Hypereutrophic Lakes of the Upper Klamath Lake Sub-Basin.” This proposal will look at the sources of nutrient loading into Upper Klamath Lake. The technology allows researchers to tease out the agricultural, forest/background, and industrial inputs into the overall nutrient loading of UKL by collecting profile samples from the entire watershed.
Reclamation Announces 2021 Temporary Operations Plan
The following is an April 14 press release from US Bureau of Reclamation.
KLAMATH FALLS, Ore. – Today, the Bureau of Reclamation released the Klamath Project 2021 Temporary Operations Plan, which was developed in response to consecutive years of drought conditions in the Klamath Basin, including the lowest historical inflows on record into Upper Klamath Lake this year.
Reclamation also announced $15 million in immediate aid to the Klamath Project through the Klamath Project Drought Relief Agency, an additional $3 million in technical assistance to Tribes for ecosystem activities in the basin, as well as funding for groundwater monitoring in the basin. These efforts supplement additional funding provided by other Department of the Interior bureaus and is consistent with the activities outlined in the April 8 joint Secretary of the Interior and Secretary of Agriculture statement relating to drought.
“This water year is unlike anything the Project has ever seen,” said Reclamation Deputy Commissioner Camille Calimlim Touton. “We will continue to monitor the hydrology and look for opportunities for operational flexibility, provide assistance to Project water users and the Tribes, and keep an open dialogue with our stakeholders, the states, and across the federal government to get through this water year together.”
Reclamation solicited technical feedback from Tribes, the water user community, and other interested stakeholders in February. Input from these basin stakeholders was considered and incorporated into the 2021 Temporary Operations Plan through a process that involved the U.S. Fish and Wildlife Service (Service) and National Oceanic and Atmospheric Administration (NOAA) Fisheries, consistent with provisions in the applicable Biological Opinions.
Based on the Natural Resources Conservation Service’s April 1, 2021 forecast for Water Year 2021 inflows to Upper Klamath Lake and the provisions of the 2021 Temporary Operations Plan, Reclamation is making an initial minimum Project allocation of 33,000 acre-feet. Project supply from Upper Klamath Lake will become available to charge Klamath Project canals and allow for limited irrigation no earlier than May 15. Remaining Project deliveries will begin no earlier than June 1.
Supplemental to the 33,000 acre-feet minimum initial allocation, Reclamation will operate Upper Klamath Lake to maintain the lake at or above a minimum annual elevation of 4,138.3 feet, whereby additional Project water may be available. Reclamation will monitor and adjust available supplies on at least a semi-monthly basis to assure compliance with this elevation target and other provisions of the 2021 Temporary Operations Plan. Any unauthorized releases of water for the Project that occur prior to May 15 will result in reductions to Project allocations in the 2021 Temporary Operations Plan.
The 2021 Temporary Operations Plan recognizes that the current drought conditions have produced insufficient water supplies available to meet the competing demands for water in the basin necessary to maintain water in Upper Klamath Lake for endangered C’waam (Lost River sucker) and Koptu (shortnose sucker) and to provide extensive spring flushing flows in the Klamath River for the Naypooie/A’ama (fall run Chinook salmon and threatened Southern Oregon Northern California Coast fall run Coho salmon), as specified in separate Biological Opinions from the Service and NMFS.
The plan provides guidelines for Reclamation to adaptively manage Project operations this spring to maintain certain levels of water in Upper Klamath Lake and preserve options for a flushing flow of water in the river. Under the 2021 Temporary Operations Plan, Reclamation will maintain certain river flows for salmon through September 2021.
The Ferguson Group- D.C. Report
KWUA leadership and representatives have been in frequent contact with the Biden Administration officials in the Departments of the Interior and Agriculture and the Congressional delegation in pursuit of additional resources for the Klamath Project Drought Response Agency.
The Biden Administration has released its initial (commonly known as “skinny”) FY 2022 Budget with a full more detailed budget to be released in the coming weeks (breakdown by agency, details on specific programs, etc.) likely in May or June.
The budget proposes a $1.5 trillion spending plan that calls for an overall 16% increase for domestic programs over FY 2021 enacted, but only a 1.7% increase to defense accounts (which would amount to a 0.4% decrease in defense spending in real terms, adjusting for inflation).
Specifically, the budget proposal suggests $769.4 billion in nondefense discretionary spending in FY 2022, a $105.7 billion increase over the FY 2021 level of $663.7 billion. Defense spending would rise to $753 billion, $12.3 billion greater than its current level of $740.7 billion. Overall, base discretionary spending would increase by $118 billion, from $1.4 trillion to $1.5 trillion, not including emergency spending.
The budget plan is likely to be rejected by Republicans, which could spell trouble for the timing of the FY 2022 appropriations process, especially given the 50-50 split in the Senate. While Democrats can move forward with bills out of committee, Republican support will be necessary to garner the 60 votes needed in the Senate to pass any appropriations bill to fund the government by the September 30, 2021 deadline.
On infrastructure, President Biden has released his outline for a $2.25 trillion package to include both traditional transportation, water, and flood control projects coupled with some non-traditional provisions like childcare, elderly care, and family tax credits, as well as increased corporate tax rates to help pay for it.
House Speaker Nancy Pelosi (D-CA) has expressed a goal of having an infrastructure bill passed in the House by July 4, with the legislation moving through the Senate to the President’s desk before Congress’ traditional August break.
In order to move a bill that quickly without GOP support, Democrats may use the budget reconciliation process – an arcane Senate legislative vehicle that only requires 51 votes to pass, but may limit what can be included. For example, it could work for some infrastructure spending, but it may not work where programs need to be authorized (or reauthorized if an existing program – an authorization is equal to establishing the equivalent of a credit limit on the federal credit card for a specific program) to accommodate desired changes in program delivery or priorities, like combating climate change.
But some moderate Senate Democrats – notably Sen. Joe Manchin (D-WV) – have expressed concern with President Biden’s proposed increase in corporate income tax rates to pay for the bill, thus raising uncertainty over whether even a budget reconciliation could pass in the Senate.
Klamath Project Drought Response Agency Update
The Klamath Project Drought Response Agency (DRA) will soon be applications for 20201 drought relief programs to provide financial incentives and/or relief to local farmers who normally receive surface water through the Klamath Project from Upper Klamath Lake or the Klamath River. This program is available to qualified irrigators of lands that are not irrigated during the 2021 season.
Subject to the availability of funds, The Bureau of Reclamation has made the initial commitment of $15 Million dollars to the DRA to aid in aligning supply with demand.
Currently the DRA has submitted a grant to align supply and demand for unirrigated lands, along with the possibility of a ground water program.
Once the grant is approved, the DRA will announce an application period that is expected to stay open for several weeks to allow more lands into the program.
Stay updated at: www.klamathwaterbank.com
KLAMATH WATER USERS ASSOCIATION STATEMENT REGARDING WITHDRAWAL OF UPDATED KLAMATH PROJECT LEGAL GUIDANCE
Secretary of the Interior Deb Haaland issued a memorandum withdrawing updated legal guidance for the operation of the Klamath Project that was completed during previous Secretary David Bernhardt’s tenure.
The now-revoked guidance had been prepared after irrigation water users requested that the Department of the Interior Interior) re-examine twenty-five-year-old memoranda issued by Regional Solicitors of the Bureau of Reclamation. Secretary Bernhardt had cautioned, “be careful what you ask for,” but the legal analysis was conducted, and the guidance was completed.
The updated guidance recognized that there has been a significant change in legal authority since the time of the mid-1990s memoranda, including a key decision from the United States Supreme Court, regarding the application of section 7 of the Endangered Species Act (ESA). That provision of the ESA has been the cause of major irrigation water curtailments in various years since 2001.
There was also a critical development in 2013-2014, with the Oregon Water Resources Department’s adoption of its Amended and Corrected Findings of Fact and Order of Determination in the Klamath Basin water rights adjudication.
The key conclusions from the new guidance were: 1) based on contemporary law, section 7 of the ESA does not require or authorize the curtailment of the irrigation water deliveries for the Project; 2) consistent with the ACFFOD, the only legally authorized use of water stored in Upper Klamath Lake is irrigation; and 3) downstream tribes holding federally-protected fishing rights also have water rights to flows in the Klamath that are senior to the water rights for the Project; and 4) those downstream rights, which are unadjudicated and thus unquantified, do not include the right to have lawfully stored water released to augment Klamath River flows.
The legal analysis and new guidance led to a formal re-assessment of all ESA section 7 responsibilities related to the operation of the Klamath Project (not water diversion and delivery alone). The re-assessment was modeled on an approach taken by the U.S. Army Corps of Engineers based on 2013 guidance in that agency, which was upheld by the United States Court of Appeals for the Tenth Circuit in 2020.
Klamath Water Users Association (KWUA) is very disappointed with the withdrawal of the updated legal analysis. We accept that it has occurred, and we are committed to bringing about a judicial resolution of these same issues at the earliest possible time.
KWUA’s other urgent priority is to provide all assistance that it can to the Klamath Project irrigation community this year: farmers and ranchers face severe water shortages. The shortage is not attributable to today’s withdrawal of the updated legal guidance. However, there must be a resolution of those legal issues and, equally important, committed engagement from several major parties, including Interior, in order to bring stability to Klamath Basin communities.
In The Know
· KWUA was awarded a Clean Water Act section 319 grant through the Oregon Department of Environmental Quality to help facilitate the planning efforts for a TMDL Stewardship Agreement.
· 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 8am- 5pm based on availability. To schedule a meeting, call the office at 541-883-6100.
UPCOMING MEETINGS FROM YOUR DISTRICTS
· Klamath Irrigation District will hold its monthly Board of Directors meeting on May 13 @ 1 pm at the KID office
· Tulelake Irrigation District will hold its monthly Board of Directors meeting on May 10 @ 8 pm at the TID office
· Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on May 12 @ 10 am in the KWUA boardroom
· KWUA will hold its monthly Board of Directors meeting on May 12 @ 2 pm in the KWUA boardroom
· Klamath Drainage District will hold its monthly Board of Directors meeting on May 20 @ 1:30 pm at the KDD office
· Pioneer District Improvement Co. will hold its monthly Board of Directors meeting on May 3 @ 5:30 pm