WaterWorks December 2022

December 21, 2022 / Klamath Water User Association / Comments Off

A view of KID from Hogsback Mnt. Photo by Gene Souza

WATERWORKS

Fill-the-Lake Update

On December 16, the Bureau of Reclamation (Reclamation) informally notified stakeholders that it was not taking action to modify planned releases from Upper Klamath Lake at this time, deferring any decision until January. This news comes as lake levels have actually begun to drop, due in part to PacifiCorp refilling the Keno Impoundment, which it had lowered at the end of November. For months, KWUA has urged Reclamation to take action to ensure that Upper Klamath Lake will be full next spring, thus making available the greatest amount of water possible for demands next spring and summer. By far, the most effective, controllable way to achieve this goal is to decrease flows in the Klamath River at this time and conserve the water in Upper Klamath Lake. With each passing day, it becomes more difficult to reach the goal of a full lake in 2023 because water that could reasonably be conserved in Upper Klamath Lake is instead being released to provide formula-driven flows.

“No Decision Yet” Is A Decision

Despite continued record low inflows to Upper Klamath Lake and a decline in lake level over the past week, the Reclamation continues to release an average of over 1,200 acre-feet per day from Upper Klamath Lake solely to meet formula- and calendar-based instream flows at Iron Gate Dam. We understand that Reclamation and other federal agencies anticipate the continuation of current releases into January before any change might occur, by which time it will be even more difficult to meaningfully increase lake storage for water needs next spring and summer.

A decision to maintain the status quo is a disservice that repeats the failed paradigm of the last three years. Farm families struggle to make ends meet, wildlife suffers, and tribal governments fight to preserve and protect their resources, all of which will be exacerbated next spring.

KWUA advocates for a different course, which follows sound water management in the face of persistent drought.

It’s simple — FILL THE LAKE, FOR EVERYONE’S SAKE!

Ducks swimming in the North Canal, Photo by Chelsea Shearer

KWUA Washington, D.C. Representatives’ Report

KWUA and TFG continue to work with your delegation on Capitol Hill and the federal agencies regarding KWUA’s priorities in 2022, which include: the urgent need to address the ESA reconsultation process; identify funding opportunities to support the DRA; impacts on operations in 2022 and preparations for 2023 operations; and to address operational needs through legislation related to the pending dam removals on the Klamath River.

On Capitol Hill, Congress has finally concluded negotiations on funding for the FY 2023 budget. A vote on the “omnibus” multi-title spending bill is, as of this writing, expected to pass both chambers in time for Christmas. Key elements of the Energy and Water Development title of the bill and report includes the following for the Bureau of Reclamation: overall, the bill provides $1. 8 billion for the Bureau’s main operating account – about $517 million above the President’s FY 23 budget request. Other key accounts include: Rural Water at $50 million (M); Fish Passage and Fish Screens at $11M; Water Conservation and Delivery at $229.26M; Environmental Restoration and Compliance at $31M; Facilities Operation, Maintenance, and Rehabilitation at $4M; Aquatic Ecosystem Restoration Program at $5M; Desalination and Water Purification Program at $12M; and Science and Technology R&D at $5.5M

· Other notable expected spending designated in the committee report:

· Water Conservation and Delivery – $50M for Lower Colorado River Basin drought contingency plan implementation and $17.5M to repair canals with conveyance capacity impairment.

· Fish Passage and Fish Screens – $6M for Anadromous Fish Screen Program.

WaterSMART – Drought Response and Planning – $10M for authorized drought response activities in the Klamath River Basin in Oregon and California

Science and Technology Program – $4M to advance snow and water supply forecasting, of which at least $1,500,000 shall be to implement this research at Reclamation projects/an additional $1,500,000 to support Reclamation’s efforts to support the U.S. Department of Agriculture and NOAA ‘s efforts to improve real-time and derived snow water equivalent information.

In the courts, the US Supreme Court has agreed to consider Interior Department v. Navajo Nation, deciding whether the federal government has a duty to protect the Navajo Nation’s access to the dwindling flows of the Colorado River. The federal government argues in the case that it is not legally obligated to assess the Navajo Nation’s needs because no treaty, agreement or law explicitly addresses the tribe’s claim to Colorado River water. The 9th U.S. Circuit Court of Appeals sided with the Navajo Nation and said Interior had a “duty to protect and preserve the Nation’s right to water.” The Biden Administration argued that the lower court ruling would complicate ongoing efforts among seven Western states to reduce their use of water from the drought-plagued Colorado River that serves the needs of 40 million people and millions of acres of important food-producing farms and ranches.

Elsewhere, of note, former Bureau of Reclamation Commissioner Brenda Burman has been selected to become the new General Manager of the Central Arizona Project, Arizona’s largest water delivery agency that delivers Colorado River water to Maricopa, Pinal and Pima Counties. Ms. Burman led Reclamation during the Trump Administration and served in the Interior Department during the George W. Bush Administration. She joined CAP last year as its executive strategy adviser and will succeed retiring General Manager Ted Cooke. She will be the first woman to lead the organization.

IN THE KNOW

KWUA offers notary services. Chelsea Shearer is a certified Notary Public and KWUA offers her notary services free to all members and patrons of member districts. To schedule an appointment with Chelsea, call the office at 541-883-6100.
KWUA has copies of all contracts between Reclamation and districts and individuals. These contracts, of which there are hundreds, date to as early as 1909. Copies are available to our members without charge and to others at our cost.
The DRA has issued payments for the 2022 No Irrigation program. Please check your mailboxes, if you did not receive your check please contact the DRA.
The KWUA office will be closed on December 23-26 in observance of Christmas and on December 30, 2022-January 2, 2023, in observance of the New Year.
Klamath Irrigation District (KID), Tulelake Irrigation District (TID), and Klamath Drainage District (KDD) all have district websites with the latest information on current events in their districts. Visit our website https://kwua.org/member-districts/ for links to their sites.
The 55th Annual Mid-Pacific Water Users’ Conference is scheduled for January 25-27, 2023, in Reno, NV. Staff will be in attendance, and the office will be closed.

What has KWUA been working on…

KWUA’s Board of Directors strives to keep member districts, 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 held its regular business meeting on December 12, 2022. Below is a recap of the ongoing activities. If you would like more in-depth information, we encourage you to contact your respective district board member listed on our website.

Graduate Fieldwork Projects Completed

Hannah Whitley thanked the board for supporting her photovoice project. She has completed her work in the basin and plans to return to Penn State, where she will be teaching two courses and finishing her Ph.D. dissertation. Hannah’s project is titled: A PHOTOVOICE PROJECT BY KLAMATH BASIN FARMERS, RANCHERS, & THEIR FAMILIES “Nevertheless, We Persist.” It is a digital exhibition of photographs and narratives created by Klamath Basin agricultural families who took part in the project during the spring and summer of 2022. The traveling exhibit has been displayed throughout the Klamath Basin and across the United States. The exhibit features four participants, including KWUA’s Chelsea Shearer. The next stop for the exhibit will be in February 2023 at the Ag Expo in Tulare, California. www.aginthebasin.org

Klamath Project Drought Response Update

Update (12/19/2022) 2022 payments for the DRA have been mailed out to approved applicants over the weekend. Please watch your mailboxes for checks.

Paul Simmons reported that KWUA has been in discussion with Reclamation for a few months regarding two items. The first is two parts and relates to the eligibility of patrons in districts that do not conform to Reclamation’s operations plan or patrons of districts that those districts serve. The second pertains to limitations on expenditures under the statutory authorization that funds DRA programs. Presently, there is still no appropriations bill for the fiscal year 2023. It is important that Congress pass a new appropriations bill for the DRA to have funding in 2023.

Water Policy Director Report

Success of Fill the Lake Campaign; Next Battle Board members were provided with a copy of the letter sent in response to Reclamation’s “strawman” proposal, presented on December 9. A decision by Reclamation regarding winter operations was anticipated by December 16, but has been further delayed.

KWUA 2023 Work Plan – Next Steps Work has begun on KWUA’s 2023 work plan. Further discussion occurred at the December board meeting executive session. Moss Driscoll emphasized the need for strategic planning for clarity in goals and objectives. He recommended that staff arrange a strategic planning session for the board early in 2023. Board members supported the recommendation and staff will implement it.

Long-term Demand Management KWUA has garnered Reclamation’s attention as the Klamath Project being a potential place to use funds made available under the recent Inflation Reduction Act. One challenge and problem is the lack of something (a water supply) to “plan around.” Luther Horsley noted that the longer this is put off, the more difficult it will be.

Affordable Power – Next Steps Mr. Driscoll met with the Power Committee during the week of December 5. This was in connection with the implementation of the Affordable Power Measures Plan that was completed in early 2020. The direction given to Mr. Driscoll by the committee was to move forward with the implementation plan. He proposed to contract with Reed Consulting for technical assistance going forward with the Affordable Power Measures Report. The board intends to work within the existing 2023 budget.

Watershed Stewardship Planning Process Update A general kick-off meeting will be scheduled for early in the new year.

ODFW Spring-Run Chinook Study Mr. Driscoll reported that the Oregon Department of Fish and Wildlife (ODFW) will again be releasing juvenile Chinook salmon in the Upper Basin next spring, to monitor their migration. One of the objectives for this year’s study is to monitor entrainment in canals and other facilities. He recommended that KWUA try to have a say in the work plan and study effort.

North Canal, KDD, photo by Chelsea Shearer

Executive Director’s Report

December 14-15 DOI Meetings in Ashland Mr. Simmons noted that he had reported in November on the planning for a December 14-15 meeting in Ashland. The meeting was generally billed as a follow-up to the “Summit” that had included involvement by the Secretary, two Governors, and the major interests in the basin. The agenda for the Ashland meetings included an hour for agricultural perspectives on conservation. KWUA worked to develop a coordinated presentation for Upper Basin, Shasta/Scott, and KWUA and Project districts and also communicated with County Commissioners and Supervisors who were expected to attend. There will be a report on the Ashland meetings at KWUA’s January board meeting. Mr. Simmons also noted that Richard Whitman has been brought back to work for the state, to focus on Klamath and work through a contract with the Oregon Water Resources Department.

Follow-up Regarding DOI’s Yurok Water Right Assessment Team During the November 2022 board meeting, the Board of Directors agreed that KWUA should request a meeting with the Yurok Tribe water rights assessment team appointed by the Department of the Interior (DOI). Mr. Simmons contacted David Harder in the Department of Justice, who has informed others involved, but we do not have a meeting arranged at this time. Mr. Simmons believes that all managers and district attorneys should participate in this meeting when scheduled.

Washington D.C. Update Mr. Simmons summarized material in his monthly written report, including the status of legislative efforts and recent meetings with senior officials in DOI. He added that KWUA has communicated with the congressional delegation on the “winter operations” issues discussed under the Fill the Lake campaign.

Litigation Status Update In November and early December, there were hearings in two lawsuits implicating Klamath Project irrigation water availability.

First, on November 15, the Ninth Circuit Court of Appeals heard oral arguments in a case originally filed in Klamath County Circuit Court. In that case, filed in April of 2021, Klamath Irrigation District (KID) requested that the Klamath County Circuit Court – the Klamath Basin adjudication court – issue an injunction requiring Reclamation to discontinue the release of stored water from Upper Klamath Lake for non-irrigation purposes. The federal government exercised a right of automatic removal of the case to federal court. KID is asking the Ninth Circuit to decide that the case should be returned (remanded) to the state adjudication court.

Second, on December 7, the U.S. District Court for the Northern District of California heard arguments on motions for summary judgment in a case titled Yurok Tribe v. Bureau of Reclamation. The case has evolved considerably since it was originally filed in 2019. The issues argued on December 7 generally concern whether the Endangered Species Act (ESA) preempts (supersedes) state water law requirements and

whether, under the current understandings of the ESA, Reclamation actually has the authority or discretion to curtail deliveries of irrigation water in the Klamath Project.

The dates for decisions in either case are unknown, but many believe that the decision in at least the Yurok case will likely be issued before the 2023 irrigation season.

Separately, the board supported a recommendation that KWUA join an amicus curiae brief anticipated to be filed on behalf of several parties in the Navajo Nation litigation in the U.S. Supreme Court, subject to counsel reviewing the draft brief before filing.

Finally, Mike McKoen asked a question about the lawsuit filed against Klamath Drainage District (KDD) by the United States, and noted its significant importance to the entire Project.

Operations Report

North Canal Gauge, Photo by Chelsea Shearer

Operations Committee Chairman Gene Souza distributed materials from the most recent FASTA slides. Currently, Upper Klamath Lake has realized the lowest inflows from October 1 to date for any water year in the period of record used for Klamath Project operations planning. Currently planned Iron Gate releases will be at or above minimums. Mr. Souza also summarized the “strawman” received from Reclamation, on December 2 related to winter operations of Upper Klamath Lake. A Canal is currently being drained for maintenance and inspection reasons; safety is also a factor.

FROM YOUR DISTRICTS, UPCOMING MEETINGS

Klamath Irrigation District will hold its Annual Board of Directors meeting on January 13 @ 10 am; immediately following will be the monthly meeting at the KID office. www.klamathid.org
Tulelake Irrigation District will hold its monthly Board of Directors meeting on January 10 @ 10 am. www.tulelakeid.com
Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on January 11 @ 10 am in the KWUA boardroom www.klamathwaterbank.com
KWUA will hold its monthly Board of Directors meeting/Annual Planning meeting on January 11 @ 2 pm www.kwua.org
Klamath Drainage District will hold its monthly Board of Directors meeting on Jan 19 @ 1:30 pm www.klamathdrainagedistrict.org