POWER COSTS DECREASED FOR KLAMATH BASIN IRRIGATORS IN OREGON
On January 1, power costs for irrigators in the Klamath and Lost River Basins in Oregon dropped by 3.0 percent. The reduction is welcome, especially given that Pacific Power had requested last February that the OPUC approve a ten percent increase in base rates for irrigation. KWUA intervened in the OPUC proceeding to oppose the increase, and the OPUC issued its decision in late December.
“We are very pleased with this outcome,” said KWUA Power Committee Chairman Ben DuVal. “It’s beneficial for irrigators and districts throughout the Klamath Project, and for our neighbors outside the Project in as well.”
Investor-owned utilities such as Pacific Power may only charge rates that have been approved by the OPUC. A utility proposing to change its rates typically submits the proposed new rates to the OPUC, and parties supporting or opposing the change are allowed to participate in the resulting rate case. Pacific Power’s last general rate case prior to 2020 was in 2013, where it obtained approval for a rate structure that has remained in effect since that time.
About one-half of Pacific Power’s retail irrigation customers in Oregon are in the Klamath Basin, and only some of those are represented by KWUA’s membership. KWUA found the rate case too important not to become engaged. It also partnered with the Oregon Farm Bureau Federation, which is interested in protecting Pacific Power’s irrigation customers in other parts of the state.
According to DuVal, most of the disputed issues of special concern to irrigators were resolved through the negotiation of two separate rate stipulation agreements, and the OPUC approved these agreements in its order issued in late December. Other disputed issues went to a hearing and were resolved in the order as well.
“We appreciate Pacific Power’s constructive approach to negotiation and settlement,” DuVal said. “We were able to resolve irrigators’ most important issues efficiently and cost-effectively.”
Under the OPUC ruling, there will be an increase in base rates and adjustment schedules of less than one-half of one percent, which contrasts favorably with the ten percent increase that had been proposed in February. Also, due to an annual adjustment factor, the net cost of power for irrigation actually decreased on January 1, 2021, by 3.0 percent. “Customers are getting economic benefit from smart investments that Pacific Power has made in meeting its renewable energy requirements in the state of Oregon,” noted DuVal.
Two years ago, the United States Congress passed legislation advocated by KWUA that required Reclamation to complete reports that both evaluated Klamath Basin irrigation power costs relative to other areas of the Pacific Northwest and provided a plan to bring costs down. The reports have been completed but not yet submitted to Congress as required by the legislation. DuVal said that active participation in OPUC proceedings is but one of the recommendations from the reports that KWUA hopes to implement.
– From a December 29, 2020, KWUA News Release, updated
BUREAU OF RECLAMATION UPDATES GUIDANCE FOR KLAMATH PROJECT
The United States Bureau of Reclamation (Reclamation) has released a detailed analysis that will change its approach to compliance with the Endangered Species Act (ESA) at the Klamath Project (Project) in south-central Oregon and northern California. The new analysis and guidance, called for by a Department of the Interior Solicitor’s opinion last fall, support that irrigation water deliveries in the Project are not subject to constraints that Reclamation has applied in the past.
“This is positive news for family farms and ranches, rural communities, and wildlife,” said Klamath Water Users Association (KWUA) President Tricia Hill. “The federal government has recognized that we have been overregulated under the ESA, and that needs to change.”
The new guidance is reflected in a 41-page “reassessment” document that relies on changes in legal circumstances that have occurred over recent years. Last fall’s Solicitor’s Opinion advised Reclamation that it
needed to update its approach and that work is now complete.
In recent decades, Project water deliveries have been subjected to curtailments based on section 7 of the ESA, which requires that federal agencies ensure that their actions not jeopardize ESA-listed species such as endangered suckers in Upper Klamath Lake and coho salmon in the Klamath River in California. Federal court decisions have increasingly made clear that the duty under this law only applies to actions where the federal agency has some discretion to take action to protect the species.
Reflecting the rulings in those court decisions, the new guidance evaluates contracts, signed long before the ESA was passed, that commit Reclamation to water delivery in the Project. These contracts do not reserve discretion in Reclamation to curtail water deliveries for purposes of species protection, and therefore Reclamation has no legal right to curtail the deliveries under the ESA as it has in the past.
In addition, Reclamation must comply with state water law. The Oregon Water Resources Department has made its determinations of water rights for the Project, and those determinations are in full force and effect.
The new guidance states that there are instream federal water rights that are senior to the Project, both downstream in the Klamath River and in Upper Klamath Lake, that could limit Project diversions. Such rights are not adjudicated or not enforceable against the Project; the guidance recognizes that any downstream water right for flows would not include a right to water that has been stored in Upper Klamath Lake.
The new guidance will not by itself change the way that Reclamation operates but will require that Reclamation adopt fundamental changes in its operating plans.
“Those changes need to be adopted as soon as Reclamation can do so,” said Ms. Hill.
KWUA Executive Director and Counsel Paul Simmons said other parties may criticize the new guidance because of its timing, at the end of the Trump Administration and following a visit to the Klamath Basin by outgoing Secretary of the Interior David Bernhardt and Reclamation Commissioner Brenda Burman last July.
“There could be political blow-back because Reclamation finished the work when it did, but the guidance applies rules that the federal government has recognized in other basins –such as the Rio Grande and Sacramento – since at least President Obama’s Administration, and that have been upheld in federal courts. We look forward to working with the Biden Administration, which we hope will recognize that the new guidance is based on current law rather than political preference.” The new guidance does not exempt the Project entirely from the ESA, according to Mr. Simmons. “Reclamation has found that it still has duties for species protection, but those duties do not include imposing harmful shortages on irrigation as we have seen in the past.”
KWUA President Hill said that irrigation water users do not have an absolute guarantee of water.
“We still have other legal issues, including water rights of tribes that will one day be quantified, that can affect us,” she said. “We intend to continue to engage with other parties constructively to create a basin that is better for fish and farms.”
The Project was authorized in 1905 under the Reclamation Act of 1902. It consists of dams and irrigation delivery and drainage systems, built and operated by Reclamation and irrigation districts and others. By 1940, the Project provided water to nearly 200,000 acres, roughly the same as the number of irrigated acres today. In addition, Project facilities are the sole source of water for Lower Klamath and Tule Lake National Wildlife Refuges.
-From a January 19 KWUA News Release
- KWUA 2020 Annual Report KWUA has released the 2020 Annual report. Copies can be found on our website, www.kwua.org, along with prior years’ annual reports.
- KWUA will hold its annual board planning session on February 17, 2021.
KWUA Washington D.C Representatives’ Report
In late December 2020, Congress completed action in the Lame Duck Session of the 116th Congress by passing a massive 5,500-page end-of-session bill that includes a wide array of legislative and funding provisions.
The bill included an omnibus spending package that included all 12 appropriations bills ensuring funding for the federal government through FY 2021 for all federal agencies. Of note, Reclamation provisions include additional funding for water conservation and delivery. Reclamation recently released their spending plan for that additional funding – including $10 million for Klamath ESA consultation and water management (i.e. DRA funding) for FY 2021.
Also, as part of the end of year legislative package, Congress passed a compromise $900 billion COVID relief package, developed by a bipartisan group of Senators, that includes funding for $600 direct individual payments, federal supplemental unemployment payments, and rental payment assistance.
In addition, House and Senate lawmakers passed two major elements as part of the year-end package: (1) the 2020 WRDA bill; and, (2) a bipartisan energy innovation package, which includes $35 billion in new authorized funding for a host of research, development and demonstration programs covering a wide range of energy sectors, including renewable energy, fossil fuels, and related programs and activities.
Official Washington was in “pause” mode as it awaited the inauguration of Joe Biden. While Congress has officially been sworn in and begun ceremonial proceedings associated with 117th Congress, legislative action and steps associated with confirming President Biden’s Cabinet nominees will not begin in earnest until late January- early February. A decision by the Senate on whether to proceed on impeachment may impact the timing of any legislative action or confirmation hearings and votes.
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 January 13, 2021. 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 Report
Committee Chairman Gene Souza reported on current hydrologic conditions: See Hydro Report on page 7 for more information. The “hydro team” assembled for re-initiated ESA consultation with the impetus of the Yurok Tribe, is continuing to meet. The most recent meeting occurred on the morning of January 13. To date, meetings have focused on educating new members about past modeling and identifying concerns. There is new Upper Klamath Lake bathymetry to use in flood control planning. Reclamation’s Technical Services Center in Denver is looking at this; the plan won’t be complete until 2022. Recent discussions have led to discussing a range of potential operations, or “bookends.”
Gene has been working with other managers and MBK Engineers to define an alternative that provides irrigation delivery to the Project as its first priority; others’ proposed operations are, as one would expect, very different (for example, full Hardy Phase 2 flows). Gene reported that there was recognition that in order for the hydro team (or anyone) to provide input for a proposed action, it is necessary to know the outcome of Reclamation and the Solicitor’s Office review of federal discretion under Klamath Project contracts. This is because non-discretionary activities are not subject to ESA consultation and are part of the environmental baseline for purposes of section 7 of the ESA.
Executive Director’s Report
Follow-Up on October 2020 Solicitor’s Memorandum
Paul Simmons reported on the known status of work by the Bureau of Reclamation in response to an October, 2020 Memorandum from the Office of the Solicitor. See story on page 1 of this newsletter.
Power Reports Required by the 2018 America’s Water Infrastructure Act
As required by legislation enacted in December of 2018, the Area and Regional Offices of Reclamation have completed reports that: (a) evaluate costs of power in the Project compared to other similarly situated projects in the Pacific Northwest, and (b) provide an overall plan for reducing costs to bring Project irrigators’ costs in line with other areas. KWUA has been generally pleased with these reports. However, as of early January, the reports had not yet been filed with relevant congressional committees, as was required by the 2018 legislation. As a result, they currently are not “public” and not available for use. KWUA has been in communication with the Commissioner’s Office to urge that the reports be submitted to Congress immediately and avoid delays and inefficiencies that would result if this does not occur now.
Klamath Hydroelectric Settlement Agreement
At the time of KWUA’s December board meeting, PacifiCorp and the Klamath River Renewal Corporation (KRRC) had submitted an amended application to the Federal Energy Regulatory Commission (FERC) for transfer of the license on the lower four dams and ultimate surrender of the license for purposes of de-commissioning. This action was based on the memorandum of understanding between Oregon, California, PacifiCorp, KRRC, and the Yurok and Karuk Tribes that was released on November 17, 2020.
On December 16, FERC gave formal notice of the amended application and initiated a new proceeding and dockets, and set a deadline of February 15, 2021, for parties to file motions to intervene or comments. At the December 9, 2020 board meeting, the board authorized the filing of a motion to intervene in this then-anticipated proceeding. At the January meeting, the KWUA board provided more specific direction with respect to the approach to intervention.
Paul Simmons also updated the board on a meeting that occurred with Siskiyou and Modoc and Klamath County supervisors/commissioners and how that meeting relates to KWUA’s interests and approach to the new FERC proceeding.
Developments Related to Power Costs
Pacific Power’s general rate case in the Oregon Public Utility Commission has concluded. See the story on page 1 of this newsletter.
In addition, the Power Committee has met over recent months, and on two of those occasions, met with Lloyd Reed to discuss potential future work that he might perform. His proposed scope of work for matters we have discussed was included in the agenda package. KWUA has signed a contract with Mr. Reed for services.
Paul Simmons reported on efforts to obtain funding for Klamath Project Drought Response Agency in 2021. In late December, Congress passed an omnibus appropriations bill that includes funding for Reclamation. Reclamation had not, in its proposed budget, requested funding for Drought Response Agency (DRA) programs. As in past years, however, Congress appropriated more to Reclamation than it had requested. In December, KWUA sent a letter to Commissioner Burman asking that some of that additional funding (which is for Reclamation-wide activities) be allocated to the Klamath Basin Area Office. At the time of the December board meeting, the status of this action was uncertain. KWUA has since learned, however, that an additional $10 million has been allocated to the Klamath Basin Area Office. KWUA believes that all of this should be available for contracting with DRA.
Separately, KWUA has continued to look for other possible sources of funding to increase the DRA’s payments for 2020.
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 Total Maximum Daily Load (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 will hold its annual board planning session on February 17, 2021. · During KWUA's March meeting, voting for At-Large positions and officers will occur.
Deputy Director’s Report
Mark Johnson participated in a technical discussion with sucker biologists from the U.S. Fish and Wildlife Service (USFWS), U.S. Geological Survey (USGS), Reclamation, and private consultants regarding the Upper Klamath Lake sucker survival analysis. The meeting’s focus was to generate meaningful environmental covariates for a USGS analysis of sucker survival relating to Upper Klamath Lake elevation.
The environmental covariates are factors such as ambient air temperature, water temperature, pH, dissolved oxygen, ammonia, and others thought to contribute to Lost River and shortnose suckers’ survival. USGS recently hired a new research biologist, Jacob Krause, who will lead this analysis.
This analysis is one of the five elements proposed by Reclamation’s Science Initiative rolled out last July. These other elements include a new naturalized flow study, flow/habitat relationships in the Klamath River, salmon model refinement, and a salmon disease and hydrology portal. A summary of the lake level analysis is anticipated later this year, with the synthesis report set to be completed in 2022. Klamath Project irrigators advocated for a fresh look at the science since 2001 and applaud the administration and Reclamation efforts to ensure this comes to fruition.
Current Snow Water Equivalent = 67% Water Year-to-Date Precipitation= 69%
· Due to hydrologic conditions, Klamath Drainage District (KDD) is restricted to no more than 40 cfs/day (80% reduction of average rate)
• Current projected total KDD deliveries at said reduction, Nov–Feb = 8,605 AF
• Full KDD Fall/Winter allocation = 28,910 AF
• Cumulative KDD deliveries, Nov 1–Jan 13 = 4,955 AF
· Current remaining Fall/Winter volume = 3,650 AF
Lower Klamath National Wildlife Refuge Deliveries
· Lower Due to hydrologic conditions, LKNWR is restricted to no more than 12 cfs/day (80% reduction of average rate)
· Full LKNWR Fall/Winter allocation = 11,000 AF
· Cumulative LKNWR deliveries, Dec 1–Jan 13 = 736 AF
· Current remaining Fall/Winter volume = 1,406 AF