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Supreme Court Review Requested in Water Takings Case
In a March 13 filing, producers in the Klamath Project have asked the United States Supreme Court to review decisions denying their claims that their water rights were illegally taken in 2001 under the Endangered Species Act (ESA). The case, titled Baley v. United States, was filed 19 years ago when the U.S. Bureau of Reclamation re-allocated irrigation water to threatened and endangered species. “The Baley lawsuit relies on the fact that rights to use water are property rights owned by landowners,” said Klamath Falls attorney Nathan Ratliff, who has coordinated efforts for the plaintiffs in the case. “The Fifth Amendment to the U.S. Constitution requires that the government provide just compensation for any taking of private property.”
The petition to the Supreme Court argues that the lower federal courts have misunderstood and misapplied the basic principles of western water law.
“The Supreme Court is not required to hear the case at all, but we believe it should understand that these are issues of broad importance that it should address,” said Modoc County rancher Mike Byrne.
In April of 2001, Reclamation announced that there would be no irrigation water at all for water users who rely on water from Upper Klamath Lake and the Klamath River. Reclamation had received biological opinions from the National Marine Fisheries Service and the U.S. Fish and Wildlife Service that stated that all water in the system had to go to coho salmon and suckers protected by the federal ESA. The controversial decision caused severe local hardship, and it received international attention.
The lawsuit has a long history, including prior appeals and a request by federal courts that the Oregon Supreme Court clarify important issues of Oregon water law. The Oregon Supreme Court held a hearing in Klamath Falls in 2009 and issued a ruling supporting the irrigators’ position that the original trial court had misinterpreted state law. That ruling revived the case and returned it to the federal courts.
Ultimately, after a two-week trial in 2017, United States Court of Federal Claims Judge Marian Blank Horn concluded that un-adjudicated, senior tribal instream water rights must be at least as great as the ESA-based Klamath River flows and lake elevations, and therefore the water users did not have the right to the water under the western prior appropriation doctrine. Last fall, the U.S. Court of Appeals for the Federal Circuit affirmed the ruling.
“This ruling was a disappointment, to say the least,” said Luther Horsley, who attended the 2017 trial and 2019 appeal argument. “But we’ve been down before in this case and bounced back, and it’s too important to walk away now.”
The case is certified as a class action. The petition to the Supreme Court was filed by the law firm of Somach Simmons & Dunn from Sacramento, along with Timothy Bishop of the law firm Mayer Brown. Mr. Bishop is an expert in Supreme Court practice and has successfully pursued cases before the Supreme Court regarding the ESA and Clean Water Act on behalf of regulated businesses and agencies.
“The dispute is about the Constitution and how water rights are adjudicated and administered in the western states, nothing else.” said Byrne.
It is expected that the Supreme Court will decide in June whether to take the case.
A copy of the petition is available at www.kwua.org.
KWUA Hosts Public Meeting to Inform Water Users of Current Predicted Water Supplies.
Bleak water year looms for Klamath Project
By GEORGE PLAVEN Capital Press
Mar 6, 2020
KLAMATH FALLS, Ore. — As Klamath County became the first in Oregon to officially declare drought in 2020, hundreds of local farmers and ranchers are bracing for what could be one of the most difficult water years in recent memory.
Gov. Kate Brown signed a drought declaration for the county in south-central Oregon on March 2, more than two weeks before the arrival of spring, citing “significant economic impact” to agriculture.
Irrigation districts that receive water from the federally operated Klamath Project are especially on edge awaiting this year’s allocation from the U.S. Bureau of Reclamation. Forecasts show the water supply could be less than 50% of normal demand, barring a dramatic shift in weather.
“We’re at a potentially huge deficit,” said Paul Simmons, executive director of the Klamath Water Users Association, which represents 1,200 family farms and ranches.
The Klamath Project is an intricate and expansive network of irrigation infrastructure, consisting of six dams, 185 miles of canals and 490 miles of lateral ditches. It provides surface water for over 200,000 acres of irrigated farmland.
Most of the project gets its water from the Klamath River and Upper Klamath Lake, which are fed by rain and mountain snow melt. This year, however, snowpack is just 61% of normal in the Klamath Basin as of March 6, while overall precipitation is nearly 5 inches below normal.
The USDA Natural Resources Conservation Service predicts stream flows in the Klamath Basin will vary between 36% and 66% of normal through September, and water managers should prepare for significant water shortages this summer.
All that adds up to a recipe for disaster, Simmons said. Based on the data, he expects water allocated to the Klamath Project to be between 150,000 and 160,000 acre-feet — less than half of last year’s supply of 325,000 acre-feet. Water for the project is capped at 350,000 acre-feet to provide enough water in-stream for the native fish protected under the Endangered Species Act.
Simmons said 2020 could be the second-worst water year on record for the Klamath Project dating back to the early 1900s, and the worst since 2001.
Jared Bottcher, acting water division chief for the Bureau of Reclamation’s Klamath Basin Area Office said he understands 2020 is slated to be a “challenging” water year
“Our allocation for the project will be locked in on April 1 with the April 1 forecast,” Bottcher said. “This project supply could actually increase with the May and June forecasts as well. We’re continuing to coordinate with them (KWUA) on anticipated supplies.”
The KWUA and Klamath Project Drought Response Agency co-hosted a meeting for producers on March 5 to share the latest information and programs available to help recover crop losses.
The governor’s drought declaration allows state agencies to expedite requests for emergency water permits, groundwater exchanges, substitutions and in-stream leases that can help farmers manage through the season.
Funding is also available to pay for idling farmland or planting cover crops. The Drought Response Agency currently has $1.7 million available, and $8 million more will be available, pending a final contract with the Bureau of Reclamation.
“That should lessen the demand for surface water,” Simmons said. Brad Kirby, president of the Tulelake Irrigation District, said he had heard the anticipated water year would be bad.
I wasn’t expecting the NRCS forecast to go down like it did,” Kirby said. “Uncertainty has been the norm for quite sometime now. It’s actually old hat now.”
Drought is not the only factor impacting water availability. The basin is also home to several species of fish protected under the ESA, including shortnose and Lost River suckers in Upper Klamath Lake and coho salmon in the lower Klamath River.
A minimum of 407,000 acre-feet of water is required for fish to boost their chances of survival. Those rules, known as a Biological Opinion, or BiOp, are being revised by the Bureau of Reclamation, U.S. Fish and Wildlife Service and National Marine Fisheries Service to correct erroneous data from an outside source.
The agencies have stated they hope to finish their review by March 31. The bureau, meanwhile, submitted a new proposed operations plan that calls for tripling the amount of water managers can allocate from the Klamath Project for fish in years of drought.
“It’s obviously a subject of debate and controversy,” Simmons said.
Marc Staunton, a fourth-generation farmer and president of the Klamath Project Drought Response Agency, said the looming water uncertainty is making it virtually impossible for growers to plan, leaving them to make painful decisions about what to plant and how they will survive the year.
Staunton Farms primarily grows potatoes and onions on both sides of the Oregon-California border. It is one of five farms in the basin that make up Cal-Ore Produce, which sells organic and conventional fresh market potatoes to major retailers such as Walmart, Costco and Whole Foods.
Without knowing how much water will be allocated to the Klamath Project, Staunton said farmers are left to guess what and where to plant and how much fertilizer to buy.
Seasonal workers are also getting antsy, waiting to see if and when they are needed, Staunton said, which may prompt them to look elsewhere for jobs.
“Emotionally, it’s pretty draining,” Staunton said. “It makes for a pretty unstable lifestyle, I guess you could say.”
The Ferguson Group
Action continues in Washington despite growing concerns over the coronavirus.
The Trump Administration has released its FY 2021 budget request. The $4.8 trillion budget proposal would slash many energy and environmental programs. The Army Corps of Engineers would drop 22% and the Interior Department would fall by 13% from FY 2020 enacted levels. Congress is likely to reject the Administration’s budget and use levels set by last year’s bipartisan agreement to build their FY 2021 appropriations bills. Timing on final passage of individual FY 2021 appropriations bills remains uncertain.
The Bureau of Reclamation proposed FY 2021 budget is $1.1 billion overall, down $500 million from the $1.6 billion received from Congress for FY 2020, but slightly higher than the Administration’s budget request in FY 2020. The FY 2021 request includes $979 million for the Water and Related Resources account, which funds operation, maintenance and rehabilitation projects, including dam safety at Reclamation facilities. The account also funds conservation, planning, construction, and management of Reclamation lands, as well as fish and wildlife habitat improvements in support of Reclamation project operations.
This year’s budget proposes a little over $19 million for Klamath project related activities, an increase of just over three million dollars from FY 2020.
On Capitol Hill, the House Transportation and Infrastructure (T&I) Subcommittee on Water Resources and Environment has held hearings to take testimony from Members of Congress on water projects of importance, for possible inclusion into the Water Resources Development Act (WRDA) bill of 2020.
Typically, every two years a WRDA authorizes the Army Corps of Engineers (Corps) to study, design and construct civil works projects that reduce flood risk, improve water navigation or restore aquatic ecosystems. In January, the Army Corps presented the subcommittee its list of recommended projects for inclusion in a new WRDA. T&I is expected to introduce the WRDA bill by the end of May.
Who and What Are New
KWUA has moved
On March 1, KWUA moved into a new office located at 2312 South Sixth Street, Suite A. KWUA Board and Staff are excited for the new office space which will provide much needed additional meeting space. The new office is approximately 500 square-feet larger than our previous location and is more readily accessible to our membership and visitors.
Stop by and see our new location.
PacfiCorp Rate Case
PacifiCorp has proposed an increase in irrigation tariffs in Oregon of 10%. Oregon Public Utilities Commission proceedings will occur this year. KWUA’s Board of Directors has instructed staff to take action to intervene in the rate case and oppose the increase.
Coalition of the Willing
The coalition group is still meeting monthly; however, within the group, subset groups have formed by geographic areas. One of the priorities for the main-stem Klamath River group (of which KWUA is a part) is the On-Project Plan. The On-Project Plan was a term from a former settlement agreement intended to align supply and demand for water in the west side of the Klamath Project in light of variable hydrologic conditions and agreed-upon conditions related to instream sources. A group worked over a period of three years to develop the On-Project Plan, and a full draft Environmental Impact Statement was prepared. The work stopped when the settlement agreement terminated.
KWUA Annual Meeting changed due to COVID-19 directives
Oregon Gov. Kate Brown has declared a 4-week moratorium on gatherings over 25 people and President Trump has issued guidelines recommending against gatherings of more than 10 people for at least the next 30 days. KWUA is canceling public meeting that was scheduled for April 7th. KWUA is looking into other ways to host a meeting, including the possibility of a virtual meeting, or conducting the public meeting later in the year. We will continue to look into all options.
From Your Districts
UPCOMING MEETINGS– May change based on the Governor’s gathering limitations
- Klamath Irrigation District will hold its monthly Board of Directors meeting on April 9 @ 10 am
- Tulelake Irrigation District will hold its monthly Board of Directors meeting on April 13 @ 10 am
- Klamath Project Drought Response Agency will hold its monthly Board of Directors meeting on April 8 @2 pm in the KWUA boardroom
- KWUA will hold its monthly Board of Directors meeting on April 16 @ 2 pm
- Klamath Drainage District will hold its monthly Board of Directors meeting on April 16 @ 1:30 pm
Executive Director’s Report
Water Bank Funding /Issues: KWUA staff have been monitoring the bleak weather forecast over the past few months, and working with many agencies and parties to try to maximize available deliveries and avoid and mitigate impacts of shortage. Our congressional delegation and the Department of the Interior have taken actions to make significant resources available for drought mitigation. The Klamath County Board of Commissioners and Siskiyou and Modoc County Boards of Supervisors have provided support and advocacy with state and federal executive branches to promote and accelerate relief.
Governor Kate Brown has issued a declaration of drought for Klamath County and made a request to the Department of the Interior for drought relief assistance under the applicable statutory authority. The drought declaration will enable several producers who have invested in wells to be able to use that resource. The letter to Interior triggers a process that will allow Reclamation to go through its process to get a contract in place with the Klamath Project Drought Response Agency (DRA).
The DRA has approximately $1.7 million in hand that it has carried over from past years. These funds can be used to enter into voluntary agreements for groundwater pumping or land idling that will lessen demand for surface water supplies. There is at least an additional $8 million that is potentially available if arrangements can be made to make water deliveries for fish and wildlife purposes that do not otherwise limit irrigation water availability.
Looking forward, KWUA has made timely requests for appropriations “plus up” funding in the fiscal year 2021 appropriations that would allow for a water bank. KWUA is acutely aware that growers desire adequate water supplies and continues to pursue that goal for the short, medium, and long-term.
FCA Financing / Planning : Klamath Project districts continue to work with Farmers Conservation Alliance (FCA) and other partners in efforts to assess systems and plan and implement modernization and optimization projects. Increasingly, participants have realized that the undertaking will be far more successful if approached not on an isolated district-by-district basis, but with a focus on the Project as a whole. KWUA is working with FCA, congressional staff, and federal agencies to design and implement financing plans for the activities as appropriate.
Deputy Director’s Report
KWUA is coordinating with the Klamath Watershed Partnership and Sustainable Northwest to host a tour of KID, TID, and KDD to assess the viability and eligibility for various funding and incentive opportunities for on-district projects. This tour was a result of a meeting back in January with district managers and these entities while discussing grant opportunities. On March 20, the group will visit a priority site within each district and the group will provide expertise and facilitation to fund and implement these projects. Tour attendees will have many opportunities to discuss other projects with representatives from Klamath Watershed Partnership, Sustainable Northwest, Energy Trust of Oregon, WyEast, Basin Fertilizer, and NRCS. The tour is expected to convene at 8:30 a.m. and wrap-up approximately 1:30 p.m. There may be an opportunity to visit “Gone Fishing” if time allows.
Due to the current issues with coronavirus, please check-in with your district managers later in the week to verify the tour is still on.
IN THE KNOW
- KWUA offers notary services. Chelsea Shearer is a certified Notary Public and KWUA offers her 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 8 am – 5 pm based on availability. There are two meeting room spaces available. To schedule a meeting, call the office at 541.883.6100.
Power Committee Report
Reclamation and its contractors have completed reports regarding Klamath Project power costs that were required under legislation enacted by Congress in late 2018. The reports: (1) calculate a “Power Cost Benchmark” that represents that price paid for electrical power by similarly-situated Reclamation projects in the Pacific Northwest; and (2) provides a plan to achieve the Power Cost Benchmark.
The reports will not be public until they are submitted to Congress as required by law. KWUA anticipate that the calculated Power Cost Benchmark will be 50% of what is currently being paid by Project users in Oregon, and 33% of what is being paid in Tulelake. The Power Committee’s future actions are critical. The committee will plan the next steps, responsibilities, needs for resources, legislation, etc.
- Check lake levels and snowpack on KWUA’s homepage under “Water Data”
- Track current issues affecting water supplies under our Press Releases
- Find District Notifications and much more all on our website!
Klamath County has sent out some information we are monitoring. New federal legislation and appropriations has opened up the possibility for small businesses to receive assistance for economic loss due to COVID-19. Details of eligibility and administration of this assistance from SBA are still being addressed by the SBA. However, some information from the traditional SBA Economic Injury Disaster Loan (EIDL) program will still apply for COVID-19. Your Chamber will continue to monitor this issue and help provide info on resources as they are identified.
If a small business has suffered substantial economic injury as a result of COVID-19, it may be eligible for financial assistance from the U.S. Small Business Administration.
Small businesses and small agricultural cooperatives that have suffered substantial economic injury may be eligible for the SBA’s Economic Injury Disaster Loan (EIDL) Program.
Substantial economic injury is the inability of a business to meet its obligations as they mature and to pay its ordinary and necessary operating expenses.
An EIDL can help meet necessary financial obligations that a business could have met had the disaster not occurred.
It provides relief from economic injury caused directly by the disaster and permits the business to maintain a reasonable working capital position during the period affected by the disaster.
The SBA provides EIDL assistance only to those businesses that SBA determines are unable to obtain credit elsewhere.
- The loan amount will be based on the business’ actual economic injury and financial needs.
- The interest rate on EIDLs cannot exceed 4 percent per year.
- The term of the loans cannot exceed 30 years.
Terms and conditions will be determined by the business’ ability to repay the loan. For more information contact Heather Tramp, Executive Director for the Klamath County Chamber of Commerce (541) 884-5193
Operations Committee Report
As of March 16, UKL elevation was at 4141.82 ; precipitation 65 % of normal; snow water-equivalent at 64% of normal. UKL is currently below central tendency. As of March 12, using the NRCS March 1 forecast (50% exceed), Reclamation’s projection using 2019 BiOps and average precipitation, Project Supply would be 168,000 acre-feet. Hydrology for the remainder of the winter will determine how much these numbers change.
The operations committee reported that flow in Lost River Diversion Channel has dropped. Straits Drain discharge has decreased also; however KDD is not finished draining off. Approximately 20 cfs is being taken at Station 48. Gene Souza reported that operations committee meetings continue and anyone from board welcome to attend. He says KID will open A Canal on April 1 and anticipates orders on April 15 – depends on litigation possibly.
Current 2020 Board Members
Position 1– TID: Brad Kirby & Kraig Beasly
Position 2– KID: Jerry Enman & Gene Souza
Position 3– KDD: Luther Horsley & Tracey Liskey
Position 4– At-Large: Gary Wright & Mike Byrne
Position 5– SVID/MID: Rob Unruh & Ryan Hartman
Position 6– Poe Valley: Luke Robison & Jason Chapman
Position 7– Van Brimmer & Sunnyside:
Marc Staunton & Mike McKoen
Position 8- Ady & Pioneer: Curt Mullis & Jason Flowers
Position 9– KBID: Ryan Kliewer & George Ranjus
Position 10– At-Large: Tricia Hill & Mat Trotman
Position 11– At-Large: Ben Duval & Bob Gasser
Staff Executive Director: Paul Simmons ~ Deputy Director: Mark Johnson
Executive Assistant: Chelsea Shearer
KWUA Officers ~ President: Tricia Hill, Vice President: Ben DuVal, Treasurer: Gary Wright, Secretary: Jerry Enman