Abuse of the Klamath River and Klamath Communities under the KHSA and KBRA is finally challenged

For weeks now, news from and about the Klamath River Basin has been dominated by speculation that “calls” for water would be made in the Upper Klamath River Basin. A water “call” is a term of art in western water law indicating when a water right holder with senior rights calls for those with junior rights to curtail water use so that the senior right holder gets water.

Speculation ended on June 10^th when the US Bureau of Reclamation and the Klamath Tribes of Oregon¹ asked the State of Oregon to shut down irrigation above Upper Klamath Lake so that the Reclamation and the Tribes' senior water rights could be met. 

Along with the Williamson and Sprague Rivers, the Wood River flows 

into Upper Klamath Lake. Hay and Cattle Agriculture dominate here.   

The current “calls” are the first ever in the Oregon portion of the Klamath River Basin and are possible now because the State of Oregon has completed its part of the long-running Klamath Water Rights Adjudication. The state proposed Final Order of Determination is now in the hands of state-court Judge Cameron Wogan where challenges to the proposed Final Order will be resolved.

Irrigators above Upper Klamath Lake are private entities and engage primarily in hay and cattle operations. Some of the pastures are used by cattle trucked in from California. According to the State of Oregon, irrigators above Upper Klamath Lake hold water rights which are junior to those of the Klamath Tribes for in-stream flows as well as to rights held by the Bureau of Reclamation for federal irrigation by private entities below Upper Klamath Lake.

Some of the irrigators who will be required to stop diverting water have asked Judge Wogan for a “stay” to prevent the state from enforcing the Adjudication's Final Order pending challenges in his court; a decision on the stay request has not issued. When the water “call” was made, these same irrigators asked Judge Wogan for a temporary restraining order to prevent irrigation shut offs. That request has been denied.

As surface water diversions above Upper Klamath Lake are shut down, more water will flow into Upper Klamath Lake. That means more water will be available to the Bureau of Reclamation. Reclamation will decide how to divide that water among three uses:

• irrigation within the federal Klamath Irrigation Project, 
  
  
• a water supply to maintain wetlands on Lower Klamath and Tule Lake National Wildlife Refuges, and 
  
  
• flows in the Klamath River for ESA-listed Coho Salmon and to sustain Chinook Salmon, Lamprey and other aquatic resources to which the Yurok, Hoopa, Resighini and Quartz Valley tribes have a right by virtue of their federally-designated reservations.²

When not under court order, Reclamation has almost always prioritized delivering irrigation water to private growers within its Klamath Irrigation Project. This year will be no different. Buoyed by a new Biological Opinion on how its operations affect ESA listed species, the Bureau is already dewatering Lower Klamath National Wildlife Refuge. 

Spring flows in the Klamath River have been reduced by Reclamation to about 1,000 cfs which could be an historic low for spring river flows. In fact, during the current water year (beginning October 1st), Reclamation has been starving the Klamath River for water as it has every year since the KBRA Water Deal was signed. 

Below is a graph showing flows below Iron Gate Dam since October 1st along with the long term (52 year) average or median flows. This water year actual flows – which are controlled by Reclamation - have been far below the historic average except when the federal agency had to dump water down the river because high storm run-off had already filled all available Upper Basin storage.

Flows below Iron Gate Dam since October 1, 2012 

Historic (52 years) median(average) flows are the gold dots

The other water “calls”

Taking on salmon hatcheries - EPIC files a lawsuit, threatens more

The overwhelming majority of fisheries scientists across the US and around the world concluded over a decade ago that fish hatcheries pose significant threats to native fish species. Getting federal and state hatcheries to change operations in order to minimize those impacts, however, has proven difficult to impossible.

That may be changing in Northern California. Armed with a new comprehensive review of fish hatcheries in California,  the Environmental Protection Information Center (EPIC) recently initiated actions intended to change how three Northcoast hatcheries - the Trinity, Mad and Smith River Fish Hatcheries - operate. The hatcheries are either run directly by the California Department of Fish and Wildlife or CDFW funds their operation.

A lawsuit challenging operation of the Mad River Hatchery was filed by EPIC on May 17th. Letters of intent to sue over operation of the Trinity and Smith River Hatcheries were also sent to CDFW and other responsible officials. And EPIC may not stop there. The organization recently told KlamBlog that it is closely examining other salmon and steelhead hatcheries, including Iron Gate Hatchery on the Klamath River.

Processing salmon eggs at Iron Gate Hatchery

Selecting adult salmon for egg taking harms genetic diversity 

In each of the three hatcheries EPIC has challenged, the claim is that those responsible failed to consult with the National Marine Fisheries Service concerning how the hatchery impacts wild salmon and steelhead populations listed as threatened or endangered pursuant to the federal Endangered Species Act (ESA). The ESA requires that a notice letter stating the intent to sue be sent to defendants at least 60 days prior to filing a lawsuit.

In its notice letters, EPIC invites hatchery operators to meet and consult with the environmental group; voluntarily complying with ESA provisions is, therefore, an option. EPIC is represented in this matter by Peter Frost of the Western Environmental Law Clinic (WELC). 

Iron Gate

Built to mitigate for the loss of salmon habitat and production as a result of construction of PacifiCorp's Iron Gate Dam, Iron Gate Fish Hatchery is operated by California Department of Fish and Wildlife and is among those evaluated in the statewide hatchery review.  The review found that, when it comes to applying best science practices, Iron Gate is flunking.

Reviewing scientists found, for example, that Iron Gate's Coho rearing program is in compliance with 16 recommended best practices but fails to comply with 24 other best science practices. Compliance with 5 recommended practices could not be determined from available information.

Klamath Water Woes – Drought or the new normal?

At the request of Klamath County Commissioners, Oregon Governor John Kitzhaber has declared drought in the Klamath River Basin. The declaration is intended to spur a federal drought declaration for the Oregon portion of the Basin. That would make Upper Klamath Basin irrigators eligible for federal drought payments. But is the Upper Klamath River Basin really in drought?

According to the official US multi-agency Drought Monitor, most of the Upper Basin is “abnormally dry” but not yet in drought.  The Monitor indicates that drought has so far only come to the most eastern portion of the Upper Klamath River Basin - the Lost River Sub-basin. In spite of predicted low run-off in the Shasta and Scott Sub-basins, there has as yet been no movement to declare drought in the lower, California portion of the Basin. 

                      

Is the Klamath drought real? 

There have been times when we've had “bureaucratic drought” in the Klamath River Basin...particularly in the period since the KBRA Water Deal was signed. Refuges have been dewatered even when run-off has been near average and Klamath River flows have been cut far below levels called for in the 2010 Coho Biological Opinion. 

This time, however, the concern about summer/fall water supply and streamflow appears to be well founded. The Natural Resource Conservation Service projects Klamath River basin streamflows will be 50 to 69% of “average” this summer and fall. For comparison, last year flows were projected at 70 to 89% of the long term average.

Sometimes a wet spring mitigates the impact to growers resulting from lower winter precipitation by increasing soil moisture, thus reducing the need for irrigation. This year, however, soil moisture is way down from average – particularly in the Lost River Basin where most of Klamath Irrigation Project water use occurs.

                  

So what is really going on? Why does the NRCS not find drought in the Basin even as forecasted streamflows and soil moisture indicate drought?

Pace on KBRA: "There is a better way"

On Thursday April 18th KlamBlog editor and chief writer Felice Pace made a public presentation in Klamath Falls in the Upper Klamath River Basin. Titled The Klamath Adjudication and the KBRA: Implications for tribal water rights, fish and wildlife, the presentation was requested by members of the Klamath Tribes who have joined together as the Klamath Claims Committee.

The focus of the presentation was on the State of Oregon's recent denial of the Klamath Tribes' claims to water rights above and below the former Klamath Reservation. Felice believes those off-reservation water rights are the key to restoring the Klamath Tribes' treaty fishing and hunting rights - including the recovery of Klamath River Salmon.

 The Klamath River below Klamath Falls (Keno Reach)

The State of Oregon denied the Klamath Tribes right to flows

needed to recover Klamath Salmon abundance  

Where federally recognized tribes have treaty guaranteed hunting and fishing rights, federal courts have ruled that they also have a right to the amount of water in stream needed to support a moderate living standard for tribal members relying on tribal fisheries. The hunting and fishing rights of the Klamath Tribes have been upheld by the US Supreme Court. Those rights were not terminated when the federal government abolished the reservation in the 1960s and turned reservation lands into the Winema National Forest. 

Leaders of the Klamath Tribes' elected government were apparently not happy that the presentation was made. The Klamath Falls Herald and News reported that tribal leaders issued a press release critical of the Klamath Claims Committee. The press release has not been posted to the Tribes' web site. The Herald and News also published a news report on the presentation itself. 

In his presentation, Felice pointed out that international norms endorsed by the UN and the USA require tribal leaders to obtain the "informed consent" of tribal members whenever they propose giving up important tribal rights. In the KBRA the Klamath Tribes have agreed not to assert tribal water rights whenever asserting those rights would result in curtailment of irrigation within the Bureau of Reclamation's 200,000 plus acre Klamath Irrigation Project.

Felice contends that it is precisely those water rights which are needed in order to recover Klamath Salmon and other tribal trust species like Kuptu and Tsuam (aka Shortnose and Lost River Suckers). The ESA can only prevent salmon extinction, but tribal treaty water rights could restore salmon to abundance.

The Klamath Tribes held two member votes endorsing the KBRA and the linked KHSA Dam Deal.  The Tribes must now decide whether or not to challenge Oregon's denial of their off-reservation water right claims in court. In Felice's view, honoring the principle of "informed consent" requires that tribal leaders discuss with members the connection between off-reservation water rights and the likelihood that Klamath Salmon and other tribal trust species can be restored to abundance: "tribal members need to be informed that the rights their leaders propose trading away are likely the key to whether or not salmon and other tribal fisheries can be restored to abundance." 

There is a better way

During the presentation Felice distributed several handouts. One of the handouts is reprinted below. Klamath Justice for All: An alternative vision to the proposed Klamath Basin Restoration Agreement (KBRA) presents an alternative to the KBRA. It is a direct response to those who contend that the KBRA may not be perfect but that there is no other viable alternative.

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