Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
Our Klamath Basin
Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
|
Feds ordered
to rework Klamath water opinion
http://www.capitalpress.info/main.asp?FromHome=1&TypeID=1&SectionID=67&ArticleID=3493&SubSectionID=792 Friday, July 25, 2003 Feds ordered to rework Klamath water opinion By TAM MOORE Oregon Staff Writer cappres@charter.net Farmers on the California-Oregon border celebrated promises of continued irrigation water this summer. Two American Indian tribes got recognition that federal irrigation diversions might have something to do with a massive fish kill. Federal resource managers were told to get their act together when it comes to protecting endangered coho salmon. That’s the short version of the 31-page opinion U.S. District Judge Saundra Brown Armstrong filed in denying requests for injunctions that could have shut down the U.S. Bureau of Reclamation Klamath Project’s 2003 operations and jettisoned a 10-year federal operation plan for the project. “We are in good shape,” said Dave Solem, manager of the Klamath Irrigation District and president of Klamath Water Users Association. “We will continue to operate under the (biological opinion) for this year.” The BuRec project, about 200,000 acres of cropland, figured in the much-publicized 2001 cutoff of water to 90 percent of the acreage. BuRec said at the time a drought-shortened water supply had to be saved to protect endangered fish – two sucker fish living in Upper Klamath Lake, the project’s main reservoir, and coho salmon in the main Klamath River below a dam that’s controlled by project operations. The Klamath drains a 10-million-acre basin shared by Oregon and California. It empties into the Pacific Ocean about 20 miles south of Crescent City on California’s far North Coast. In an attempt to get out of year-to-year plans and endangered species consultations, BuRec in 2002 announced a 10-year operating plan and carried out Endangered Species Act consultations for all three fish. Pacific Coast Federation of Fishermen’s Associations, a group of environmental organizations, and Rep. Mike Thompson, D-Calif., brought the suit last year, challenging BuRec’s 10-year operating plan and the National Marine Fisheries Service biological opinion for protection of Klamath River coho salmon. Armstrong later let the Yurok and Hoopa tribes enter the case to argue government irrigation operations were to blame for the September 2002 disease event that killed an estimated 33,000 fish bunched up just 18 miles inland from the Pacific Ocean. Klamath Water Users Association and several local governments also intervened in the litigation. Armstrong said in the opinion released July 15 that there’s a factual dispute over cause of the fish kill that needs a full-blown trial. She called for legal briefs this week and ordered attorneys to a July 31 telephone conference call sorting out trial details. The judge also noted that BuRec diversions from the Klamath’s main tributary, the Trinity River, could be considered in weighing the federal government treaty responsibility to sustain the downriver tribe’s fishery. The Trinity diversion, under judicial supervision of a federal judge in Fresno, goes to BuRec’s Central Valley Project and for all practical purposes makes up much of the seasonal water supply in the sprawling Westlands Irrigation District, west of Fresno. Here’s what Armstrong found in the complex case that in one form or another has been before her court since 2000: n Long term flow rates for the Klamath at Iron Gate Dam were set by NMFS, now called NOAA Fisheries, based on the best science available in 2002, are reasonable. Iron Gate is five miles east of I-5 in California’s Siskiyou County and over 60 miles downstream from the last BuRec project diversion. n Short-term flow rates proposed by BuRec are reasonable, but there’s certainly a dispute caused by “conflicting and uncertain scientific evidence” of what’s best for the fish. n NOAA Fisheries and BuRec made unfounded assumptions in taking a federal position that 57 percent of Iron Gate discharge should be assigned to the Klamath Project and 43 percent to other water users beyond federal control. “There are serious concerns as to whether the future actions by states or tribes ... will provide the additional 43 percent of the flow rates necessary” to protect the coho, Armstrong wrote. n NOAA Fisheries violated the law by not setting the number of coho salmon deaths that would trigger a new consultation on fish protection. Armstrong called it an “absolute failure to comply” with requirements of a valid “incidental take statement” required when a federal action may harm a protected plant or animal. Armstrong ordered NOAA Fisheries to fix its Klamath biological opinion, but she didn’t set a timetable. What’s problematic, she said, is the delivery of non-project flows to satisfy the total downstream requirement. Armstrong found that becomes an issue in 2010 under a phase-in set by the NOAA alternatives to the original BuRec 10-year plan. As a practical matter, events will overtake that part of the order. Senior federal officials have said there will be new Klamath consultations after the National Research Council issues a final scientific review of the 2001 water cutoff and the 2002 fish kill. The report is out for review this summer; public release of a draft is expected in early fall. The Cabinet-level Klamath River Basin Federal Working Group has promised to issue its recommendations for a cooperative resolution of Klamath issues sometime shortly after the NRC report appears. Meanwhile, BuRec this year launched what will probably be a two-year environmental assessment process for the 10-year operating plan, and it began the first meetings that might produce written agreements on the 57-43 percent water supply assignment. That issue is complicated because Oregon hasn’t adjudicated most federal water right claims in the upper basin. In a footnote to her order, Armstrong dismissed assertions that treaty rights of lower river tribes weren’t honored when the federal government failed to consult on how Klamath Project operations might impact chinook salmon, which suffered the most loss in the fish kill. She faulted NOAA for not consulting, but said the controlling law, called the Magnuson-Stevens Fishery Conservation and Management Act, doesn’t impose a duty of managing Indian resources. Curtis Berkey, an attorney for the Yuroks, said there is the possibility of an out-of-court settlement between the tribes and BuRec, but no indication the government wants to talk. “At this stage nothing is being discussed,” he said. Freelance writer Dylan Darling contributed to this report from Klamath Falls, Ore. Tam Moore is based in Medford. His e-mail address is cappres@charter.net. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml |
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