KWUA-NL-030703

Klamath Water Users Association

Weekly Update

March 7, 2003

Raley Outlines Bush Administration’s Philosophy on Western Water

U.S. Interior Assistant Secretary Bennett Raley earlier today in Las Vegas outlined the Bush Administration’s vision to address the growing water resources challenges in the Western United States. In his address to over 100 western water leaders, Raley suggested that review of President Bush’s 2004 budget for the U.S. Bureau of Reclamation (Reclamation) – including the $11 million Western Water Initiative – demonstrates the Administration’s commitment to Reclamation’s core mission: providing water to its customers, developing power, and meeting “other essential needs.” These latter needs include rising costs associated with protecting Reclamation’s critical infrastructure, as well as Endangered Species Act requirements outlined in fishery agency biological opinions that guide many of Reclamation’s western water project operations.

Raley noted that, while the 2004 budget responds in large part to recent concerns raised by western water interests, it contains funding elements that closely conform to Reclamation’s traditional core mission. In order to satisfy its objective to provide water, adherence to - and funding for - project operations and maintenance is a top priority. Improved security for Reclamation’s vast array of dams, pumping stations and delivery systems is also a key budget concern. The Administration’s top priorities, however, cannot simply be assumed by judging the numbers of dollars dedicated to specific purposes. For example, the Western Water Initiative only allotted $11 million out of the nearly $1 billion 2004 Reclamation budget. However, Raley stressed that the modest dollar amount provided for this initiative is not the significant issue.

“The importance of this initiative is that it got into the President’s budget,” Raley told the audience. “I urge you to look at the concepts that are in there.”

Raley also advised the group to pay close attention to the President’s budget provisions for rising security costs and reimbursement issues associated with environmental benefits. He further emphasized the President’s demands for accountable and efficient government, and suggested that water users should familiarize themselves with Interior and Reclamation strategic planning documents.

The troubles and challenges of the Klamath Basin were brought up several times during Raley’s presentation, and were further discussed in a question and answer session that followed his talk. Raley’s comments today closely paralleled those made by Interior Secretary Gale Norton two weeks ago at a law conference in San Diego (see inset, Page 2) when he addressed the topic of adjudication.

“I have a very serious concern that adjudication processes throughout the West are not working,” he said. “Much of the hell people are going through in the Klamath Basin – in terms of uncertainty – is driven by the lengthy, uncertain, and complex adjudication process that is underway.” Raley further noted that Secretary Norton is working with the U.S. Justice Department to “find ways to make adjudication work.”

Raley’s speech was presented at the annual meeting of the Family Farm Alliance, held in Las Vegas over the past two days. Poe Valley rancher Bill Kennedy, president of the Family Farm Alliance, and Dan Keppen, Executive Director of the Klamath Water Users Association (KWUA), participated in the discussion with Raley.

Family Farmers Looking to the Future – Learning From the Past

The Family Farm Alliance (FFA) annual meeting recently held in Las Vegas provided an opportunity for hundreds of water user representatives to share their experiences dealing with the challenges facing irrigators throughout the West. Increasing regulatory requirements imposed by implementation of Endangered Species Act (ESA), and the uncertainty associated with ill-defined tribal trust obligations were themes that surfaced repeatedly over the past few days. The uncertainty resulting from issues like tribal trust and ESA implementation is one of the key issues that the Family Farm Alliance addresses in its western water policy paper, entitled “Looking to the Future – Learning from the Past”. FFA believes it is possible for the West to continue to lead the world in agricultural production while finding ways to accommodate exploding urban growth and environmental needs, based on the following policy recommendations:

 The overriding goal of federal water policy must be to provide certainty to all water users; agricultural, tribal, municipal, industrial and environmental, who are dependent on commitments made by the government.

 When water laws and environmental laws conflict, balanced solutions that respect treaty and contractual obligations must be the goal.

 State laws and institutions must be given deference in issues relating to water resource allocation, use, control and transfer. The best decisions on water issues happen at the state and local level.

 Renewed and continued support for the development of new, environmentally sound, sources of water supply is essential.

Comments on Klamath Basin Adjudication
By U.S. Interior Secretary Gale Norton
American Bar Assoc. Water Law Conference
February 20, 2003

“Let me give you a real-world example to illustrate the dilemma of unquantified rights. The Klamath River basin spans the Oregon-California border. It became famous in 2001 when concerns over endangered and threatened fish forced Interior to stop farmers from irrigating.

In that river system, none of the water rights have been quantified, despite two decades of litigation. One tribe claims water for agriculture and forestry, farmers claim contractual rights from a Bureau of Reclamation project, non-project farmers have ample state-recognized rights for grazing, two tribes downstream claim water for salmon fisheries, and a wildlife refuge and hydroelectric plant have their own needs.

The competing claims far exceed the amount of water in the river. On top of that chaos, add the huge unpredictability of the ESA, with its regulatory restrictions on water use.

If rights were clearly quantified, then farmers and fishermen could sit down and begin resolving their differences. Farmers might pay fishermen to restrict harvests and thereby improve fish populations. Fishermen might lease irrigation water from farmers who fallow their fields. Rather than face-to-face dealings, the current situation leads to lobbying and protests and litigation, as each party seeks to enlist the external power of courts and federal agencies.

Before we reach the crisis point in other river systems that we have experienced in Klamath, I urge everyone to search for ways to resolve water rights expeditiously.”

Klamath Tribes File Amicus in PCFFA Litigation Against the U.S.

Attorneys for the Klamath Tribes have submitted an amicus curiae (“friend of the court”) memorandum on environmentalist plaintiffs’ motion for summary judgment in Pacific Coast Federation of Fishermen’s Associations, et al v. U.S. Bureau of Reclamation, et al. The Klamath Tribes’ memorandum emphasizes to the Court that if it determines additional water is necessary to protect Lower Klamath River fisheries, any additional flows for those purposes must not be allowed to further jeopardize endangered Upper Klamath Lake fisheries.

“There may be temptation, in order to protect the delivery of water for irrigation, to compromise the water supply of the Lake on which Reclamation’s treaty obligations and ESA compliance depend,” states the Tribes’ memorandum. “We respectfully urge that … Reclamation be reminded that 1) any additional Lower Klamath River flows cannot be taken from amounts on which Reclamation’s tribal trust and ESA compliance is premised, and 2) the Klamath Tribes’ rights take precedence over any alleged rights of the Irrigators in Reclamation’s irrigation project.”

The plaintiff environmental organizations brought suit in April of 2002 in the U.S. District Court for the Northern District of California, claiming that the U.S. Bureau of Reclamation (Reclamation) was in procedural violation of the Endangered Species Act (ESA) with respect to coho salmon. They sought a temporary restraining order that would preclude irrigation diversions if certain Klamath flows were not met. The application for temporary restraining order was denied on May 3, 2002. Subsequently, NMFS completed a biological opinion for operation of the Klamath Project for 2002 through 2012. Plaintiffs filed an amended complaint against NMFS last fall after the Lower Klamath River fish die-off, challenging both technical and legal matters in the biological opinion, and against Reclamation, alleging Reclamation is in violation of the ESA.

KWUA has intervened on behalf of the defendants in this case, which is scheduled for hearing on April 29, 2003.

CALENDAR OF EVENTS

Tuesday, March 11, 2003 – Klamath County Commission Meeting. 9:00 a.m. Klamath County Courthouse, Klamath Falls, Oregon.

Tuesday, March 11, 2003 – Public Meeting on Status of “Takings” Litigation. 4:00 p.m. Klamath County Fairgrounds, Klamath Falls, Oregon.

Friday, March 14, 2003 – KWUA Executive Committee Meeting. 1:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls.

Tuesday, March 21, 2003 - Public Hearing: Proposed NPDES General Permit for Irrigation Systems. 9:00 a.m.1:00 p.m. Jackson County Courthouse Auditorium, 10 S Oakdale, Medford.
Deadline for written comments is 5:00 p.m., March 31, 2003. For more information, go to http://www.deq.state.or.us/wq/wqpermit/wqpermit.htm

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net