Klamath Water Users Association 

 

Weekly Update

May 16, 2003

 

 

Ninth Circuit Hears Wild vs. Hatchery Case in Appeal of Alsea Decision

"Common sense, science, and the facts prevailed when Judge Hogan determined that a fish is a fish," Pacific Legal Foundation (PLF) Managing Attorney Russ Brooks on May 8th told a three-judge panel of the Ninth Circuit Court of Appeals considering the issue of Endangered Species Act (ESA) protections for so-called "threatened" salmon populations.

On appeal is the landmark Alsea Valley Alliance v. Daley decision issued by Federal District Judge Michael Hogan on September 10, 2001. At trial, PLF successfully invalidated the listing of the Oregon Coast coho salmon as a "threatened" species. Judge Hogan ruled that the National Marine Fisheries Service illegally distinguished between the plentiful hatchery-spawned salmon and so-called "wild" salmon. By listing wild salmon, while totally disregarding the genetically-identical, hatchery-spawned salmon, Judge Hogan found that the government violated the ESA. During argument on May 8th, PLF supported Judge Hogan's decision.

"The ESA does not allow bureaucrats to wade into a river and pick and choose coho, listing some but not others when they are all the same species. If the ESA allowed listings of only portions of species, federal agencies could list a spotted owl in one nest but not a spotted owl in another nest - even if they were living in the same old growth tree," said Brooks.

A second focus of last week’s hearing was PLF's argument challenging the District Court's order allowing the Oregon Natural Resources Defense Council to intervene and appeal the Alsea decision. PLF earlier filed a motion to dismiss ONRC's claims. -Source: Pacific Legal Foundation-


Plaintiffs Submit Columbia Dam Breaching Decision to Oakland Court

Plaintiffs in PCFFA et. al v. USBR et. al have submitted to a court in Oakland a recent decision by a federal judge in Portland regarding the breaching of dams in the Columbia River watershed. While the PCFFA lawsuit, set for hearing next Tuesday in Oakland, California, has nothing to do with breaching dams on the Klamath River, it does focus on a legal argument that plaintiffs successfully employed in the Portland federal court.

PCFFA plaintiffs claim that Klamath Project Operations actions outlined in the biological opinion (BO) authored by the National Marine Fisheries Service (NMFS) must be likely to be implemented before they may be considered “reasonably certain to occur.” According to the plaintiffs, the state and private actions proposed in the NMFS BO are not “reasonably certain to occur.” The water bank proposed by NMFS, which requires that 43% of contributions to the bank come from areas outside of the Klamath Project – and therefore, outside the U.S. Bureau of Reclamation’s jurisdiction – is an action that is not reasonably certain to occur.

In his decision on the Columbia River suit filed by environmental groups against NMFS, U.S. District Judge Redden described as "improper" the government's plan to protect 12 endangered species of salmon and steelhead. He wrote that there is no certainty that the government's proposed recovery steps will succeed or even get started in time to save disappearing salmon.

PCFFA plaintiffs apparently hope that Judge Saundra Armstrong will rule similarly in Oakland next Tuesday.

Bush Administration Report Lays Out Impressive Agency Efforts in Basin

Last March, the Bush Administration released "work plans" outlining actions being taken to ensure that farmers in the Klamath Basin have access to sufficient water, while complying with environmental law and Indian trust obligations.

The Klamath River Basin Federal Working Group (Working Group), a cabinet-level task force established by President Bush over one year ago, released a 13-page summary of actions undertaken by five bureaus within the Department of the Interior – the Fish and Wildlife Service (USFWS), the Bureau of Reclamation (Reclamation), the Bureau of Land Management (BLM), the Bureau of Indian Affairs (BIA) and U.S. Geological Survey (USGS) – and Department of Commerce’s National Oceanic and Atmospheric Administration National Marine Fisheries Service (NOAA Fisheries).

The Interior and Commerce programs focus on restoration of endangered fish and other trust resources and operations of the Klamath Project. The paper also identifies USDA programs that have similar objectives as well as meeting the needs of non-project farmers. The report provides an impressive summary of the myriad of efforts undertaken by all agencies to meet Indian trust responsibilities and requirements of the Endangered Species Act (ESA).

Water Resources

Klamath Project Water Bank – The 2002 Biological Opinion of NOAA Fisheries recommends that Reclamation establish a water bank of 50,000 acre-feet to meet minimum lake levels and supplement minimum river flows. Reclamation is providing $4 million for the Pilot Water Bank Program this year to pay irrigators to idle some of their cropland or have them use groundwater instead of project water to irrigate crops.

Water Conservation – Reclamation has administered a water conservation program for approximately 5 years. The program has funded water conservation studies in cooperation with irrigation districts and has implemented projects to improve irrigation efficiency, such as canal lining, replacing canals with piping, and adding flow measurement devices, among others.

Water Quality and Quantity

Rangeland Trust – Interior is funding improvements in the quality and quantity of flows into Agency Lake through a pilot project with the Klamath Basin Rangeland Trust (KBRT). Initiated in the summer of 2002, KBRT was funded to lease water rights from 3,161 acres of irrigated pastureland on ranches in the southern portion of the Wood River Valley and to provide the leased water for instream flows and Agency Lake. The pilot project has been expanded to additional acreage and extended for the 2003 water year.

Agency Lake and Wood River Ranches – Reclamation acquired the 7,159-acre Agency Lake Ranch in 1998, adjoining Wood River Ranch. The
Department and others in the Basin are looking to utilize adjacent lands to increase storage. Such additional storage could help supplement and stabilize Klamath River flows.

UKL Sediment Oxygen Demand – USGS, in cooperation with Bureau of Reclamation and in consultation with Oregon Department of Environmental Quality (ODEQ), will be measuring sediment oxygen demand in the Klamath River just below Upper Klamath Lake. This stretch of the Klamath River is in violation of State water-quality standards for dissolved oxygen, and represents a risk to endangered suckers.

Land Management Practices

Wood River Wetland Management - BLM purchased the 3,200 acre Wood River Cattle Ranch in 1994 in cooperation with the American Lands Conservancy and Reclamation. USGS began working with BLM in 2003 on an investigation of how best to reincorporate these former wetlands back into the Upper Klamath Lake system. The study will initially focus on quantifying how nutrient loads from wetlands change with different management strategies.

Road Treatments - To improve riparian areas, fish passage, and water quality, BLM has removed seven miles of road in the upper Klamath basin, permanently closed four miles, seasonally closed 18 miles, and improved 11 miles of roads in the upper Klamath Basin. Additional cooperative projects to remove, improve, and close roads have occurred on private land. In the Klamath, Six Rivers, and Shasta Trinity National Forests, the U.S. Forest Service conducts assessments and analyses and makes environmental improvement to its road systems, decommissions roads and storm-proofs roads at stream crossings. The Karuk Tribe has participated in the decommissioning of Steinicher Road, a forest road that was damaged by fill failure.

Juniper Management Treatments - Since 1998, BLM completed more than 9,000 acres of juniper treatments to recover herbaceous plant communities that were degraded by juniper encroachment. Juniper reduction also increases water availability for nearby shrubs and grasses, possibly improving stream flow and water yield.

Range Management - Since 1998, BLM completed 27 Rangeland Health Standards Assessments (65%, or 133,877 acres of approximately 208,000 acres grazed). Management changes include grazing rotation, additional riparian fencing, and increased use supervision and monitoring.

Riparian Restoration - In addition to riparian restoration accomplishments at Wood River valley, BLM has an ongoing riparian restoration program of shading, streambank stability, and nutrient and sediment capture and road treatments to improve water quality.

Prescribed Fire Management - Since 1998, BLM completed over 31,000 acres of prescribed burns. These prescribed fires benefit water quality, streamflow, and understory vegetation conditions as they reduce the risk of catastrophic wildfire.

Forest Management - Since 1998, BLM has treated 10,890 acres, making them more resistant to insects and disease and less susceptible to catastrophic wildfires.

Salmon Enhancement Programs

Programs and forums intended to improve conditions for Klamath River salmon have been initiated throughout the watershed. Key processes driven by federal government involvement include:

 Trinity River Restoration Program
 Coho Salmon Recovery Planning
 Pacific Fishery Management Council
 Klamath Fishery Management Council
 Steelhead Restoration and Monitoring Program

A state-wide recovery team overseen by the California Resources Agency is addressing impacts throughout all California streams and rivers where coho are found. In addition, a special recovery team was formed within the Scott and Shasta Rivers, tributaries to the Klamath River, made up of mostly local landowners and state and federal representatives to address impacts associated with agricultural issues in these two sub-basins.

Grant Programs

NOAA administers several grant programs to support restoration efforts in the Klamath River basin. In FY 2000-2002, NOAA Fisheries issued relatively large grants to the States of California and Oregon, and Klamath basin tribes (Yurok, Karuk, Hoopa and Klamath), through the Pacific Coastal Salmon Recovery Fund (PCSRF) for the purposes of restoring coastal salmonid habitat. Over this period, NOAA Fisheries issued grants of $41.1 million to California, $41.1 million to Oregon and nearly $3 million to Klamath basin tribes. NOAA’s FY 2003 appropriation includes $14 million for each of California and Oregon’s portion of the PCSRF funds. In 2001 and 2002, over $8 million in federal funds were allocated through this grant process to projects in the Klamath River basin. These projects include a wide range of activities from conservation easements; road inventory and restoration; fish passage improvements; public outreach; watershed planning, sediment source inventory and stabilization; fencing of riparian areas along streams; and species and habitat monitoring.

In addition, NOAA Fisheries provided grants to the Yurok Tribe in the late 1990's to investigate the impact of sea lion predation on salmon and steelhead populations in the lower Klamath Basin. The USGS is also working with the Yurok Tribe to assess the bioenergetics of juvenile Chinook salmon in the Klamath River Estuary. A model is being developed that can be used to estimate the response of salmon to habitat conditions in the estuary.

Fish and Wildlife Habitat Restoration

Sucker Recovery Action and Fish Screens – Reclamation has spent over $17 million on endangered sucker related recovery actions including spawning enhancement, fish screens and acquisition of Agency Lake Ranch. The A-Canal fish screen will be completed at a cost of about $12 million. Reclamation also installed fish screens at Agency Lake Ranch and Clear Lake. The 7,159 acre Agency Lake Ranch was purchased for $5 million in 1998 as off-stream storage for overall Project purposes, including environmental protection.

Klamath Basin Fish Screen and Passage Program Investigations Study Report - was completed in 2003 assessing future screen and passage priorities. Reclamation established a Fish Entrainment and Passage Working Group in 2002 to coordinate with other agencies.

Chiloquin Dam - The Chiloquin Dam Passage Feasibility Study Act provided authority for federal funding for a study of the feasibility of providing adequate upstream and downstream passage for fish at the Chiloquin Dam including review of all alternatives for providing passage, determination of the most appropriate alternative and development of recommendations for implementing that alternative.

Ecosystem Restoration

All three USFWS field offices in the basin – those in Klamath Falls, Yreka, and Arcata – have active programs for restoration of Klamath River basin wetlands and tributaries to the Klamath River and lands adjacent to Upper Klamath Lake and Agency Lake. Restoration projects included activities such as stream narrowing, streambank stabilization, and fencing cattle out of riparian zones. These projects are funded through the “Partners for Fish and Wildlife,” “ Jobs-in-the- Woods,” and the coastal programs of USFWS.

In the Upper Klamath Basin, Reclamation funded 69 projects at a cost of $1.8 million from 1994-2001. Reclamation projects included riparian fencing, marsh restoration, erosion control, stream restoration, fish screens, restoration assessments and design, ground water studies, juniper removal, environmental education, and species monitoring.

Between 1994 - 2002, the BIA has funded seven watershed restoration projects on the Hoopa Valley Reservation at a cost of $1.7 million. The BIA funded five watershed projects on Karuk Tribal ancestral lands at a cost of $700,000 and provided another 14 watershed restoration projects at a cost of $1.7 million on the Yurok Reservation. Also, since 1993, Reclamation has provided $12 Million to the Hoopa Valley Tribe for habitat restoration activities in the Trinity River Basin.

In 2003, Reclamation anticipates that it will provide the Yurok Tribe approximately $850,000 for a study of thermal refugia use by adult spring chinook salmon, radio tracking of yearling released coho salmon and steelhead, a survey of the mainstem Trinity River to document annual spring and fall-run Chinook salmon, and monitoring of Green sturgeon habitat utilization, among other projects.

Research, Monitoring, and Assessment

Upper Klamath Groundwater Study - The USGS in coordination with the Oregon Water Resources Department (OWRD) and Reclamation is conducting a seven-year study (to be completed in FY 2005) to quantify the groundwater resources of the upper Klamath Basin. The study will help resource managers safely use groundwater to increase Klamath Basin water supplies by identifying appropriate pumping rates, ideal pumping locations, effective monitoring methods, and improving annual water supply forecasts.

Agricultural Runoff - The USGS is monitoring temperature, dissolved oxygen, and other water quality factors related to fish habitat in the Lower Klamath Basin, and it the Tule Lake/Lower Klamath Lake areas. This work will assist the state of California agencies in meeting Clean Water Act requirements for TMDL (Total Maximum Daily Load) designations for the Lower Klamath, Shasta, and Lost Rivers. Numerical modeling studies are being designed to study these data, and to develop a tool for managing these load levels.

Since 1994, Reclamation has funded the Klamath Tribes to monitor long-term nutrient loading in Upper Klamath Lake from tributaries and agricultural drainage. Funds are also used to maintain hatchery-reared endangered suckers for research efforts.

Endangered Suckers Studies - The USGS has been monitoring adult suckers in the Upper Klamath Lake since 1995. More recently, the USGS, in cooperation with the Reclamation, has expanded its biological research and is conducting two studies of the endangered suckers in Upper Klamath Lake. In addition to the monitoring program, the USGS has been studying the habitats and habitat utilization of juvenile suckers since 2000 (through 2002). Since 1999, Reclamation, in conjunction with Oregon State University, has been evaluating larval and juvenile sucker habitat use, annual survival of larval and juvenile suckers, and the relative abundance and distribution of suckers in Keno Reservoir.

Pilot Oxygenation Project – Reclamation completed a report in 2003 to determine the feasibility of oxygenating Upper Klamath Lake to reduce the risk of sucker die-offs related to low dissolved oxygen conditions. The report concluded that the proposed project did not demonstrate that it would provide much benefit to water-quality conditions in the lake.

Lost River Sucker Fish Studies - Since 2002, Reclamation has funded studies to determine endangered sucker habitat conditions and presence below Clear Lake and Gerber Reservoir after irrigation deliveries are stopped in the fall. These studies assess habitat availability at different flow conditions.

Upper Klamath River Sucker Studies - Since 2002, Reclamation has also funded studies to determine how project operations affect sucker habitat in the Link River and Keno Reservoir. The degraded water quality of the Keno Reach has an adverse effect on the endangered Lost River and shortnose suckers, as well as other fish.

Klamath Wetlands, Shorebirds, and Waterfowl Studies

The USGS is researching the effects of decreased water supply to wetland areas in the National Wildlife Refuges and the resulting impacts on waterfowl, bald eagles, and shorebirds. Additionally, the USGS is participating in a cooperative pilot study in California that is evaluating wetland quality and the response to a wetland-cropland rotation cycle. The results will be used to develop computer models to evaluate management options for maintaining ecosystems that will support diverse and productive wetlands in coexistence with sustainable agriculture.

ESA-related Activities

In addition to the considerable funds and resources federal agencies continue to inject into ESA consultation activities for the Klamath Project, ESA-related efforts are also underway to develop a Habitat Conservation Plan for lands owned by Simpson Timber and to study green sturgeon in the lower Klamath River.

Outreach and Technical Assistance to Farmers

In implementing the 2002 Farm Bill, the U.S. Department of Agriculture’s Natural Resources Conservation Service conducts a host of conservation and technical assistance programs with farmers throughout the Klamath Basin. These programs include basinwide planning efforts, resource conservation programs, soil surveys, cultural resource assessments, snow surveys and water supply forecasting.

Additional Info on Federal and Local Actions

The complete report summarized above is listed as a notice in the Federal Register and is also available on the Internet at http://www.doi.gov/klamath. A similar report of proactive efforts undertaken by local water users in the past decade was prepared by the Klamath Water Users Association earlier this year, and can be viewed at: klamathbasincrisis.org, or a hard copy obtained by contacting KWUA at 541-883-6100. A partial list of the activities listed in the KWUA report are shown on Page 8 of this update.

Partial List of Efforts Undertaken by Klamath Basin Agricultural Interests

Local Efforts to Assist National Wildlife Refuges

 Voluntary, Early Shutdowns of Tulelake Irrigation District in 1992, 1994 and 2000 to provide more water for environmental purposes.
 Development of Integrated Pest Mgmnt Plan.

KWUA Ecosystem Enhancement and Sucker Recovery Efforts

 KWUA Sprague River riparian improvements: 14 miles of riparian fencing and other improvements implemented at a cost of $250,000.
 Development in 1993 and 2001 of two ecosystem-based, scientifically valid planning documents on Klamath Basin restoration.

Fish Passage Improvement Projects

 Screening the main diversion at the “A” Canal and Chiloquin Dam Fish Passage Improvement Feasibility Study.
 ODFW Fish Passage Improvements: 13 projects completed for $250,000; 40 more are planned at a cost of $1.3 million.

Wildlife Enhancement and Wetland Restoration Efforts

 Farmland to Wetland Conversions: Over 24,000 acres in the past 10 years.
 Klamath Basin Ecosystem Restoration Office Coordination with Landowners: 271 projects implemented by USFWS at a cost of over $10.5 million between 1994-2001. Over 100 of these projects, costing over $5.2 million, included private landowners as partners.
 Partnership-Driven Conservation Efforts Undertaken by the USDA and Local Conservation Districts: Over 16,000 acres of Oregon and California farmland managed for wildlife habitat.
 Oregon Department of Fish and Wildlife Partnership Projects: Since 1995, 40 projects have been completed at a cost of $346,000.
 Other watershed management efforts are underway Partial List of Efforts Undertaken by Klamath Basin Agricultural Interests through programs administered by Oregon Watershed Enhancement Board, the U.S. Forest Service, California Waterfowl Association, and other state, federal and private interests.

Local Efforts to Improve Water Quality

 Oregon SB 1010 Implementation: Local advisory committees are currently reviewing plans developed for the Lost River and Klamath Headwaters watersheds.
 Upper Klamath Lake Pilot Oxygenation Study
 Klamath Irrigation District (KID)– NPDES Permit: KID in July 2002 secured the first-of-its kind water quality permit from Oregon DEQ. The permit allows the district to apply aquatic herbicides to control weed growth under guidelines that protect the environment.

Efforts to Improve Project Supply Reliability

 2002 Environmental Water Bank: KWUA and local producers have spent hundreds of hours developing a dry-year water bank intended to compensate farmers for changing management practices that leave more water for environmental purposes.

Efforts to Improve Water Use Efficiency

 Over 350 growers have applied for 2002 Farm Bill funding to help cost-share projects that conserve water. All applicants are required to develop conservation plans for their property.

CALENDAR OF EVENTS

Tuesday, May 20th, 2003 – PCFFA et al v. USBR, et al. 1:00 p.m. 1301 Clay Street, #400 South, Oakland, California.

Wednesday, May 28th –Saturday, May 31st, 2003-Western Interstate Region Conference for the  National Association of Counties. John Ascuaga's Nugget, Reno/Sparks, Nevada. Featured General Session Speakers are: Mark E. Rey, Under Secretary for Natural Resources & Environment, US Department of Agriculture, and Craig Manson, Assistant Secretary for Fish, Wildlife & Parks, US Department of the Interior.

Monday, June 2nd, 2003, Klamath Hydro Relicensing Water Quality Meeting. 12:00 p.m. - 5:00 p.m., Windmill Inn, Ashland, Oregon.

Tuesday, June 3rd, 2003, Klamath Hydro Relicensing Aquatics Meeting. 8:30 a.m. - 4:00 p.m. Socioeconomics Meeting. 8:30 a.m. - 4:00 p.m. Windmill Inn, Ashland, Oregon.

Wednesday, June 4th, 2003, Klamath Hydro Relicensing Recreation/Cultural Meeting. 8:30 a.m. - 4:00 p.m., Aquatics Meeting. 8:30 a.m. - 4:00 p.m. Windmill Inn, Ashland, Oregon.

Thursday, June 6th, 2003, Klamath Hydro Relicensing Fish Passage/Aquatics Meeting: 8:30 a.m. - 12:00 p.m. Aquatics Meeting: 1:00 p.m. – 4:00 p.m. Recreation Meeting: 8:30 a.m. – 4:00 p.m. Windmill Inn, Ashland, Oregon.

Friday, June 6th, 2003, Klamath Hydro Relicensing Plenary Meeting: 8:30 a.m.-12:00 p.m. HSC Meeting: 1:00 p.m. – 3:00 p.m. (The HSC group may elect to meet Tues, Wed, and/or Thurs evenings). Windmill Inn, Ashland, Oregon.

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

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