Klamath Water Users Association
Weekly Update
Jun 6, 2003
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Klamath Water Users Association Weekly Update Jun 6, 2003
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Judge Armstrong Conducts Telephone Hearing Court Order Pending Federal district court Judge Saundra Armstrong yesterday presided over a 2-1/2 hour hearing by telephone with lead attorneys in PCCFA et al. v. USBR et al. After hearing arguments from environmentalist plaintiffs and federal defendants, the judge asked for additional clarifying information to be submitted to the Court by next Monday, June 9th. Despite the considerable discussion that took place, participants in the telephonic hearing are not much closer to understanding how the final decision will play out than they were last week. Were just going to have to wait and see what the judge orders, said David Haddock, attorney for the Pacific Legal Foundation, who is representing defendant-intervener KWUA in this case. In this case, plaintiffs allege that, for various reasons, the National Marine Fisheries Service (NMFS) Biological Opinion (BO) on the ten-year operation of the Klamath Project is unlawful. For these reasons, plaintiffs have asked the Court to: 1. Declare the final BO arbitrary and capricious and in violation of the Endangered Species Act (ESA); 2. Order NMFS to rescind the biological opinion and its accompanying incidental take statement; 3. Declare that Reclamation is in violation of its duties under the ESA; 4. Order Reclamation to reinitiate consultation with NMFS on a schedule set by the Court; 5. Enjoin any and all irrigation deliveries from the Klamath Project that would cause Klamath River flows at Iron Gate Dam to fall below 100% of the flow levels identified by NMFS in its May 16th, 2002 draft biological opinion. The Hoopa Valley Tribe and Yurok Tribe further contend that Klamath Project operations violated their fishing rights, and claim that Project operations caused the fish die-off that occurred last September. Earlier this week, Judge Armstrong issued an order that essentially set the agenda for yesterdays hearing. In that order, Judge Armstrong provided indications of how she might rule, and identified areas where she required additional input from the attorneys. Judging from the order and statements made in the hearing yesterday, it appears that the judge appears to have resolved two issues. The Court order demonstrated an inclination towards finding that NMFS' Reasonable and Prudent Alternative (RPA) is invalid and must be set aside because it relies on future actions by private parties that are not reasonably certain to occur. This issue was not substantively addressed in the hearing, and it seems certain the Court will make this finding. With respect to the Tribes' motion for summary judgment on their claims for breach of trust responsibility, the Armstrongs order noted her inclination to find that a genuine issue of material fact exists as to whether the operations of Iron Gate Dam during the summer and fall of 2002 caused, or could have prevented, the fish die-off in the lower Klamath River in September 2002. The judge yesterday refused to accept any more argument on this topic, which suggests that she will not make a conclusive statement about what caused the fish die-off at this time. In yesterdays conference call, the parties spent considerable time discussing whether it would be appropriate for the Court to find that the short-term and long-term flow levels proposed in the BO are not arbitrary and capricious, given the current state of the best available science. Discussion also focused on the appropriate flow rates for Reclamation that would avoid jeopardy to the coho salmon pending the completion of a valid RPA by NMFS. Plaintiffs argued that the flows proposed by the NMFS BO are arbitrary and capricious, in part due to insufficient analysis of the flows in the final BO. Federal defendants and KWUA advised the court that, in the short term, the flows described in the RPA fall squarely within what the 2002 National Research Council Interim Report found to be scientifically supportable. The judge has a range of short-term flow regimes that might be recommended to prevent jeopardy to coho. If the existing BO flows (with the water bank) are maintained, minimal impacts to the Project are expected. If the judge implements higher flows (100% of the final long-term flows in the BO, or the schedule included in the draft BO), there may not be enough water to meet lake levels, stream flows, and Project demand, at least for a portion of the irrigation season. KWUA attorneys expect Judge Armstrong to issue an order some time next week. We are hopeful that Judge Armstrong is interested in finding ways to fix the long-term NMFS BO without putting the Project at risk this summer, said KWUA attorney Paul Simmons. Nothing that happened yesterday, however, provides a real indication of what she will ultimately decide, other than that it appears she has concluded the BO needs fixing. Secretary Norton to Address Water 2025 Consulting Conference in Denver U.S. Interior Secretary Gale A. Norton will deliver the opening address to about 250 participants at the Water 2025 Conference in Denver today. The conference, Water 2025: Preventing Crises and Conflict in the West, is the first of nine consulting sessions in Western cities aimed at expanding the dialog on ways of preventing the chronic water supply problems facing many communities in the coming decades. Other speakers include Mark Rey, Undersecretary for the Department of Agriculture, Colorado Governor Bill Owens, Interior Assistant Secretary Bennett Raley, and Bureau of Reclamation Commissioner John Keys. Water 2025 is a blueprint for the Department of the Interior and other federal agencies to work with state and local officials, water user groups, environmental organizations, tribes, and others in a strategic, focused approach to predicting, preventing, and alleviating water supply crises and conflicts. Three panels featuring participants from throughout the West will discuss state and local perspectives on Water 2025, approaches to resolving conflict, and getting beyond crises management. Bill Pauli, President of the California Farm Bureau Federation and Craig Smith, Executive Director of the Family Farm Alliance are among the featured panelists, and Klamath County Commissioner Steve West traveled to Denver to participate in the meeting. Demand for water in the West is only going to increase and Water 2025 is designed to identify potential crisis areas before they happen, said Commissioner West. Klamath Tribes Hire Consultant to Study Sprague and Sycan Rivers The Klamath Tribes (Tribes) received approximately $250,000 from federal grant programs to develop a comprehensive assessment of the Sprague and Lower Sycan Rivers. The goal of this work is to use the understanding of historical and present river functions to guide recommendations for restoration that work within present day conditions. The Tribes have retained Graham Matthews and Associates (GMA) to complete the assessment. The results of this work - scheduled to be completed within the next year will be used to provide technical information for potential restoration actions on those streams. GMA made a presentation last night to the Sprague River Watershed Working Group. Private property owners interested in granting access to the river, or possessing field data they would be willing to share, were encouraged to attend. CALENDAR OF EVENTS Friday, June 6, 2003 - Klamath Hydro Project FERC Relicensing Plenary Meeting. 8:30 a.m. 12:00 p.m. Windmill Inn, Ashland, Oregon. Tuesday, June 10, 2003 KWUA Power Committee Meeting. 7:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls. Thursday, June 12, 2003 KWUA Executive Committee Meeting. 6:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls. 2003 Klamath Project Pilot Water Bank - Key Facts Contracts have been entered into between the U.S. Bureau of Reclamation (Reclamation) and Klamath Project landowners for the 2003 Project Pilot Water Bank. The following figures, provided by Reclamation, summarize the program that is currently underway. The pilot project water bank is intended to help meet the environmental water targets specified in the 2002-2012 Klamath Project Operations Plan. Crop Idling Contracts Signed .. 223 Acreage Enrolled (Total) . 14,456 Acreage Enrolled (California) ... 2,316 Acreage Enrolled (Oregon).. ...12,140 Groundwater Substitution Contracts Signed .. .. 92 Acreage Enrolled (Total) .. ...11,133 Acreage Enrolled (California) .. .5,133 Acreage Enrolled (Oregon) . ..6,000 Total Water in Bank: 59,651 AF Total Cost: $4,525,246 Source: USBR |
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