Klamath Water Users Association 

Dec 31, 2003

The Klamath Water Users Association (KWUA) in 2003 was actively engaged in a variety of forums to further the association’s mission of helping Project irrigation districts deliver water to their customers. Top water-related stories of the past year are discussed below. The following summarizes KWUA’s efforts in the past year to represent local irrigators in the political, legal and media arenas. It also outlines KWUA’s engagement in technical, administrative and regulatory issues, as well as planning and outreach activities.

Klamath Project irrigators in late June experienced a roller coaster ride of emotion as growing concerns over plummeting Upper Klamath Lake (UKL) levels led federal officials to take drastic action regarding Project diversions. Early on the morning of June 25th, local irrigators were told by U.S. Bureau of Reclamation (Reclamation) officials that UKL diversions to the Project later in the day would be shut down for a minimum of 5 days. By day’s end, after further consideration of the dire ramifications associated with such a move, Reclamation backed off its initial request and instead notified farmers to continue their efforts to reduce diversions from the lake.

A decision by the U.S. Fish and Wildlife Service (USFWS) later in the week to hold minimum lake levels to the average of the levels associated with the two water-year types designated in June helped prevent a "bust" of the June minimum lake level. All of events of late June were driven by one apparent agency mission: to avoid dropping Upper Klamath Lake one inch below a lake level requirement established by the USFWS.

Throughout the week, considerable discussion between water users, Reclamation and Oregon Water Resources Department (OWRD) focused on the recent water year change, particularly since it did not reflect the recent drastic drop in UKL inflows. On June 13th, Reclamation changed the water year type from "dry" to "below average", primarily due to an extraordinarily wet April. As a result of the year-type change, minimum levels established by the USFWS for suckers in UKL jumped by seven inches, while flows required by NOAA Fisheries for coho salmon downstream increased by 600 acre-feet per day. With little to no lake inflows to offset the new downstream demands, water users were confronted with a crisis that seemingly came out of nowhere.

"The combination of low inflows and the regulatory reallocation of Project water towards increased lake levels and higher downstream flows has led to the current crisis, despite the fact that Project irrigators substantially reduced their demand in the past week," said Klamath Irrigation District manager Dave Solem, at the time.

Both Governor Kulongoski and the Bush Administration stepped up for Klamath Project farmers and ranchers and helped avert this crisis. The Klamath Congressional delegation – including Senator Gordon Smith, Rep. John Doolittle, and Rep. Wally Herger – pressed hard in Washington to keep water flowing. Representative Greg Walden worked for much of the day on Wednesday bringing the crisis to the attention of the White House. "We are truly fortunate that our leaders in the Bush White House, the Klamath congressional delegation, and Governor Kulongoski intervened to inject some common sense and avoid a potential economic catastrophe in our community," said Sam Henzel, a landowner in Klamath Drainage District.  

"It is unbelievable that it almost got to that point," added Dave Cacka, a Malin farmer. "We were actually talking about shutting down a community for one week in the middle of a hot summer for one lousy inch of water."

Senior agency officials from California, Oregon and the federal government met the following week in Klamath Falls with local water users and tribal interests in an effort to avoid further crises like the one in late June. Despite five hours of open discussion, some posturing, and debate, the solutions that came out of the meeting essentially dropped in the laps of Project irrigators. Increased reliance on local groundwater supplies – and if necessary, partial irrigation cutbacks to local farms and ranches - were viewed as necessary actions to reduce diversions out of UKL for the remainder of the summer.

A focused effort to reduce Klamath Project diversions out of UKL coupled with a decision in early July by Reclamation to rescind an earlier decision to change the water year type ultimately helped Project interests to meet regulatory lake levels for endangered sucker fish. Based on current hydrologic conditions, Reclamation notified the USFWS that it would rescind the "below average" water year type announced on June 13, and replacing it with a "dry" year classification. The decision only applied to the lake elevation conditions on Upper Klamath Lake, and not the flow conditions established in the NMFS biological opinion for coho salmon.

Klamath Project irrigators took action – including curtailment of supplies, conservation measures, and in-lieu groundwater pumping - intended to reduce diversions by an average of 20 percent during the remainder of July. The intent was to reduce diversions, which were running at 1,600 cfs or higher earlier in the month, to an average of 1,350 cfs for the remainder of those months. In early July, net Project diversions dropped as low as 1,150 cfs.

"Project irrigators reacted in a positive way to help Reclamation meet lake elevations," said Dan Keppen of KWUA. "In a situation where they could have bowed their backs, they voluntarily stepped up to find ways to avert a crisis. They achieved results."

Hot weather and an active algae bloom contributed to deteriorating water quality conditions in Upper Klamath Lake in July and early August, raising concerns with government biologists that a fish die-off in the lake might occur. Dissolved oxygen (DO) levels in the northern portion of Upper Klamath Lake dropped to near 2.0 milligrams per liter, a level that can quickly kill endangered suckers. Hot weather and concentrations of algae were also being blamed for a die off of chubs and minnows along the Klamath River this week. However, a mass die-off of suckers never materialized, as weather cooled and water quality conditions apparently improved.

After a yearlong barrage of criticism and blame stemming from advocates for higher Klamath River flows, Klamath Project irrigators in October were vindicated by long-awaited findings from the National Academy of Sciences (NAS). The final report from the NAS Committee on Endangered and Threatened Fishes in the Klamath Basin by KWUA and many others as a critical step towards ensuring proper assessment and maintenance of healthy fish populations. The final NAS report is important to local farmers and ranchers for several key reasons:

• The report clearly indicates that recovery of endangered suckers and threatened coho salmon in the Klamath Basin cannot be achieved by actions that are exclusively or primarily focused on operation of the Klamath Project.

• The committee also reconfirmed its findings from an earlier report that found no evidence of a causal connection between Upper Klamath Lake water levels and sucker health, or that higher flows on the Klamath River mainstem help coho salmon.

• The NAS committee determined the operation of the Klamath Project was not the cause of the 2002 fish kill and that changes in the operation of the project at the time would not have prevented it.

This latter issue – a matter of considerable controversy in the past year – was seen by many irrigators as vindication of local views that were largely ignored in outside media coverage of the fish die-off. Despite last summer’s decision by federal judge Saundra Armstrong, which did not link Project operations to the fish die-off, environmentalists and many in the media continue to maintain that the Klamath Project was responsible for the fish deaths.

A long awaited report released by the USFWS last fall cites an "unusual combination of factors" that led to the deaths of over 34,000 salmon and other fish in the Klamath River in 2002. The report’s findings are generally consistent with those contained in a comprehensive report prepared by the National Academy of Sciences. However, critics of the Klamath Project quickly zeroed in on one of the factors identified by USFWS – low flows – and used the report’s release as an opportunity to turn up the heat on the federal government and Project irrigators.

One year after the unfortunate die-off of 33,000 salmon on the lower Klamath River, vocal critics of Klamath Project operations and Bush Administration environmental policy used the die-off anniversary to renew their now-familiar arguments. Even though the fish die-off occurred 200 miles downstream from the Project, at a location below the confluence of the main stem Klamath River and the Trinity River, traditional advocates for higher river flows quickly assigned blame to Klamath Project farmers and ranchers. Some of these same interests and others in the environmental community have even attempted to directly link the fish die-off to political maneuvering orchestrated by senior policy officials in the Bush Administration. As a result, presidential hopeful Senator John Kerry has called on the U.S. Interior Department's Inspector General to look into

whether "political pressure from the White House is intimidating staff and influencing policy" in Klamath River management decisions.

In the past year, the fish die-off has been effectively spun by Klamath Project critics to drive a dizzying array of attacks aimed at the Bush Administration and federal agencies responsible for Klamath Project management. Well-coordinated media coverage surrounding several acts of litigation and proposed federal legislation in the year since the fish die-off have effectively imprinted the environmentalists’ message in the minds of many:

• "Fish need water";
• "Klamath Project farmers were denied water in 2001 and no fish died in the Klamath River";
• "Klamath Project farmers received full supplies in 2002, and 33,000 salmon died in the river";
• "The Bush Administration sacrificed fish for the benefit of farmers."

The claims discussed above are just a few of the more prominent arguments that Klamath Project critics have employed to justify a series of actions undertaken in the past year, including the following:

• Federal legislation that would finalize the draft Hardy flow report.
• Unsuccessful federal legislation that would restrict the ability of local lease land farmers to grow row crops.
• Litigation (PCFFA v. USBR) that, if successful, would have likely shut down Klamath Project operations in 2003.
• Public protests staged by tribal members and environmentalists in Klamath Falls one year ago and in Sacramento in 2003.
• Listing of the Klamath River as the third most endangered waterway in the country by American Rivers.
• An unsuccessful lawsuit filed by environmental groups against NMFS to hasten the potential ESA listing of the green sturgeon.
• The release of an Oregon Natural Resources Council (ONRC) report, which contends that voluntary buyouts of willing sellers within the Project "remain the most politically responsible, socially just, and economically viable method" to address power and ecological challenges.
• A subsequent letter sent by ONRC to Project landowners, tempting them with the promise of a buyout that would provide them with 2 ½ times the fair market value of their land.
• Numerous editorials, journal articles and magazine stories that clearly accept the arguments made by Project critics.

The Klamath Tribes in December unveiled its plan to manage the forests of former reservation lands that are now part of the Winema and Fremont National Forests. The release of the plan coincides with growing community concerns that have surrounded recent public meetings hosted by the Tribes. The U.S. Department of the Interior has been working with the Tribes for over a year to develop a package-yet to be released -intended to resolve water rights disputes in exchange for a tribal land return and funding for ecosystem restoration. The return of reservation lands to the Tribes has generated a tremendous amount of controversy, particularly among private landowners adjacent to existing national forest lands and sportsmen who fear future restricted access into these lands.

KWUA has been involved with informal discussions with the Klamath Tribes and upstream irrigators, seeking a potential balance to Basin-wide water needs. To date, KWUA has not endorsed or rejected any proposal of the Klamath Tribes.

The Klamath Basin this year continued to be a priority area for Bush Administration funding. The $2.2 trillion budget released early in the year by the Administration included substantial provisions to ease the conflict over Klamath River water.

In a move that signals improved coordination between federal agencies managing Klamath Basin resources, the Bush Administration in 2003 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, a cabinet-level task force established by President Bush in 2002, made available work plans for the Klamath Basin from several key agencies within the departments of Agriculture, Commerce and Interior. The work plans detail the hundreds of long- and short-term projects the Federal government is working on to solve the economic and environmental challenges confronting the Klamath Basin.

President George W. Bush visited Redmond, Oregon last summer and laid out his vision for healthy forests in the West to an audience of 250. With several dozen Klamath Basin residents in attendance, the president also touched on broader environmental policy issues, including the role his administration is playing in the Klamath River watershed.

"You've got an issue in the Klamath Basin and we've been trying to come up with reasonable policy so that people can farm the land and fish can live at the same time," Bush said to the audience, which erupted in applause.

White House Official Speaks at 49^th KWUA Annual Meeting

David Anderson, a key player in President Bush’s Klamath Basin Federal Working Group, was the featured speaker at the 49^th KWUA Annual Meeting at the Oregon Institute of Technology on April 24th. Anderson, the White House’s point man on President Bush’s federal Klamath Basin Working Group, emphasized the president’s commitment to agriculture and the need for locally-driven solutions to Basin water challenges.

John Keys, the Commissioner of the U.S. Bureau of Reclamation, on a warm April evening stopped by the KWUA office and chatted briefly with the association’s executive committee, which was conducting its monthly meeting. Keys provided a brief preview of the 2003 Klamath Project Operations Plan and expressed his appreciation for local water users’ involvement in the 2003 Environmental Water Bank project.

For the second time in the past year, refuge lease land legislation introduced by U.S. Representative Earl Blumenauer (D-Portland) was defeated in the House of Representatives. This year, more lawmakers – including 23 Democrats – voted against the measure, which failed by a 228-197 vote on the floor of the House. Importantly, the rest of the Oregon delegation, including three Democrats and Republican Greg Walden (R-OR), opposed Blumenauer’s proposal. Congressman Wally Herger (R-CA) and Walden were joined on the House floor this year by an impassioned John Doolittle (R-CA) in attacking the proposed amendment. The failed legislation aimed to prohibit the Bureau of Reclamation from issuing leases to farmers planting alfalfa or row crops in the Lower Klamath and Tule Lake National Wildlife Refuges.

KWUA and the Tulelake Growers Association (TGA) spearheaded opposition to the amendment and were joined by several other western and national agriculture organizations. Blumenauer’s amendment was backed by a number of environmental groups, including the Sierra Club and the World Wildlife Fund.

California’s two Klamath Project congressional representatives visited the Klamath Basin in August to tour the area and meet with local elected officials, producers and water officials. U.S. Representatives John Doolittle and Wally Herger each visited Tulelake, California at separate times during the same week. The meetings were organized by TGA.

Congressman Greg Walden in September delivered a letter to U.S. Interior Secretary Gale Norton that outlined concerns regarding four critical issues in the Klamath River Basin. Walden – along with California Representatives Wally Herger and John Doolittle – signed a letter that urged Interior Department action towards delisting of Lost River and Shortnose sucker fish, provide additional water storage in the Basin, and lead to a better understanding of the events that precipitated the September 2002 Klamath River fish die-off.

House Republican Conference Secretary John T. Doolittle announced in September that the House of Representatives has passed his comprehensive water management plan that will increase water supplies throughout his vast Northern California district.  Included in this package is $25 million for water infrastructure projects in the Upper Klamath River Basin. 

Approps Bill Includes $2.6 Million to Reimburse Klamath Project Irrigators

U.S. Congressman Greg Walden this fall announced that his request for significant funding for the Klamath Basin was included in the annual Energy and Water Appropriations bill (HR 2754).  Included in the bill is $2.6 million in refunds to reimburse farmers and ranchers who were required by law to pay for the operation and maintenance of the irrigation system in the Klamath Project in 2001 despite receiving virtually no water as a result of a decision by the federal government.  Walden introduced and President Bush signed into law last year the legislation that paved the way for the allocation of funds for the reimbursements.

The funding for the operation and maintenance reimbursements was included in a larger sum of $25.4 million in federal funding for the Klamath Basin in the annual Energy and Water Appropriations bill, the majority of which will go toward the operation of the Klamath Project.  This figure represents an increase of $8.9 million over last year's funding level of $16.5 million for the Klamath Project.  Authorizing provisions that replicate language included by Rep. John Doolittle in the House version of the Water Resources Development Act (see above) were also included in the conference report.

A handful of Klamath Project water users, southern Oregon agricultural producers and businessmen this summer joined Congressman Greg Walden in a one-hour roundtable discussion with Congressman Dennis Hastert, Speaker of the U.S. House of Representatives. The meeting was part of a fundraising event held for Congressman Walden at the Rogue Valley Country Club in Medford.

Oregon’s new governor, U.S. Senator Gordon Smith and U.S. Representative Greg Walden all paid visits to the Klamath Basin during one April week, and the key topic of discussion for all three was water. Senator Smith met with local water users at KWUA, where he was briefed on the PCFFA et. al v. USBR et. al lawsuit. Later in the week, Governor Ted Kulongoski and Rep. Walden teamed up and spent two hours with local water users, county commissioners and community leaders, stopping by a local farm and touring the recently completed "A" Canal fish screen and headgates.

U.S. Congressman Richard Pombo (R-CA) – a strong ally of Klamath Basin farmers and a proponent of Endangered Species Act (ESA)

reform – in 2003 became the new chairman of the House Resources Committee. Assuming the helm of this important committee puts Pombo in a position to oversee fisheries conservation, water resources, and power issues.

Because the Klamath Project spans two states, KWUA is involved with political matters in both Salem and Sacramento. While federal matters took precedent in 2003, KWUA also had dealings with policy makers at the state level and with local governments in three counties. On the California side, KWUA sought to establish new relationships and solidify existing ones with the administration of Governor Schwarzenegger through interaction with members of the new governor’s transition team. In Oregon, KWUA helped stop several legislative maneuvers intended to prolong the Klamath River adjudication process. Importantly, local irrigators developed a healthy relationship with Governor Kulongoski, who has demonstrated both empathy and taken action for Klamath Project irrigators in his first year of office.

In August, staff members from the office of Oregon Governor Ted Kulongoski brought together a diverse group of stakeholder and agency representatives to put forth a call for assistance to help Klamath Project irrigators. The result: a letter signed by ten diverse interests – including the governor’s office - that was circulated to elected officials and non-profit funding organizations. The governor’s advisors spearheaded the effort to try to secure funds to compensate Klamath Project water users who voluntarily switched to backup groundwater supplies last summer.

The State of Oregon in April filed a motion for leave to appear as amicus curiae – "friend of the court" – in litigation heard this summer in Oakland. Oregon’s action in this matter was announced only weeks after three counties in Oregon and California joined local water users and submitted amicus briefs of their own. The litigation is entitled Pacific Coast Federation of Fishermen’s Association (PCFFA), et al. v. U.S. Bureau of Reclamation, et al, and KWUA, Tulelake Irrigation District and two local growers intervened on behalf of the federal defendants in this case, which was heard in July.

Despite last minute maneuvering by its proponents, a bill that would have cast great uncertainty on ownership of water rights died in the waning hours of the Oregon Senate this year. SB 590 was amended by the Oregon House of Representatives to include provisions of HB 3298, a controversial water rights ownership bill with potentially grave implications for Klamath Project water users. The Senate three days later, led by Senator Ted Ferrioli, voted to not concur with the House amendment. Earlier in the week, Governor Kulongoski sent a letter to House members expressing his opposition to the ownership provisions. Senator Steve Harper of Klamath Falls also played a key role in the preceding months to lead Senate opposition to HB 3298 / SB 590.

KWUA in May opposed HB 3298 because of its possible implications for Klamath Basin adjudication and the ongoings "takings" litigation. KWUA, the Oregon Water Resources Congress, and others had previously recommended that the ownership issue be more fully vetted and carefully considered before a longer-term work group in order to seek a more acceptable outcome for all parties. OWRD has committed to undertake some rulemaking to work on the issues that led to the introduction of this bill.  

California Assemblyman Doug LaMalfa in February spoke to the 2003 Tulelake Grower’s Association annual meeting held at the Intermountain Research Extension Center in Tulelake, California. LaMalfa, who grows rice near Chico, California, was briefed on key issues, described his new role and priorities in Sacramento, and answered questions posed by local growers.

In the past decade, the contentious nature of long-simmering water and environmental disputes in the Klamath River watershed has catalyzed litigation regarding water rights priority, Klamath Project operations, lease land farming, tribal water rights and other issues. In the past year alone, environmental activists have filed several new lawsuits, primarily aimed at the federal agencies that have some jurisdiction related to the Klamath Project. While the agencies are usually the targets of the litigation, Project irrigators ultimately feel the consequences if environmentalist plaintiffs are successful. In 2003, the court case that captured the most attention was PCFFA et al v. USBR et al, discussed in detail below.

Weeks of speculation and hand wringing were brought to an end in July, when federal district court Judge Saundra Armstrong issued her order on PCCFA et al. v. USBR et al. The judge’s 30-plus-page order – trumpeted by environmental plaintiffs as proof positive that the Bush Administration plan for Klamath Project operations is flawed – actually calls for very modest adjustments to the plan. Importantly, the decision has no impact on current and near-term Klamath Project operations, and does not direct federal agencies to adjust any flow recommendations for coho salmon.

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 in 2002 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 Act. The Yurok Tribe and Hoopa Valley Tribe also intervened in the case.

The Reasonable and Prudent Alternative (RPA) and Incidental Take Statement (ITS) contained in the NMFS 2002 BO are arbitrary and capricious, according to Judge Armstrong. While plaintiffs are already underscoring the Judge’s ruling that the BO is "in violation of the Endangered Species Act", Judge Armstrong did not simply discard the NMFS document. Rather, she remanded the BO to NMFS with instructions to amend it to address the deficiencies she noted.

Despite the serious tone contained in Armstrong’s rulings on the NMFS B.O., the actions directed to address these concerns have very little impact on Klamath Project irrigators. While the judge ordered that the 2002 B.O. be remanded back to NMFS for revision, the Court declined to vacate and set aside the 2002 B.O. in the interim. The fact that Project irrigators are able to continue to receive take coverage under the existing B.O. while NMFS revises the document is critically important.

The bottom line to Project irrigators is this: Judge Armstrong directed that a few, specific modifications be made to the existing NMFS B.O. to address her concerns. Her judgment in no way altered NMFS’ recommended flows for the Klamath River. More importantly, Judge Armstrong did not adopt the flow schedules proposed by the plaintiffs, which would have had serious consequences for Klamath Project irrigators.

Downstream tribes argued in PCFFA that Reclamation failed to provide adequate flow levels in the Klamath River in August and September 2002, resulting in the 2002 fish die-off that occurred on the lower Klamath River, in violation of the United States’ duty to protect the Tribes’ federal reserved fishing rights. Biologists for the tribes and KWUA provided evidence on this matter, which Armstrong closely considered. The declaration submitted by KWUA fisheries biologist Dave Vogel proved to be an important factor in this aspect of the case.

Based on the conflicting evidence presented by the parties regarding the cause of the fish die-off, Armstrong found that a "triable issue of fact" exists as to whether Reclamation breached its duty to the Tribes through its operation of the Klamath Project. Accordingly, the Court denied the Tribes’ motions for summary judgment on this matter. A separate trial to address this issue further is scheduled for the spring of 2004.

In the past year, local water users have generally intervened only in support of the U.S. government, which has generally been on the defensive end of litigation, particularly since the September 2002 Klamath River fish die-off. In 2003, KWUA was also involved several ongoing lawsuits involving Clean Water Act issues, the Rio Grande silvery minnow, farming practices on the lease lands, and aquatic herbicides.

On January 30, 2003, two environmental groups served a 60-day notice of intent to sue under the ESA concerning exports of water from the Klamath River Basin to the Rogue River basin. The notice asserts that Reclamation Projects divert 30,000 acre-feet of water to use in the Rogue River basin, and there has been a failure to comply with the ESA with respect to Klamath Basin coho and suckers, Rogue basin, coho, and other listed species.

The U.S. Office of Special Counsel (OSC) last spring determined that allegations made by a NMFS "whistleblower" did not warrant further investigation and that the file for this case would be closed. NMFS biologist Michael Kelly alleged a violation of law, rule, or regulation and gross mismanagement by agency employees during the 2002 formal consultation on Klamath Project operations with the U.S. Bureau of Reclamation. Kelly filed for protection under the federal Whistleblower Statute last year, in a move that was highly publicized by environmental advocates immediately after the lower Klamath River fish die-off. In a March 5, 2003 letter to Kelly, OSC declined to take further action on Kelly’s claims.

The U.S. Department of Justice on March 18^th filed a report with a federal court in Fresno that recommends establishing an emergency allocation of Trinity River water to avert another adult salmonid die-off on the lower Klamath River. The report, prepared by the U.S. Fish and Wildlife Service (Service), was submitted to the court in response to a judicial directive at a hearing held on March 5, 2003 for Westlands Water District vs. U.S. Department of the Interior and Hoopa Valley Tribe.

The Service prepared the report to address the concern that a significant adult fish die-off, similar to the situation experienced in the lower Klamath River last summer, could recur this year. The report suggested that providing additional Trinity River water above normal year flows may reduce fish densities in the lower Klamath and draw Trinity fish out of the Klamath and into the Trinity River. Those flows were ultimately set aside and released late last summer by Reclamation.

The ongoing Klamath River adjudication proceedings are critical to the future of all water users in the Klamath Basin. The adjudication process will confirm and quantify water rights on the Oregon side of the Basin. While not a direct participant in the adjudication process, KWUA does provide administrative assistance to ensure that legal and technical consultation fees are equitably distributed to participating parties in the Project water community. There are also several areas where activities undertaken for adjudication purposes can serve to assist the association’s involvement with other issues, and vice-versa.

A State of Oregon hearing officer panel on April 3^rd dismissed WaterWatch of Oregon – an advocacy group and strong critic of Klamath Project agriculture – from the ongoing Klamath River adjudication process. Over two-dozen irrigation districts and local business interests filed multiple motions, which ultimately led to the panel’s decision to dismiss WaterWatch from the water rights adjudication process.

Project irrigators last year filed the first motion to dismiss WaterWatch as a party, asserting that WaterWatch did not have standing to contest the claims in this case. To substantiate its involvement with the adjudication process, WaterWatch relied upon two Klamath Basin properties for which it had a one percent interest in each case. One property is within a shopping center Klamath Falls and is occupied by Schlotzsky’s Delicatessen. This property does not receive Klamath Project water from Klamath Irrigation District (KID) and is not part of the lands covered by any claim filed in this proceeding.

WaterWatch apparently acquired the one percent interest in the other property from a limited liability company acting through Rich McIntyre, a local consultant with the American Land Conservancy. In that latter transaction, the one percent interest was reconveyed back to the owner in July of 2000, just two months after the contests were filed and the one percent interest had been acquired. In both cases, claims the irrigators, the one percent interests were acquired very shortly before, or virtually on the day of, the deadline for filing the contests in the adjudication proceeding. The motion to dismiss stated that WaterWatch "acquired the respective interests exclusively in order to be able to file contests, and for no other reason whatsoever."

Last January, the State Hearing Officer Panel issued an order denying the irrigators’ motion. At that time, the State concluded that WaterWatch had standing because the Schlotzky’s property in which WaterWatch had an interest in was subject to assessment by KID, although the property is not irrigated by surface water.

On March 7, 2003, Project irrigators filed a renewed motion after KID adopted a resolution exempting the Schlotzky’s property from any assessments by KID. The new motion claimed that WaterWatch had no "interest in the stream involved in the determination". The State Hearing Office Panel on April 3^rd agreed with this new motion, and found that WaterWatch’s property interest no longer can be practically affected by any order in adjudication.

While KWUA reviewed and prepared comments on nearly a dozen substantial reports in 2003, the association and its members also dedicated time and effort towards addressing the numerous other administrative and regulatory processes that confront local water users.

KWUA in 2003 released two reports prepared in the past year that address temperature, flow and habitat considerations on the Klamath River. One report specifically addresses the conditions before, during and after the unfortunate die-off of 33,000 fish on the lower Klamath River in 2002. The other study assesses important assumptions made in a controversial draft flow report developed by Dr. Thomas Hardy in 2001. David Vogel, a fisheries scientist with Natural Resource Scientists, Inc. authored both of the following reports:

This report was selectively distributed two weeks ago to provide input to a technical group gathered to finalize a draft Klamath River flow study prepared by Dr. Thomas Hardy, an environmental scientist from Utah State University. An earlier version of Hardy’s recommendations was a primary reason for the elevated Iron Gate Dam flow schedule included in the 2001 Klamath Project operations plan, which resulted in curtailment of Upper Klamath Lake supplies to the Project. Vogel’s report details key concerns with the Draft Hardy Phase II Report.  

The National Research Council (NRC) Klamath Committee also discussed the draft Hardy Phase II report in its October 2003 report. The committee agreed with one of Vogel’s primary concern concerns and found Hardy’s modeling approach to be "flawed by heavy reliance on analogies between habitat requirements for Chinook salmon and those of Coho salmon". This finding echoed an earlier concern with the deficiency of such an assumption in their April 30, 2002 letter report to the National Marine Fisheries Service.

During late summer and early fall of 2002, Dave Vogel conducted a field investigation to assess water temperatures in the main stem Klamath River. His key findings are summarized on the attached fact sheets. Vogel essentially found that large numbers of salmon entered the lower Klamath River earlier than usual and were exposed to two dramatic and uncharacteristic cooling and warming conditions causing disease outbreak from warm water and crowded conditions. The combination of these factors was chronically and cumulatively stressful to fish and is probably the most plausible reason for the fish die-off.

Both reports were developed and used as a basis for testimony submitted by Vogel in PCFFA et al. v. USBR, et al. this past year.

An economist from Davis, California and a policy analyst from New Mexico State University early in year stepped forward and openly question a draft report on Klamath River recreational benefits prepared by the U.S. Geological Survey (USGS). The draft report - preliminarily leaked to the Wall Street Journal last November and heralded by environmental groups as justification for eliminating farming in the Klamath Project – contains "severe problems" that limit its use as a basis for policy decisions, say economic experts.

Within hours of the Wall Street Journal reporting on the existence of the draft study, a coalition of environmental groups had already obtained the report and issued a press release that claimed the Bush Administration stifled its release.

"The government does a great job of hiding data it doesn’t like," said Zeke Grader of the Pacific Coast Federation of Fishermen’s Associations (PCFFA). "The stench of the recent fish kill in the Klamath River is permeating to the highest levels of the Bush Administration."

What PCFFA and other environmental activists appear to have overlooked is the draft report’s proposal to impose a long-term moratorium on fish harvesting in the Klamath-Trinity system. This ban would include an end to all harvesting by commercial fishermen, halting marine harvesting by tribal fishermen, and "sharp declines" in freshwater harvesting by tribal and recreational fishermen.

A prominent fisheries journal last spring published a scathing response by the Chairman of the National Research Council’s Committee on Endangered and Threatened Fishes in the Klamath River Basin (NRC Committee) to a critique of the NRC Committee’s work prepared by two Oregon State University (OSU) researchers. Dr. William Lewis, chair of the NRC Committee, critically dissected a widely publicized review of the NRC Committee’s Interim Report prepared by OSU’s Michael Cooperman and Douglas Markle. Both articles were published in the March edition of Fisheries journal.

"Cooperman and Markle, in grasping at every item in the NRC committee’s report that could be perceived or portrayed as an error, and in casting doubt on the committee’s competence and even its honesty, have shown that their main purpose is to discredit the committee rather than to deal in a useful way with some of the important issues that the committee’s report has highlighted," said Lewis.

Reclamation in December released a draft study intended to provide a glimpse at how the Klamath River might have looked before the Klamath Project was built. The report shows that – especially in drier years – flows in the Klamath River near Keno, Oregon dwindled to a mere trickle. The report provides compelling evidence that supports claims made by local residents for decades – the stored water provided by the Klamath Project may actually provide higher summer flows than what would have flowed down river before the Project was built.

Environmental groups announced in January that they intend to petition to protect four species of lamprey under the ESA. Two days later, a federal scientific panel rejected a petition filed by the same groups last year to protect the green sturgeon. Both the lampreys and green sturgeon inhabit the lower Klamath River. In rejecting the green sturgeon, NMFS found insufficient evidence to show imminent danger to two distinct populations of the bottom-feeding fish. Federal officials said the number of green sturgeon does not appear to be dropping. Meanwhile, environmental groups who pushed for the sturgeon's placement on the ESA list announced a similar attempt to persuade federal officials to list four species of lamprey. The eel-like fish inhabit large streams up and down the coast.

In the past ten years, local water users – both within the Klamath Project and those who farm in the Klamath Project and those who farm in upstream areas north of Upper Klamath Lake – have taken proactive steps to protect and enhance water supplies, enhance the environment, and stabilize the agricultural economy. KWUA in early 2003 completed a summary report of these actions, which was publicly released in February. The document was presented to Governor Kulongoski when he visited Klamath Falls in April.

The purpose of this document was to provide an initial summary of the impressive efforts undertaken in the past decade by local agricultural interests, often in partnership with local, state, and federal agencies. "Farmers and ranchers in the Klamath Project have consistently supported restoration actions to improve habitat for the basin’s fish and wildlife species", said Tulelake farmer Rob Crawford. "Unfortunately, we haven’t tried to summarize these efforts and put them in one place that’s easily accessible. This report moves in the right direction."

"Leadership in Conservation" Award

The Klamath Water Users Association on June 23^rd was notified by Oregon Department of Agriculture (ODA) Director Katy Coba that it had been selected as the recipient of the 2003 Agriculture Progress Award for "Leadership in Conservation". The ODA award recognizes the association’s "leadership and commitment to the state’s conservation efforts".

KWUA was presented with the award at a Sept. Agriculture Progress Awards Dinner in Pendleton.

KWUA and its members actively participated in advisory committees associated with:

• "A" Canal Fish Screen Project (Klamath Irrigation District)
• Klamath Project Fish Passage Enhancement
• Sprague River Dam Fish Passage Enhancement
• State of Oregon well assistance program
• Family Farm Alliance Advisory Committee
• Mid-Pacific Region Water Users Conference Planning Committee

KWUA committees continue to make progress on power and water supply issues, as discussed later.

KWUA in early March announced it would support, and assist the Department of Interior in the implementation of, a Klamath Project Pilot Environmental Water Bank in 2003 to provide over 50,000 acre-feet of additional water for environmental purposes. While noting that Reclamation’s pilot program does not closely resemble KWUA’s vision for a long-term bank, water users will continue to work with Reclamation and Interior to complete a long-term water bank proposal.

Reclamation’s 10-year Biological Assessment (BA) developed in February 2002 proposed an environmental water bank through which willing buyers and sellers will provide additional water supplies for fish and wildlife purposes and to enhance tribal trust resources. Reclamation’s BA estimated the size of the water bank to be up to 100,000 acre feet – depending on water year type - with "deposits" coming from a variety of sources, including off-stream storage, temporary crop idling, and groundwater substitution.

Water users committed to pursue developing a bank with Reclamation in January 2002. At that time, KWUA was asked by Reclamation to develop a Project-wide water bank to assist with meeting environmental water demands in drier years.

KWUA’s Water Bank and Supply Enhancement Committee (Committee), chaired by Malin farmer Dave Cacka, held over 30 meetings in 2002-03 to develop the 65-page report/proposal for a long-term water bank, which differs substantially from the pilot water bank proposed by Reclamation this year.

Certainty of water supplies is a key principle imbedded in KWUA’s draft long-term water bank proposal. Local water users insist that, in exchange for voluntary participation in a Project water bank – which would be used to "fund" environmental water needs - 100% of the irrigation demand for remaining Project acreage will be satisfied, season-long. Water users further believe that the water bank cannot be viewed as a stand-alone element.

"We see the Project water bank as one element in a package," said Cacka. "Other measures – like development of new, permanent storage facilities and acknowledgement of restoration benefits - will assist in minimizing, and ultimately eliminating the need for - water bank requirements in the future."

Water users also believe that the water bank concept proposed in the NMFS biological opinion must be modified before a long-term water bank can be finalized.

U.S. Congressman Greg Walden (R-OR) in 2003 announced the federal government’s release of $7 million in conservation funding to the Klamath Basin. This sum represents a portion of the $50 million in funding earmarked for the Basin in the 2002 Farm Bill under the Environmental Quality Incentives Program (EQIP). The funds provided cost-share payments to farmers and ranchers to employ water conservation measures.

The KWUA Board of Directors last summer endorsed the Klamath County Commission’s proposal to further study a proposed offstream storage project at Long Lake. The KWUA Board unanimously supported sending a letter of support to the County Commission, urging that Long Lake and other potentially viable storage projects be screened for feasibility. The Klamath Basin Water Supply Enhancement Act of 2000 provides the authority to conduct such a feasibility study, but funding for the program in recent years has been diverted to address unexpected crises that are becoming the norm in the Klamath watershed.

A diverse collaborative work group established by the U.S. Bureau of Reclamation this fall agreed that complete removal of Chiloquin Dam on the Sprague River likely provides the best biological benefits to endangered sucker fish. The work group, consisting of state and federal agency scientists, the Klamath Tribes, Sprague River irrigators, environmental interests, and the Klamath Water Users Association (KWUA), provided a rare, but promising, show of unity in support for removal of the dam.

After months of soliciting proposals, reviewing qualifications and interviewing potential candidates, KWUA last fall entered into an agreement with a Portland law firm to guide the association’s efforts to address looming electrical power issues. KWUA signed into a formal agreement with Cable Huston Benedict Haagensen and Lloyd ("Cable Huston"), to provide the association with professional legal and other consulting guidance as Klamath Project irrigators face the possibility of a large power rate increase in 2006.

"We’re pleased to have a firm like Cable Huston representing Project irrigators," said Lynn Long, Chairman of KWUA’s Power Committee. "They have a proven track record, and they’ve already made great strides in getting up to speed on the relicensing issues and contract issues that are so critical to the irrigation community."

The Klamath Project’s power contract dates to 1917, when PacifiCorp's predecessor – COPCO – negotiated a deal with the U.S. government to build Link River Dam. The power company received the run of the river for hydropower, while the government received affordable electricity for the Klamath Project. PacifiCorp and the federal government negotiated the current 50-year deal in 1956.

KWUA was formed in 1953 in part to specifically address the power contract that was in place at that time.

During the 2001 water crisis, local water users and the agricultural business community developed strong media and public relations that have carried over into 2003. There is room for improvement, as evidenced by the national media coverage of the lower Klamath River fish die-off last fall. However, some important steps were taken to improve media and public outreach in 2003:

• Tours: KWUA members played an important part in hosting several tours of the Klamath Project in the past year. Educators from Yale University, Humboldt State, University of Oregon, Western Washington College all traveled to Klamath Falls in 2003 to tour the Klamath Project. KWUA also participated in a tour conducted by the Klamath Soil and Water Conservation District for conservationists and state elected officials from Arkansas.

• Water users made great progress strengthening relationships with coastal fishermen and the Klamath Tribes, and participated in tours hosted by both of these groups. The Nature Conservancy provided local water users an opportunity to tour its Sycan Marsh property last summer. KWUA representatives also met with individuals representing American Rivers and the Hoopa Valley Tribe, and spent several hours meeting with government and education officials from the countries of Georgia and Armenia.

• KWUA’s Weekly Update was released in April of 2002, and has been distributed in electronic format every week since. Direct distribution of this update has increased in the past eighteen months from a few hundred original subscribers to several thousand. Our friends in the water community like the Oregon Water Resources Congress, the National Water Resources Association, and Oregonians also distribute the Weekly Update for Food and Shelter. The Klamath Basin Crisis website also posts the update, along with past issues.

• KWUA has developed improved relations with newspaper writers and editors throughout the west. Opinion pieces have been printed in many papers, including The Oregonian, The Seattle Post-Intelligencer, and The New York Times. Klamath Project irrigators were quoted in 2003 in national newspapers like The Los Angeles Times, USA Today, The San Francisco Chronicle, and The Sacramento Bee.

• KWUA has also contributed letters, articles or information included in a diverse range of publications, including Outside magazine, Mother Jones, Western Water, The Furrow, and California Ag Alert.

• KWUA Board members, individual water users, and KWUA staff have appeared on national television telecasts, local television and radio, radio talkshows throughout the Pacific Northwest, and National Public Radio in the past year.

Public outreach was also an important part of 2003. KWUA participated in several community events, including two public meetings held at the Klamath County fairgrounds in February that collectively drew over 1,000 attendees. KWUA also delivered presentations to numerous local civic groups. Local water users, businessmen and consultants also participated in a truly remarkable number of panels at conferences throughout the West, including:

Agriculture / Water Associations: Association of California Water Agencies, Mid-Pacific Water Users, Tri-State Water Users, Oregon Water Resources Congress, American Water Resources Association, National Water Resources Association, and the Nevada Farm Bureau Federation.

Environmental and Water Law Conferences In: Seattle, Portland, Yosemite, San Francisco, Stanford University.

Other Seminars: University of California CVPIA Conference, U.S. Interior Department Water 2025 (Sacramento), 2003 Water Education Foundation Briefing on Water Law and Policy (San Diego), Cascade Earth Sciences (Klamath Falls).

If you actually made it to the end of this review – congratulations. Happy New Year.
 

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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