KDD diversion continues, Reclamation could release more lake water in response

Based on some of the worst hydrology in decades for the Klamath Basin, Reclamation said that not enough water is available to satisfy Endangered Species Act-required lake levels in Upper Klamath Lake or flows in the Klamath River, let alone Project irrigators.

Upper Klamath Lake must be at or above 4,142 feet in elevation during April and May to provide habitat for spawning C’waam and Koptu (Lost River and shortnose suckers), and a pending outbreak of the salmon disease C. shasta below Iron Gate Dam must be washed out of the river through a flushing flow to avoid a mass fish kill. There is so little water that neither of those needs can be fully met.

The drainage district maintains it has a state water right permit, acquired in 1977, which is supplemental to its Project water right and not impacted by Reclamation’s ESA obligations. In their letter, the Bureau took a different position.

“KDD’s diversion of water into the Ady and North canals is contrary to the ESA and may subject KDD to legal action if it does not immediately cease diversions,” acting area manager Jared Bottcher wrote to the district. “The fact that KDD is claiming to use a junior 1977 water right under state law does not overcome Reclamation’s legal authority and obligations under federal law.”

Reagan Desmond, general counsel for KDD, said KDD obtained the state permit from the Oregon Water Resources Department in the 1970s as a backup for situations when Reclamation would be unable to satisfy the district’s Project right in full. Their water supply is still meant to come primarily from the Project, but the state permit still allows them to divert water when Project supply becomes unavailable, she said.

“The district was concerned about having all of its eggs in one basket,” Desmond said. “It was advised to diversify its water sources and to obtain its own water right from the state.”

The state permit covers 19,234.3 acres of land — all of KDD except for federal leaselands on Lower Klamath National Wildlife Refuge — allowing up to 3 acre-feet of water per acre to be diverted from live flow in the Klamath River each year.

Desmond said it feels like Reclamation has flip-flopped on the issue. In previous drought years when Project supply was significantly reduced, like 2010, she said the Bureau had communicated to KDD that water deliveries were coming through the district’s state right instead of its Project right.

“In the past, Reclamation has directed KDD to divert under this state permit when project water isn’t available,” she said.

On March 30, OWRD declared that stored water in Upper Klamath Lake was not flowing through Link River Dam and that all water available in the river was live flow. Desmond said KDD took that as permission to be able to make diversions in April, and that other private water users along the river in Oregon have similar state permits that allowed them to do the same.

“There are other private water users who have water rights above and beyond the Project, and there are other people out there irrigating and using water,” Desmond said.

Desmond said KDD leadership felt it was crucial to make deliveries before Reclamation planned to do so for the Project, because the District was unable to fully pre-irrigate its soils during the winter. Normally, the Project right allows for off-season irrigation, but the amount of water was truncated this year.

“We’re coming into the season very dry,” she said.

After receiving the letter from Reclamation, Desmond said KDD did close down the Ady Canal as an “olive branch.” The ownership of that canal is somewhat ambiguous between the federal government and the district. But Desmond said they intend to continue letting water flow through the district-owned North Canal in compliance with their state permit, emphasizing that the action is not illegal.

“We believe that there’s been no legal authority presented to determine that KDD is not diverting legally,” Desmond said.

Mary Lee Knecht, public affairs officer for the Bureau of Reclamation’s California-Great Basin Region, said the agency is obligated to meet minimum downriver flows at Iron Gate Dam, established through consultation with the National Marine Fisheries Service, which enacts ESA policy for threatened coho salmon on the Klamath River.

“To the extent that tributary flows are diminished and diversions occur between Link River Dam and Iron Gate Dam, Reclamation is adjusting Link River Dam releases accordingly to meet these minimum flows,” Knecht said.

That means the Bureau plans to reduce Upper Klamath Lake levels to make up for KDD’s diversion. Knecht did not say how that would impact Reclamation’s abilities to comply with the U.S. Fish and Wildlife Service’s Biological Opinion regarding endangered suckers.

Jay Weiner, the Klamath Tribes’ lawyer for ESA-related cases, said Reclamation’s decision to potentially release more water from Upper Klamath Lake during a period when its level is already a foot or more below what it should be, shows a “fundamental lack of concern” for C’waam and Koptu.

“It’s been a source of frustration for the Klamath Tribes for a long time, and it’s been thrown into really sharp relief this year,” he said. “Reclamation’s priorities seem to take care of the salmon and the irrigators where they can, and the C’waam and Koptu get whatever scraps are leftover. It is a derogation of the United States government’s trust obligations to the Klamath Tribes.”

The Klamath Tribes had their first hearing in an ESA lawsuit against Reclamation earlier this week, where they argued that the agency has gone against USFWS’s biological opinion by allowing Upper Klamath Lake to dip below 4,142 feet in April and May during two consecutive years. Weiner said the situation with KDD exemplifies the agency’s failings of the C’waam and Koptu, though it has not been specifically brought in as evidence in the case.

The Tribes were also recently denied a motion in the Klamath Basin adjudication to claim senior water rights in the Klamath River below Lake Ewauna. Had they been successful in that litigation, they would be able to make calls on the water through OWRD to prevent irrigators downstream of Link River Dam from making diversions, as they have in tributaries to Upper Klamath Lake.

Weiner said while the Tribes could theoretically sue KDD on ESA grounds, litigation would take months — if not years — and would not result in any injunctive relief in time for sucker spawning season this spring. He also said the district’s diversion is a drop in the bucket compared to the live flow Reclamation is currently releasing from Link River Dam to satisfy minimum flows below Iron Gate Dam.

“Obviously every drop of water is precious and the C’waam and Koptu need that, and KDD should not be doing what it’s doing. But we have a bigger problem this year than what KDD is doing right now,” Weiner said.

In its temporary operating procedures for 2021, Reclamation warned that any unauthorized diversions to the Project could result in a reduction from total project supply, which is already a pittance. Knecht said this is one of those cases.

“KDD’s diversions are expected to reduce the amount of water available for the remainder of the Project in 2021,” she said.

Desmond said that shouldn’t be the case, given that KDD is diverting water to satisfy a state right that Reclamation doesn’t have jurisdiction over.

“I think that that is an erroneous calculation on the part of Reclamation and that they lack the discretion to subtract independent state water rights from Project supply, particularly when it’s not coming from stored water,” she said.