Klamath Irrigation District scores victory in water rights case

• by GEORGE PLAVEN Capital Press  Aug 4, 2020 

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KLAMATH FALLS, Ore. — A circuit judge in Oregon has sided with Klamath Basin farmers in a water rights case that could have future implications for water availability and deliveries in the region.

The lawsuit, filed by the Klamath Irrigation District, concerns stored water in Upper Klamath Lake as part of the Bureau of Reclamation’s Klamath Project, serving more than 230,000 acres of farmland straddling Southern Oregon and Northern California.

Earlier this year, the bureau released water from Upper Klamath Lake — impounded by the Link River Dam in Klamath Falls — to boost streamflows for coho salmon in the lower Klamath River. The salmon are listed as threatened under the Endangered Species Act.

But the Klamath Irrigation District sued, claiming the bureau does not have an established right or permit from the Oregon Water Resources Department to use the stored water.

The district also claimed the bureau’s releases for salmon impaired the district’s ability to deliver permitted irrigation water to its members.

Marion County Circuit Judge Channing Bennett ruled in favor of the district on July 30, and indicated he will sign an order directing OWRD to halt the bureau’s releases without an established water right, permit or license.

“No party has provided this court with law or fact which allows the bureau the right to use stored water in the (Upper Klamath Lake) without a permit or license,” Bennett wrote in his opinion. “OWRD’s failure is a deprivation of a precious resource belonging to the people of Oregon. OWRD failure is also an infringement of property rights of established users, permittees and licensees.”

While the ruling seems to favor Klamath Project irrigators, Ty Kliewer, a basin rancher and president of the Klamath Irrigation District, said it is not clear what the immediate impact will be since Bennett has yet to sign a final order.

Kliewer cautioned producers against planning for additional water right away. “The court has to issue a final order, OWRD has to do what is required, and even still that may not be the end,” he said.

A spokeswoman for OWRD said the department does not comment on pending litigation.

Courtney Mathews, a spokeswoman for the Bureau of Reclamation’s Klamath Basin Area Office, said the bureau was not named in the lawsuit, though it continues to operate the Klamath Project consistent with law.

Under the ESA, the bureau must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to ensure the Klamath Project does not negatively impact vulnerable fish species, including coho in the lower Klamath River and endangered suckers in Upper Klamath Lake.

The resulting management plan, known as a Biological Opinion, or BiOp, must be updated every five years. In April, the bureau issued an interim three-year BiOp while the agencies develop a new long-term plan after the most recent 2019 update was found to contain erroneous data.

Part of the interim BiOp calls for “flushing flows” from Upper Klamath Lake into the Klamath River during drought years to wash away a deadly fish-killing parasite known as C. shasta that thrives in warm, slow-moving water.

As the Klamath Basin grapples with extreme drought, farmers in the Klamath Project saw their water allotment drop by more than half to 140,000 acre-feet, in part to accommodate the flushing flows.

Nathan Rietmann, the attorney for the Klamath Irrigation District, said the lawsuit against OWRD is about “straightforward enforcement of state water law.”

“The court applied the law the way it should be applied,” Rietmann said.

Despite the outcome, Kliewer said irrigators should not assume any increase in this year’s project allocation.

”Water managers for the irrigation districts and farmers have a done a great job in an impossible situation,” he said. “We can’t break the bank now.”

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