KWUA NEWS RELEASE
January 19, 2021
 
Contact Information:
Paul Simmons, KWUA Executive Director
(916) 769-6685
psimmons@somachlaw.com

Bureau of Reclamation updates guidance for Klamath Project
Operations under Endangered Species Act and water law

 
The United States Bureau of Reclamation (Reclamation) has released a detailed analysis that will change its approach to compliance with the Endangered Species Act (ESA) at the Klamath Project (Project) in south-central Oregon and northern California.  The new analysis and guidance, called for by a Department of the Interior Solicitor’s opinion last fall, support that irrigation water deliveries in the Project are not subject to constraints that Reclamation has applied in the past.

“This is positive news for family farms and ranches, rural communities, and wildlife,” said Klamath Water Users Association (KWUA) President Tricia Hill.  “The federal government has recognized that we have been overregulated under the ESA, and that needs to change.”

The new guidance is reflected in a 41-page “reassessment” document that relies on changes in legal circumstances that have occurred over recent years.  Last fall’s Solicitor’s Opinion advised Reclamation that it needed to update its approach and that work is now complete.

In recent decades, Project water deliveries have been subjected to curtailments based on section 7 of the ESA, which requires that federal agencies ensure that their actions not jeopardize ESA-listed species such as endangered suckers in Upper Klamath Lake and coho salmon in the Klamath River in California.  Federal court decisions have increasingly made clear that the duty under this law only applies to actions where the federal agency has some discretion to take action to protect the species. 

Reflecting the rulings in those court decisions, the new guidance evaluates contracts, signed long before the ESA was passed, that commit Reclamation to water delivery in the Project.  These contracts do not reserve discretion in Reclamation to curtail water deliveries for purposes of species protection, and therefore Reclamation has no legal right to curtail the deliveries under the ESA as it has in the past.

In addition, Reclamation must comply with state water law.  The Oregon Water Resources Department has made its determinations of water rights for the Project, and those determinations are in full force and effect.

The new guidance states that there are instream federal water rights that are senior to the Project, both downstream in the Klamath River and in Upper Klamath Lake, that could limit Project diversions.  Such rights are not adjudicated or not enforceable against the Project; the guidance recognizes that any downstream water right for flows would not include a right to water that has been stored in Upper Klamath Lake.

The new guidance will not by itself change the way that Reclamation operates but will require that Reclamation adopt fundamental changes in its operating plans. 

“Those changes need to be adopted as soon as Reclamation can do so,” said Ms. Hill.

KWUA Executive Director and Counsel Paul Simmons said other parties may criticize the new guidance because of its timing, at the end of the Trump Administration and following a visit to the Klamath Basin by outgoing Secretary of the Interior David Bernhardt and Reclamation Commissioner Brenda Burman last July.  

“There could be political blow-back because Reclamation finished the work when it did, but the guidance applies rules that the federal government has recognized in other basins –such as the Rio Grande and Sacramento - since at least President Obama’s Administration, and that have been upheld in federal courts.  We look forward to working with the Biden Administration, which we hope will recognize that the new guidance is based on current law rather than political preference.” The new guidance does not exempt the Project entirely from the ESA, according to Mr. Simmons. “Reclamation has found that it still has duties for species protection, but those duties do not include imposing harmful shortages on irrigation as we have seen in the past.”

KWUA President Hill said that irrigation water users do not have an absolute guarantee of water. 
“We still have other legal issues, including water rights of tribes that will one day be quantified, that can affect us,” she said. “We intend to continue to engage with other parties constructively to create a basin that is better for fish and farms.”

The Project was authorized in 1905 under the Reclamation Act of 1902.  It consists of dams and irrigation delivery and drainage systems, built and operated by Reclamation and irrigation districts and others.  By 1940, the Project provided water to nearly 200,000 acres, roughly the same as the number of irrigated acres today.  In addition, Project facilities are the sole source of water for Lower Klamath and Tule Lake National Wildlife Refuges.

KWUA is a non-profit corporation, formed in 1953, whose members are Reclamation contractors, such as irrigation districts, and deliver water to about 175,000 acres and to the wildlife refuges.