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o  Environmental Impact Statement (EIS) and Project operations considering the Endangered Species Act (ESA), NEPA, obligations to irrigators and tribes, Clean Water Act, Federal Energy Regulatory Commission (FERC)

Karas: Okay thanks Bob. We also have an effort on going to develop an Environmental Impact Statement and Project operations, and Dan can give you a few words on that.

Dan Fritz: Yes, I’m Dan Fritz, environmental specialist here in the Klamath Basin office with Reclamation. This Project has been as Cecil explained; construction was started way back in about 1906 or so on, and Project facilities were essentially completed by about 1960. The Project has been in continuous operation all through to the 1900s up to the present time. But of course, in the late 1980s about 1988, the suckers were listed as endangered, we had some drought years in the earlier 1990s, and there began to be a lot of competing needs for the limited amount of water available. Here in Reclamation at that time started to prepare what we called annual operation plans to try to get some degree of certainty as to what would be available in terms of the water supply from year to year. We also in the mid 1990s started to think about preparing a long-term operations plan. And in fact in late 1997 we started preparation of a draft Environmental Impact Statement for a long-term operations plan. It was called the KPOP or Klamath Project Operations Plan,  rather extensive process that we were engaged in, and we were moving through that process until late year 2000 and KPOP sort of went kerr-plop with the events of 2001, and drought considerations, ESA requirements sort of overran our NEPA planning process, and the work that we’ve been doing on the EIS pretty well ground to an halt in early 2001 because of these other overriding compelling issues. We’ve recently renewed our effort to prepare an EIS on what would be referred to as a long-term operations plan for the Klamath Project. And what we're proposing is an operations plan that goes through early 2012, that allows for continued operation of the Project in a way that allows us to meet our legal requirements, and there’s four principle areas that Reclamation believes that it needs to meet in the operation of the Project and that this EIS is geared towards. And these are not necessarily in priority but we have a need to comply with the requirements of the Endangered Species Act. Clearly that is compelling consideration that drives much of the operation of this Project. We have a need to meet our contractual obligations to the water users of the Klamath Project. We have a need to meet the trust responsibility that we have to the Klamath Basin Tribes, particularly to operate the Project in a way that does not interfere with their senior water rights, and finally we have an obligation to the National Wildlife Refuges, here in the basin to deliver water to them. Well as you can imagine, that’s quite a juggling act to simultaneously meet those, as it were competing, needs for Project water.

Well, that’s really what this EIS is going to get to, is how can we operate this Project in a manner that meets all of those obligations. And more specifically, the EIS will attempt to answer the question as best we can in what is the effect of the Project operation on, and name your resource, name your issue. We have a scoping document that we put out in May of this year that lists in it I believe, I think 17 or 18, what we believe, are significant issues, different things: how does the Klamath Project affect water quality, how does that Klamath Project affect aquatic recourses, how does Klamath Project affect threatened and endangered species? There are a lot of potential affects of this Project and we want to, through this EIS, try to get a handle on what exactly are the effects of this Project. There’s wide and differing views of about what the effects of this Project are.

So we, in May, started a formal scoping period for the EIS. That period ran through September 2, we just yesterday issued a news release extending the scoping period thru December 1 of this year, and a couple of reasons for that, one being we expect that the National Academy of Science final report will be issued shortly, and public review of that document will properly stimulate additional comments regarding Klamath Project operations. And we think it is important to fold those comments into our scoping for the EIS.  And because my expectation is, come 2004 as we move through the NEPA process, we’re going to engage in a very rigorous public alternative formulation process. And of course alternatives are the heart of an EIS, and I suspect there’s a lot of different interests that have a better idea on how to operate the Klamath Project. We want to engage in a process that will consider a wide array of alternatives for operations of this Project. Of course the driving need and purpose is that we want to do it in a way that allows us to meet all of our legal obligations. And that is, as I said, a tough juggling act at times.

QUESTION: Excuse me, is power production not one of the legal requirements?

Fritz: There are flow requirements dealing with the Klamath Hydro Electric Project which is operated by PacifiCorp and licensed by the Federal Energy Regulatory Commission. And that is one of the issues we need to address in our EIS is how does Project operation, irrigation Project operation, affect hydroelectric Project operation? There is an interrelationship between the two because PacifiCorp operates their project with the water that is flowing from the Project.

QUESTION: That’s not necessarily a legal requirement, the way you view it?

Fritz: No, power generation is not viewed by Reclamation as a legal requirement of irrigation project operation. Any planning efforts going on in the BLM and their Klamath River management plan, you’ve had the draft EIS out, and I think the BLM’s comment period closed.  So there are other planning efforts going on here that we will speak to in our EIS, how Klamath Project operation relates to other ongoing things in the basin.

QUESTION: Could you summarize for me what the relative legal priorities are among those four areas that you mentioned? Is that straightened out or not?

Fritz: The general view is the Endangered Species Act is probably at the top of the heap in terms of legal requirements that need to be complied with, met. The trust obligation to the tribes perhaps follows right behind that; the contractual obligation to the water users, and the refuges, delivery of water to the refuges is perhaps towards the bottom. Of course there is a water rights adjudication going on in the state of Oregon, the seniority of the different rights will be dealt with, and the quantification of those water rights. The general view is the tribes have a senior water right but its not quantified at this point. But that’s the relative; there still are questions that come up from time to time as to what exactly trumps what here.

Keppen: Dan, you know the adjudication issue too is important, just from our standpoint, because nearly 43% of the irrigated ag above Iron Gate occurs within the Klamath Project. Much of the remaining acreage is above Upper Klamath Lake, outside of the Federal Klamath Project. Those folks right now have their own water rights, but we’re in the middle of a adjudication process that,won’t be complete for some time. Until the adjudication process is complete, the state really doesn’t have the authority to go in and regulate water use relative to other users. And so the adjudication process, what it will do is set priority dates and the quantities of the rights provide a list of who gets shut off first in times of shortage. Until that’s resolved, the folks above the lake essentially can divert as they please, as long as they're doing it within the limits of their permit. And so, if we’re in times of shortage, because the Project has Endangered Species Act linkage, we're the one’s that get shut off. And that’s what happened in 2001. Until the adjudication process gets resolved, it’s going to be kind of tough to really come up with any kind of comprehensive watershed fix. So anything that can be done to expedite the adjudication or encourage settlement is what we're trying to do right now.

Fritz: And that was certainly one the considerations that somewhat slowed down our NEPA and planning process is trying to define long-term operation of the Project because operations seem to change from year to year given Endangered Species Act requirements and other things, unforeseen drought conditions that kept repeating on us where the water supply just by natural conditions was very much diminished. So it’s been difficult to get our hands on exactly what is long-term operation of the Project. At this point we believe the Project operation that was described in our 2002 biological assessment for the section 7 consultation best describes what would be long-term operation of the Project, and in that BA we describe Project operation through 2012, and we're using that same time frame for the operation plan that will be addressed by this EIS. It’s a little hard to peep even further into the crystal ball into how will the Project be operated, well even today, 5, 10, 15, 20 years from now, given things pending out there like the adjudication, which can have bearing on the operation of this Project, the outcome of the re-licensing of the FERC project could have bearing on the operation of this Project, and other things. What if a new listed species comes along here in the next year or two.

Keppen (kidding): Nobody will try to do that.

COMMENT: Maybe it will be a farmer.

Karas: The Department of the Interior office of policy is also working with the tribes to develop a settlement, a water rights settlement.  That’s another thing that could have a big impact.

Fritz: So the target that we’ve been shooting at with this EIS sort of keeps getting moved around here, but we think right now we’ve got fundamentally, its very basic what are we proposing to do? We are proposing to operate the Project though multiple years in differing water year conditions in a manner that’s consistent with all of our legal obligations and we’re going to keep chipping away at this. We are still probably at least two years away from completion of this EIS, and as I said, I expect after the first of the year, we will be engaging the public in a very rigorous alternative formulation process to try to come up with one or more alternatives for the operation of this Project that achieves those purposes that we’ve got out there in front of us.

Gearheart: In terms of the Project, the definition of the Project, is it established in terms of the amount of irrigated agricultural land or the ground water that is delivered to it, I mean has that changed over time? How do you define the Project exactly other then geographically?

Fritz: Well of course there’s the geographic description which is the location where all the facilities of the Project are. There’s also, within the scope of this EIS we are looking at, effects on all of the lands that receive Project water.  And we're also looking downstream in the Klamath River as far as we need to look where there is an effect of fluctuating water levels as a result of Project operation.

Humboldt: It is my understanding from somebody that that is not a problem, that wasn’t a problem the downstream water fluctuation due to the Project. Someone said that, I thought.

Fritz: Well I think that is an issue that is on the table, exactly how does the Klamath Project affect flows in the Klamath River downstream from the Project service area. Yes, there’s considerable differences of opinions about how much the operation of this Project affects flows in the Klamath River all the way to its mouth and perhaps even beyond.

Keppen:  Dr. Rykbost later today will summarize findings that, in the last 50 years, Project water use essentially has stabilized. I hear mythical accounts out there that somehow all this ag is burgeoning in the basin and more water is being used; that simply is not the case. There have been reduced flows at Iron Gate over the last 10 years, but it looks like it’s more of a function of what’s going on above the lake than in the Project. Over the last five decades, the inflows in Upper Klamath Lake have dropped by 32% for a variety of reasons. So Dr. Rykbost is going to go into that in a little more detail. This is a big issue.

COMMENT: We’ve got a big issue with how much does the Klamath Project really impact Coho in particular, and particularly the fish die-off last year 200 miles downstream, we don’t see the linkage there, and we’ll provide some material for you guys to think about there.

Fritz: Within the EIS we will of course have to look at downstream effects and there’s large questions involving that. The Klamath Project is not the only irrigated agriculture taking place in the Klamath Basin.  There is irrigation upstream of the Project area, there is irrigation downstream, how do we separate out or segregate out or identify, here’s what the Klamath Project is doing, here’s what the accumulative affect of all of this is being irrigated. That’s going to require a very rigorous analysis and bringing a lot of information and data together to do that sort of impact analysis.

Gearheart: The original Project was defined by the number of acres of irrigated agriculture, I mean, is that how the Project was defined originally?

ANSWER: Yes.

Gearheart: Or the amount of water?

Leslie: It was defined by the number of acres that were developed and each of the contracts has a set number of acres that can be irrigated with Project water.

Davis: The authorization of the Project identified a geographic area in general; it didn’t have an specific acreage. Specific acreages were the result of contracts with each district and individuals that were served by the Project.

Keppen: At one point, potential for the Project was much bigger, I mean it was another 100,  200,000 acres. The Butte Valley area was supposed to be put into the Project and they decided, ah, I think we’ll stick to our ground water; we don’t want this federal involvement.

Davis: It was an option and it could have included the Butte Valley area and originally with the original Cessions Act that was a part of the authorization of the Project.  It even included Goose Lake area as part of the Project.  It was later removed from the Project area. But the primary area was the Tule Lake, Lower Klamath, the Klamath Valley area, the Langell Valley area, Poe Valley, the Klamath Falls to Keno area, and some of the areas around Upper Klamath Lake were potentials for development.  A lot of that area was developed.  Most of that area around Upper Klamath Lake was developed by private folks.

Richmond: Dan, is the Environmental Impact Statement, the preliminary version of it, is that available.

Fritz: There is no, at this point, preliminary document as of yet. We’re just in the scoping period where we are trying to identify: here are the significant issues, here are the potential affects of the Project, what sort of alternatives do you think we should consider? We're probably at least a year to 18 months away from having a draft EIS available for public review and comment.

Doug Lane FWS

Doug Lane, FWS: Why isn’t the Clean Water Act one of the four points, or the fifth point, and the reason I ask that I used to do a little logging down in Humboldt County and if you people think you have trouble with the ESA, brother you’ve got one here, in the case of clean water. Fritz: I think that is a fair question.  The four that I mentioned really arise from a field solicitor’s memorandum we got in 1995 where the solicitor gave us legal advise as to what were the key obligations and responsibilities pertaining to operation of the Project. I mean, you could call out other specific legal requirements in addition to ESA: there’s other federal environmental laws like the Clean Water Act, there’s the National Historic Preservation Act. We’ve not called those out specifically as one of the driving needs for that, but they certainly are a consideration and we do have to operate this Project in a way that also complies with the Clean Water Act.

Nelson: Your EIS will have a section on the Clean Water Act specifically about that?

Fritz: Yes.

Davis: And the TMDL development that I spoke about earlier is probably one of the major things that we have to consider as far as Clean Water Act compliance right now on the Project.  We also have a law suit that’s pending on the Klamath Straits Drain, which is the terminal point for the drainage of the Project into the Klamath River.

Carlson: Christine, what’s the relationship between this NEPA process and CIP?

Karas: Well there’ll be somewhat of a parallel process and some of the items that might come out of the Environmental Impact Statement could be implemented through and by the CIP process. I think any kind of data or information developed by the CIP would obviously feed in, so they’ll need to be greatly coordinated, but we're trying to keep moving forward on both fronts at the same time.

Keppen: Does the Armstrong decision affect the development of CIP at all? I mean, it mostly affected the NMFS biological opinion, but I can’t remember if it addresses CIP or not?

Karas: Is doesn’t directly, however part of the biological opinion, we indicated that the Project was responsible for X amount of flows and then the rest of it was non-Project, and part of the way we would like to see that non-Project flow achieved is though the Conservation Rehabilitation Program because it’s not something that the Federal Government and the Bureau of Reclamation can achieve on its own, it’s something that’s going to take all the players and partners. So that’s part of the goal of CIP to bring all those people together, try to identify where we can get some of those other flows, and keep the river up. There is obviously a problem in the river; the Coho are endangered. That’s from a number of different reasons.

We also have, I guess I get a little philosophical when I think about water projects and the way that they operate today and everybody’s desire to move back towards a more historical condition. And bear in mind that we’re here, we're part of the landscape; you’re never going to achieve historic conditions. So what we need to do, in my personal opinion, is to operate for the new river. What is the future desired condition, how can we achieve it and the future desired condition, not just for the river but for the economy and for the people who live here. That’s a little philosophical waning from me.

We’re doing very well as far as we’re staying right on our schedule here, much to my amazement. Next we we're going to have Mike Green talk a little bit about the lease lands as it relates to the refuge.
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#5   Lease land as it relates to the wildlife refuge
           o  History
           o  Pesticide use, diseases, and seasonal wetlands program
           o  Kuchel Act and Questions and Answers (like, "Is there a smoking gun between pesticide use and dead waterfowl out there?")
           o   Lower Klamath National Wildlife Refuge and Tulelake Refuge including history, plumbing, waterfowl, operations, effect of power rate, and endangered species

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