Klamath Project operations unchanged by OWRD ruling

by HOLLY DILLEMUTH, Herald and News 4/26/2020

An interim order from Oregon Water Resources Department announced on Thursday gives OWRD charge of Upper Klamath Lake but has not specifically impacted the flushing flow of around 40,000 acre-feet from Upper Klamath Lake that occurs each spring to reduce health risks associated with a parasite called C. shasta that affects juvenile coho salmon.

The order urges the Bureau of Reclamation to stop releasing stored water from Upper Klamath Lake except in accordance with the relative and respective state law rights, unless the agency provides OWRD with information in writing, such as the timing and rate of the release of stored water as well as the sources of legal authority for each release. The interim order was posted at the Link River Dam on Thursday.

Water being released at Link River Dam for the flushing flow is in compliance with applicable federal law, according to Reclamation’s initial response to OWRD, signed by Michael Gheleta, supervisory attorney-advisor, Office of the Solicitor, U.S. Department of the Interior, in a letter which was obtained by Herald and News. Gheleta also said an additional response is forthcoming.

In an email, Bureau of Reclamation’s Klamath Basin Area Office Deputy Area Manager Jared Bottcher emphasized Gheleta’s initial response that Bureau of Reclamation is operating during an extreme drought in a manner consistent with the law.

OWRD is investigating the assertion by Bureau of Reclamation that it must follow federal law in terms of water distribution from Upper Klamath Lake, according to OWRD Policy Manager Racquel Rancier.

OWRD is continuing to request information pursuant to its investigation, Rancier said.

The interim order from OWRD is in response to litigation filed by Klamath Irrigation District against OWRD. In 2018, a Marion County judge ruled in favor of Klamath Irrigation District and asked OWRD to act on water distribution from Upper Klamath Lake.

“In essence the Order is OWRD’s effort to do what the court told it to do,” said Paul Simmons, executive director of KWUA, in an email.

Klamath Irrigation filed a legal petition in Marion County Court on April 17, demanding action from OWRD. The district learned late Thursday about the fulfillment of the petition to OWRD for the interim order.

“Literally right now we have state and federal law in conflict,” said Ty Kliewer, president of the KID board of directors.

OWRD officially took charge of Upper Klamath Lake on April 16, after which it filed notification of dispute and investigation in aid of distribution to the U.S. Bureau of Reclamation.

“The core issue that KID has raised relates to the release of water stored under an irrigation right, and the fact that the only water use rights for the stored water is for irrigation,” Simmons said. “It’s KID’s position, and KWUA’s as well, that it is not proper for the stored water for instream use, or at a minimum if the stored water is used for other purposes, there should be compensation to the holders of the rights of use.”

KWUA position

Simmons emphasized there is no reason to believe the Project will get more water than the 140,000 acre feet announced by Reclamation earlier this week.

“We (KWUA and KID) have important differences with the federal agencies about how they interpret their obligations and authorities under federal law,” Simmons said.

“And we always hope to talk with them about how the laws are interpreted and applied in other contexts and how that may be relevant here,” Simmons added.

Simmons said the OWRD Order reinforces that the only water rights to stored water under Oregon law are rights to use water for irrigation.

“The federal government hasn’t really ever disputed that,” Simmons said. “Our problem is the disconnect between water rights law and the federal laws, or at least how the federal laws are interpreted. That’s pretty much been true since the ESA (Endangered Species Act) became part of life.”

Rancier said it was determined that the flow of the Link River Dam was being reduced as of Friday morning.

“We do not have the information to know whether the reduction of flow out of Link River Dam is as a result of the Order issued by the Director yesterday,” Rancier said.

Jerry Enman, secretary of Klamath Water Users Association and KID’s primary representative on the KWUA board of directors, said it is likely that Reclamation had met its requirements to complete the flushing flow as measured at Iron Gate Dam by U.S. Geological Survey, and that was the reason for the reduction in the flushing flow on Friday.

Idling programs

Both Simmons and Kliewer emphasized that Klamath Project irrigators should pursue alternative funding sources this summer through the Drought Response Agency’s idling programs.

“We desperately need for people who can do so to sign up for programs for non-irrigation that the DRA may be able to offer,” Simmons said. “If that does not occur, there could be truly catastrophic consequences including mid-season shut-off of water, the risk of which is already uncomfortably high.”

hdillemuth@heraldandnews.com

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