Cut and pasted from the coastside discussion board.
The following is a section of a position paper I wrote in 2003 while I was a law clerk at the CA Dept of Water Resources. It is written from the perspective or "position" of the State of California. I have only included the section that discusses the background of the Klamath River area and the competing interests vying for water as they related to the California's position in 2003.
This should help enlighten some of you about the various competing interests on the Klamath watershed that makes the situation so difficult to deal with. Keep in mind this information only includes what happened up to 2003.
This information should not be reproduced without my express written permission.
Here it is:
Background
The Klamath River is a 263-mile river that originates in southern Oregon, travels into northern California, and drains into the Pacific Ocean along the northern California coast. The Klamath River Basin watershed covers approximately 12,100 square miles. For purposes of water management, the river is divided into two distinct geographic management areas: The Upper Klamath Basin and the Lower Klamath Basin. The Upper Klamath Basin encompasses the area upriver from the Iron Gate Dam on the Klamath River and includes three major lakes: Upper Klamath Lake, Lower Klamath Lake, and the Tule Lakes. The Lower Klamath Basin includes those areas of the watershed below Iron Gate Dam to the Klamath River’s eventual termination at the Pacific Ocean. (Betsy A. Cody, et al., Klamath River Basin Issues: An Overview of Water Use Conflicts, Order Code RL31098, 2-3 (Congressional Research Service 2002).
In 1905, the Bureau of Reclamation authorized the construction of a reclamation project in the Klamath Basin. In accordance with the legislative grant of authority contained in the Reclamation Act of 1902 and with due deference to state water law, the United States appropriated all available water rights in the Klamath River, the Lost River and their tributaries in Oregon. Construction then began on a series of water diversion projects. Kandra v. United States, 145 F.Supp.2d 1192, 1196 (9th Cir. 2001). The Bureau of Reclamation’s Klamath Basin Project (hereinafter “Project”) has provided water for irrigation for nearly 100 years. Today, Project water is stored primarily in Upper Klamath Lake and serves farmers, municipal and industrial users, commercial and sport fishermen, other recreational uses, federal wildlife refuges, and several Indian tribes. The Project also contains several hydroelectric and re-regulating dams on the Klamath River that are governed by Federal Energy Regulating Commission (hereinafter “FERC”) licenses. The FERC licenses are due to expire in 2006. Id. at 1196-1197. See also Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 1-2.
The Endangered Species Act (hereinafter “ESA”) has impacted water resources throughout the Project. Two fish in the Upper Klamath Basin, the Lost River sucker and shortnose sucker, were listed as “endangered” in 1988. The listing resulted from loss of habitat caused by damming, flow diversion, and degraded water quality. Currently, these endangered suckers live only in Upper Klamath Lake and nearby connected Project waters. The suckers utilize the tributaries above Upper Klamath Lake to spawn. The Lower Klamath Basin is home to several species of anadromous fish. Sturgeon, Steelhead Trout, King Salmon, and Coho Salmon are all native species of the Klamath River. Both species of salmon and the Steelhead Trout utilize the same general type of streambed for spawning. In 1997, the Klamath River Coho Salmon was listed as a “threatened” species under the ESA as a result of loss of habitat and water quality issues. In addition to the species of fish listed under the ESA, the Klamath Basin plays a significant habitat role for bald eagles that are also listed as “threatened” under the ESA. Bald eagles migrate to the Klamath Basin during the fall and winter months. Kandra, 145 F.Supp.2d at 1196-1197.
The species of fish listed under the ESA on the Klamath River are also of significant economic and cultural importance to the Indian tribes who have treaty rights along the Klamath River. The nature of the federal treaties with these tribes guarantees the tribes’ interest in the fisheries resource. This in turn entitles the tribes to a quantifiable water right in the Klamath Basin to maintain the fisheries resource. Id. at 1197. However, the tribe’s interest has not been quantified in terms of an adjudicated water right. The McCarran Amendment in 1952 waived federal and tribal immunity to state court jurisdiction and paved the way for states to determine Indian water rights as part of a state court’s adjudication of water rights on a particular watercourse. The federally reserved treaty rights with the various tribes on the Klamath River automatically carry reserved water rights. To maintain its jurisdiction in the adjudication of the Klamath River and prevent a federal adjudication, Oregon began adjudicating water rights on the Klamath River in 1976. Reed D. Benson, Can’t Get No Satisfaction: Securing Water for Federal and Tribal Lands in the West, 30 Envtl. L. Rep. 11056 (2000). In 1983, the United States 9th Circuit Court confirmed the existence and the priority dates of the tribes’ water rights, but left the quantification of those water rights to the State of Oregon’s adjudication. United States v. Adair, 724 F.2d 1394 (9th Cir. 1983). The Oregon adjudication of water rights on the Klamath River is still pending today. Because Oregon refuses to enforce unadjudicated water rights, Oregon does not yet recognize any quantifiable tribal water rights on the Klamath River.
The complex balancing of these diverse and competing demands for water in the Klamath Basin boiled over in the spring of 2001. On April 3, 2001, the United States District Court ruled that the Bureau of Reclamation (hereinafter “Bureau”) had violated the ESA. In response, the Bureau announced on April 6, 2001 that all Project water intended for the region’s farmers would have to be diverted for protection of endangered species on the Klamath River. The month of April saw local states of emergency declared in Siskiyou and Modoc counties, requests for a disaster declaration from the United States Department of Agriculture, and requests to California Governor Gray Davis’s office from state legislators for California to declare a state of emergency for Siskiyou and Modoc counties. On May 1, 2001, the United States District Court declined to grant an injunction against the Bureau’s plan, thus reaffirming that all Project water intended for irrigation would be diverted for the protection of endangered species on the Klamath River. On May 4, 2001, California Governor Gray Davis signed a declaration that a state of emergency existed in Siskiyou and Modoc counties. Dallas Jones & Paul Jacks, Governor’s Action Requested, 1-5 (unpublished memorandum May 3, 2001) (copy on file with Department of Water Resources, Office of the Northern Chief). See also, Dwight Russell, California Water Plan Update, The Need for Planning, 7-8 (unpublished PowerPoint Presentation August, 2001) (copy on file with Department of Water Resources, Office of the Northern Chief).
California’s response to Governor Gray Davis’ declaration that a state of emergency existed in Siskiyou and Modoc counties was designed to address four key areas:
1. Water and Agriculture: State funds were used to drill new wells in the Tulelake and Newall communities as well as in the Tulelake Irrigation District. The focus of these wells was to secure valuable topsoil that would have been lost through erosion and to provide adequate water resources for fire protection in the area.
2. Education: The Tulelake School district serves the entire area that was impacted by the drought. The school district experienced a high number of families who left the area during the drought and came back after the drought had subsided. This caused the Average Daily Attendance (hereinafter “ADA”) figures, which drive school funding by the state, to drop. Had those ADA figures been used to calculate school funding for 2002, layoffs would have been required. The state of emergency allowed California to freeze funding at the pre-drought levels for a period of two years.
3. Local Economies: The Governor dispatched a multi-agency team of economic development specialists to develop an economic plan for the area and to develop economic incentives for relocating businesses to the area.
4. Individual Needs: The state set up a local assistance center for existing state programs that address individual needs. This included representatives from programs such as unemployment insurance, mental health, energy assistance, supplemental food, and job services. Job training and temporary job placement services were also made available.
Current State of the Klamath Basin
Despite the fact that in 2001 Siskiyou and Modoc counties experienced a 69% decrease in normal annual precipitation, the conditions that caused the Bureau not to deliver any water for irrigation can best be described as an administrative drought. The Bureau had enough water to irrigate the Klamath Basin, but did not have enough water to meet its other administrative obligations. Seventy-three years of uninterrupted surface water supplies and federal contracts from the Project have lead to an attitude that there is a secure future supply. Couple this with the changing hydrological conditions in the area that may be the result of global warming and the ESA and California Endangered Species Act (hereinafter “CESA”) constraints, and one quickly gets the sense that we are at a critical crossroads. Contributing to the current problems in the Klamath Basin is the fact that there has historically been a lack of a sense of urgency in resolving the water issues in the area. One only needs to look at the fact that Oregon has been adjudicating water rights in the Klamath Basin for twenty-six years, over a quarter-century, to see the underlying reluctance to break from the status quo in the area. Additionally, most interests in the Klamath Basin seem unwilling to recognize or formally acknowledge that there is a pending problem that will require significant changes because of the over committed water resources. Telephone interview with Dwight Russell, California Department of Water Resources Northern Chief (Nov. 18, 2002). See also, Dwight Russell, California Water Plan Update, The Need for Planning, 9-10 (unpublished PowerPoint Presentation August, 2001) (copy on file with Department of Water Resources, Office of the Northern Chief).
California has long been at the forefront of social change and progressive policymaking. In order to best protect all Californians, it is imperative that California continue to push for substantive changes in the way the Bureau and Oregon react to the changing administrative requirements in the Klamath Basin. We simply must recognize at the forefront of addressing the Klamath Basin’s problems that if the status quo remains some interests are destined to be negatively affected in dry years.
Short Term Issues relevant to California
During the Klamath Basin drought of 2001, California funded the drilling of wells in the Tulelake Irrigation District to provide water for topsoil conservation and fire protection. The plan was to drill a total of fourteen wells to provide 30,000 gallons per minute of water for cover crop irrigation. Additionally, fire services in the area use the lateral canals to pump water for emergency vehicles to fight fires. When no water deliveries were made from the Bureau, the lateral canals were left without a source of water. The irrigation water supplied by the new wells for cover crops allowed the lateral canals to have water available in the event of a fire emergency. Because of better than expected results in terms of well output, only ten wells were actually drilled. The Tulelake Irrigation District currently owns the wells. Telephone interview with Dwight Russell.
Siskiyou and Modoc counties have traditionally only used groundwater in conjunction with domestic use because of the readily available inexpensive surface water provided by the Project. There has not been substantial exploration of the groundwater resource in the area. There have been suggestions made recently that the groundwater produced from the ten emergency wells should now be mined to supplement in-stream flows on the Klamath River. This purportedly would allow for surface water deliveries from the Project to be made to irrigators in the manner they are accustomed to without diminishing in-stream flows on the Klamath River in violation of the ESA and CESA. It is the opinion of Dwight Russell, California Department of Water Resources Northern Chief, that California should oppose this proposed use of groundwater in the area, instead electing to conserve the groundwater for times of drought related emergencies. The proposed plan to mine the aquifer raises some obvious questions. Id.
First and foremost is question of who owns the water in the aquifer. The Bureau will likely argue that the aquifer contains some amount of Bureau water and that they are entitled to reuse of that water under the principles put forth in Department of Ecology v. Bureau of Reclamation. 118 Wash.2d 761 (Wash. 1992).
In Department of Ecology v. Bureau of Reclamation, the Washington State Department of Ecology granted to J.M. Hanson a permit to appropriate water from a stream running across his property. Hanson’s property lay within the Bureau’s federal irrigation project on the Columbia River. The Bureau claimed the water in the stream on Hanson’s property contained Bureau “waste, seepage, or return flow water” (hereinafter “WSRF”) that was subject to the Bureau’s recapture and reuse. The Bureau recaptured WSRF at certain points within its project boundaries for reuse, but not at any point below Hanson’s property. Furthermore, the Bureau had an established practice of charging landowners a fee for the use of WSRF. Id. at 764-766
The Department of Ecology considered the Bureau’s WSRF argument when they investigated Hanson’s permit application. They concluded that even though the Bureau had originally appropriated the water, because they had no means of recapturing the water after the WSRF water was on Hanson’s property, the water was no longer under the control and possession of the Bureau. Id. at 765
In holding that the water on Hanson’s property did still belong to the Bureau, the Washington Supreme Court defined the relationship between two tests used in Western water law: The geographical test and the control & possession test. Under the geographical test, an appropriator’s rights in particular molecules of water extend at least as long as the water remains within the boundaries of the appropriator’s property. Under the control & possession test, when possession of the actual water, or corpus, has been relinquished, or lost by discharge without intent to recapture, property in it ceases. Here, Hanson’s stream was still within the Bureau’s Columbia River irrigation project boundaries. The court concluded that an appropriator’s rights in particular molecules of water do not end while the water remains with the boundaries of the appropriator’s property and that termination of an appropriator’s rights after molecules of water have left the boundaries of their property depend upon the control & possession test. In other words, once molecules of water have left an appropriator’s property the appropriator still owns those molecules of water if he intends to recapture/reuse them. Id. at 769-771.
Conceding that the aquifer that is providing water to the ten new Tulelake Irrigation District wells is within the Bureau’s boundaries for the Project and that the Bureau has a right to reuse any of the water it has a property interest in, the question then becomes is the water in the aquifer distinguishable from the water on J.M Hanson’s property in Washington State? Here, the physical conditions under the ground that allow for storage of water have unquestionably existed for thousands of years before any wells were drilled. In addition, it is only logical that thousands of years of rainfall without any source of depletion of the water in the aquifer had filled them to capacity. California’s position regarding the aquifer in question should be that it was at 100% of capacity at the time the Project was initiated. Any nominal use from domestic wells would have been replaced through recharge from seasonal rains. Therefore, the extent to which the Bureau may be entitled to water within an aquifer in Siskiyou or Modoc counties would be limited to positive head pressure/discharge from the wells that occurs as a result of the Bureau’s WSRF recharging of the aquifer.
The next major issue with regard to the wells would be how to regulate their use. Since the funds were made available by California for the drilling of the wells during a state of emergency, it only seems logical that California should be interested in maintaining the existence of the wells for times of emergency or other critical conservation needs. Creating a reliance on this water for anything other than domestic use should be avoided at all costs so the aquifer can be maintained as an emergency source of water. California currently does not regulate groundwater use through a permit system. Furthermore, the California legislature has historically failed to enact any legislation that would regulate groundwater use through a permit system. Interview with George Gould, Professor of Water Law, McGeorge School of Law (Nov. 19, 2002). In this instance, legislation may serve as the only means to preserve this aquifer and prevent mining of the water resource. Whether that entails a special permit system or some other legislative means of restricting the use of the groundwater resource in Siskiyou and Modoc counties, the legislative avenue seems to be the most temporal and efficient means to address conservation of the groundwater resource for times of emergency.
Long Term Issues relevant to California
California has acknowledged the benefit that maintaining healthy ecosystems hold for its citizens. Water quality control plans reflect the ever-growing importance of preservation and enhancement of fisheries and wildlife as well as recreation and aesthetic enjoyment of our state’s waters. The California Department of Fish & Game (hereinafter “DFG”) has promulgated the CESA, which was expanded in 1991 to include provisions to proactively assist species before they become endangered or threatened. California’s greatest long-term challenge in the Klamath Basin is to balance these new protections of the health of our ecosystems with the existing uses of resources in the area. More concisely, we must balance the needs of a healthy Klamath River with the needs of the farmers, Indian tribes, and other interests in the Klamath Basin.
The Klamath River Basin Compact (hereinafter “Compact”) reflects the preferential treatment that domestic and agricultural water users have historically been given in the Klamath Basin. Article III, section 3(c) specifically identifies that appropriations for domestic and agricultural uses are superior uses and, “…shall exist regardless of their priority in time and may be exercised with respect to inferior rights without payment of compensation.” Klamath River Basin Compact, P.L. 85-222, 71 Stat. 497. The Compact creates exceptions for rights reserved by the federal government and for treaties with Indian tribes on the Klamath River. However, it was not until the U.S. 9th Circuit Court decision in 2001 that forced the Bureau to utilize all Project water for the protection of endangered species signaled that interests with traditionally low priority in the Klamath Basin were being put on a more level playing field. Telephone interview with Dwight Russell.
California has an opportunity to begin to effect the first real comprehensive and substantive change in Klamath Basin management when the hydro-electric facilities on the Klamath River come up for Federal Energy Regulatory Commission (hereinafter “FERC”) re-licensing in 2006.
PUD No. 1 of Jefferson County v. Washington Department of Ecology announced for the first time that states could condition certification of a project on any limitations necessary to ensure compliance with state water quality standards or other appropriate requirements of state law, that minimum flow conditions were an appropriate requirement of state law, and that the imposition of minimum flow requirements would not be limited on the theory that it interfered with FERC’s authority to license hydroelectric projects. 511 U.S. 700 (1994).
In PUD No. 1, the petitioners sought a Federal Power Act license for a hydroelectric project on the Dosewallips River in Washington State. The river was subject to state water quality standards developed under federal Clean Water Act (hereinafter “CWA”) §303. §303(c)(2)(a) provides that state water quality standards “shall consist of designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” One standard designated beneficial uses for the Dosewallips River and included fish and wildlife habitat. Specific numerical water quality criteria regarding temperature, PH, and dissolved oxygen levels were identified. The petitioners project would have greatly reduced the in-stream flows and would have certainly impaired salmon and steelhead habitat. Id.
The court reasoned that ensuring compliance with §303 was a proper function of §401 certification. The court noted that §401(d) of the CWA refers to the compliance of the applicant, and thus allows the states to impose “other limitations” on a project in general to assure compliance with various provisions of the CWA and with “any other appropriate requirement of state law.” Id.
The Water Quality Control Plan for the North Coast Region of California (hereinafter “North Coast Plan”) identifies the following with regard to the designated uses on the Klamath River:
“The most sensitive beneficial uses from the standpoint of water quality management are municipal, domestic, and industrial supply, recreation and uses associated with the maintenance of resident and anadromous fisheries. The Klamath …and others [rivers] within the North Coast Region, are renowned for salmon and steelhead fishing and support a substantial portion of the ocean sport and commercial fisheries for these species.” Water Quality Control Plan for the North Coast Region, <
http://www.water.ca.gov/> (accessed Nov. 2, 2002)
The North Coast Plan includes very specific information relating to water quality that includes objectives on several specific items that are analogous with the items the PUD No. 1 court held were able to condition a hydroelectric dam license. Spawning habitat on the Klamath River is also specifically identified as a designated beneficial use in the North Coast Plan. Id. By conditioning the FERC re-licensing of the Klamath River hydroelectric dams, California can force the issue of in-stream flows and water quality prior to the anticipated completion of the Oregon river adjudication. The Klamath River Modeling Project, which was written for the United States Fish and Wildlife Service and the Klamath Basin Fisheries Task Force by the University of California, Davis Environmental Engineering Department, provides detailed information on how to accomplish several of the most critical water quality issues. Klamath River Modeling Project,
http://www.krisweb.com/biblio/region...ucd_report.pdf (accessed Nov. 19, 2002).
By utilizing the FERC re-licensing as a means to control water quality on the Klamath River, California will address certain planning and Project water availability issues that relate to the California Farmers in the Klamath Basin. This approach should help quantify the amount of water necessary each year to maintain water quality in the Klamath River. In turn, the setting of a fixed amount of water necessary for the Klamath River below Iron Gate Dam should identify to the region’s farmers and irrigation districts what effects necessary flows for the river will have on their water delivery contracts. By setting a fixed quantity of water necessary to meet the water quality goals, alternatives to the status quo storage and delivery systems can be explored. For example, the DWR should use the groundwater exploration program funding in the Klamath Basin to help identify aquifers that might be used for banking Bureau water during wet years for delivery during dry years. The objective of California forcing the water quality issue on the Klamath River below the Iron Gate Dam through FERC licensing conditions is to improve the Klamath River itself and create alternatives that will allow the Basin’s other water needs to be met.
Other Interest’s Positions
Klamath Tribes
In an 1864 treaty with the United States, the Klamath, Modoc, and Yahooskin Band of the Snake Indians (known collectively as the Klamath Tribes) ceded 90% of their lands in exchange for a reservation near Klamath Falls, Oregon. The treaty guaranteed the Klamath Tribes hunting, fishing, and gathering rights. In 1954, Congress terminated the status of the Klamath Tribes and took back their reservation lands. The tribe’s status was restored in 1986 with the Klamath Restoration Act. With the restoration of the tribe’s status came a restoration of the tribe’s original right to hunt, fish, and gather along the Klamath River. Included in this restored bundle of rights was a renewed interest in the Lost River sucker and short nosed sucker, species that played major food and cultural roles in the tribe’s history. This interest in the Upper Klamath Basin fisheries carried with it a federally reserved right to an amount of water necessary to maintain the habitat of the fishery. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 14. See also, Benson, 30 Envtl. L. Rep. at 202-203, 214-215.
When the Klamath tribe filed suit in federal court in 1975 to obtain a declaration of their water rights, the State of Oregon responded by initiating a water right adjudication to prevent the federal court from obtaining jurisdiction and quantifying the Klamath Tribe’s water right. In 1983, the federal court ruled that the Klamath Tribe had priority over all other water rights and that the tribe was entitled to an amount of in-stream flow that would support the habitat of the two species of suckers. However, to date no quantification of the Klamath Tribes water right has been given as the Oregon water right adjudication is ongoing. Even more frustrating for the Klamath Tribes is the fact that Oregon has refused to manage any of the water rights until the adjudication is completed. The Klamath Tribe received some help in 1988 when the two species of suckers were placed under the protection of the ESA. Id.
The Klamath Tribes position is relatively simple. They want the necessary flows from the Klamath River to protect the species of fish that are important to their culture. While it might seem on the surface that the Klamath Tribe’s position is detrimental to California’s position because of the potential conflict between California farmers water needs and the Klamath Tribe’s fishery needs, the Klamath Tribe’s position actually stands to help California on several fronts. First, the maintenance of Klamath River flows in the Upper Klamath Basin and the maintenance of higher lake levels in Upper Klamath Lake serve to benefit California’s endangered Coho Salmon in the Lower Klamath Basin. Both the higher lake levels and increased flows assist in improving water quality for the lower section of the river. Additionally, by forcing the Bureau to maintain higher in-stream flows, the Klamath Tribe would actually assist California in making an argument for maintaining a system of aquifers as water banks that could supplement flows during dry years. Id.
Yurok and Hoopa Tribes
The Yurok and Hoopa tribes both have reservations along the Lower Klamath River below Iron Gate Dam. Both tribes have a long history on the Klamath River with native anadromous species. Similar to the Klamath Tribe, the Yurok and Hoopa tribes have treaty rights that guarantee their interest in the Klamath River fisheries that have played a major role in the livelihood and culture of their respective tribes. This entitles them to the necessary flows to maintain the fishery. Much like the Klamath Tribes, the Yurok and Hoopa tribes do not have a quantifiable water right at this point in time, but they have received some assistance from the listing of the Coho Salmon as “threatened” under the ESA. It is of some significance that the Klamath Tribes needs for water in the Upper Klamath Basin sometimes conflicts with the Yurok and Hoopa tribes’ needs in the lower river. Specifically, the time during late summer when the Klamath tribes need the Upper Klamath Lake levels to be high, the Yurok and Hoopa tribes need water released from the lake to help maintain water quality for the anadromous fish in the Lower Klamath Basin. The Yurok have been very proactive in attempting to secure the necessary water to maintain the fisheries in the Lower Klamath Basin. They funded their own study in the 1990’s to support the need for advocacy of their rights by the federal government based on the best available science. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 14. See also, Benson, 30 Envtl. L. Rep. at 202-203, 214-215.
California should view the positions of these tribes in the same manner identified under the Klamath Tribes whereby acknowledgement of the yet to be determined quantifiable water right is the basis for funding exploration and identification of aquifers that could be used for banking water during wet years to supplement flows in dry years.
Waterfowl Groups
In 1908, President Theodore Roosevelt created the nations first wildlife refuge designed specifically for waterfowl. The Lower Klamath National Wildlife Refuge is one of six wildlife refuges in the Klamath Basin that serve an estimated 80% of all waterfowl migrating on the Pacific Flyway. In addition, the refuge is the winter home to the largest population of bald eagles in the lower 48 states. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 16. See also, Benson, 30 Envtl. L. Rep. at 205-206, 212-214.
The issues from the waterfowl groups’ perspective center around the fact that the refuge has a federally protected water right, yet it is dependant upon Project water to flow through farm lands in order to deliver water. In 2001, the refuge was to receive a minimum of 32,225 acre feet of water for the preservation of the ESA protected bald eagles. Instead, it had to rely on donated water to provide any water at all. The waterfowl groups would like to see direct deliveries of Project water to the refuge in order to reduce the amount of pesticides carried from farms to the refuges. Id.
The current California position on the waterfowl groups is that water should continue to flow through the current delivery systems which carry the water first to the farms. This position further bolsters the need for a water banking system that supplements water deliveries to farmers in dry years and allows for normal flows into the refuges. The CESA listing of the Bald Eagle further supports the development of a water banking system in the Klamath Basin in order to prevent California from violating its own administrative requirements. Simply put, if California wants the water for the refuges to first flow across farmlands in the area, it must ensure an adequate supply in dry years that is capable of delivering a quantity of water that surpasses the consumptive uses of the farmlands that are positioned along the way to the refuges. Water banking provides the a long term reliable solution.
Other Environmentalists
These groups include the supporters of the Klamath River fisheries. Klamath River salmon typically comprise one third of the commercially caught salmon from Fort Bragg, CA to Coos Bay, OR. The drastic decline of the Klamath River salmon fishery has lead to severe financial hardship for the commercial salmon fisheries off northern California. The ripple effect from this decline over the past 15 years has negatively impacted the coastal communities that traditionally have supported the commercial fishing industry. In addition to commercial fishing, sport fishing contributes substantially to the local economies as well. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 16. See also, Benson, 30 Envtl. L. Rep. at 205-206, 212-214.
The primary focus of these groups is to secure appropriate in-stream flows that will assure the survival of the native anadromous species. The main leverage has been the ESA. It was a sport fishing alliance that was allowed to bring the case against the Bureau in 2001 that lead to the ruling that the Bureau was in violation of the ESA. Id.
California’s support of the Yurok and Hoopa tribes’ rights to in-stream flows should allay the substantive concerns of these environmentalist groups. The conditioning of the FERC re-licensing will allow California an opportunity to address the demands of both groups. This first step, coupled with implementation of a water banking plan should lead to the satisfaction of all environmentalist groups needs.
Klamath Project Water Users
Project water plays a large role in the lives and livelihoods in the Klamath Basin. Approximately 1400 farms receive Project water. Farmers, their families, and the local agricultural community are affected by shortages in the delivery of Project water. Klamath Basin farmers believe that the United States made a promise to support the agricultural interests in the Klamath Basin when they invited them to homestead the area after World War II. They believe the water belongs to them first, and are willing to defend what they see as their right to use it. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 2, 13. See also, Benson, 30 Envtl. L. Rep. at 204-206, 207-211.
The perspective of the Klamath Project Water Users is that they are the third-party beneficiaries of the federal contracts to operate the Project. They feel the government is breaking the promise to supply them with water. In 1997, the Klamath Project Water Users filed in federal court claiming that any alteration of the water contracts was a breach of contract. Ultimately, the federal court upheld the Bureau’s contract modifications and further stated that the Klamath Project Water Users water rights were subservient to the Tribal claims and those legislative enactments like the ESA. The Water Users response to this position is that the ESA has gone too far. Id.
California must recognize that the Water Users rights are subservient to the Tribal claims, the ESA, and the CESA. To ignore that times are destined to change in the Klamath Basin is to further imperil California’s citizens in the area. The topsoil conservation programs and OES programs during the 2001 drought crisis are illustrative of California’s dedication to support the Water Users. However, without direct and deliberate action to secure storage of water for dry years (whether that be through water banking or some other storage solution), the Klamath Project Water Users in California will surely suffer additional shortages that will threaten their livelihoods, their communities, and their way of life. This in turn will strain the financial resources of the state as it is forced to respond to emergency after emergency.
State of Oregon
Oregon believes that the Bureau must comply with both procedural and substantive facets of Oregon state law. Oregon water law is based on prior appropriation, which basically follows the tenets of first in time, first in right. The shortcoming with Oregon law in this area is that is it does not have a practical means for protecting in-stream flows. Furthermore, Oregon has been involved in a system-wide water rights adjudication of the Klamath Basin since 1976. This adjudication has delayed Oregon from moving forward with formal quantification of the tribal water rights on the Klamath River. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 2. See also, Benson, 30 Envtl. L. Rep. at 204-206, 207-214, 218.
Oregon’s position is that no water right can be resolved until the water rights adjudication is completed.
California’s perspective on Oregon’s water rights adjudication should now be that enough is enough. While California recognizes the need for the adjudication, the inability of Oregon to enforce water rights either for or against any party in the Klamath River Basin has crippled the attempts to manage the Basin in an appropriate manner. California’s conditioning of the FERC re-licensing should preemptively secure the needs of all Californians in the area by reserving the necessary flows coming out of Oregon.
Bureau of Reclamation, United States Fish & Wildlife Service, and National Marine Fisheries Service
The Bureau has contractual obligations to deliver available water to irrigators within the project area and also has statutory responsibilities to protect multi-species ecosystems. The Bureau must also avoid jeopardizing species listed as threatened or endangered under the ESA. The Bureau has to consult with the two other federal agencies regarding its operation plan for the project when an ESA listed species might be affected by the Bureau’s operation plan: United States Fish & Wildlife Service (hereinafter “FWS”) must be consulted with regard to terrestrial and freshwater species and the National Marine Fisheries Service (hereinafter “NMFS”) must be consulted regarding marine species and anadromous fish. The Bureau is required to prepare a biological assessment of the situation and then the FWS or NMFS responds with a biological opinion that identifies if the Bureau’s proposed operation plan is likely to jeopardize a listed species or modify its critical habitat. If a species is not likely to be jeopardized, the FWS or NMFS will issue a written incidental take statement that specifies the terms and conditions under which an agency may take the species. If a species is likely to be jeopardized, the FWS or NMFS responds by identifying reasonable and prudent alternatives (hereinafter “RPA’s”). The Bureau must forego a proposed action if jeopardy cannot be avoided or proceed at it’s own peril in light of civil and criminal charges that may apply. Any citizen under the citizen-suit provisions of the ESA may bring these charges. Cody, Klamath River Basin Issues: An Overview of Water Use Conflicts at 5, 20. See also, Bennett v. Spear, 520 U.S. 154 (1997). See also, Benson, 30 Envtl. L. Rep. at 205-206, 212-214.
The Bureau’s position is that the science being utilized by the FWS and NMFS is not good science. It has elected to utilize its own science at its own jeopardy. Part of the problem in the Klamath Basin is trying to balance the RPA’s from FWS and NMFS. FWS’ interest is in the two listed suckers that reside in Upper Klamath Lake. NMFS’ interest is in the Coho Salmon that resides in the Klamath River below Iron Gate Dam. What is good for one species is not necessarily good for the other. The competing interests and lack of coordination between FWS’ and NMFS’ RPA’s leave the Bureau with a confusing set of competing scientific recommendations. In defense of the FWS and NMFS, they are charged with presenting RPA’s that benefit the specific species they are charged with representing. Id.
California recognizes the problem, but should naturally more concerned about the RPA’s promulgated by the NMFS because of the impact the salmon fisheries in the Lower Klamath Basin have on its citizenry. Declines in the salmon fisheries below Iron Gate Dam have a fiscal impact on California communities in the area as well as the commercial fisheries that rely on a healthy Klamath River anadromous fish stocks.
Bureau of Indian Affairs
The Bureau of Indian Affairs (hereinafter “BIA”) is responsible for administering land and water held in trust for the Indian tribes in the Klamath Basin. The BIA has been instrumental in negotiating settlement acts between the tribes. The BIA also is charged with representing the Indian tribes’ federally reserved rights. These include the water rights that result from the tribes’ interest in the fisheries throughout the Klamath River. The BIA has filed claims on behalf of the Klamath Tribes in the Oregon water rights adjudication. Those rights are federally reserved rights and have been deemed to be superior to all other water rights within the Project. The slow ongoing nature of the Oregon water rights adjudication has left the tribes without a quantifiable water right and has hindered restoration and maintenance of habitat for listed species. Bureau of Indian Affairs v. Klamath Water Users Protective Assoc., 532 U.S. 1 (2001).
California recognizes the Indian tribes water rights and has no conflict with the BIA’s representation and assertion of those rights.
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John Vietor - Political Advocate, Coastside Fishing Club
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California perspective on Klamath Basin
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