Klamath Water Users Association 

Weekly Update

April 18, 2003



Kulongoski, Smith, Walden Meet With Local Water Users

Oregon’s new governor, U.S. Senator Gordon Smith and U.S. Representative Greg Walden all paid visits to the Klamath Basin this week, and the key topic of discussion for all three was water. Senator Smith met with local water users on Monday, where he was briefed on the upcoming PCFFA et. al v. USBR et. al lawsuit, scheduled to be heard on April 29th in Oakland. Governor Ted Kulongoski and Rep. Walden teamed up and spent two hours with local water users, county commissioners and community leaders, stopping by a local farm and touring the recently completed “A” Canal fish screen and headgates.

Senator Smith spent one hour at the Klamath Water Users Association office in Klamath Falls, where much of the meeting focused on the upcoming court case. Smith shared water users’ views that the government defendants appear to have a strong case in court, and that plaintiffs’ arguments appear to be unraveling. Should the plaintiffs’ case prove successful, a substantial cut in Project deliveries would be required in May and June to meet the flow levels they seek.

Governor Kulongoski and Rep. Walden met with local water users and community leaders for 30 minutes at the Klamath Falls airport, where Klamath Irrigation District manager Dave Solem and Merrill farmer Steve Kandra provided an overview of the Klamath Project and its history. KWUA Executive Director Dan Keppen outlined the proactive efforts undertaken by local water users in the past 10 years, and stressed the need for a watershed-wide approach to recover imperiled fish species.

“Right now, two percent of the Klamath River watershed is being asked to bear the burden of fixing 100 percent of the fish problems,” he said.

Kulongoski and Walden then accompanied a group of water users and local officials to the property of Ed Bair, who farms potatoes, hay and grain west of the airport. Kulongoski spent nearly 30 minutes talking with Bair and his family, and asked many questions about marketing, financial challenges, and Bair’s involvement with the 2002 Klamath Project Water Bank. Bair was impressed with the new governor.

“You could tell he was sincerely interested in our issues, and he seems serious about doing what he can to help,” said Bair.

The Kulongoski-Walden entourage wrapped up the tour at the new “A” Canal fish screen facility and met with the media after touring the construction site. Kulongoski was impressed with the facility and the fact that the $14 million structure was completed in less than 7 months.

“We’ve seen some good things happening here on the Oregon side of the Klamath Basin,” he said. “But it’s not just an Oregon issue. What’s happening on the other side of the border? Do they have the same interests we do?”

The California Resources Agency last fall quickly blamed Klamath Project operations, located 200 miles upstream, as the reason for the unfortunate fish die-off on the lower Klamath River.

Both Kulongoski and Walden support a comprehensive, watershed-wide solution that includes California, Oregon and the United States.

2003 KWUA Annual Meeting to Focus on Conflict and Progress

The 49th Annual Meeting of the Klamath Water Users Association (KWUA) will provide local residents an opportunity to glimpse the good, bad, and ugly elements of Klamath River watershed issues. Keynote speaker David Anderson – the White House’s point man on the federal Klamath Basin Working Group – will outline the efforts undertaken by the Bush Administration in the past year to address water resources challenges in the Basin. KWUA spokespersons will elaborate on this theme, and outline the proactive projects completed and proposed by landowners in the past decade. On the other end of the spectrum, legal and scientific presentations will be made to outline arguments to be heard in a critical court decision on April 29th in Oakland.

“The past 12 months have been marked by conflict and progress,” said KWUA Executive Director Dan Keppen. “Local water users in the past year have tried to proactively address water supply challenges while staving off a furious round of attacks launched by environmental activists. This year’s annual meeting will try to capture a sense of this.”

Keynote speaker Anderson is the Associate Director of Agriculture and Public Lands Issues for the White House Council on Environmental Quality (CEQ). He is the Chairman’s designated lead on the Healthy Forest Initiative, and the Klamath Basin Federal Working Group.

KWUA Attorney Paul Simmons will summarize the dizzying amount of Klamath litigation currently moving through the courts, and will specifically address the upcoming hearing on PCFFA, et al. v. USBR, et al. New findings on the recent Klamath River fish die-off will also be presented at the meeting. But the focus will be on Anderson.

Dave Solem, KWUA President, expressed his appreciation of the Bush Administration’s commitment to solving Klamath Basin water issues.

“Administration leaders like David Anderson have shown their willingness to work directly with local water users to solve tough problems”, he said.

7:00 p.m. April 24, 2003
OIT Campus Union Building Auditorium
Klamath Falls, Oregon

2003 KWUA Annual Meeting Agenda

I. Invocation – Claude Hagerty, Malin Farmer
II. Introduction of Guests and KWUA Board Members
III. Presentation of Media Appreciation Awards
IV. Consultant Updates
 Washington, D.C. Update – Troy Tidwell, Washington Strategies
 Legal Update – Paul Simmons, Somach, Simmons & Dunn
 Science Update – PowerPoint Presentation Prepared by Dave Vogel, Natural Resources Scientists, Inc.
V. Video Clip – Fall 2002 Salmon Returning to Iron Gate (3rd Highest Return in 40 years)
VI. President’s Address - Dave Solem
VII. Executive Director’s Address - Dan Keppen
VIII. Keynote Address – David Anderson, White House CEQ
IX. Questions and Answers
X. Closing – Earl Danosky, Tulelake I.D.

State Hearing Panel Dismisses WaterWatch from Klamath Adjudication

A State of Oregon hearing officer panel on April 3rd dismissed WaterWatch of Oregon – an advocacy group and strong critic of Klamath Project agriculture – from the ongoing Klamath River adjudication process. Over two-dozen irrigation districts and local business interests filed multiple motions in the past four months, which ultimately led to the panel’s decision to dismiss WaterWatch from the water rights adjudication process.

Project irrigators last November filed the first motion to dismiss WaterWatch as a party, asserting that WaterWatch did not have standing to contest the claims in this case.

“WaterWatch is an advocacy organization which generally opposes irrigated agriculture and seeks allocation of water to instream uses,” the original water users’ motion states. “That philosophy is its right, but WaterWatch has no place in this proceeding.”

To substantiate its involvement with the adjudication process, WaterWatch relied upon two Klamath Basin properties for which it had a one percent interest in each case. One property is within a shopping center Klamath Falls and is occupied by Schlotzsky’s Delicatessen. This property does not receive Klamath Project water from Klamath Irrigation District (KID) and is not part of the lands covered by any claim filed in this proceeding. WaterWatch apparently acquired the one percent interest in the other property from a limited liability company acting through Rich McIntyre, a local consultant with the American Land Conservancy. In that latter transaction, the one percent interest was reconveyed back to the owner in July of 2000, just two months after the contests were filed and the one percent interest had been acquired. In both cases, claims the irrigators, the one percent interests were acquired very shortly before, or virtually on the day of, the deadline for filing the contests in the adjudication proceeding. The motion to dismiss stated that WaterWatch “acquired the respective interests exclusively in order to be able to file contests, and for no other reason whatsoever.”

On January 28, 2003 the State Hearing Officer Panel issued an order denying the irrigators’ motion. At that time, the State concluded that WaterWatch had standing because the Schlotzky’s property in which WaterWatch had an interest in was subject to assessment by KID, although the property is not irrigated by surface water.

On March 7, 2003, Project irrigators filed a renewed motion after KID adopted a resolution exempting the Schlotzky’s property from any assessments by KID. The new motion claimed that WaterWatch had no “interest in the stream involved in the determination”. The State Hearing Office Panel on April 3rd agreed with this new motion, and found that WaterWatch’s property interest no longer can be practically effected by any order in adjudication.

“WaterWatch no longer has standing to pursue its contests, and those contests must be stricken,” the Hearing Officer Panel found.

“WaterWatch filed contests not to protect its own water rights but to attack others,” said KID attorney Bill Ganong. “In an attempt to gain standing, it acquired trivial interests lacking any attributes of property ownership, let alone any use of water.”

New Findings Cast Doubt on CDFG Fish Die-Off Assessment

Recent findings incorporated into a declaration submitted in an upcoming court case suggest that a report released earlier this year by the California Department of Fish and Game (CDFG) contains “several major errors”. David Vogel, a fisheries biologist with 28 years experience, recently submitted information to an Oakland judge that raises serious questions about the CDFG report, which has been hailed by environmental activists as proof that Klamath Project operations were responsible for the death of 33,000 salmon in the lower Klamath River last fall. The California Resources Agency concluded within days of the fish die-off that operation of the Klamath Project, located 200 miles upstream of the die-off, was somehow to blame. A report released by CDFG two months later reaches the same conclusion. According to Vogel, CDFG’s report contains several major errors:

 CDFG inappropriately uses monthly average air temperatures and monthly average water temperatures to derive conclusions on potential cause and effects on the fish die-off. The use of monthly averages can mask important daily changes in temperatures stressful to fish.

 CDFG incorrectly plotted water temperature data collected in the area of the fish die-off; CDFG mistakenly plotted water temperature data in the lower river skewed four days earlier than when the data were actually collected. The significance of this is that CDFG’s report misrepresented important water temperature data collected just prior to and during the period of the fish die-off.

 CDFG fails to explain the relationship between cooling water temperatures and the peak run of salmon that occurred in late August in the lower river. Yurok Tribe biologists noted a pronounced, and uncharacteristic, cooling trend in the lower river occurred in late August. According to the CDFG fish die-off report, an early, uncharacteristic peak run of salmon occurred concurrently in the lower river. Those data suggest that large numbers of salmon likely entered the lower river earlier than usual in response to the sudden cooling trend. However, a pronounced warming trend followed which exposed the undoubtedly crowded fish that had already entered the river to stressful conditions. By the second week in September 2002, a precipitous decline in water temperatures occurred that likely prompted even more fish to enter the lower river.

 CDFG’s speculation concerning a physical fish passage barrier in the lower Klamath River is not supported because: 1) fish passage occurred in other years with similar or less flow; and 2) data in the CDFG report demonstrates fish passage occurred during the flow conditions present prior to the fish die-off.

Of note, CDFG asserts that toxic substances could not have caused the fish die-off, even though it admits that water samples were not taken until 7 days after the onset of the fish die-off. Therefore, that potential source of mortality is still in question. To date, Vogel is unaware of any evidence ruling out the possibility that toxic substances may have caused the fish die-off.

Myth vs. Fact: 2002 Fish Die-Off

KWUA questions arguments made by environmental advocates and tribal biologists because they do not articulate how increased releases from Iron Gate Dam (IGD) could have prevented the 2002 Klamath River fish die-off more than 170 river miles downstream of the dam. If the primary cause of the fish die-off was warm water, it was physically impossible for IGD to cool the river down to tolerable levels for salmon.

MYTH: Increased IGD releases in the upper river could have ameliorated water temperatures in the lower river.
FACT: Maximum water temperatures in the upper Klamath River were much higher than the lower river just prior to the fish die-off and very similar during the time of the fish die-off.

MYTH: Increasing upper Klamath reservoir releases during late summer or early fall during naturally dry hydrologic conditions, such as occurred in September 2002, would benefit salmon.
FACT: Due to a variety of meteorological, physical, and biological reasons, artificially increasing flows at that time would probably be harmful. This is because IGD discharges are too warm for salmon during much of September.

MYTH: Additional Klamath Project flows released from Iron Gate Dam in early September 2002 would have prevented the fish die-off.
FACT: There is no evidence that releasing more water from IGD during early or mid-September could have prevented a fish die-off more than 170 river miles downstream because upper main stem temperatures were within the range known to cause mortality or reproductive failure in salmon. The gradual declining temperatures in the Klamath River downstream of IGD during the fall are primarily attributable to normal seasonal declines in ambient air temperatures, not river flow.

MYTH: 2002 was unique because there was a large salmon run and low Iron Gate Dam flows, which explains the fish die-off in September 2002.
FACT: Contrary to this claim, 1988 had a much larger salmon run than 2002 and the lower Klamath River flows were similar to that observed in 2002. According to the CDFG fish die-off report, in 1988 the lower Klamath River flow during September was 2,130 cfs, the salmon run was 215,322 fish and there was no consequent fish die-off; in 2002, the lower Klamath River flow during September was 2,129 cfs and the salmon run was 132,600 fish. These facts provide empirical evidence that this assumption is invalid.


Thursday, April 24, 2003 – KWUA 49th Annual Meeting. 7:00 p.m. Campus Union Auditorium, OIT. Klamath Falls, Oregon.

Tuesday, April 29th, 2003 – PCFFA et al v. USBR, et al. 1:00 p.m. 1301 Clay Street, #400 South, Oakland, Cal. Courtroom 3.

Monday, May 5, 2003 – KID, et al. v. United States of America. 2:00 p.m. EST, U.S. Court of Federal Claims, Washington, D.C.


Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net


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