Klamath Water Users Association
July 19, 2003
Strike 2: House Defeats Blumenauer’s Second Attempt to Regulate Lease Lands
For the second time in the past year, refuge lease land legislation introduced by U.S. Representative Earl Blumenauer (D-Portland) was defeated in the House of Representatives. This time, more lawmakers – including 23 Democrats – voted against the measure, which failed by a 228-197 vote on the floor of the House. Importantly, the rest of the Oregon delegation, including three Democrats and Republican Greg Walden, opposed Blumenauer’s proposal. Walden and Congressman Wally Herger (R-CA) led the opposition to a similar measure last year, which was defeated by a bipartisan vote of 223 to 201.
Blumenauer’s amendment to the annual Interior Appropriations bill was vigorously debated on Thursday on the House floor. The failed legislation aimed to prohibit the Bureau of Reclamation from issuing leases to farmers planting alfalfa or row crops in the Lower Klamath and Tule Lake National Wildlife Refuges.
Herger and Walden were joined on the House floor by an impassioned John Doolittle (R-CA) in attacking the proposed amendment. Doolittle warned his fellow lawmakers that Blumenauer’s amendment would set a dangerous precedent for farmers nationwide.
“If the federal government can tell Klamath farmers what to grow, they can certainly tell your farmers what to grow,” Doolittle told the House.
Earlier in the week, in response to numerous inquiries from Klamath Basin residents, Congressman Walden recommended that those wishing to express their opinion on attempts to limit agriculture in the Klamath Wildlife Refuges should contact Blumenauer directly. The response was impressive and widespread.
“Your amendment is not helping out the water situation,” wrote Don Mausshardt of Klamath Falls. “In fact, it helps fan the flames of discontent here in the Klamath Basin.”
“My family owns and operates Beaverton Foods which is the largest producer of horseradish in the United States,” added Domonic Biggi. “I ask you to please reconsider your stance on this amendment.”
Walden expressed outrage over Blumenauer’s actions.
“It is absolutely galling that a lawmaker representing the Portland metro area would inject himself into the Klamath Basin and seek to dictate to the beleaguered farmers what they can and cannot plant in the refuges,” he said.
Blumenauer’s amendment was backed by a number of environmental groups, including the Sierra Club and the World Wildlife Fund, that have taken part in the effort to restrict agriculture across the Klamath Basin. His amendment was opposed by a number of agriculture advocacy organizations, including the California and Oregon Farm Bureaus, the American Farm Bureau, Central Valley Project Water Association, the Agricultural Retailers Association, the Oregon Wheat Growers League, the Oregon Potato Commission, the Oregon Cattleman Association, Oregonians for Food and Shelter, and the Klamath Water Users Association.
Armstrong Issues Order: NMFS B.O. Needs Tweaking, No Change in Flows
Weeks of speculation and hand wringing were brought to an end on Thursday when federal district court Judge Saundra Armstrong issued her order on PCCFA et al. v. USBR et al. The judge’s 30-plus page order – trumpeted by environmental plaintiffs as proof positive that the Bush Administration plan for Klamath Project operations is flawed – actually calls for very modest adjustments to the plan. Importantly, the decision has no impact on current and near-term Klamath Project operations, and does not direct federal agencies to adjust any flow recommendations for coho salmon.
Armstrong’s order includes several important findings, as further described below.
NMFS Biological Opinion
The Reasonable and Prudent Alternative (RPA) and Incidental Take Statement (ITS) contained in the National Marine Fisheries Service (NMFS) 2002 Biological Opinion (BO) are arbitrary and capricious, according to Judge Armstrong. While plaintiffs are already underscoring the Judge’s ruling that the BO is “in violation of the Endangered Species Act”, Judge Armstrong did not simply discard the NMFS document. Rather, she remanded the BO to NMFS with instructions to amend it to address the deficiencies shed noted.
According to Judge Armstrong, the RPA relies on actions by states and private properties that are not reasonably certain to occur to achieve its long-term target flow rates. Specifically, the judge expressed concern that the States and Tribes will participate in the Conservation Implementation Committee, as proposed in the B.O. Even with their participation, Armstrong notes, it is not reasonably certain that the Conservation Committee will achieve the target flow rates by 2010.
The Endangered Species Act (ESA) also requires NMFS to provide an ecological surrogate for defining the amount or extent of incidental “take” of coho salmon due to Project operations, which when reached, results in an unacceptable level of take. Armstrong found that the ITS at issue in this case is devoid of any threshold that, when reached, would indicate that an unacceptable level of coho “take” has occurred and would trigger reinitiation of consultation. Because of this “absolute failure” to comply with the requirements of a valid ITS, Armstrong found NMFS’ issuance of the ITS in this case “arbitrary and capricious”.
More important to Project irrigators, however, is Armstrong’s determination that the short-term and long-term flow rates proposed in the 2002 B.O. are not arbitrary and capricious and are “fully consistent with the current state of the best available science.” Armstrong found it appropriate to leave the 2002 B.O. in place until NMFS issues a revised B.O. that addresses the role of third party actions and the ITS, as described above.
Armstrong declined to find that the U.S. Bureau of Reclamation (Reclamation) acted in an arbitrary and capricious manner in adopting the short-term flow levels proposed in the 2002 NMFS BO. She based her decision on the “conflicting and uncertain scientific evidence regarding whether increased flows will in fact benefit coho salmon.” Importantly, Armstrong reaffirmed her 2002 finding that the National Research Council (NRC) Interim Report contained the “best scientific evidence available, since the 2001 Hardy Report was only in draft form” Armstrong emphasized “the state of the scientific evidence has not changed since this Court’s last order.”
The Fish Die-Off
Downstream tribes argued in PCFFA that Reclamation failed to provide adequate flow levels in the Klamath River in August and September 2002, resulting in the 2002 fish die-off that occurred on the lower Klamath River, in violation of the United States’ duty to protect the Tribes’ federal reserved fishing rights. Biologists for the tribes and the Klamath Water Users Association (KWUA) provided evidence on this matter, which Armstrong closely considered.
The declaration submitted by KWUA fisheries biologist Dave Vogel proved to be an important factor in this aspect of the case. In his declaration, Vogel challenged claims made by the Yurok Tribe and the California Department of Fish and Game (CDFG) with respect to the cause of the fish die-off:
The Yurok Tribes’ conclusion that the large salmon run and low Iron Gate Dam flows explain the salmon kill in 2002 is improper, since in 1988, there was a much larger salmon run than in 2002, and the flows in the lower Klamath River were similar to the 2002 flows, yet there was no resulting fish kill.
CDFG’s report, on the grounds that it contains several major errors, including inappropriate use of monthly average temperatures, and incorrect plots of temperature data in the area of the die-off.
Based on the conflicting evidence presented by the parties regarding the cause of the fish die-off, Armstrong found that a “triable issue of fact” exists as to whether Reclamation breached its duty to the Tribes through its operation of the Klamath Project. Accordingly, the Court denied the Tribes’ motions for summary judgment on this matter.
Despite the serious tone contained in Armstrong’s rulings on the NMFS B.O., the actions directed to address these concerns have very little impact on Klamath Project irrigators. While the judge ordered that the 2002 B.O. be remanded back to NMFS for revision, the Court declined to vacate and set aside the 2002 B.O. in the interim. The fact that Project irrigators will continue to receive take coverage under the existing B.O. while NMFS revises the document is critically important.
The bottom line to Project irrigators is this: Judge Armstrong has directed that a few, specific modifications be made to the existing NMFS B.O. to address her concerns. Her judgment in no way alters NMFS’ recommended flows for the Klamath River. More importantly, Judge Armstrong did not adopt the flow schedules proposed by the plaintiffs, which would have had serious consequences for Klamath Project irrigators.
“Don’t believe the headlines you read in the major media outlets when you read about this case,” said KWUA Executive Director Dan Keppen. “The environmentalist plaintiffs actually got very little out of this decision.”
EPA: Aquatic Herbicides Are Not Pollutants – No Permits Needed
The Environmental Protection Agency (EPA) has released an interim guidance document that clearly states the Agency's belief that the application of a registered pesticide, according to labeled use restrictions, is not the release of a pollutant under the Clean Water Act. It is intended to offer guidance to all regions of the EPA, including those located in the Ninth Circuit, where the federal court has made several rulings to the contrary.
Possibly most significant in the EPA announcement was the clearly outlined intent to publish the guidance document in the Federal Register for public comment and formal adoption. Courts have consistently ruled that internal guidance documents that have not been formally adopted in a public comment process do not constitute formal agency actions and may not be relied upon by the courts. This guidance document will not supercede the court decisions in the Ninth Circuit without further official action by EPA.
The Klamath Irrigation District (KID) in July 2002 secured a Clean Water Act water quality permit from the Oregon Department of Environmental Quality. The permit, the first of its kind in Oregon, allows the district to apply an aquatic herbicide into its irrigation system to control excessive weed growth under guidelines that ensure protection of the environment. Despite the new EPA guidance, KID general manager Dave Solem intends to continue operating under its current permit.
“We did this to protect ourselves from third-party lawsuits,” said Solem. “We’re not going to change our permitted operations for this year.”
Thanks to Craig Smith at the Family Farm Alliance for background information used in this article.
KWUA Participates in Water Law and Policy Briefing Conference
The Klamath Water Users Association (KWUA) took part in a vigorous discussion of Klamath River challenges as part of a panel presentation at the Water Education Foundation’s 10th Water Law and Policy Briefing on Friday in San Diego. KWUA Executive Director Dan Keppen joined U.S. Bureau of Reclamation Klamath Basin manager Dave Sabo, Steve Rothert of American Rivers, and Tim Ramirez, special assistant to California Resources Secretary Mary Nichols to discuss the latest Klamath River issues.
Keppen provided an overview of the challenges faces Klamath Project irrigators, including the uncertainty imbedded in the current Project operations paradigm. He described the proactive efforts undertaken by local water users over the past ten years, and emphasized the progress made in the past year to secure $50 million in conservation funding and participate in a pilot environmental water bank program. He also suggested what will likely be required to ultimately reach solutions in the Klamath Basin:
Unassailable scientific rationale for all biological opinions;
Coordination and integration of restoration activities, and accountability for those actions;
Congressional support for meaningful restoration activities throughout the Klamath Basin for listed species and the refuges; and
Alleviation of the disproportionate ESA burden now borne only by the Klamath Project.
The two-day conference also included briefings on California’s Bay-Delta, groundwater storage rights, water quality issues, and the Colorado River.
Water rights law should protect districts, help farmers
By William M. Ganong, Guest Comment
Western water law is nothing if not complicated and convoluted, having slowly formed over a century as the arid West developed. A seductively simple water bill pending in the Oregon Senate, HB 3298, seeks to define the owner of water rights for all irrigation rights inside certain water delivery districts. HB 3298 is of immense importance to irrigators in districts.
When an individual outside a district applies for and develops a water right, that individual clearly owns that water right.
Inside districts more parties join the relationship: the district, multiple farmers, and sometimes the Bureau of Reclamation. Any of these three parties may individually or in partnership apply for and develop a water right.
When a district applies for a water right, that right usually is issued in the district’s name, in trust for the farmers who put the water to beneficial use on the land described in the water right at the rate and duty specified. The relationships between and among the district, the farmers and the bureau are well defined and critical. Districts cannot arbitrarily take over water rights by declaring themselves “co-owners” and thereby violate the legal trust relationship spelled out in Oregon law. All parties to water rights within a district are partners in the effort to maintain the integrity of the district and put the water to beneficial use.
HB 3298 unilaterally changes these relationships in every case for every water user in Oregon who is within certain districts. HB 3298 seeks to define the owner of water rights for all irrigation rights inside these districts as the person who holds title to the land to which the water right is attached, no matter the issue or the history of the particular water right and district.
In the name of private property rights, HB 3298 fully vests all ownership interests to individuals within districts – but at the expense of each other. Because districts, and not the Department of Water Resources (as is the case for individual water rights) regulate against injury, districts would be unable to protect farmers as a whole or farmers as individuals to ensure that water is managed fairly and without injury.
Irrigation districts are local governments managed by an elected board of directors. Qualified directors must be landowners in the district receiving water delivered by the district. Directors are elected from particular areas and serve three-year terms without compensation.
The Klamath Irrigation District Board is composed of five members who live and farm in the district. Two of the board members are fourth-generation farmers on land that their great-grandparents homesteaded and converted to productive farmland.
On behalf of its members, the KID is prosecuting water right claims in the Klamath River adjudication and is pursuing claims against the United States in the U.S. Court of Federal Claims, to recover damages farmers suffered by the taking of their water during 2001. Board members have personally participated as plaintiffs in other lawsuits and litigation filed by or on behalf of the district or in which the district has intervened. Board members have spent thousands of hours representing themselves and their neighbors on committees, before the Legislature, in different associations, and in court. The dedication and hard work of KID’s board members is representative of the dedication and hard work of all the boards of directors of districts throughout Oregon.
In litigation, lawsuits must be brought and prosecuted by the “real party in interest.” As trustees on behalf of its farmers, the KID can prosecute the takings case and KID can represent its farmers in the adjudication. If the definition contained in HB 3298 becomes law, then the argument that districts are trustees for farmers-water users goes away, the takings case is subject to dismissal, and the state may have to revise the manner in which it is reviewing our water right claims to require each individual landowner to personally participate in the process.
Farmers need to work together to protect the viability of irrigated agriculture. The Oregon Natural Resources Council, Earth Justice, the Sierra Club and others with an agenda to end irrigated agriculture in the West have worked for years to divide our agricultural communities, recognizing that “divided they fall.” It’s ironic that these same tactics of divide and conquer are being employed for passage of HB 3298 by an organization that primarily represents people who are farmers, but not farmers inside districts.
The reality is districts are farmers. And farmers are districts. HB 3298 severs the shared relationship between districts and farmers, and changes the whole concept of a water right having components of both diversion of water and beneficial use of that water. Neither farmers nor districts can do both without each other.
The legislature and our resources community are better served by working through the interim to fully evaluate the effects on all water users to arrive at consensus.
William M. Ganong, a Klamath Falls attorney in private practice, is general counsel to Klamath Irrig. District.
CALENDAR OF EVENTS
Monday, August 4, 2003 – Klamath Hydro Relicensing Water Quality Group. 12:00 p.m. to 6:00 p.m. Miner’s Inn, Yreka, California.
Tuesday, August 5, 2003 – Klamath Hydro Relicensing Aquatics Work Group. 8:30 a.m. to 4:00 p.m. Miner’s Inn, Yreka, California.
Tuesday, August 5, 2003 – Klamath Hydro Relicensing Recreation Work Group. 8:30 a.m. to 4:00 p.m. Miner’s Inn, Yreka, California.
Wednesday, August 6, 2003 – Klamath Hydro Relicensing Cultural Resources Work Group. 8:30 a.m. to 4:00 p.m. Miner’s Inn, Yreka, California.
Wednesday, August 6, 2003 – Klamath Hydro Relicensing Aquatics / Fish Passage Work Group. 8:30 a.m. to 4:00 p.m. Miner’s Inn, Yreka, California.
Thursday, August 7, 2003 – Klamath Hydro Relicensing Terrestrial Work Group. 8:30 a.m. to 12:00 p.m. Miner’s Inn, Yreka, California.
Thursday, August 7, 2003 – Klamath Hydro Relicensing Socioeconomics Work Group. 8:30 a.m. to 4:00 p.m. Miner’s Inn, Yreka, California.
Friday, August 8, 2003 - Klamath Hydro Relicensing Plenary Group. 8:30 a.m. to 12:00 p.m. Miner’s Inn, Yreka, California.
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