Klamath Water Users Association 

Weekly Update

February 26, 2004


Ninth Circuit Dismisses Appeal of Landmark Alsea Case

Claiming victory for "good science and common sense," Pacific Legal Foundation attorney Russ Brooks on Tuesday hailed a decision from the Ninth Circuit Court of Appeals that effectively invalidates, once again, the listing of the Oregon Coast coho salmon as a "threatened species" under the Endangered Species Act (ESA). The case is Alsea Valley Alliance v. Evans, and has potential implications for the status of Klamath River coho salmon currently listed as "threatened" under the ESA (see related story, page 2).

"We are elated with this decision," said Brooks. "The court dismissed an improper and needless appeal of a good, commonsense decision. By lifting the stay of the district court's decision, people along the Oregon coast can now resume normal lives as productive citizens, no longer hampered by unnecessary restrictive regulations imposed to protect fish that didn't need protecting to start with."

At issue in the case was how the National Marine Fisheries Service (NMFS) counted Oregon Coast coho salmon for protected status under the ESA. According to PLF, NMFS' counting of only naturally spawned salmon while totally disregarding hatchery spawned salmon kept the fish count artificially low, justifying otherwise needless ESA protections and locking up land use.

At the trial level, U.S. District Judge Michael Hogan ruled that NMFS acted illegally in protecting fish spawning in the wild, but not hatchery fish, which are genetically identical. Judge Hogan ruled NMFS could not pick and choose among fish swimming side-by-side in a stream which it would protect and which it would ignore. Environmental groups appealed the decision to the Ninth Circuit.

"With the Ninth Circuit's dismissal of this appeal, the 'sky is falling' rhetoric of hard-core environmental activists has been debunked and their true agenda exposed," said Brooks. "This attempt to control private land use in the name of species protection has been successfully shut down. Families in the Pacific Northwest are sick of environmental hysterics that have resulted in rising home prices, choking traffic, higher taxes and a slowed economy."

Rather than appeal the district court's decision, NMFS chose to comply with the order and instituted status reviews of salmon and steelhead listed under the ESA across the Western states, from Seattle to San Diego and east to Boise. As a result, the Ninth Circuit dismissed the appeal because it determined the environmentalists could participate like any other concerned individuals in the public process related to the status reviews. In that process, the Court theorized that the environmentalists might get what they wanted-separate consideration for hatchery and "naturally spawning" coho. Importantly, however, the Ninth Circuit concluded, "the district court legitimately doubts this is possible."

The biggest impact of the decision is the fact that it reinstates the district court's order invalidating and setting aside the coho listing, which had been postponed during the appeal. This decision stands to have major implications for land stewards and natural resource providers-such as farmers, ranchers, and timber harvesters-as well as local governments and citizens struggling with infrastructure development of schools, hospitals, and highways.

Alsea Decision Has Potential Implications for Klamath River Coho Salmon

The Pacific Legal Foundation (PLF) on Tuesday hailed a decision from the Ninth Circuit Court of Appeals that effectively invalidates the listing of the Oregon Coast coho salmon as a "threatened species" under the Endangered Species Act (ESA). Also in the wake of Tuesday’s decision, PLF predicted success in Grange v. National Marine Fisheries Service (NMFS). In Grange, as in Alsea, rather than consider the prolific numbers of hatchery salmon, NMFS instead considered only "naturally spawned" populations and then determined they were "threatened." This listing is one of the factors that led to the shut off of irrigation water to Klamath area farmers in 2001. Grange v. NMFS was stayed by Judge Hogan pending a decision from the Ninth Circuit in Alsea.

"We filed our suit challenging the Klamath coho listing shortly after Judge Hogan's Alsea decision," PLF attorney Russ Brooks told the Klamath Water Users Association on Wednesday. "When Alsea was appealed, NMFS moved for a stay of the Klamath coho case. Now that the appeal is resolved, and favorably, we'll be going back before Judge Hogan asking him to lift the stay and invalidate the listing.  Based on Judge Hogan's Alsea decision, we expect a similar decision concerning the Klamath coho listing."

Founded in 1973, Pacific Legal Foundation is a national leader in the effort to reform the Endangered Species Act and raise awareness of the Act's impact on people. PLF's Pacific Northwest Center is located in Bellevue, Washington. More information on the Foundation can be found at www.pacificlegal.org.

-Source (in part): PLF News Release -

Gov. Schwarzenegger Appoints Lester Snow Director of California DWR

Governor Arnold Schwarzenegger on Tuesday announced the appointment of Lester Snow as director of the California Department of Water Resources.

"I am very pleased that Lester will be joining my administration and I am confident that he will use his vast knowledge in water resource management to lead the state's efforts to find balance between conservation and development," said the governor.

Snow has over 25 years of experience working in public water resource management. Since 2001 he has been a principal at Saracino-Kirby-Snow, the water resource planning and management division of Schlumberger Water Services. At the same time he has also been the North American business development manager for Schlumberger Water Services. Prior to that, he served as the Mid-Pacific regional director of the U.S. Bureau of Reclamation. KWUA Executive Director Dan Keppen served as Snow’s special assistant at Reclamation in 2000-01.

"Lester Snow knows how to bring diverse interests together to tackle problems in a broad, concerted, and rational manner," said Keppen. "Governor Schwarzenegger’s choice of Lester Snow as DWR director adds further depth to the resources team he has assembled around him."

From 1995 to 1999 Snow served as the executive director of the CALFED Bay-Delta program and prior to that spent seven years as the general manager of the San Diego County Water Authority. Snow's experience also includes six years with the Arizona Department of Water Resources, including four years as the Tucson Area director.

  • Source (in part): CDWR press release –

PacifiCorp to Submit Application to Relicense Klamath River Hydro Project

PacifiCorp announced Tuesday that it will be submitting to the Federal Energy Regulatory Commission (FERC) an application to relicense its 151-megawatt (mw) Klamath River Hydroelectric Project.  FERC will receive the application by Friday, February 27.  PacifiCorp’s current license was issued in 1956; it expires in 2006.

The application recommends to FERC operating conditions that attempt to balance the Project’s electric generation and irrigation values with environmental protection and recreational and cultural resources. The Project, which spans from southern Oregon into northern California, currently consists of: Link River dam, East Side and West Side powerhouses, Keno dam, John C. Boyle dam, COPCO dams 1 and 2, Fall Creek powerhouse, and Iron Gate dam.  Keno dam is the only development that does not generate electricity.

PacifiCorp began its Klamath relicensing process in 2000.  The process has included hundreds of open meetings with federal, state and local governments, as well as representatives from the irrigation and agricultural community, Native American tribes, environmental organizations and the local community.

In its application, PacifiCorp proposes to decommission the East Side and West Side powerhouses.  Link River dam, as a Bureau of Reclamation structure, would remain unaffected.  The powerhouses’ relatively low power output (3.8 mw), and the estimated cost of installing fish screens makes them uneconomical under a new license.

PacifiCorp also proposes to exclude Keno dam, which forms Lake Ewauna, from the FERC license, namely because Keno does not contribute to Project generation and therefore should not be subject to FERC’s jurisdiction.  The dam would remain unaffected, and the application does not propose any immediate changes to the management of Lake Ewauna.

"PacifiCorp is very proud to have worked with dozens of individuals and organizations over the last several years in this collaborative effort," said Bill Eaquinto, PacifiCorp vice president, hydro relicensing.  "We believe this application provides for the continued production of clean renewable energy that will benefit our customers, while minimizing impacts to other water users, improving water quality and habitat, providing recreational river flows, and protecting important cultural resources."

The entire relicensing application is approximately 7,000 pages.  The document and an executive summary will be available by next week on the PacifiCorp Web site at: www.pacificorp.com/Article/Article1152.html .

"The Klamath River Basin is a complex, controversial basin with many interests and resource issues," Eaquinto added. "While not easy, our collaborative relicensing process has improved the exchange among stakeholders and the quality of information available to all those involved.  PacifiCorp looks forward to working closely with FERC, other federal and state resource agencies, and other interested parties on decision making regarding the Klamath Hydroelectric Project."

- Source: PacifiCorp Press Release -

"System Enhancements" to be Proposed In PacifiCorp’s FERC Application

PacifiCorp earlier this week announced that it will be submitting to the Federal Energy Regulatory Commission (FERC) an application to relicense its Klamath River Hydroelectric Project. Key proposed significant system enhancements include:

Water Quality

  • The decommissioning of the East Side and West Side powerhouses will eliminate any related water quality problems;
  • Implementing new minimum instream flows and ramping rates in all Project reaches;
  • Installing an oxygenation or reaeration system in Iron Gate reservoir to increase oxygen levels;

Fish Resources

  • Elimination of fish entrainment and turbine-induced mortality at the East Side and West Side powerhouses;
  • A minimum 100 cubic feet per second (cfs) flow release from Boyle dam at all times to enhance fish habitat and maintain high water quality in the Boyle bypass reach, and another 100 cfs minimum flow from Boyle powerhouse to maximize trout habitat in the peaking reach;
  • A surface collection system for Boyle reservoir that will exclude fish from the power intake and facilitate downstream fish passage;
  • Addition and regular augmentation of spawnable gravel in the Boyle bypass reach and below Iron Gate dam;
  • Increases of minimum flows and additional screens and fish ladders on other developments.

Cultural Resources

  • PacifiCorp will complete a Historic Properties Management Plan, and establish guidelines for consulting with the public;
  • Any significant archaeological resources potentially affected by the Project will be protected and preserved, with appropriate mitigation measures taken.

Recreation Resources

  • Add 85 new campsites and 30 day use picnic sites by 2040, or as needed by future demand;
  • Address Americans With Disabilities Act compliance at all recreation facilities;
  • Provide new and/or enhanced hiking trails and wildlife viewing areas;
  • Continue to provide flows for whitewater boating and fishing activities in the Upper Klamath River/Hell’s Corner reach.

PacifiCorp also proposes several visual enhancement measures for the Boyle and Iron Gate facilities, as well as implementation of vegetation and wildlife resource plans.

The Klamath Water Users Association Power Committee and its consultant – Cable Huston Benedict Haagensen & Lloyd – are developing a strategy to engage in the FERC relicensing process.

California State Senator Introduces Bill That Would Set Flow Requirements

California State Senator Mike Machado on February 19 introduced SB 1552, which would authorize regional water quality control boards to establish minimum stream flow requirements in connection with setting total maximum daily loads.

Under the Porter-Cologne Water Quality Control Act, the California State Water Resources Control Board and the California regional water quality

control boards are the principal state agencies with regulatory authority over water quality. Under the federal Clean Water Act, each state is required to identify those waters for which prescribed effluent

limitations are not stringent enough to implement applicable water quality standards and to establish, with regard to those waters, total maximum daily loads, subject to the approval of the United States

Environmental Protection Agency, for certain pollutants at a level necessary to implement those water quality standards.


SB 1522 – Proposed Water Code Language

SECTION 1. Section 13286.10 is added to the Water Code, to read:

13286.10. The regional boards may establish minimum stream flow requirements in connection with establishing total maximum daily loads pursuant to Section 1313(d) of Title 33 of the United States Code.

This bill would authorize the regional boards to establish minimum stream flow requirements in connection with establishing total maximum daily loads pursuant to the federal Clean Water Act.

Keynote Speaker at Watershed Conference Shares "Lessons Learned"

The keynote speaker at this week’s Klamath Watershed Conference provided Klamath Basin stakeholder interests with advice and "lessons learned" from experience gained in addressing complex resource challenges throughout the western United States. Betsy Rieke, the Area Manager for the Bureau of Reclamation in the Lahontan Basin, on Wednesday delivered an hour-long presentation describing her past experience in negotiating resources solutions in the California Bay-Delta, Platte River and in Nevada.

"Leadership is the main reason for success in negotiations," noted Rieke. "Leadership helps make decisions to answer questions like 'who needs to be at the table, what needs to be on the table, and how big is the scope of the problem.'"

Rieke pointedly did not offer observations on the challenges currently facing the Klamath Basin, but instead focused on "lessons learned" from her considerable involvement in high-level negotiations, including those undertaken when she was Assistant Secretary of the Interior in the 1990’s.

"Betsy Rieke has been there before," said KWUA Executive Director Dan Keppen, who introduced Rieke to the conference audience. "She has seen success and failure; her experience is a true asset."

Ms. Rieke’s previous positions include: Director, Natural Resources Law Center, University of Colorado School of Law; Assistant Secretary for Water and Science in the Department of the Interior; Director of Water Resources for the State of Arizona; and a partner in a Phoenix, Arizona law firm.

Hatfield Working Group Hosts Evapotranspiration Workshop

The Upper Klamath Basin Working Group – also known as the "Hatfield Group" – hosted a two-day workshop earlier this week on evaporation and evapotranspiration (ET), an area of past controversy in Klamath Basin water management discussions. Six experts from Oregon, California and Colorado presented information on Monday and Tuesday in Klamath Falls that suggested there was more agreement then dissent on the topic of interest.

"Evapotranspiration is not a controversy," said Ron Hathaway, of the Oregon State University Extension Service. "It is, however, one of the most important components to determining water balance in a watershed or basin. There is no disagreement among scientists regarding the ET rates for open waters (lakes), wetland, and agriculture cropland. However, there is some uncertainty due to the fact we have not measured ET in all places at all time periods."

Evapotranspiration is the combination of water lost from a vegetative community through evaporation from soil or the vegetative surface, and the vaporization of liquid water in plant tissues. Considerable debate has focused on this topic in recent years, particularly as it relates to wetland restoration projects that have been proposed around the perimeter of Upper Klamath Lake. Critics of these proposals believe that the wetlands actually consume more water than that which is lost to farm or ranchland ET.

The variability of ET for a vegetative community type can be illustrated using wetlands. A wetland that is "wet" (saturated) for a short season of two to three months may have an ET of 1.2 acre-feet of water per acre. A wetland that is "wet" for twelve months, with 40-50% open water, could have an ET of 3.8 acre-feet per acre. "When using an ET rate it is essential that the specific site characteristics also be described, as well as the time period," said Hathaway.

Evapotranspiration Panel

Charles Burt – Chairman & Professor, Irrigation Training & Research Center, Cal Poly at San Luis Obispo.

Harry Carlson – Superintendent, Univ. of California Intermountain Research & Extension Center, Tulelake

Bob Gearhart – Professor, Environmental Resources Engineering Dep’t, Humboldt State University

Jonathan La Marche – Hydrologist, Oregon Water Resources Department

Tim Mayer – Hydraulic Engineer, US Fish & Wildlife Service

Ty Mull – Ag/Hydraulic Engineer with US Bureau of Reclamation, Technical Services Center, Denver, CO.


Thursday, February 25, 2004. Public Meeting on Lost River and Klamath River TMDLs. 6:30 p.m. Klamath County Courthouse – First Floor Meeting Room. 316 Main Street, Klamath Falls, Oregon.

Tuesday, March 2, 2004. KWUA Legal Committee Meeting. 3:00 p.m. KWUA Office. 2455 Patterson Street, Suite 3, Klamath Falls.

Wednesday, March 16, 2004. KWUA Power Committee Meeting. 3:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls.

Wednesday, March 17, 2004. KWUA Executive Committee Meeting. 2:00 p.m. KWUA Office, 2455 Patterson Street, Suite 3, Klamath Falls.


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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