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KID, KWUA sue agencies over water supply

followed by Fears of Flooding

As rain clouds filled the skies above the Klamath Irrigation District office Friday morning, some Klamath Project ag producers believe they may as well been filled with uncertainty over ag production in the Basin.

Tulelake farmer Ben DuVal and Klamath Irrigation District manager Gene Souza look over print-outs of the water outlook for the year with coffee in-hand and shared concerns about the years ahead, according to new biological opinions recently issued by the Bureau of Reclamation.

“The big thing’s water security. That is always at the forefront of our minds. Any time the water allocation’s cut, you are unsure if or when it will run out,” DuVal said.

KID has filed a lawsuit against Reclamation in federal court in Medford. Klamath Water Users Association will follow suit in a separate legal filing, jointly with Klamath Drainage District, Shasta View Irrigation District, Tulelake Irrigation District and individual farmers Rob Unruh and DuVal.

Limitation to water supply stem from protections in the biological opinion for endangered sucker in Upper Klamath Lake and Coho Salmon in the Klamath River.

“There has been a long history of this kind of approach, focusing on the Klamath Project because it is easy to regulate, and it’s not helping the species,” said Mark Johnson, deputy director of KWUA. “That makes it even harder to see this.”

DuVal admits that litigation is a terrible way to manage a river.

“We’re not going to solve this thing in the courts,” he said. “But when you get backed into a corner, your options go away pretty quick.”

When he and his wife started farming in the mid-2000s in Tulelake, there was an effort for parties to come to an agreement on water solutions on the Project. But he’s also seen the Project supply steadily decline since.

DuVal has farmed alfalfa, wheat and manages a herd of Black Angus cattle in Tulelake since 2004, on land originally homesteaded by his grandfather, Gaylord DuVal, in 1949. While impacts may not be felt in totality this year, DuVal said under the 2019 biological opinions issued by U.S. Fish and Wildlife and Reclamation on April 2, one out of every three years could mean dry fields in the Project for some farmers.

“I’m not as immediately concerned about this year as I am about dry years in the future,” DuVal added.

The biological opinions, which serve as guiding documents for the federal agencies through March 24, 2024, do not offer water certainty but do require a start date for irrigators on or near April 1.

KID’s Souza is expecting 309,000 of a full 350,000 acre feet supply of water for spring and summer on the Project, according to the April 1 forecast issued by Reclamation’s Klamath Basin Area Office April 1. An additional 10,000 acre feet of water would be available for fall.

Both Souza and DuVal emphasize the Project supply has been steadily decreasing over the years, and it’s having an impact on ag producers.

Souza said the new biological opinions could result in a shortened irrigation season for the Project, with the possibility of it shutting off upwards of four to six weeks earlier than normal this summer or early fall.

Souza, who is KID’s alternate representative on the KWUA, was anticipating the organization would have a year without litigation. But he’s hoping to work through litigation to a solution.

“All of Klamath Falls water users, including KID, (weren’t) invited to the table,” Souza said, referencing the creation of new biological opinions. “And we believe based on the Reclamation Act of 1902, plus the 2013 Order of Determination, that KID, Klamath Water Users Association should have been brought to the table to defend our rights.”

DuVal said water users pushed for it and are very appreciative of it.

“I know a lot of people worked through a government shutdown to get it done,” DuVal said. “But it comes up short and we have concerns about the reliability of water in the new BiOp(s).”

KWUA President Tricia Hill echoed DuVal’s concerns.

“We’re disappointed that it’s necessary, but it’s just not enough water,” Hill said in a news release. “We will lose rural communities. Even with this nice, wet winter we will not have enough in 2019.”

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KID's lawsuit -- From a news release

The Klamath Irrigation District, in consultation with the Klamath Water Users Association, has filed a lawsuit in federal court to protect vested water rights of families, farmers, and ranchers of the Klamath Basin.

The current federal practice of allocating water across the Klamath Basin is inconsistent with the Reclamation Act of 1902, violates Oregon State Law, and denies due process afforded by the U.S. Constitution.

The Reclamation Act requires Federal compliance with state water right law. In 2013, the State of Oregon issued a Finding of Fact and Order of Determination concluding Klamath Project irrigators are the sole owners of the right to beneficial use of the water stored in Upper Klamath Lake.

However, since the Order of Determination was issued, the federal government has continued to operate as if it owns the right to the beneficial use of the water stored in the lake, according to a statement released by KID.

This lawsuit has implications across the Klamath Basin. By ignoring our water rights, the federal government is undermining the economic health of our community without any noted improvements to ecological conditions.

Violating the rights of Project irrigators has added to the uncertainty and high-risk nature of farming, diminished crop potential and, in some cases, threatened to destroy entire growing seasons which significantly impact our entire economy.

We have the same rights as homeowners to use and protect our property. We have negotiated in good faith for decades and will continue to find opportunities to improve the ecological health of the Klamath River basin.

We are simply asking the federal government to respect the legally granted water rights and to follow the law when making changes to those rights.

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Fears of flooding

H&N Staff Reports

Bureau of Reclamation's Klamath Basin Area Office went into flood control operations on Upper Klamath Lake on Wednesday and anticipates additional increased releases from Upper Klamath Lake as well as increasing inflows along the stretch of river from Link River Dam to Iron Gate Dam over the next week, and possibly longer, according to Reclamation officials.

Based on current projections, flows below Iron Gate Dam will increase on Tuesday from approximately 4,000 cubic feet per second to at least 6,030 cfs, but possibly in excess of 8,000 cfs.

The public is urged to take all necessary precautions on or near the Link and Klamath rivers (including below Keno and J.C. Boyle dams) while flows are elevated.

The flood control release also meets the needs of salmon in the Klamath River by providing a flushing flow as included in Reclamation's proposed action which was analyzed by the National Marine Fisheries Service in the 2019 biological opinion, said Laura Williams, a spokesperson for Reclamation said.

As part of the proposed action, a flushing flow designed to reduce prevalence of C. Shasta in Klamath River Coho Salmon below Irongate Dam is likely to be implemented each year.

“The flushing flows are intended to disrupt the lifecycle of C. shasta by disturbing river bed and clearing submerged rocks of polychaetes, which are the intermediate hosts of C. shasta.



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