Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
December 1, 2004
Barbara Chillcott Hall
Dear Ms. Hall:
Thank you for the opportunity to participate in the 28th Annual Public Land Conference in Missoula earlier this fall. I have been contacted by your department with a request for a paper that will be included in a document that summarizes the proceedings of the conference. This letter and the attached report have been developed to respond to this request.
The panel that I sat on in Missoula provided Klamath Basin stakeholder and agency comments, partially in response to the 45-minute overview presentation made by Dr. Holly Doremus. After listening to Dr. Doremus’ comments in Missoula, and after reviewing the related 2003 document she authored with Dan Tarlock entitled “Fish, Farms, and the Clash of Cultures in the Klamath Basin”, I feel it is imperative to address her assessment of the situation we face here in the Klamath Basin. My resolve on this hardened when Ms. Doremus stated her intent to further advance her philosophy in the form of a soon-to-be-published book on the Klamath Basin.
As was apparent during our panel discussion in Missoula, nearly every panelist identified concerns with comments made by Dr. Doremus. I have prepared the attached assessment of “Fish, Farms, and the Clash of Cultures in the Klamath Basin”, which should also serve to outline related concerns our association has with Dr. Doremus’s Missoula presentation.
Thank you for your consideration of this matter. If you have any questions regarding the attached assessment, please do not hesitate to contact our office.
Very Truly Yours,
KWUA Response to
“Fish, Farms and the Clash of Cultures in the Klamath Basin”
Dan Keppen, P.E.
Klamath Water Users Association
November 28, 2004
& Resources Law Review
The Rest of the Story….
An Assessment of “Fish, Farms, and the Clash of Cultures in the Klamath Basin”
In September 2004, representatives from government agencies, Indian tribes, local government, water users and conservation groups participated in a two-hour panel discussion on Klamath River watershed issues at the University of Montana School of Law. Prior to the panel discussion, Dr. Holly Doremus, a law professor at the University of California, Davis, provided her perspective overview of the Klamath situation. The document she primarily relied upon for that presentation was a paper entitled “Fish, Farms, and the Clash of Cultures in the Klamath Basin” which had previously been published in a 2003 edition of Ecology Law Quarterly, which Dr. Doremus co-authored with A. Dan Tarlock, a fellow law professor at the Chicago-Kent College of Law.
The paper’s most important message – that the Klamath Basin crisis of 2001 can teach us important lessons about conflicts in larger basins – is a good one, and from a legal standpoint, we agree with many of its conclusions. However, the paper’s negative treatment of agriculture is unjustified. In addition to a few key facts that are incorrect, the authors have a tendency to tell one side of the story in a way that backs what appears to be their predetermined conclusion: Irrigated agriculture has no place in the Klamath Basin, the small family farms and ranches are doomed, and local water users are backwards obstructionists who are primarily responsible for the “degradation” of the Klamath River watershed.
I sat in the audience as Dr. Doremus repeated many of thoughts proposed in the 2003 paper, and I shared silent gazes of disbelief with my fellow panelists as we listened and prepared for our discussion. While many of the panelists joined with me later to constructively address some of the views presented by Dr. Doremus, there simply was not enough time to fully engage on this matter. On behalf of the Klamath Water Users Association, I have prepared the following assessment of the Doremus / Tarlock paper for the record to provide…the rest of the story.
Background of Klamath Water Users Association
The Klamath Water Users Association (KWUA) is a non-profit corporation that has represented Klamath Irrigation Project farmers and ranchers since 1953. KWUA members include rural and suburban irrigation districts and other public agencies, as well as private concerns that operate on both sides of the California-Oregon border. We represent 5,000 water users, including 1,400 family farms.
Overview of Current Situation
General Overview: “Fish, Farms, and the Clash of Cultures in the Klamath Basin”
As noted previously, we generally agree with some of the key conclusions made in the Doremus / Tarlock paper. For example, we completely agree with the authors’ assertion that, while there are legal tools for addressing most of the Klamath Basin’s water woes, they are fragmented and scattered, under the authority of a variety of federal and state agencies. The authors are right –and their findings are bolstered by the 2003 final Klamath report prepared by the National Research Council (NRC) – when they conclude that state and federal agencies must work toward common solutions, and that resource use issues must be integrated with pollution issues. In the case of the 2001 Klamath crisis, the ESA very definitely did catalyze a move to a “more comprehensive approach that can produce a more sustainable landscape.” That move is best captured by the recent signing of the “Klamath River Watershed Coordinated Agreement”, where two state governors and four Bush Administration cabinet-level secretaries endorsed this concept.
We also essentially agree with many of the key legal points made in the Doremus / Tarlock paper, with a few exceptions. However, under “Setting the Stage” and other important background portions of the paper, it appears that much of the information was gleaned from media accounts, websites, and apparently, review comments offered up by Reed Benson, former Executive Director of WaterWatch of Oregon. That organization, in our view, is one of the most vocal and strident opponents of irrigated agriculture in the Klamath Basin. In fact, the Doremus / Tarlock paper includes a statement that could have come directly out of any of a number of WaterWatch press releases in the past four years, when it notes that the Klamath Basin has “too many demands competing for too little water”. The “WaterWatch message” appears to be an appealing one to the authors, where local water users are portrayed as right-wing obstructionists, desecrating the “arid” Klamath Basin with their water guzzling ways, unwilling to fess up to their responsibilities and, who are, inevitably, doomed. Like many of the sophisticated outside environmental coalitions that have made the Klamath Basin a playground for litigation and negative press attacks, the authors, unfortunately, appear to have adopted a similar approach. The authors in many instances seek to justify pre-determined conclusions by either misrepresenting the facts entirely, or, by selectively relying on only those sources that support their view.
We offer the following examples to back these assertions.
Agriculture is Seriously Misrepresented in the Doremus / Tarlock Paper
1. The authors focus almost exclusively on Upper Basin agriculture as the sole culprit responsible for all the woes of the basin. Consider the following:
“Current agricultural practices in the Klamath Basin are not compatible with ecological protection.”
“The Klamath’s ecological problems are traceable to the cumulative effects of project and non-project water diversion, and agricultural practices.”
“Besides water diversion, agricultural practices in the basin contribute to the problems facing the fish, and ultimately constitute the major threat to biodiversity in the basin.”
“….agriculture is the primary land use and the largest threat to water resources….”
These types of statements – the same we hear on a regular basis from WaterWatch and other activist organizations - are in direct contradiction with the 2003 Klamath report prepared by the National Resources Council (NRC Report). The report clearly indicates that recovery of endangered suckers and threatened coho salmon in the Klamath Basin cannot be achieved by actions that are exclusively or primarily focused on operation of the Klamath Irrigation Project.
There are many other documented factors that have affected salmon runs in the Klamath River. The U.S. Fish and Wildlife Service (USFWS) have described the most important eight factors as “most frequently referred to with regard to recent population declines” of anadromous fish in the Klamath River. Those factors are:
The documents we have reviewed are notable for their lack of supporting scientific
information or data suggesting that Klamath Project operations are a significant factor
adversely affecting fishery resources. To the contrary, the available information provides
compelling evidence that other factors are far more important in affecting fish populations
than the recent historical Iron Gate Dam flow regime.
Similar arguments apply to factors affecting sucker fish. At the time of the listings in 1988, the Klamath Project was not identified as having known adverse affects on the sucker populations, yet four years after the listing, using limited or no empirical data, the USFWS turned to the Klamath Project as their singular focus. Paradoxically, since the early 1990s, despite new beneficial empirical evidence on the improving status of the species and lack of relationship with Klamath Project operations, the USFWS became ever more centered on Project operations and increased restrictions on irrigators instead of paying attention to more obvious, fundamental problems for the species. This circumstance caused tremendous expense in dollars and time by diverting resources away from other known factors affecting the species.
A similar circumstance occurred with the National Marine Fisheries Service (NMFS) during and after the coho salmon listing in the lower basin. It cited the reasons to list coho salmon, excluding Klamath Project operations as a significant factor affecting the species. However, shortly following the listing, and with no supporting data, NMFS chose to center its attention on the Klamath Project as the principal factor affecting coho salmon.
Both agencies adopted a single-minded approach of focusing on Klamath Project operations to artificially create high reservoir levels and high reservoir releases. This puzzling, similar sequence of events has yet to be explained by agency officials.
Unfortunately, the Doremus / Tarlock paper perpetuates this type of singular focus on agriculture –particularly Klamath Project irrigators and their representatives - as the source of Klamath Basin ills.
2. The authors mistakenly conclude that irrigation is inefficient in the Klamath Project. The report repeatedly makes references that water use in the Klamath Project is inefficient:
“The Klamath crisis and its aftermath provide an important case study of the difficulty of simultaneously addressing both the long history of inefficient irrigation and ecosystem degradation in the West.”
“Water use in the Klamath Project is inefficient by western irrigation standards, two acre feet are lost for every acre foot actually consumed by crops.”
To the best of our knowledge, the authors did not contact local water users, the Bureau of Reclamation, or their brethren at the University of California experiment station in Tulelake, California before making these assertions. Instead, they relied on the generalized information provided by the highly politicized Western Water Policy Review Advisory Commission.
Because of the Klamath Project’s design and the interrelated nature of water use within it, including the use of return flows by farmers and the refuge, Project efficiency is very high. A recent assessment of Klamath Project water use efficiency implies that a sophisticated seasonal pattern of water use has evolved in the Klamath Project. One must understand that the Klamath Project has developed into a highly effective, highly interconnected form of water management. According to the 1998 Davids study, effective efficiency for the overall Project is 93 percent, making the Klamath Project one of the most efficient in the country.
“This coldly rational view can be recast as a struggle by an embattled culturally minority to buffer itself against political and economic forces which will inevitably result in its displacement.”
And, on page 36:
“…the smaller the user, the more deeply entrenched the water use. Farms in the Klamath Basin tend to be small. Unlike large corporate agricultural interests, small farmers have a low tolerance for risk and see few alternatives to preserving the status quo, regardless of the impacts on others or society.”
We are used to seeing this tone expressed in press releases from activist organizations. However, we were very disappointed to see the cynical manner in which our community is addressed in the subject paper, where irrigators are portrayed as entrenched obstructionists who are unwilling to adapt to changing times and societal priorities. The allegations continue:
“In the short term, the irrigators in the Klamath Basin may believe they are winning the battle. In the long run, however, by refusing to give ground gradually they may be setting up a conflict in which they cannot hope to prevail.”
“The vague efforts sparked by the droughts of the 1990s to resolve the conflicts ….were far too little and far too late to avert the crisis.”
Again, the record fails to support these conclusions. In the past twelve years, local water users – both within the Klamath Project and those who farm in upstream areas north of Upper Klamath Lake – have taken proactive steps to protect and enhance water supplies, enhance the environment, and stabilize the agricultural economy. Farmers and ranchers in the Klamath Project have consistently supported restoration actions to improve habitat for the basin’s fish and wildlife species.
Local agricultural and business leaders have dedicated thousands of volunteer hours and have spent millions of dollars in legal and consulting fees in the past ten years to participate in processes associated with environmental restoration, Klamath Basin water rights adjudication, dispute resolution, drought-proofing, and water supply enhancement. Local water users have participated in these actions through the Kerns Group, Hatfield Upper Basin Working Group, Klamath Compact Commission, Klamath River Basin Fisheries Task Force, KPOP, the Klamath Basin Alternative Dispute Resolution process and local watershed councils.
Most impressive, however, is the multitude of actions undertaken on-the-ground to effectuate improvements in the following areas:
· Local efforts to assist National Wildlife Refuges
· Ecosystem Enhancement and Sucker Recovery Efforts in the Upper Basin
· Fish Passage Improvement Projects
· Wildlife Enhancement and Wetland Restoration Efforts Undertaken by Upper Basin Agricultural Interests
· Local Efforts to Improve Water Quality
· Efforts to Improve Klamath Project Water Supply Reliability and Water Use Efficiency
The Doremus / Tarlock paper also fails to note that the first ecosystem-based recovery plan for Klamath Basin sucker fish was not developed by regulatory agencies, conservation groups or the tribes. It was developed, instead, by the same farmers criticized by Doremus and Tarlock. In both 1993 and 2001, it was the Klamath Water Users Association that developed comprehensive plans to accelerate the recovery of sucker fish.
The Doremus / Tarlock paper fails to acknowledge these efforts, and instead concludes:
“…farmers must be willing not only to let some lands go fallow but to move to more adaptive, sustainable agricultural practices…Had the Bureau forced them to face the less severe droughts of the 1990s, many farmers might have taken steps to make their operations less vulnerable, such as increasing their water use efficiency, switching to less water-intensive crops, adjusting their planting decisions annually based on water supply forecasts, drilling wells and applying for groundwater rights, or even accepting buyout offers.”
The hydrologic conditions of 1992 and 1994 were comparable to 2001 conditions. In the time between those earlier droughts and 2001, with widespread local recognition that the Klamath Project already delivers water efficiently, local farmers still participated in a voluntary demand reduction program and began developing supplemental groundwater supplies. We refer you to www.kwua.org and a 45-page document entitled Summary of Recent and Proposed Environmental Restoration and Water Conservation Efforts Undertaken by Klamath Water Users and Basin Landowners for further information on this topic.
The Doremus / Tarlock paper also contains specific negative references to our association that deserve further consideration:
“Congress dropped another $125 million in aid to the region when the Klamath Water Users Association opposed it, largely because the funds could have been used for land or water buyouts.”
Actually, there were several factors that led to our association opposing this legislation, which was supported by environmental groups like WaterWatch. These included a proposed governance structure that was top-heavy with federal agencies, no accountability or justification for proposed restoration projects that emphasized conversion of farmland to wetlands, and no proposed improvements to aid water supply reliability for the Klamath Project. Ultimately, our engagement in this matter helped secure $50 million for on-farm water use efficiency projects for Upper Basin farmers.
The Doremus / Tarlock paper relies on the one in a series of local news stories that addressed the controversial farm bill debate, and claims that “(s)ome farmers in the Upper Basin who are prepared to sell have complained that the (Klamath Water Users) Association has usurped their ability to control their property.” The paper fails to cite a second story on this topic – written by the same reporter – where it was revealed that one-quarter of the landowners who signed a related letter criticizing our association did not even know their names would be used for that purpose. In fact, we were contacted by three of the so-called signatories who claimed their signatures on the letter were forged. The letter was crafted by environmental activists who had a philosophical, if not financial, gain in advocating for a “solution” that would pay desperate landowners 2 ½ to 3 times the assessed value of their property to sell their land to the government.
What WaterWatch and the other organizations that advocate for this “solution” consistently fail to reveal is that, after “buying out” the farmers, those lands would be “returned” to a wetland state, where more water would be consumed than that currently used by the farms. How does this help the overall water balance of the Klamath Basin? The Doremus / Tarlock paper swallows the WaterWatch argument hook, line and sinker, and suggests that it the “entrenched” attitude of local farmers that is responsible for delaying progress in the Klamath Basin. The authors fail to offer any sort of alternative portrayal that would steer them towards another conclusion.
For the record, the State of Oregon has recognized the proactive conservation efforts undertaken by local water users, and in 2003 and 2004 presented KWUA with its “Leadership in Conservation” award. Also, Tulelake Irrigation District recently received the prestigious F. Gordon Johnson award for leadership in western irrigation district operations. Finally, U.S. Secretary of Agriculture Ann Veneman and Natural Resources Conservation Service (NRCS) chief Bruce Knight this year recognized local rancher Mike Byrne in Washington, D.C., for his leadership in conservation.
Because the proactive efforts described above have not yet provided any relief to Project irrigators towards meeting the ESA-driven requirements imposed by NOAA Fisheries and USFWS, local irrigators have assumed a more reluctant stance in recent years to support further, similar efforts. The disastrous water cut-off of 2001 – after years of proactive actions taken by local water users – contributed largely to this current perception. Nevertheless, KWUA is working with USFWS and the Bureau of Reclamation to develop a formal agreement that pledges to develop a paradigm where sound conservation and restoration measures directly result in improved water management flexibility for Project irrigators.
Doremus and Tarlock further completely ignore the elevated proactive efforts undertaken in the past three years, and suggest that nothing is happening:
“The transition will be easier if the irrigators take the initiative to begin it now, before the next crisis hits…..Some farmers might voluntarily idle their lands in dry years if environmental groups, taxpayers, or farmers with higher value crops would pay for the water. But without clarity about the extent and priority of water rights, those transactions cannot happen.”
Actually, by agreeing to “forebear” the use of Klamath Project water, irrigators have been involved with land idling efforts. The events of 2001 notwithstanding, the year 2002 was the first of three years where irrigators have stepped up to meet a steadily increasing cry to meet environmental and tribal trust water demands in the Klamath River watershed:
In 2002 – 62,000 acre-feet of water were generated through the environmental water bank, Tulelake Irrigation District groundwater contributions, and an early-fall pulse flow intended to ease fish crowding in the lower Klamath River.
In 2003 - 59,651 acre-feet of water bank water plus 30,000 AF were generated through voluntary groundwater pumping and conservation efforts undertaken by local water users, with no federal compensation.
This year, 75,000 AF of water bank water plus 13,000 AF of water pulled from the stored refuge and irrigation water were generated to meet ESA and tribal trust needs.
Next year, the NOAA Fisheries biological opinion calls for a massive 100,000 AF water bank, regardless of actual hydrological conditions.
It is clear that our irrigators have not been idle. We feel that we are doing all we can to be part of a constructive solution to meet the challenges we all face in this watershed. We are modifying our actions to generate water to meet these regulatory demands. And, importantly, we have no say in how that water is actually managed.
In the past two years, nearly 90,000 acre-feet of water each year were reallocated away from the Klamath Project and towards ESA and tribal trust needs because farmers have idled land and pumped their own groundwater, and because the national wildlife refuges have drained seasonal wetlands. Our Project, including the refuges, consumptively uses 350,000 acre-feet of water in an average water year. This year, we took actions that provided environmental water exceeding 25 percent of that value. This, despite a widespread local community view that this water is achieving questionable value for the species it allegedly is intended to protect.
The authors’ characterization that environmental groups are somehow powerless victims in the Klamath conflict is pure fiction:
“Anger was also directed at environmental activists, some of whom received death threats.”
“It has been a struggle for cultural supremacy in which environmentalists have been only peripheral combatants.” (p. 10).
The hard working landowners I represent have been on the receiving end of a cruel and long-distance war being waged by environmental activists who zealously assert that our water project – representing only 2 percent of the total land base of the Klamath River watershed, and consuming only 3-4 percent of the average annual flows to the Pacific Ocean – is somehow responsible for all of the environmental woes of the river system. These advocates are intent on portraying the Klamath Basin as a poster child to help fuel outside efforts that are focused on litigating, legislating and publicly condemning our community for doing what it has done for 97 of the last 98 years – irrigating farm and ranch land.
These interests know that federal water projects are an easy target of litigation, since federal environmental and clean water laws govern project operations. The lawsuits are often aimed at federal entities – such as the U.S. Bureau of Reclamation and fishery agencies – which, on the surface, give the appearance that the environmental plaintiffs are simply interested in correcting errors made by some non-descript governmental agency. The true intended target of these actions, however, ultimately becomes the landowners and water users who fall under the management jurisdiction of the federal agencies. It is the farmers and ranchers that pay the price of litigation through altered management practices, increased uncertainty, and escalating legal expenses to defend their interests.
Some environmental activists take umbrage when besieged landowners tag these litigious actions as “anti-farming”. I have yet to receive a satisfactory response from activists when I ask how these actions could possibly be perceived as being “pro-farming”. In our Basin, things have gone this far: activists in 2003 sent landowners a cruel, threatening letter, telling them to sell out.
Without a doubt, constructive environmental organizations exist. But they do not, by any means, control the dialogue in the Klamath Basin. Also, environmentalists are not the only ones who have been subjected to hateful correspondence. Here is a sample of some of the e-mail I received after the 2002 fish die-off on the Klamath River, long before the facts were in regarding specific causes for this unfortunate event:
Sent: Saturday, September 28, 2002 6:33 AM
Subject: Stupid White Farmers
There is nothing to add
COMMENT-QUESTION from your OrgSite
There are two sides to every story, and by focusing only on the environmental / tribal claims, the Doremus / Tarlock paper tends to lead to conclusions that appear to be slanted.
The Authors Underscore the “Arid” Nature of the Basin
The Doremus / Tarlock paper goes to some length to portray the Klamath Basin as a desert, with minimal attributes to support agriculture. “The Klamath Basin is distinguished by …its aridity” say the authors, the Basin marks the beginning of “the forbiddingly arid Great Basin”, and “because of the severe climatic conditions, none of the lands in the region fall in the U.S. Department of Agriculture’s highest productivity class.” 
The Basin is also just that, a basin, and for millennia it has collected runoff from millions of acres of snow-bearing highlands that surround it. Further, the 2002 Oregon State University report cited in the Doremus / Tarlock paper points out that land values in the Klamath Project for Class II and III soils are comparable to farmland prices in Iowa, one of the most productive agricultural areas in the country. It finds that land prices in the Project are much higher than the average farmland value for Oregon. The OSU report further points out that most of the higher value lands are within the Project, whereas the relatively low value lands are primarily outside the Project.
The Authors Misrepresent Some Very Basic Facts
The following very fundamental inaccuracies should be noted when reviewing the Doremus / Tarlock paper.
Doremus / Tarlock: “Today, the largest community in the Basin is Klamath Falls, Oregon, a city of less than 20,000.”
Fact: The corporate limits of Klamath Falls have not changed for decades. However, the suburban area immediately adjacent to and including the city has a population over 40,000.
Doremus / Tarlock: “Upper Klamath Lake fish kills occurred in 1995, 1996 and 1997. During the same time period, siltation, algal blooms, and agricultural pollution made the Tule Lake Refuge unsuitable for fish and waterfowl.”
sentence is not accurate. According to Ron
Cole, USFWS Manager of the Klamath Refuge
Tule Lake in 1995, 1996, 1997 was suitable for
fish and waterfowl, as both were present in
large numbers. Siltation of Tule Lake has been
occurring for decades – it is not just a three-
year phenomenon. Filling of wetlands is also a
somewhat natural process, although anthropogenic
activities can certainly accelerate the process.
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