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In the Flow

1 January 2024

Here’s to praying we can say whoa to the woe this year.

Building and serving communities in the Klamath Basin since 1905

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IN THIS ISSUE

Klamath Irrigation District's 2d petition to the U.S. Supreme Court

The government claims it can opt out of a state water adjudication whenever it wishes, by invoking obligations under federal law. The government claims the Klamath Adjudication has a “geographical limitation” and that while the adjudication governs rights in Oregon, it does not extend to “the rest of the Upper Klamath river system existing within other States.”

The government's strawman argument misses the point of the Petition, misrepresents the underlying dispute, and ignores the nature of the Klamath Adjudication. The McCarran Amendment creates an “all-inclusive” regime for adjudicating and administering water rights. United States v. Dist. Ct. In & For Eagle Cnty., Colo., 401 U.S. 520, 524 (1971). The Klamath Adjudication—a McCarran Amendment proceeding—encompasses all rights to use, store, or divert water from the Klamath River and Upper Klamath Lake in Oregon, including rights necessary to allow diversions of water in Oregon for use in California. This is why, 30 years ago, the Ninth Circuit held that the Klamath Adjudication is a comprehensive McCarran Amendment proceeding, requiring participation from both the United States and the Klamath Tribes. United States v. State of Or., 44 F.3d 758, 768 (9th Cir. 1994).

The 9th Circuit Court ruling contravenes the precedent of this Court and undermines water-rights adjudication in the West.

Read K.I.D.'s Reply Brief to the U.S. Government's Brief

Read K.I.D.'s Initial Plea to the U.S. Supreme Court

Klamath Irrigation District and Klamath Water Users Association's Appeal to the 9th U.S. Circuit Court of Judge Orrick's decision about the federal taking of stored water from Upper Klamath Lake without a water-right. (This case originates from K.I.D. v OWRD 2021 and was supplanted by the federal legal team into Yurok v. Reclamation 2019)

Judge Orrick's ruling is not merely erroneous: It violates the constitutional rights of K.I.D. and its landowners by judicially taking their constitutionally protected property interests in their water

rights for public use without payment of just compensation in violation of the Fifth Amendment to the United States Constitution!

Six Issues Presented by Klamath Irrigation District to the 9th U.S. Circuit:

1. Did the district court judicially take KID’s water rights for public use without payment of just compensation in violation of the Fifth Amendment to the United States Constitution by holding the ESA preempts OWRD orders enforcing KID’s water rights against Reclamation?

2. Does the ESA grant Reclamation authority to divert stored water from UKL for instream use without a water right, given that (1) such diversion violates state law, (2) the rights to the water have been adjudicated to others pursuant to the McCarran Amendment (43 U.S.C. §

666), and (3) the Reclamation Act (43 U.S.C. § 383) mandates compliance with state law and protection of vested rights?

3. Did the District Court err in holding the ESA preempts the OWRD orders enforcing KID’s water rights against Reclamation?

4. Did the District Court err in granting summary judgment when there were genuine issues of material fact for trial on whether, or to what extent, the OWRD order is an obstacle to Reclamation complying with the ESA?

5. Does the McCarran Amendment (43 U.S.C § 666) bar Reclamation from collaterally attacking enforcement of water rights determined in the ongoing Adjudication and thereby circumventing the state court’s jurisdiction to decide whether or not the water rights should be enforced pursuant to Oregon Revised Statutes §539.180?

6. Does the doctrine of prior exclusive jurisdiction bar Reclamation’s claim asserting the OWRD order administering and enforcing KID’s and Reclamation’s water rights determined in the ongoing Adjudication?

Read the full K.I.D. brief...

Klamath Water Users Association brings three additional questions to the court.

• Whether Reclamation has discretionary authority to curtail, or direct the curtailment of, the storage, diversion, and delivery of water from the Klamath Project for irrigation to benefit threatened or endangered species?

• Whether Reclamation’s compliance with, and state enforcement of, state water law stands as an obstacle to Reclamation’s compliance with the ESA such that state water law is preempted by federal law?

• Where the United States argued that the existence of claimed, unadjudicated federal reserved water rights is a source of discretionary authority triggering the application of Section 7(a)(2), whether the district court abused its discretion in granting Plaintiffs’ motion to strike KWUA’s arguments that were directly responsive to the United States’ arguments?

Read the full KWUA brief...

OREGON WATER RESOURCES CONGRESS,

NATIONAL WATER RESOURCES ASSOCIATION,

OREGON FARM BUREAU FEDERATION,

FAMILY FARM ALLIANCE,

AGRIBUSINESS AND WATER COUNCIL OF ARIZONA,

IDAHO WATER USERS ASSOCIATION, AND

WASHINGTON STATE WATER RESOURCES ASSOCIATION

provided an amicus brief supporting Klamath Water Users Association's position.

This brief affirms the district court’s ruling is based on fundamental analytical errors, which threaten the reliability of Bureau water projects beyond the Klamath Basin. To conclude that Section 7(a)(2) of the ESA “applies,” the court summarily disregarded both the Bureau’s federal statutory mandate to comply with state water rights and state water law, and the Bureau’s contractual obligations to honor water delivery contracts entered by the United States long before the passage of the ESA.

The district court erroneously concluded that the Bureau exercises “discretion” in all agency actions pursuant to the agency’s organic statute, the Reclamation Act of 1902 (“Reclamation Act”), Pub. L. No. 57-161, 32 Stat. 388, because “Congress gave the Bureau a broad mandate in carrying out the Reclamation Act.” Order at 27. Therefore, the district court concluded the Bureau may choose not to fulfill its statutory mandates and contractual obligations if it does so in the name of Section 7(a)(2) of the ESA. Order at 27. In so concluding, the district court ignored the analytical framework required by the U.S. Supreme Court in National Ass’n of Home Builders v. Defenders of Wildlife (“Home Builders”), 551 U.S. 644, 664 (2007), failed to seriously engage with the Bureau’s federal statutory authorities, and failed to even attempt to harmonize perceived conflicts between Section 7(a)(2) of the ESA and the Bureau’s other statutory mandates and contractual obligations, as Home Builders requires. Order at 25–27. As a result, the district court misinterpreted both the Reclamation Act and the ESA.

Read the full amicus brief here...

Klamath Reclamation Project Endangered Species Act "Consultation" Update

Klamath Irrigation District's Executive Director has been attending meetings with elected tribal representatives, the Department of the Interior, Reclamation, Fish and Wildlife, National Marine Fisheries, Klamath Water Users Association (KWUA), and other district managers to discuss the future of Reclamation's expired Interim Operations Plan for the Klamath Reclamation Project.

Reclamation's approach to complying with the Endangered Species Act in the Klamath Reclamation Project has not followed federal law, regulations, policy, nor agency consultation handbook processes for well over a decade.

KWUA addresses the historical context of Klamath Reclamation Project consultation failures in the summary paper at this link.

On 23 August 2023, KWUA memo to Reclamation's lead on Klamath Project, Jeff Payne, highlighting the failure to correctly analyze the NEPA requirements and further outlines the need for a full EIS process. The KWUA memo can be read at this link.

These KWUA memos and discussions with Reclamation officials and the other services fell flatly on deaf ears within the federal government.

On 7 December 2023, Klamath Water Users Association requested the Department of Interior's Deputy Assistant Secretary for Fish and Wildlife and Parks (Matthew Strickler) to follow the Code of Federal Regulations (CFR) and "focus on addressing the effects of the Klamath Reclamation Project. No more, No less." and to clearly identify what approach and logic is needed to achieve this outcome.

KWUA's full memo to Mr. Strickler on 7 December can be read at this link.

Following KWUA 's 7 December 2023 letter to Mr. Strickler, we were told that Reclamation is going to adhere to the "Endangered Species Consultation Handbook" in its approach. While this is welcome news to the District, we are not certain that Reclamation officials know how to open the USFWS and NMFS handbook. The current discussions do not appear to be in line with the guidance in the handbook, nor do the discussions address legal, nor contractual obligations which are outside of Reclamation's discretion. Furthermore, the CFR necessity to conduct a "but for" analysis of actions or activities that would have occurred without Reclamation's activities as outlined in the CFR appears to be sidelined by Mr. Payne.

The U.S. Fish and Wildlife Service (USFWS) has reviewed the body of best available science and has identified opportunities to reexamine the state of the endangered C'waam and Koptu. It is clear from the scientific papers that unnaturally high lake elevations are not benefiting / restoring the species; perhaps focusing on other existing habitat areas where the conditions allow these fish to thrive is a more viable endeavor to long term species recovery and benefits instead of waiting for the remainder of the 30 year old fish to die of old age.

However, the problem with the National Marine Fisheries Service / National Oceanic and Atmospheric Administration remains or appears to be worse. NMFS demands for continued unnaturally high flows in the Klamath River are not alleviated by the promise of dam removal or improved water quality, nor do they provide any acknowledgment that Lower Klamath Lake impacted the water supply and quality over the natural Keno reef. NMFS does not appear to have any coho science outside the flawed and biased Hardy Flow Studies which were developed for Chinook habitat and tribal water rights claims never submitted in the Klamath Adjudication. Our fear that NMFS will exploit an opportunity to demand more water be released unnaturally to the Klamath River below Keno will expose itself in 2024, negating all benefits that could be gained by USFWS' use of the best available science.

With a change in Reclamation leadership in mid-January, there is hope for change and opportunity to this flawed political negotiation to failure approach to ESA consultation. However, we should be mindful to be careful what we wish for because we just might get it.

Therefore, Klamath Irrigation District is attempting to put together a short-notice ESA Symposium in Klamath Falls soon to educate ourselves and our community on the handbook approach.

Ashland Meetings on "Restoration Projects"

Matt Strickler with the Department of the Interior has led four meetings with a small group from each of the Klamath Tribes, Yurok Tribe, Karuk Tribe, and the Klamath Water Users Association over the past 12 months. The principal focus has been on capitalizing on some benefits from the funding that is potentially available through the Bipartisan Infrastructure Law (BIL) and the Inflation Reduction Act (IRA). The primary question posed to this group is whether there are restoration projects that can receive joint support from the primary stakeholders. Recently, there have been signals that the “package” could include some non-reimbursable funding for key infrastructure needs such as the A Canal.

To this end, Mr. Strickler has coordinated the discussions into a Memorandum of Understanding (MOU) to charter this group towards this goal of identifying projects that all parties can support. The Klamath Tribes, the Yurok Tribe, the Karuk Tribe, and the Klamath Water Users Association have all commented on the language and are anticipated to sign onto the MOU.

While Klamath Water Users Association expressed the need to discuss water reliability in concert with the restoration projects, the group could not agree on the language presented. Klamath Irrigation District's Executive Director is hopeful that this group can share the common goals of achieving economic sustainability and ecosystem resilience for our communities.

“Restoration” shall be construed broadly to include, but not be limited to, projects that will preserve, provide, or improve fish habitat, wildlife habitat, water quality, water conveyance, drought resilience, and the health or function of natural systems.

We anticipate a final MOU for signature will be available the first week of January and is anticipated to be briefed to Secretary Haaland.

U.S. Senate Bill 482 - Klamath Power and Facilities Agreement Support Act

Senators Ron Wyden (D-OR) and Jeff Merkley introduced the Klamath Power and Facilities Agreement Support Act in February 2023. The Energy and Natural Resources Committee heard the bill in July of 2023.

The major elements of the Senate Bill, S. 482 would:

(i) authorize Reclamation to support activities to reduce power costs for Project irrigators;

(ii) authorize Reclamation to finance the construction of fish screens and similar facilities;

(iii) authorize federal agencies to enter contracts with Tulelake Irrigation District to offset a

a portion of D Plant operation and maintenance costs;

(iv) authorizes a 35 percent federal cost share for the C siphon project (thus reducing the principal for repayment by Klamath Irrigation District);

(v) eliminate the “ceiling” of an average annual $10 million per year for the Drought

Response Agency’s programs to align supply and demand; and

(vi) exempt Project irrigators from any responsibility for reimbursement of costs of any kind associated with Keno Dam and Link River Dam (for which Klamath Project irrigators pay 100% of these costs, K.I.D. specifically pays over 57% of the O&M for Link River Dam.)

Read the bill at this link

(https://www.govinfo.gov/content/pkg/BILLS-118s482is/html/BILLS-118s482is.htm)

Congressman Bentz may soon introduce or co-sponsor a similar bill to S.482

Congressman Bentz is interested in improving the language in S.482, and has asked whether there are additional elements that would be useful. Klamath Irrigation District supports Klamath Water Users Association's suggestions to Congressman Bentz that would:

(a) disallow modifications of Keno Dam improving fish passage until state and federal agencies have provided protection against new regulatory burdens from having salmonids in the Upper Klamath Basin and there is a water settlement as committed by parties in 2016; and

(b) make all of Reclamation’s past and future ESA-related costs nonreimbursable.

Klamath Irrigation District

Modernization Update

The District has been working with Farmers Conservation Alliance since 2019 to identify ways to improve the District infrastructure, to be more efficient with the water delivery system, and to utilize our pumping plants more effectively.

The District and Farmers Conservation Alliance consulted over an extended scoping period and are currently finalizing a draft plan. In 2024, our next step is to have the plan reviewed and allow the public to comment on our plan.

KLAMATH PROJECT SCADA UPDATE

• FCA met with District managers and staff from Klamath Irrigation District, Klamath Drainage District, and Horsefly Irrigation District at the annual OWRC conference on December 7 to discuss the next steps for the Klamath SCADA Project.

• FCA will gather information about different SCADA platforms and develop a SCADA work plan to share with Klamath Project districts in early 2024.

• Targeting early April 2024 to implement Phase 1 SCADA sites throughout the Basin.

DISTRICT WATERSHED PLANNING UPDATE

The NRCS PL-566 program provides planning, engineering, and construction funding for irrigation modernization projects.

In order to become eligible for engineering and construction funds, an irrigation community must first go through the planning process and develop a Watershed Plan Environmental Assessment (Plan-EA). For general information about PL-566, the Plan-EAs, and the public involvement process, please visit: www.watershedplans.org.

Projects in the Watershed Plan

K.I.D. is proposing to use PL-566 construction funds to:

• Modernize portions of the D-System via the following actions:

o Adams and Stukel Pumping Plants Pump Replacement: These pump upgrades would include improvements such as replacement of the pump and motor, VFD installation, and traveling screen or trash rake installations.

o Pipe the D-2, D-3, D-12, D-12A spur, D-12C spur, D-14, D-16, D-16A spur, D-18, D-19, and D-20 Laterals

o Line the Main D Canal in Adams Point area (approximately 0.9 mile) to address current operational issues in this area, primarily canal sidewall failures.

o Pipe the Main D Canal piping starting at McKoen turnout (D-14 Lateral), west of Malin city limits, to Paygr Road (approximately 0.9 miles). Piping in this segment would incorporate two 96-inch inner-diameter gravity flow pipes side by side (double piping) to accommodate variable flows during the irrigation season.

Watershed Plan Status Update

• FCA and subcontractor Parametrix have completed a first Preliminary Draft of the Watershed Plan – Environmental Assessment. This draft was provided to NRCS, Reclamation, and KID for review on December 15th.

Watershed Plan Funding Update

• FCA is currently developing an OWRD Grant application on behalf of KID to access match funding from the State of OR for KID’s Watershed Plan – Environmental Assessment.

o This application will be submitted on January 17th, 2024.

Grasshopper and Mormon Cricket Damage Update

From Klamath Drainage District Manager, Scott White, in regards to the Oregon Department of Agriculture's 2023 Grasshopper and Mormon Cricket Report and information submission extension:

I want to thank all of you who showed up for the Klamath County Board of Commissioner's work session and also pass on the note that the submission of information to the Department of Ag will be extended. I have reached out to the department directly and explained that the effects are ongoing, and calculations of losses cannot be completed for some time due to lasting effects.

Please don’t feel a need to rush the information. But please keep me posted if you intend to submit information. As usual, I am happy to carry your message or submit the information for you.

For submitting grasshopper reports/observations, you will follow this link , which can be found on our grasshopper webpage 

To subscribe to emailed reports from the ODA on federal grasshopper updates you will click on the link to the right side of the webpage. The first listed link is Grasshopper and Mormon Cricket Information and is for those who wish to receive less frequent email updates, focused on big picture summaries of a field season . The second link listed is Grasshopper and Mormon Cricket Weekly Reports and this will send the subscriber much more frequent updates on the field season as it progresses.

If you subscribe now you will not see regular update emails released, but they will be sent out again regularly when grasshopper surveys start up again in the spring. 

Updated Weather Forecast for January - March 2024

Upper Klamath Lake Inflows and Storage Update

The Oregon Water Resources Department weekly Klamath Basin report summarizes flow and storage conditions in the Klamath basin.

Klamath current conditions 12_26_2023.pdf

Inflow into Upper Klamath Lake continues to be in the lower 25% on most days since the water year began on 1 October 2023. This low inflow, combined with higher releases of water from Upper Klamath Lake into the Klamath River Canyon, has resulted in another year of below-average lake elevations going into January.

While the El-Nino weather pattern promises to bring average precipitation this year, the higher-than-normal temperatures anticipated suggest a less-than-average snow-pack. Current projections indicate Upper Klamath Lake will not reach flood stage and may struggle again to reach the endangered C'waam spawning elevations suggested by the USFWS on 1 April due primarily to the excessive water being released from Upper Klamath Lake by Reclamation's policy as demanded by the National Marine Fisheries Services biased opinion.

Reclamation is scheduled to take over the daily physical operation of the Link River Dam and Keno Dam this month. For the past 102 years, PacifiCorps (previously COPCO) has conducted the daily operations of these dams, most recently with automation controls in Portland; Reclamation staff will likely struggle to maintain daily flow regiments utilizing manual operational controls on-site which will likely minimize any opportunity to store water which would have naturally evaporated from Lower Klamath Lake, above the Keno Reef.

It is too early to predict if the high outflows will delay the start of the 2024 irrigation season.

UPCOMING EVENTS

Annual Meeting and January Board of Directors Meeting - 11 January 2024 at 10 a.m. in the K.I.D. HQ

ESA at 50 Symposium - To Be Announced

Klamath Basin Improvement District Board of Directors Meeting

9 January 2024 at 10 a.m. in the K.I.D. HQ

January Board of Directors Meeting -

17 January 2023

Read the latest KWUA newsletter

Visit the KWUA Facebook Page

Review KWUA's event calendar

Read KWUA 2023 Year In Review

Oregon Water Resouces Congress 

Dunn Carney's Ag Summit

January 26 in Salem, OR

Registration Available - Free event, co-sponsored by OWRC

OWRC Board Meeting

February 1 in Portland, OR

More information to come

Tri-State Meeting

February 2 in Portland, OR

More information to come

2024 Annual SDAO Conference

February 8-11 in Seaside, OR

Registration Available

Northwest Irrigation Operators Biennial Conference

February 27-29 in Boise, ID

Registration Available

Sustainable Northwest

Upper Klamath Basin Producer Listening Session

Tuesday 23 January 2023 10am to noon.

Location: Chiloquin Community Center

140 S First Avenue, Chiloquin, OR 97624

2024 Sucker Technical Symposium Agenda

Wednesday, January 24th, 2024 9am-5pm,

Location: Oregon Institute of Technology,

Mazama/Scott Rooms in the College Union,

3201 Campus Drive, Klamath Falls, OR 97601

Read the Agenda

Conservation without Conflict: A Persuasive Step-by-Step Guide to Achieving Collaborative Conservation

Conservation efforts are critical to preserving our planet’s precious biodiversity, especially listed and at-risk species. However, different approaches to conservation practices often impede progress, inadvertently create conflict, and hinder the achievement of our shared environmental goals. This persuasive step-by-step guide aims to inspire and empower readers to embrace voluntary, collaborative conservation practices. Doing so...

Read More

Rios to Rivers engages in the restoration of vital waterways like the Klamath River, fostering awareness and meaningful participation in crucial water rights discussions!

Extreme heat waves leave farmers on edge

Producers take preventative measures to avoid crop and livestock losses as extreme temperatures continue across the U.S.

Ranch wins legal battle over Oregon water storage rights transfers

December 20, 2023 

By Mateusz Perkowski

The Oregon Court of Appeals has determined state regulators are authorized to transfer water storage rights under certain circumstances, effectively overturning a government policy established five years ago.

The appellate court has affirmed that the Oregon Water Resources Department must process an application to move a reservoir’s point of diversion near Mitchell, Ore.

Bridge Creek Ranch wanted to remove its outdated water intake on federal land and replace it with a modern, environmentally-friendly structure on its own property a quarter-mile away.

The OWRD refused to process the application because in 2018, the agency decided it lacks the power to transfer any storage water rights under state law.

That interpretation of Oregon water law meant that irrigators could not move either storage reservoirs or the points of diversion from which they draw water.

Read more…

EPA to restore some uses for chlorpyrifos

December 20, 2023 

By Don Jenkins 

The Environmental Protection Agency on Dec. 19 announced it will propose allowing the use of chlorpyrifos on 11 crops, rather than continue battling in court to prohibit the insecticide entirely.

The EPA indicated it won't appeal a November ruling by the 8th U.S. Circuit of Appeals that struck down a ban on chlorpyrifos. A three-judge panel found the EPA failed to consider alternatives to a blanket prohibition.

The ruling opened the possibility that all previous registered uses of chlorpyrifos on food crops would be reinstated for the 2024 growing season. The EPA said it plans to move quickly to propose limiting chlorpyrifos to alfalfa, apples, asparagus, tart cherries, cotton, citrus, peaches, soybeans, strawberries, sugar beets and wheat.

Read more…

The farm bill expired. Now what?

Lawmakers are racing to strike a deal before the end of the year, which is when major disruption to food prices and commodity markets would begin. 

How low Mississippi River water levels could disrupt grain harvests, again

Back-to-back years of drought are pushing some farmers to new markets and modes of transportation. Others, however, have no choice but to use the river.

The food industry is all in on regenerative agriculture. Can farmers be convinced?

Companies are racing to capitalize on a burgeoning industry focused on reducing emissions in agriculture. But first, they'll have to prove it's profitable to go green.

Deep Dive

How farms became the latest battleground in US-China relations

As states become more brazen in their efforts to restrict China from owning U.S. farmland, some worry about the potential impact to trade.

The newest issue of PERC Reports magazine is a deep dive into the transformative projects underway at our Conservation Innovation Lab:

• Get to know the people, places, and potentially game changing new ideas shaping the future of wildlife conservation.
• From invisible fencing to AI-powered cameras and pioneering new agreements that bring people together to achieve shared goals, each project demonstrates PERC's longstanding ethos that conservation need not be divisive.
• With thought-provoking feature stories and breathtaking photography, this jam-packed edition tours some of the country's most innovative conservation projects.

Explore the Winter 2023/24 issue.

EXPERIENCE

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Klamath Irrigation District Interactive Story Map

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Arnold Irrigation District – District Manager

Arnold ID is searching for candidates to fulfill the responsibilities and tasks associated with the District Manager position. The District Manager is responsible for all operations of the District including planning, organizing, developing and implementing comprehensive management actions to achieve the policy and program objectives established by the Board of Directors.

Full job description and benefits available. If interested, contact Office@ArnoldID.com

https://www.owrc.org/resources/job-opportunities

Tualatin Valley Irrigation District – Maintenance/Pipeline Technician

Tualatin Valley Irrigation District is currently searching for candidates to fill the position of Maintenance/Pipeline Technician to operate, maintain, and repair irrigation systems & District facilities.

A full job description, application, and instructions on how to apply can be found at https://www.tvid.org/1-job-opening. https://www.owrc.org/resources/job-opportunities

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