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Building and serving communities in the Klamath Basin since 1905

In the Flow

16 July 2024

Contrary to our January prayer for a Whoa! to the woe this year, it appears the federal government intends to put both the Whoa! and the woe to agricultural production and state water right holders in the Klamath Reclamation Project and around Upper Klamath Lake for the next 5 years.

This image of a Partial Report of the Investigating Committee on 3 January 1910 indicates that "but for" the Reclamation Project, the expansion of the lands served by Klamath Irrigation District would have been accomplished at about $15 per acre by the Klamath Canal Company (the successors to the Henley, Steele, Ankeny Canal development and initiators of the tunnel under the City of Klamath Falls.) The actual cost to the farmers and ranchers is reported to have exceeded $60 per acre under federal development. Although K.I.D's contracts require the return of title to the District upon repayment (completed in 1964), Reclamation continues to hold title to the lands and improvements paid for in full with no meaningful action to return title.

The Endangered Species Act REQUIRES a "but for" analysis of the Environmental Baseline conditions examined as part of a Section 7(a)2 consultation. This "but for" analysis, required by legislatures in law, has been ignored by Reclamation in previous consultations and is again ignored by Reclamation in the 2025-2029 Proposed Action that will dictate the economic collapse of our local and regional economies over the next 5 years.

IN THIS ISSUE

This newsletter covers our analysis of Reclamation's Biological Assessment under the ESA Section 7(a)2 consultation that was presented to the USFWS and NMFS for their biological opinions on an action they developed for Reclamation and ignoring the proposed action and biological assessment presented by K.I.D. (THE original applicant).

• Curtailment Letters to Klamath Reclamation Project Farmers

• Analysis of Reclamation's Proposed Action for Oct 2024 - Sep 2029

• Klamath Water Users Association identified an imminent threat to ecological and agricultural conditions.

Note: As per the Klamath River Adjudication, a McCarren Amendment water rights legal process, Reclamation only has a water right to store water in Upper Klamath Lake; it does not have a water right to release stored water when not for flood control purposes or requested to be released by stored water-right holders or through gaining a limited license from Oregon Water Resources Department. Upper Klamath Lake storage is above 68% (over 380,000 acre-feet of stored water.

Although K.I.D. started the year by assisting Reclamation in moving water out of Upper Klamath Lake for flood control purposes, Reclamation's failed IOP does not make the abundant stored water available for irrigation. Unfortunately, Reclamation's 2024 Operations Plan directed Klamath Irrigation District to limit Warren Act contracts to 0.6 acre-feet per acre in the 2024 growing season.

Farmers have committed to continuing to fallow over 30,000 acres this year (meaning NO irrigation water is being applied).

K.I.D. sent letters of curtailment to individual farmers, districts, and pumping units who have met or exceeded the amount of stored water deemed available for agricultural use this year.

Reclamation Issues New Biological Assessment

To Downsize the Klamath Reclamation Project

Reclamation is seeking ESA approval for a plan that is expected to produce water shortages in the Klamath Irrigation District (K.I.D.) and Tulelake Irrigation District (TID) seventy-seven percent (77%) of the time. Under this new plan, there will be no water at all for K.I.D. and TID approximately 16% of the time. Since B and C contractors within the Klamath Project only receive water after K.I.D. and TID needs are fully met, this plan is expected to put many B and C contractors out of business and significantly downsize the Klamath Project.

The agencies responsible for determining Reclamation’s ESA compliance can only assess the plans that Reclamation provides them. Since Reclamation has not asked for ESA approval of any plan that would result in Klamath farmers receiving the water they are entitled to under their water rights, no such approval will be granted. Instead, the agencies will merely consider whether Reclamation’s plans not to deliver water to Klamath farmers comply with the ESA.

Once Reclamation’s plans for diminished deliveries receive ESA approval, Reclamation will be able to claim that greater water deliveries are prohibited by the ESA. However, this will only be because Reclamation never asked the agencies to consider whether greater water deliveries could be made in compliance with the ESA. In other words, if this plan is implemented, Klamath farmers will be told that full water deliveries violate the ESA even though Reclamation never provided the ESA compliance agencies the opportunity to consider whether full deliveries may be made consistent with the ESA. 

Reclamation's failed extended Interim Operations Plan (IOP) expires 30 September 2024.

The failed IOP was developed from a court-stipulated stay of Reclamation's 2019 Proposed Action, which the Yurok Tribe challenged. The IOP was set to expire on 1 October 2022 with the stipulated stay of the litigation, along with the biological opinions of the USFWS and NMFS (Services)

The Service's opinions provided "take" coverage to Reclamation (not districts) for the endangered and threatened species. The "Services" agreed to extend the failed IOP, allowing the Services to "service" farmers and water rights holders in the Klamath Reclamation Project.

The actions being taken by Reclamation are not recognizable in the doctrinal approach to Section 7(a)2 Consultations found in the ESA Handbook.

Since October of 2023, the "Services" have received input from various tribes, K.I.D., TID, KDD, KWUA, and other interested stakeholders about the issues with the failed IOP and the efforts to but water into different buckets than the ones allowed for by law, which are stored water and live flow.

K.I.D. (THE original applicant for the Klamath Reclamation Project with standing established) presented a draft proposed action and a draft biological assessment to the stakeholders in 2023; KWUA addressed numerous ESA consultation process shortcomings and highlighted the REQUIREMENT to analyze the environmental baseline, federal discretion, existing pre-ESA contracts, environmental impacts, and include a "but for" analysis as requirements as outlined in federal law.

K.I.D.'s (THE original applicant) Proposed Action to facilitate "flow-through" for ecosystem health and corresponding Biological Assessment, which did attempt to follow the rule of law, and the ESA Section 7(a)2 process was ignored by ALL stakeholders outside of K.I.D and KWUA.

Read K.I.D.'s modeling request for the Proposed Action K.I.D. suggested Reclamation explore.

Read K.I.D's biological assessment, which was presented for consideration by Reclamation before writing their proposed action. (In military operational level planning circles, one conducts and environmental assessment before analyzing and developing courses of action)

KWUA's plea for Reclamation to conduct a meaningful environmental baseline analysis and perform a detailed analysis of the EFFECTS (the law requires an AFFECTS analysis, while the handbook and CFR change congressional language from affect to effect) of Reclamation's Proposed Action was also ignored.

Specific feedback provided by both K.I.D. and KWUA to outline and define in detail Reclamation's discretion in relation to its authorities in law and in its pre-ESA contracts was also ignored.

The ESA handbook, page 2-13 outlines K.I.D. (and by extension) KWUA applicant roles in Section 7(a)2.

Upon analyzing input from stakeholders, many of whom do NOT hold applicant status, Reclamation issued "The effects of the Proposed Action to Operate the Klamath Project from October 1, 2024 through September 30, 2029 on Federally-Listed Threatened and Endangered Species to the "Services" for the Services to analyze and provide their unbiased biological opinions on the possibility of the action creating jeopardy to the listed species on 25 June 2024.

Reclamation's submitted document is 545 pages, with numerous inconsistencies across chapters and findings.

Chapter 10—Conclusions is 6 pages long and contains conflicting information between information in charts and information written in the text.

• Table 10-1 on page 368 states that the "EFFECT" of the proposed action over 250 miles away from the ocean "May AFFECT, not likely to adversely affect" the Southern Resident DPS Killer Whale, which, of the roughly 38-42 (of the remaining 73) animals that traverse the western coast from Alaska to Sacramento consume 1.1% of their diet on Chinook salmon from the Klamath River as they pass by in once annual migrations.

• However, the text on page 372 of Reclamation's document states that Reclamation's proposed action in operating Link River dam in Klamath Falls, Oregon, with summer water releases exceeding those available naturally to the river, "is likely to adversely affect the Southern Resident Killer Whale DPS."

• Pages 370-371 ignore the best available science on the biological life stages of the coho salmon, the critical habitat of coho in the tributaries and off-channel pools, and determine that regulating the flow of the Klamath River to provide flows higher than nature would have provided in the late summer/fall, and flows above the tolerance level of coho as demanded by NMFS, may likely adversely affect SONCC Coho Salmon.

• NOTE: This is true; the unnaturally high flows in the Klamath River with water directly from Upper Klamath Lake promote higher water temperatures and diminish the effects of groundwater springs, essential to coho critical rearing habitat; the best available science also shows that coho critical habitat is in areas where the movement of water is less than 0.6 feet per second. NFMS should write in their biological opinion that flows should be reduced in July, August, and September to facilitate any critical habitat in the refugia area of streams, deep pools, and groundwater, which will mitigate jeopardy to the threatened species. NMFS recommending reduced flows in the Klamath River would be a reasonable and prudent alternative to the extraordinarily high flows Reclamation recommends releasing over Keno. This is unlikely to occur as NMFS demanded the base flow volumes prior to Reclamation writing their proposed action.

• Page 369 focuses on the endangered C'waam and Kaptu (aka mullet and sucker fish ). Reclamation concludes that their proposed action is also likely to adversely affect these populations by lake elevations when the science utilized for these species in Chapter 5 indicates that water elevations in Upper Klamath Lake do not appear to be associated with species survival. THe best available science find no correlation between high lake levels and C'waam / Kaptu survival.

Appendix C provides model output data overlaying Reclamation's Proposed Action over the known hydrologic conditions seen between 1981 and 2022.

• Bottom Line: In 24 of 31 years, the model shows that there is not enough water made available to the Klamath Reclamation Project to meet "A" contract needs based on current infrastructure, current cropping patterns, and anticipated weather/climate conditions.

• In only 5 of the 31 years modeled, there is only enough water available for the most senior water right holders, Van Brimmer Ditch Company (1883) and a bit for Henley-Ankeny Lands (1884) with no water available for the Klamath Reclamation Project 1905 water right.

• In K.I.D., "A" contractors have typically not developed (nor can they develop) groundwater augmentation for surface water shortages. This means that in all but the wettest of years, Reclamation proposes not to make enough water available for K.I.D. to meet its contractual and legal obligations.

• Appendix C suggests that water is being distributed out of the water right priority, with no explanation of how they defend this legal issue outside of their discretion.

• Appendix C clearly shows that in a year like 2024, where we were in flood operations during the course of the year, the amount of water Reclamation makes available is significantly is SIGNIFICANTLY less in future years than what we see in 2024. (Meaning the available supply deemed available for water right holders for a similar year to 2024 will be much less than 260,000 acre feet...and likely only enough to meet "A" contract demands.

Extract of Appendix C to

Reclamation's Biological Assessment / Proposed Action

The last acknowledged recruitment of the endangered C'waam and Kaptu fish in Upper Klamath Lake occurred during multi-year drought conditions in 1992, the year before unnaturally hight lake elevations were prescribed by Reclamation and USFWS.

These endangered fish appear to thrive in lower lake elevations in Clear Lake, Tule Lake, and Lower Klamath Lake. The water quality of these bodies is much worse than that of Upper Klamath Lake.

A $20 Million fish screen is in place on the A Canal to address the fish that are attempting to leave Upper Klamath Lake. The fish attempting to leave Upper Klamath Lake are not an effect of the Klamath Reclamation Project, historically they would move downstream and find suitable habitat in Lower Klamath Lake or be lost to the Lost River Slough to Tule Lake or the Klamath River over Keno.

These fish have a 30-50 year life span. With the last recruitment during the low levels of Upper Klamath Lake following multi-year sought conditions in 1992, most of these fish are now 32 over years old. Recent studies indicate on average; the reproductive age begins at 9 years old; the fish that USFWS is reporting that are reproducing now is akin to 80+-year-old humans.

Higher than natural lake elevations during drought periods have not improved the condition of these fish for the past 32 years; there is little to no acknowledgment that lower fall lake elevations may benefit these fish by denying predators access or water quality in key times of the endangered species survival strengths of being tolerant to very low water quality conditions that kills off other competing species or drive them to other locations allow the endangered fish access to resources being dominated by invasive species.

So What?

What does this mean to me?

Farmer / Rancher / Water Right Holder around Upper Klamath Lake and the Klamath Reclamation Project:

If you have water rights from Upper Klamath Lake, including those around the lake, the implications are that you will not be able to irrigate the former marshlands and flood plains of the lake in most years (you likely won't get a crop to market).

If you receive water from or through Klamath Irrigation District, Tulelake Irrigation District, or Klamath Drainage District, the federal government will mostly not make available to you the water that was historically naturally delivered to your property and stored in UKL to be returned to the former marshland. If it is available, it will likely be exhausted before the end of July in most years.

If you have access to an agricultural well, anticipate having to use it each and every year, putting a significant draw on our groundwater resources. Power rates are set to go up 22.4% in January 2025.

If you own livestock, you have probably already downsized significantly over the past 5 years; further cuts or elimination of your stock is likely.

If you are a small grower for the Klamath Farmers Market, it is likely you will not have enough product to meet demand (unless you are invested in invasive weeds and grasshoppers).

If you pay an assessment to K.I.D., anticipate the per-acre rates to skyrocket to address severe damages to the infrastructure due to a lack of water. The drying of the soils and rodent damage will create seeps and blowouts and significantly increase the risk of property damage or the loss of life. Failure to bring a crop to market does not alleviate the requirement to pay federal loans and Link River Dam costs, nor keep the infrastructure in good working order so that water can be delivered when/if it becomes available.

Klamath County, Modoc County, and Siskiyou County Residents:

If your grocery store has contracts with local producers for vegetables and meat, these prices will likely go up, or supplies will not be available.

If you pay taxes anticipate the necessity for an increase tax rates as income rates for farmers and ranchers go negative. The counties are likely to increase the number of foreclosures on farmland over the next 5 years. (K.I.D. filed 68 liens on properties on 1 July 2024 for unpaid assessments and began foreclosures on several properties in 2023.) County social programs such a fire suppression and essential services are funded by taxes levied on agricultural properties.

If you use words like sustainability...they do not apply to the federal government's vision for the economies of Klamath Falls, Merrill, Malin, Tule Lake and surrounding areas.

If you enjoy seeing a healthy ecosystem, forget about it as invasive weeds take over fallow lands.

If your looking forward to irrigation infrastructure modernization, such as piping to improve efficiencies...forget about it; these efforts costs money, even with grant funding they are expensive and require district capital to be paid for by farmers and ranchers. K.I.D. will be forced to STOP all modernization efforts unless the project is 110% funded through other sources outside of farmers.

If you want water stored in Upper Klamath Lake, as allowed for by the Link River Dam...the farmers pay 100% of that operation and maintenance cost. The available water supply in this proposed action does not allow for K.I.D. to collect funds from farmers for the operation and maintenance of Link River Dam, nor the repayment of the $7.9M Siphon loan under Highway 39.

If you want the human and economic risk issues of the A Canal addressed to prevent future destruction in the City of Klamath Falls? It won't happen. K.I.D. will only be able to perform minimal maintenance for what little water is made available...Reclamation CAT II recommendations will be put on the "that is a nice recommendation" list.

The American Public:

The Klamath Reclamation Project can provide water to grow food and fiber to over 122,000 acres of the Nation's most product farmland without utilizing a single watt of electricity. With the uncertainty in the world and peril facing the Nation in the coming months, years, and decades from peer and near-peer adversaries, with the ability to disrupt and disable our electrical grids, having the Klamath Reclamation Project destroyed is putting another short-sighted bullet to the temple of the Nation.

Do you know how much electricity is needed to grow the crops you find in the grocery stores? Over 122,000 acres of prime farm ground in the Klamath Reclamation Project can still get crops to market if the electrical grid is disrupted or destroyed.

When the Nation gets into a direct conflict with adversaries that can influence our food imports, our food chains, and the ability to grow food to sustain our military forces, what will you be eating? Should the Nation not ensure that its most productive resources are prepared for war?

All plans should include measures of effectiveness to see if the plan is working. Sometimes, measures of performance are needed in the short term if the effectiveness is hard to measure.

Measure of effectiveness: Improved species #s

• Is there solid science that denying water to agricultural purposes will stop the decline of C'waam and Kaptu suck fish? NO!!!

• Is the excess water going down the Klamath River over Keno, above the amounts that would have naturally been available, going to save the (inbred) Southern Resident Killer Whale from extinction? NO!!!

• Will the warm excess water going down the Klamath River over Keno create a critical habitat for the coho salmon, whose critical habitat is in tributaries, deep pools, and side channels? No!!!

Measure of effectiveness: Compliance with the Klamath River Adjudication

• Does Reclamation's Biological Assessment include a water right for stored water from Upper Klamath Lake to entities or purposes not in the Klamath River Adjudication? The authors and publishers of the document escape description of how ignoring water right priorities is within its discretion.

• Will the Oregon Water Resources Department uphold and defend Oregon water rights in the ACFFOD? No! Specifically NO if you use water to grow food and fiber for the nation. In fact, both OWRD and Reclamation are looking for ways to increase the unnatural flows into the Klamath River.

Measure of effectiveness: Economic sustainability

• Can the Klamath Reclamation Project farmers earn enough $ to operate and maintain the infrastructure, repay government-directed loans, and pay for the operation and maintenance of the Link River Dam to store water for irrigation purposes? NO!!!!

• Do federal government programs to provide funding for the taking of personal property (water) meet the minimum demand to sustain our local economy and farmers' loans? Reclamation officials suggest that a few pennies will solve the ecological and economic destruction this document further exacerbates.

Measure of effectiveness: Promote Domestic Tranquility

• Are irrigation districts expected to deliver water through their system, which is paid for by farmers and ranchers, to deliver water to the refuges and deny water to farmers? Yes!!

• Does this plan promote investment in the national security need to have food and fiber for the nation as we enter a period of conflict that may be with a peer or near peer nation with the ability to destroy or severely disrupt our electrical grid? No!!! This plan takes the 122,000 acres of the nations most fertile lands out of production and covers them with invasive weeds, turning former wetlands into arid desert landscapes void of life.

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