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Ruling on multiple water rights lawsuits favor endangered species
Magistrate's decision goes against Reclamation and Project...Klamath Drainage District

Molly O'Brien, Herald and News 9/16/23

Rulings on multiple federal cases over local water rights and contracts were announced in congruence with each other earlier this week, all of which determined that the Endangered Species Act takes precedence.

Last year, the Bureau of Reclamation filed a suit against Klamath Drainage District for diverting flows from the Klamath River in 2021.

KDD General Manager Scott White said the district was allowed to divert water in years when the Klamath Project received insufficient water to provide allocations to KDD under a state permitted use granted in 1977.

“Since the right was permitted, it was treated as a private and separate right to any Project allocation,” White said. “During times of shortage, the Bureau would inform the district that there was no more Project water available and that the district must use its permit to continue irrigating. That was how operations worked since the ‘70s and just until last year when the United States changed their mind and sued us.”

In 2022, Reclamation instructed KDD to discontinue diversions from the river, claiming the usage broke the agreed upon contract between the two organizations.

The breach of contract case was presided over and ruled on by U.S. Magistrate Mark Clarke.

The same magistrate also presided over two separate lawsuits filed by the Klamath Tribes against Reclamation for violating ESA requirements, defying both the 2021 and 2022 annual operation plans.

A release from KDD said, “In one case, the court found Reclamation violated the ESA in 2022 by providing farmers even a diminished supply when not all species goals could be met.”

Endangered C’waam and Koptu, two of the Klamath Tribes’ sacred fish species, are protected under the ESA.

The minimum water elevation necessary for a healthy spawning season in spring is 4,142 feet, according to the act.

Klamath Tribes Chairman Clayton Dumont said Reclamation knew minimum water levels couldn’t be met prior to allocating water to irrigators.

“What they did was to give a project allocation when there was not water there to meet ESA obligations,” Dumont said. “There’s a formula they use that has to do with what the lake looks like, what the expectations are, snowpacks and such … and the formula they used returned with a product of zero.”

Although the results determined no waters could be allowed for Project irrigation, Reclamation proceeded to allocate about 60,000-acre feet in 2022, Dumont said, with a secondary allocation later in the year.

“It has a lasting impact on the ecosystem,” Dumont said. “Whenever they don’t meet the minimums, it’s a problem. It’s a problem in terms of spawning in the Lakeside Springs. It’s a problem when they don’t meet them later in the year because that carries over to the next year and spawning season in spring.”

The Tribes’ two suits received a joint ruling, as did the separate breach of contract case against KDD.

“Our case wasn’t even an ESA case,” White said. “Our case is completely separate, but the judge chose to lump them all in together in his ruling.”

In Reclamation’s case against KDD, the magistrate ruled against KDD and ordered an injunction to cease water diversions from the river.

KWUA and Reclamation are given a two week period following the April 11 ruling to file for an assessment of the findings and recommendations of the magistrate.

Should a review be granted, the assessment is conducted by an Article III judge with approval from the senate.

A release from KWUA said the districts have not yet decided whether they will request a review.




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