diversion continues, Reclamation could release more lake water
most irrigators in the Upper Klamath Basin are enduring a
spring without surface water, canals in Klamath Drainage
District have been flowing since the middle of April. And
KDD says no laws were broken to make deliveries to its
KDD opened the
Ady and North canals on April 15, diverting water from the
Klamath River to serve its patrons. The Bureau of
Reclamation, whose operations plan for 2021 emphasized that
no water deliveries be made to the Klamath Project prior to
May 15, sent a letter to KDD asking them to immediately
cease the diversions.
Based on some
of the worst hydrology in decades for the Klamath Basin,
Reclamation said that not enough water is available to
satisfy Endangered Species Act-required lake levels in Upper
Klamath Lake or flows in the Klamath River, let alone
Lake must be at or above 4,142 feet in elevation during
April and May to provide habitat for spawning C’waam and
Koptu (Lost River and shortnose suckers), and a pending
outbreak of the salmon disease C. shasta below Iron Gate Dam
must be washed out of the river through a flushing flow to
avoid a mass fish kill. There is so little water that
neither of those needs can be fully met.
district maintains it has a state water right permit,
acquired in 1977, which is supplemental to its Project water
right and not impacted by Reclamation’s ESA obligations. In
their letter, the Bureau took a different position.
diversion of water into the Ady and North canals is contrary
to the ESA and may subject KDD to legal action if it does
not immediately cease diversions,” acting area manager Jared
Bottcher wrote to the district. “The fact that KDD is
claiming to use a junior 1977 water right under state law
does not overcome Reclamation’s legal authority and
obligations under federal law.”
general counsel for KDD, said KDD obtained the state permit
from the Oregon Water Resources Department in the 1970s as a
backup for situations when Reclamation would be unable to
satisfy the district’s Project right in full. Their water
supply is still meant to come primarily from the Project,
but the state permit still allows them to divert water when
Project supply becomes unavailable, she said.
was concerned about having all of its eggs in one basket,”
Desmond said. “It was advised to diversify its water sources
and to obtain its own water right from the state.”
permit covers 19,234.3 acres of land — all of KDD except for
federal leaselands on Lower Klamath National Wildlife Refuge
— allowing up to 3 acre-feet of water per acre to be
diverted from live flow in the Klamath River each year.
Desmond said it
feels like Reclamation has flip-flopped on the issue. In
previous drought years when Project supply was significantly
reduced, like 2010, she said the Bureau had communicated to
KDD that water deliveries were coming through the district’s
state right instead of its Project right.
“In the past,
Reclamation has directed KDD to divert under this state
permit when project water isn’t available,” she said.
On March 30,
OWRD declared that stored water in Upper Klamath Lake was
not flowing through Link River Dam and that all water
available in the river was live flow. Desmond said KDD took
that as permission to be able to make diversions in April,
and that other private water users along the river in Oregon
have similar state permits that allowed them to do the same.
other private water users who have water rights above and
beyond the Project, and there are other people out there
irrigating and using water,” Desmond said.
KDD leadership felt it was crucial to make deliveries before
Reclamation planned to do so for the Project, because the
District was unable to fully pre-irrigate its soils during
the winter. Normally, the Project right allows for
off-season irrigation, but the amount of water was truncated
into the season very dry,” she said.
the letter from Reclamation, Desmond said KDD did close down
the Ady Canal as an “olive branch.” The ownership of that
canal is somewhat ambiguous between the federal government
and the district. But Desmond said they intend to continue
letting water flow through the district-owned North Canal in
compliance with their state permit, emphasizing that the
action is not illegal.
that there’s been no legal authority presented to determine
that KDD is not diverting legally,” Desmond said.
Mary Lee Knecht,
public affairs officer for the Bureau of Reclamation’s
California-Great Basin Region, said the agency is obligated
to meet minimum downriver flows at Iron Gate Dam,
established through consultation with the National Marine
Fisheries Service, which enacts ESA policy for threatened
coho salmon on the Klamath River.
“To the extent
that tributary flows are diminished and diversions occur
between Link River Dam and Iron Gate Dam, Reclamation is
adjusting Link River Dam releases accordingly to meet these
minimum flows,” Knecht said.
That means the
Bureau plans to reduce Upper Klamath Lake levels to make up
for KDD’s diversion. Knecht did not say how that would
impact Reclamation’s abilities to comply with the U.S. Fish
and Wildlife Service’s Biological Opinion regarding
Jay Weiner, the
Klamath Tribes’ lawyer for ESA-related cases, said
Reclamation’s decision to potentially release more water
from Upper Klamath Lake during a period when its level is
already a foot or more below what it should be, shows a
“fundamental lack of concern” for C’waam and Koptu.
“It’s been a
source of frustration for the Klamath Tribes for a long
time, and it’s been thrown into really sharp relief this
year,” he said. “Reclamation’s priorities seem to take care
of the salmon and the irrigators where they can, and the
C’waam and Koptu get whatever scraps are leftover. It is a
derogation of the United States government’s trust
obligations to the Klamath Tribes.”
Tribes had their first hearing in an ESA lawsuit against
Reclamation earlier this week, where they argued that the
agency has gone against USFWS’s biological opinion by
allowing Upper Klamath Lake to dip below 4,142 feet in April
and May during two consecutive years. Weiner said the
situation with KDD exemplifies the agency’s failings of the
C’waam and Koptu, though it has not been specifically
brought in as evidence in the case.
The Tribes were
also recently denied a motion in the Klamath Basin
adjudication to claim senior water rights in the Klamath
River below Lake Ewauna. Had they been successful in that
litigation, they would be able to make calls on the water
through OWRD to prevent irrigators downstream of Link River
Dam from making diversions, as they have in tributaries to
Upper Klamath Lake.
while the Tribes could theoretically sue KDD on ESA grounds,
litigation would take months — if not years — and would not
result in any injunctive relief in time for sucker spawning
season this spring. He also said the district’s diversion is
a drop in the bucket compared to the live flow Reclamation
is currently releasing from Link River Dam to satisfy
minimum flows below Iron Gate Dam.
every drop of water is precious and the C’waam and Koptu
need that, and KDD should not be doing what it’s doing. But
we have a bigger problem this year than what KDD is doing
right now,” Weiner said.
temporary operating procedures for 2021, Reclamation warned
that any unauthorized diversions to the Project could result
in a reduction from total project supply, which is already a
pittance. Knecht said this is one of those cases.
diversions are expected to reduce the amount of water
available for the remainder of the Project in 2021,” she
that shouldn’t be the case, given that KDD is diverting
water to satisfy a state right that Reclamation doesn’t have
“I think that
that is an erroneous calculation on the part of Reclamation
and that they lack the discretion to subtract independent
state water rights from Project supply, particularly when
it’s not coming from stored water,” she said.
In accordance with Title 17 U.S.C.
section 107, any copyrighted material
herein is distributed without profit or
payment to those who have expressed a
prior interest in receiving this
information for non-profit research and
educational purposes only. For more
information go to: