A win for state water rights came earlier this month after the Marion County Circuit Court ruled that the Bureau of Reclamation cannot release water from Upper Klamath Lake for flows down the Klamath River.
The Oregon Water Resources Department manages the water in Upper Klamath Lake and grants permits and licenses to various users of that water. Reclamation has been periodically releasing water from Upper Klamath Lake through the Link River Dam to increase downstream flows in the Klamath River, intending to improve habitat conditions for endangered Coho salmon.
The case, filed by the Klamath Irrigation District, asserted that the OWRD wrongfully allowed Reclamation to release the lake’s water because Reclamation did not possess a permit or license to do so. Judge Channing Bennett agreed, concluding that Reclamation “does not have an established right or OWRD permit or license allowing for the use of stored water in UKL.”
Though Reclamation is a federal agency and controls various elements of the Klamath Project (including the Link River Dam, which allows them to stabilize Upper Klamath Lake’s levels), they must still abide by state water law per Section 8 of the Reclamation Act. The only state right Reclamation possesses is the right to store water in Upper Klamath Lake.
“The right to store water, under Oregon water law, doesn’t give you the right to use the water,” said Nathan Rietmann, counsel for the Klamath Irrigation District.
Though water rights adjudication in the Klamath Basin has been going on for decades, he said Reclamation never asserted an instream water right for salmon in the Klamath River even though the state can acknowledge water rights for fisheries.
A Klamath Water Users Association news release called the decision “encouraging” but made it clear that it will likely not result in a change to irrigator water allocations this year. Based on a proposed judgement submitted by KID, the court still has to issue a final order directing OWRD to tell Reclamation to stop releasing the water. That game of telephone could take weeks and depends on the cooperation of all involved organizations.
“Even still that may not be the end,” KID president Ty Kliewer said in the release.
KWUA executive director Paul Simmons said the case highlights a “longstanding tension” in the West between the Endangered Species Act — which protects the downriver salmon and endangered suckers in Upper Klamath Lake — and state water laws.
“In the project, we have pretty good water rights, but because we’ve been shorted because of the ESA, we’ve had kind of the worst of both worlds,” Simmons said. He added that, depending on how Reclamation responds to an ultimate order, this could reopen litigation involving the Yurok Tribe, which sued Reclamation earlier this year to acquire more flows for Klamath salmon.
The ESA compels federal agencies like Reclamation to work within their existing powers to protect those federally listed species. Because the court has affirmed that state water law puts constraints on Reclamation’s power to begin with, Rietmann said the ESA doesn’t allow them to circumvent that.
“The ESA does not give agencies new magical powers that they otherwise did not possess,” he said.