Klamath irrigation

An irrigated field near Tulelake.

Outgoing Interior Secretary David Bernhardt sent a parting gift to some irrigators in the Upper Klamath Basin earlier this month, issuing new guidance surrounding the Bureau of Reclamation’s operation of the Klamath Project.

A 41-page report produced by the Bureau’s Klamath Basin Area Office argued that the agency does not have as much authority to protect species listed under the Endangered Species Act as it is currently exercising.

The report analyzed Reclamation’s various ongoing activities in the Klamath Basin, evaluating whether each of them required consultation with other federal agencies managing endangered species, such as the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The agencies periodically issue biological opinions concerning how Klamath Project operations could impact endangered C’waam and Koptu (Lost River and Shortnose suckers) in Upper Klamath Lake and threatened coho salmon in the Klamath River, which in turn influence Reclamation’s decisions.

After Secretary Bernhardt and Reclamation Commissioner Brenda Burman visited the Basin last summer, legal counsels for the Klamath Water Users Association and Klamath Irrigation District requested that the Interior Department’s Office of the Solicitor conduct a legal review of Klamath Project operations. After a preliminary review in November, Bernardt responded in a Jan. 16 letter stating that “project operations have come to suffer from a tortured consultation history.”

In addition to the reassessment report itself, Interior provided internal memos concerning Reclamation’s responsibility to honor contracts with Project irrigators and to provide flows on the Klamath River sufficient for the survival of fisheries depended upon by the Yurok and Hoopa Valley tribes.

The report found that, while some of Reclamation’s actions associated with storing water in Upper Klamath Lake and moving it around the Klamath Project do require ESA consultation, the agency can’t do so at the expense of water deliveries to Project irrigators.

“The federal government has recognized that we have been over-regulated under the ESA and that needs to change,” said KWUA President Tricia Hill.

Of particular note was Reclamation’s obligation to fulfill tribal trust responsibilities for the Klamath, Yurok and Hoopa Valley Tribes, all of whom retain constitutionally-enshrined treaty rights to fish in their traditional territory. As an arm of the federal government, Reclamation must ensure that its operations do not jeopardize those treaty rights.

The report argued that Reclamation is attempting to fulfill its tribal trust obligations through compliance with the ESA, given that the protection of the fish in Upper Klamath Lake and the Klamath River ostensibly constitutes the survival of tribal fisheries.

“Klamath Project operations for water supply, endangered species and Tribal trusts have become substantially conflated,” Bernhardt wrote in his accompanying letter. “The outcome is an operating plan that no longer allows for inspection of any individual piece for compliance, creates confusion and begets litigation and discord to no one party’s service.”

Section 7 of the ESA outlines that federal agencies must ensure their actions don’t jeopardize listed species. But KWUA Executive Director and Counsel Paul Simmons said Reclamation’s operation of the Klamath Project has tended to interpret that too broadly.

“The ESA doesn’t confer new powers on agencies towards species protection,” he said. “Agencies can only do things that are within their existing power.”

The report identified 11 actions associated with Reclamation’s operations that would be subject to ESA consultation if they affect listed species’ critical habitat. It designated four other actions — establishing guaranteed minimum release rates from Upper Klamath Lake, coordinating project diversions from Upper Klamath Lake, establishing guaranteed minimum flows in the Klamath River and establishing minimum water levels in Tule Lake Sump 1A — as not requiring Section 7 consultation.

Simmons said everything depends on where the agency has discretionary authority to adjust its operations to benefit ESA-listed species without infringing upon its ability to provide water to Klamath Project irrigators. While there’s no physical divide between the water in Upper Klamath Lake set aside specifically for storage purposes and the water that would’ve naturally existed in the lake pre-project, Reclamation is required to store a certain percentage of the water that enters it for exclusive use by the Klamath Project. If the agency were to release more than that inflow at a given time, it would be violating its contractual obligations to Project irrigators, regardless of whether those released flows were intended to protect endangered species downriver.

The Solicitor’s Office analyzed more than 150 perpetual contracts with irrigation districts and individual landowners to provide Project water between 1908 and 1972 and found that most contained waivers that exempted the federal government from liability in the case of a situation out of its control, like a drought. But those waivers did not authorize Reclamation to intentionally alter water deliveries to meet a non-Project need. The report did find some discretionary authority provided by individual contracts, but said Reclamation must consult on those specifically, not as a Project-wide rule.

Because almost none of Reclamation’s perpetual contracts with Project irrigation districts and individual landowners include clauses that allow for the agency to curtail water deliveries to satisfy ESA requirements, the report asserted that the agency doesn’t have discretion to use stored water for any other purpose than irrigation.

“Reclamation’s discretion to regulate water surface levels in Upper Klamath Lake and flows in the Klamath River—for the benefit of endangered species or otherwise—is narrower than the scope of Reclamation’s recent consultations,” the report read.

The report also said it’s not Reclamation’s responsibility to enter into ESA consultations to deliver water to Lower Klamath and Tule Lake National Wildlife Refuges, which have been plagued by inadequate water deliveries in recent decades. The refuges receive water through Project infrastructure, though their rights are junior to irrigators.

“The U.S. Fish and Wildlife Service, not Reclamation, controls whether these water rights are exercised,” the report read, suggesting that FWS will have to consult with itself to comply with the ESA once the guidance is implemented.

The report comes after recent legal cases have determined that Reclamation must comply with Oregon water law, which prohibits the agency from releasing stored water from Upper Klamath Lake for any purpose other than delivering it to Klamath Project irrigators. The lake now legally defaults to regulation by the Oregon Water Resources Department, which has quantified and prioritized water rights through the Klamath Basin Adjudication. The new guidance recommends that Reclamation operate on this premise.

The Klamath Tribes, who possess senior water rights in Oregon to the level of Upper Klamath Lake through the KBA in addition to their federal protections, would retain those rights under the new operations framework, but Simmons said a condition of that right prohibits it from curtailing rights prior to 1908. That includes the Project, meaning that, when lake levels are low, Reclamation can’t keep stored water in Upper Klamath Lake if doing so curtails Project deliveries. Chairman Don Gentry said the Tribes’ legal team was still reviewing the guidance.

More nebulous is how the federal government will fulfill its tribal trust responsibilities downriver. While the Yurok and Hoopa Valley Tribes possess federally recognized, senior instream water rights on the Klamath River, they were never quantified in the KBA. In a memo to Secretary Bernhardt, the Interior’s Office of the Solicitor said that while Reclamation does have some degree of discretion to satisfy those downriver trust obligations, that means it can’t use stored Project water to do so.

“Until the rights of the Yurok and Hoopa Tribes are quantified, there is no definite quantity of water Reclamation must provide, though Reclamation is obligated to ensure the Tribes receive sufficient water to exercise their federally reserved fishing rights,” the memo read. “Reclamation satisfies that trust obligation by providing water that would be available in the tribal fishery, absent the project.”

The operations adjustment will make the Bureau’s updated study on the natural flow of the Klamath River, still in development, all the more important in the coming years. It could also tee up future litigation surrounding whether Reclamation’s stored water can be used to satisfy tribal trust obligations in the lake or the river.

Yurok General Counsel Amy Cordalis said her legal team was still analyzing how the new guidance could impact the Tribe’s water rights, but that it would likely reduce the amount of water available to support salmon on the Klamath River, whether to comply with tribal trust or ESA obligations.

“We’re concerned about the implications of it on the river,” she said. “The conclusions in these memos are a 180-degree flip of the federal government’s long-term policy and positions on the rights of the tribes and the Endangered Species Act.”

Cordalis said the Department of Interior issued the guidance in the “11th hour” of the Trump Administration, and that it was completed without input from stakeholders other than irrigators.

“The feds were looking at one community,” she said. “Unfortunately, that type of review doesn’t result in adequate consideration or protection for the various other interests in the Basin.”

Simmons said that while its timing makes the reassessment seem like an act of favoritism, there’s precedent for it across the political spectrum. The U.S. Army Corps of Engineers

“The updated ESA guidance applies current principles that, undeniably, were recognized and advocated by President Obama’s administration and consistently upheld by courts,” Simmons wrote in a January 22 Herald and News op-ed, adding that he looks forward to working with the Biden Administration as Reclamation incorporates the new guidance into its future operations.

Simmons couldn’t provide a timeline on when Reclamation would implement the new guidance. The report mentioned that it “does not alter or affect Reclamation’s current ESA compliance, as encompassed in the Interim Operations Plan,” which is in effect through Fall 2022. Simmons said he hopes the guidance can be implemented “sooner rather than later,” but it’s unclear whether that would result in a change for the current water year.

Cordalis said she hopes future guidance for federal agencies in the Klamath Basin can incorporate a variety of perspectives.

“If there are updates that need to be taken, then let’s do that, but let’s involve all stakeholders,” she said.