KLAMATH FALLS, Ore. — As the Klamath Basin braces for a historically dry year, the region’s water wars have once again spilled into court.
The Klamath Water Users Association filed a motion April 19 to reopen a lawsuit against the U.S. Bureau of Reclamation, seeking clarity on legal issues that may determine future irrigation water availability in the Klamath Project.
Last month, the bureau announced its lowest water allocation for Klamath Project farmers on record at 33,000 acre-feet, less than 8% of normal demand.
Paul Simmons, KWUA executive director, said there is nothing irrigators can do to change this year’s dire situation. Instead, the association is asking a federal judge to rule on future project operations, and what obligations the bureau has to protect several species of endangered fish.
“KWUA wants to establish sideboards that will control future years’ operations in a more reasonable way,” Simmons said.
The bureau is in charge of managing the project, which provides water for 230,000 acres of irrigated farmland in Southern Oregon and Northern California.
Under the Endangered Species Act, the bureau must also consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to ensure the project does not threaten the survival of endangered Lost River and shortnose suckers in Upper Klamath Lake, and threatened coho salmon in the lower Klamath River.
Every five years, the agencies issue what is known as a Biological Opinion, or BiOp, that includes a detailed operations plan for the project to comply with the ESA.
The most recent plan was issued in 2019. Not long after it was released, the Yurok Tribe in California, along with the Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources, sued, arguing greater protections were needed for fish.
Ultimately, the government agreed to go back and revise the BiOp and the case was suspended. A three-year interim plan was put in place in April 2020 that avoided a worst-case scenario for farms, according to the KWUA.
Now, the association wants Judge William Orrick to lift the suspension and bring the case back to court. A hearing is scheduled for May 26.
In its motion, KWUA claims the bureau is not adhering to the interim plan. Specifically, “augmentation flows” released in May 2020 for salmon downriver were not supposed to cause long-term harm to project farmers, but in fact have resulted in less water and delayed the 2021 irrigation season.
Moreover, the association claims the interim plan “simply does not work,” and the re-consultation process on a new BiOp is far behind schedule.
“It is the second extremely dry year under purported interim plan operations, revealing far too many round pegs for the square holes of the interim plan,” the motion states. “The parties do not need a plan for wet years; wet years are easy. The parties need a plan for dry years, and it is now glaring and apparent that there is no such functional plan.”
Simmons said the court should rule that, under the current interpretation of the ESA, the bureau has no legal right to curtail irrigation water that has already been contracted for project farmers to protect endangered fish.
The Trump administration previously affirmed that opinion in a 41-page reassessment of project operations, though that was later rescinded by new Interior Secretary Deb Haaland.
“These documents were issued without government-to-government consultation with affected tribes and do not reflect the current administration’s goals for long-term water recovery and economic restoration in this region,” Haaland said.
While Simmons said he hopes they will soon be able to return to a federal courtroom, he emphasized litigation alone will not solve all the basin’s problems.
“As much as we need to clarify the rules, we also need to work with other parties for solutions and stability,” he said.