Klamath Water Users Association 
Sent:  5/21/2003
Subject:  KWUA Response to Mary Nichols re: Klamath Project Operations

Attached, please find Klamath Water Users Association response to a letter sent by California Resources Secretary Mary Nichols to U.S. Interior Secretary Gale Norton earlier this week. A copy of Secretary Nichols' letter is also attached.

The latest letter from the California Resources Agency continues an advocacy posture that began last fall when the agency quickly and publicly laid the blame for the 2002 lower Klamath River fish die-off on the Klamath Project without examining all the factors that may have contributed to that unfortunate event. Our concerns are further outlined in the attached response.

May 19, 2003

The Honorable Gale Norton, Secretary
United States Department of the Interior
1849 C Street NW
Washington, D.C. 20240

Dear Secretary Norton:
(This letter if from Secretary Nichols to U.S. Interior Secretary Gale Norton).

In light of the loss of over 30,000 salmon last year on the Klamath River, I strongly urge the U.S. Bureau of Reclamation (USBR) to revisit their approach to operations of the Klamath River Project. Unfortunately, the 2003 Klamath Project Operations Plan - released on April 10th - does not reflect any change to the 10-year plan and flow schedules put in place last year.

While we commend your effort to balance competing environmental and economic interests, California strongly feels that the current flow schedule is inadequate to protect the Klamath River's Coho and Chinook salmon and steelhead trout. As California suggested in October 2002, we again request you to direct the USBR to
reinitiate consultation with NOAA Fisheries to minimize further loss and work towards recovery of the Klamath River's native fish. In addition, we request that you direct the USBR to also work closely with the California Department of Fish and Game (CDFG)1  and tribal interests to develop a revised 2003 Operations Plan that will protect the Klamath River's ecosystem and the native fish it supports.

As the State and federal agencies work closely together with the tribal interests in
the development of a revised 2003 Operations Plan, I ask that the following issues also be addressed.

Use All Available Information and Data

The 2003 Operations Plan needs to be based on the sum of the best available
information - not on a portion of one report that supports implementation of the current operations plan put in place last year. USBR staff have repeatedly made the comment that the current 10-year operations plan is based on the National Research Council (NRC) Interim Report. However, the NRC Panel was not asked to develop a

1 *The California Department of Fish and Game (CDFG) has reviewed the 2003 Operations Plan, and provided technical comments to USBR

The Honorable Gale Norton, Secretary
May 19, 2003
Page 2

river flow schedule to avoid jeopardy of the Coho salmon - that responsibility falls to NOAA Fisheries - nor was it intended to support any project operations plan.

The NRC Interim Report did raise questions about the evidence to support higher flows downstream of the Klamath Project for Coho salmon, but it found an equal lack of evidence to support changing the then existing project operations. Specifically, the
NRC Interim Report described the proposed operations plan as "unjustified … because [it] would leave open the possibility that water levels…in the Klamath River main stem could be lower that those occurring over the past 10 years." Despite this clear assessment, the USBR continues to use the NRC Interim Report to justify the current operations plan.

New information provided during the last year also needs to be considered, for
example, the January 2003 CDFG Preliminary Report on the fish kill. There is also a
wealth of other information that needs to be made available and considered, specifically the USBR Hardy Phase 2 Report and the U.S. Fish and Wildlife Service (USFWS) Report on the September 2003 fish kill.

The CDFG Report is available to the public, and they will be responding to
comments and producing a final report soon. Given that the fish kill happened more
than six months ago, I hope the USFWS will report soon on their findings.

The USBR Hardy Phase 2 Report, which contains important site-specific
information used to develop instream flow recommendations necessary to protect the
aquatic resources within the main stem Klamath River between Iron Gate Dam and the estuary, has been in preparation for years. I urge you to direct the USBR to provide a final version that incorporates peer review comments and can be used during the development of a revised 2003 Operations Plan.

California believes that all these reports, along with any additional new information that may become available, will serve as solid foundation when the State and federal agencies work together with the tribal interests to develop a revised 2003
Operations Plan.

Consider the entire Klamath River Ecosystem

The revised 2003 Operations Plan should focus on the recovery and sustainability of the Klamath River ecosystem - not just the Coho salmon. While the Endangered Species Act (ESA) does provide for the protection of individual species, our previous collective efforts (such as the CALFED Bay-Delta Program) have led the State
and federal agencies to focus on the recovery of river ecosystems to support native
fishes. In addition, the Klamath River Fall run Chinook salmon - while not protected
under the ESA - do require "Essential Fish Habitat" consultation under the Magnuson-Stevens Fishery Conservation and Management Act, as amended in 1996 by the Sustainable Fisheries Act (Public Law 104-267).

The Honorable Gale Norton, Secretary
May 19, 2003
Page 3

California Coho and Chinook salmon and steelhead trout are very significant
economic, recreational, cultural, and biological resources for our State, and the Klamath Basin is an important watershed for these native fish and Northern California
communities. These resources are also central to the history, tradition, culture, and
future of California's Native American communities along the river.

Consult with California

California was not consulted in the development of the current 2003 Operation
Plan despite federal policies that encourage, and in some cases require, coordination
with State agencies having fish and wildlife management responsibilities. State
agencies are prepared to invest time and resources in long-term comprehensive
planning for management of the Klamath River Project. Before that occurs, however,
these challenging fiscal times and prudent stewardship require that immediate action be taken to address these and earlier comments to ensure the protection of the Klamath River Coho and Chinook salmon and steelhead this year.

In this important effort, California stands ready to work with the tribal communities, local communities throughout the watershed, the State of Oregon, all interest groups, and the federal agencies to resolve the issues within the Klamath watershed.

Thank you for your careful consideration of these comments.

Yours sincerely,

Mary D. Nichols
Secretary for Resources

Cc: Bennett Raley, Assistant Secretary for Water and Science
U.S. Department of Interior
Craig Manson, Assistant Secretary for Fish and Wildlife and Parks
U.S. Department of Interior
William T. Hogarth, Assistant Administrator
NOAA Fisheries
Rod McInnis, Southwest Region Administrator
NOAA Fisheries

Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
     (541)-883-6100    Fax (541)-883-8893
     e-mail: kwua@cdsnet.net

May 21, 2002

Mary D. Nichols
California Resources Agency
1416 9th Street, Room 1311
Sacramento, California 95814

RE:  Klamath River Flows

Dear Secretary Nichols:

On behalf of the Klamath Water Users Association, an organization representing 5,000 water users, including 1,400 family farms, I am writing to express our serious concerns regarding your May 19, 2003 letter to the Secretary of the Interior concerning Klamath River water flows and Klamath Project operations. Like you, we strongly support using the best available information and data to address Klamath River challenges on an ecosystem-wide basis. Unfortunately, your letter makes a number of statements that misrepresent these important concepts. Further, this latest letter continues an advocacy posture that began when your agency quickly and publicly laid the blame for the 2002 lower Klamath River fish die-off on the Klamath Project without examining all the factors that may have contributed to that unfortunate event.

Consider the Entire Klamath River Ecosystem

Like you, we support actions that focus on the recovery and sustainability of the Klamath River ecosystem. In fact, our association was the first to develop such a plan, which we did in 1993 and again in 2001, to promote recovery of endangered suckers. The intent of these plans was to catalyze the development of a comprehensive ecosystem restoration plan and, at the same time, to initiate an aggressive, pro-active approach to begin to address basin-wide resource conflicts. The plans emphasized the use of cooperative efforts between local interests and those individuals and groups sharing common goals. We have long advocated that this approach is preferable to traditional fragmented plans, which often result in conflicts for limited resources among user groups.

We agree that the present-day approach of development and implementation of single-species endangered species recovery plans are not effective in terms of resolving overall resource management issues. We in the Klamath Project know that reallocation of water away from farms and wildlife refuges and towards the alleged needs of three fish species has very real impacts on waterfowl populations and the hundreds of other animals that rely upon farms and flowing water to exist.

However, while it appears that we are in agreement on the need for an ecosystem-based approach to species recovery, our association has a difficult time accepting the notion that the Klamath Project is somehow solely responsible for protecting all the species in the downstream riverine system. Frankly, we wonder whether a watershed - wide ecosystem approach will ever be developed if downstream advocates - including, apparently, your agency - continue to focus on draconian actions targeting our 2% of the watershed as the source of the fix.  Furthermore, your Department of Fish and Game apparently disagrees with your ecosystem-based and basin-wide approach as evidenced by the agency's total omission of Trinity River analyses in their January 2003 report. 

The Need to Pool Our Resources - This Year

Recent media reports suggest that we may be seeing record numbers of fish returning to West Coast rivers this summer. We must prepare to avoid a repeat of last year's crisis, where huge numbers of returning fish entered the Klamath River early, only to encounter water temperatures and overcrowding that allowed disease to quickly spread. Traditional advocates for high Klamath River flows are already predicting doom-and-gloom, and we expect that these parties will likely be inclined to once again exploit such a crisis for political purposes. Taking a different tack, we urge that you objectively assess this situation and consider taking management steps that can prevent a reoccurrence of 2002. We would like to participate with federal agencies, the State of Oregon, downstream tribes and fishermen, and your agency, to pool our collective resources towards an end that benefits the fish. Such a solution might include:

" Creation of Central Monitoring System to assess water quality and flow parameters to alert of potential conditions that might lead to fish die-offs in the Klamath-Trinity system.
" Improved coordination between Klamath Project and Central Valley Project Trinity River export operations to meet potential emergency needs.
" Trinity River and Klamath River pulse flow management that is driven by sound science and collaboration.
" Improved hatchery management.
" Investigation of opportunities to employ adaptive regulations that could allow more fish to be harvested before crowded conditions occur in-stream.
We can expect traditional foes of irrigated agriculture to try their best to derail our efforts and continue to focus solely on reallocating Klamath Project water to questionable environmental purposes. We will continue to take a constructive approach toward improving our destiny and contributing to effective species recovery.
NRC Interim Report

As distasteful as it appears to be to some environmental activists in the lower Klamath Basin, the NRC Interim Report presently represents the best available science on Klamath fishery issues. Judge Saundra Armstrong in May 2002 ruled that the draft Hardy Phase II report - which environmentalist plaintiffs claimed then (and now) is the "best available science" - could not be relied upon as such, since it only existed in draft form.  Rather, the Court ruled that the NRC Interim Report was the best available science : 

"The Court finds that the NRC Interim Report is the best science available, particularly in light of the April 30, 2002 clarification letter…The Court is unwilling to rely upon the Hardy Phase II draft report as the best science available...at present, the Hardy Phase II report exists only in draft form. As the report states on each page, its conclusions, and most importantly, its recommended flow levels are subject to change."

In the year that has elapsed since Judge Armstrong's decision, the draft Final NRC Report has been completed and will apparently be released later this summer after undergoing external peer review. In the meantime, the Hardy Phase II Report remains in draft form. The Best Available Science argument supported by Judge Armstrong last year still holds. NOAA Fisheries itself has also stated this conclusion.

Hardy Phase II DRAFT Report Should Not be Held up as Best Available Information

Your letter's treatment of the NRC report and endorsement of the Hardy Phase II draft report appears to be consistent with arguments made by some activists who are working diligently to discredit the NRC and prop up the Hardy recommendations as the Best Available Science on Klamath River flows. Sadly, your endorsement of the flawed CDFG fish die-off assessment only reinforces activists' arguments that the fish die-off provides ample empirical evidence that the NRC Interim Report findings should be replaced with the Hardy effort.

We have serious concerns with the draft Hardy Phase II report, which do not appear to have been brought to your attention. Our association submitted detailed comments on the draft Phase II Report to Dr. Hardy in January 2002 - over sixteen months ago - and still has not received any sort of response from the author or the Bureau of Indian Affairs about the very serious concerns we raised regarding the draft report's limitations.

Please understand that if the draft Hardy flow recommendations are folded into future decision-making, Klamath Project water users will subjected to adverse impacts in more than just critically dry years. Independent review of draft Hardy flow recommendations for the years 1961-1997 demonstrates that zero Upper Klamath Lake water deliveries to agriculture or wildlife refuges would occur in 13 of the 37 years - and Hardy's Phase I flow objectives would still not be reached. These types of impacts to our local community are unacceptable. This region will be unable to sustain another single crisis similar to the 2001 disaster, let alone surviving complete water cutoffs every 3 years into the future. Your letter is, of course, addressed to policy officials at the Department of the Interior. It's ultimate target, however, is hard-working families in the real world.

Just a few short years ago, there was a similar, loud chorus insisting that the Hardy Phase I Report was the "best available science." As a result, the Klamath Project experienced severe hardship in 2001. That Phase I Report has subsequently and repeatedly been shown not to be a reliable tool for decision-making. The new chorus surrounding the draft Phase II Report also is based on advocacy, and not science.

Despite what you may have been told, the draft Hardy Phase II Report does nothing to address prevention of a fish die-off such as occurred in September 2002.  Some tribal biologists and environmentalist advocates refer to the draft "Hardy Phase II" report to support their arguments that increased Iron Gate Dam releases would have prevented the fish die-off located more than 170 miles downstream.  In fact, the draft Hardy Phase II report contains no data, analyses, or discussion applicable to last year's event. Instead, the draft Hardy Phase II report was based on a computer modeling exercise and field work to recommend instream flows for physical habitats for salmon (e.g., spawning and rearing).

One of the major errors (among many) occurred in the draft Hardy Phase II report when the authors assumed, without supporting data, that habitat usage of Chinook fry in the main stem Klamath River should be used as a surrogate for coho fry, despite well-known differences in habitat criteria between the species.  This erroneous, unsubstantiated assumption alone brings into serious question the validity of conclusions in the draft Hardy Phase II Report. The NRC Committee also recognized the deficiency of such an assumption in their April 30, 2002 letter report to the National Marine Fisheries Service: "In evaluating modeling results for other life stages, the committee was skeptical of analogies that were drawn between habitat requirements of coho and chinook salmon, because their life histories differ in important ways."

The process leading to the draft Hardy Phase II report was severely constrained and flawed by exclusion of other expertise, stakeholders, and knowledgeable individuals. Much more work needs to be accomplished to rectify the mistakes made in the Phase II process. To date, technical input to stakeholders involved with the Phase II process by outside experts and other stakeholders has not been welcomed.  Until that obstacle is overcome, it will be difficult to develop a more comprehensive and objective assessment of habitat needs for anadromous salmonids in the Klamath River.

The CDFG Report Is Fatally Flawed and Should be Withdrawn

Your agency and CDFG quickly concluded last fall that the deaths of 33,000 Klamath River fish were due in large part to Klamath Project operations, located 200 miles upstream. CDFG released a report two months later that seeks to justify this conclusion. Dave Vogel, a fisheries biologist with 28 years of experience, has collected new data on this topic and has reviewed the CDFG report. His findings are summarized in a declaration recently submitted to Judge Armstrong, which points out several major errors in the CDFG report:

" The inappropriate use of monthly average air temperatures and monthly average water temperatures to derive conclusions on potential cause and effects on the fish die-off.

" Incorrect water temperature data collected in the area of the fish die-off.

" Failure to explain the relationship of uncharacteristic weather and river conditions and the peak run of salmon that occurred in late August in the lower river.

" Speculation concerning a physical fish passage barrier in the lower river that was refuted by empirical data and observations.

" Assertion that toxic substances could not have caused the fish die-off, even though the report admits that water samples were not taken until 7 days after the onset of the fish die-off.

" Omission of any analyses concerning the effects of the Trinity River

We have developed clear and compelling findings that cast serious doubt on the credibility and usefulness of the CDFG report. Unfortunately, that report, widely publicized by CDFG and your agency, has already been used by advocacy groups to assign blame for the 2002 fish die-off to Klamath Project irrigators, representing only 2 percent of the land area of the Klamath River watershed. We suggest that you carefully review the CDFG assessment and assess its major flaws. We believe you will see the need to withdraw this document, perform correct analyses, and conduct an objective evaluation.


I believe, with time- and I already sense that this is occurring - that the general public will soon realize that there are two different means of addressing the problems we face. Advocates of one approach appear to thrive on manufacturing crises, assigning blame to an area representing only 2% of the entire watershed, and relying upon the courts and the media to solve the problem. Other interests prefer to get things done on the ground, and let those results speak for themselves. The recent completion of a $14 million state-of-the-art fish screen, the voluntary enrollment by hundreds of farmers in a 60,000 acre-foot Klamath Project environmental water bank, and the interest shown by over 500 Upper Basin applicants seeking Farm Bill conservation funding this year alone are a testament to the proactive nature of Project irrigators. 
We hope that you will reassess your current views of Klamath Project operations and join with us to promote an approach that gets things done on the ground, rather than in public attacks or in the courtroom. Democracy functions better if everyone has access to the best possible information. Debate about the health of the Klamath River environment - and actions taken based upon such discussions - should be based on truth, not myth. Again, we respectfully reiterate our earlier request that you contact our Association - which represents 200,000 acres of farmland in Oregon and California -- before taking an advocacy position that could adversely impact the livelihood of local farmers and ranchers.


Dan Keppen
Executive Director

cc:     U.S. Senator Diane Feinstein
          U.S. Senator Barbara Boxer
          U.S. Senator Ron Wyden
          U.S. Senator Gordon Smith
          U.S. Rep. John Doolittle
          U.S. Rep. Wally Herger
          U.S. Rep. Greg Walden
          U.S. Rep. Mike Thompson
          California Senator Sam Aanestad
          California Assemblyman Doug LaMalfa
          Oregon Senator Steve Harper
          Oregon Rep. Bill Garrard
          David Van't Hoff, Office of Oregon Governor Ted Kulongoski
          Linda Adams, Office of California Governor Gray Davis
          Interior Secretary Gale Norton
          Reclamation Commissioner John Keys
          CDFG Director Robert Hight


Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
(541)-883-6100 FAX (541)-883-8893 kwua@cdsnet.net

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