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KWUA seeks further legal clarification on Klamath Project operations

Klamath Water Users Association filed a motion on Monday to reopen federal court proceedings concerning the Bureau of Reclamation’s Klamath Project operations.

The litigation will not affect the current water year, but it could clarify legal issues surrounding the use of stored water in Upper Klamath Lake and the Bureau’s authority under the Endangered Species Act.

In 2019, the Yurok Tribe sued the Bureau of Reclamation in the U.S. District Court for the Northern District of California in San Francisco over the agency’s planned operations for the Klamath Project. They argued that the biological opinion the operations were based on contained faulty data and that the Bureau would violate the ESA were it to carry out the plans.

The parties to the lawsuit came to an agreement that Reclamation would develop an interim operations plan, effective through Water Year 2022 until the completion of formal ESA consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which would stay the litigation. The court’s stay stipulated that any party may seek to reopen the case if the Bureau deviates from the interim plan.

Reclamation released its temporary operating procedures for 2021 last week, based on some of the worst hydrologic conditions for Upper Klamath Lake in recorded history. The agency acknowledged that ESA needs for salmon, C’waam and Koptu would not be met, and that the Project’s allocation would be the lowest on record. KWUA argued in their motion that the agency’s plan for 2021 deviates from the interim operations plan, creating grounds for lifting the stay.

“As Reclamation admits, it is not adhering to the interim plan,” the motion read. “Non-adherence to the interim plan translates to the severe detriment of KWUA’s members and farm and ranch families served by the Klamath Project.”

KWUA also argued that there are pressing legal issues concerning project operations that must go before a judge, particularly in light of court cases in Oregon that have found that Reclamation does not have the authority to satisfy ESA requirements (whether through sending water downriver or keeping it in Upper Klamath Lake) at the expense of Project irrigators. Guidance from the Trump Administration’s Interior Department solicitors, released at the end of last year, came to similar conclusions — though Interior Secretary Deb Haaland revoked those memos earlier this month.

KWUA filed a second motion for summary judgement, requesting a ruling on those legal issues if the court decides to lift the stay. Without a binding decision in federal court, they argued that the legal ambiguity surrounding Reclamation’s operations in the Klamath Basin will negatively impact all water stakeholders.

“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,” the motion read. “To say ‘tensions are high’ is an understatement. The opportunity to present one’s case to a neutral arbiter of fact and law when there is a dispute among neighbors is essential to the orderly administration of daily life.”

Paul Simmons, KWUA’s executive director, said this case will not impact the way Reclamation is planning to operate in 2021 but that it will provide crucial direction to the Bureau’s operations in the future, should the court lift the stay.

“As much as I wish otherwise, there is no litigation path insight that will change our terrible situation this year,” he said. “KWUA wants to establish sideboards that will control future years’ operations in a more reasonable way.”

Yurok Tribal Counsel Amy Cordalis said while she appreciates that some legal parties feel that they need answers from the court, she doesn’t believe a judge can deliver a decision that results in “real long-term changes or solutions.”

“We’re in a really difficult year, as everyone knows, and there’s not enough water for everyone,” Cordalis said. “When we fight over an already compromised resource, the result is going to be further compromise to the resource. Fighting over scraps, you just end up leaving a bigger mess.”



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              Page Updated: Monday April 26, 2021 06:27 PM  Pacific

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