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KID threatens to file suit against BOR; District requiring BOR response by Wed

The Klamath Irrigation District is demanding the Bureau of Reclamation not use water from Upper Klamath Lake this summer to provide enhanced instream flows below Iron Gate Dam unless the order of determination in the Klamath River Basin Adjudication is postponed.

The KID board voted unanimously Wednesday to issue the cease and desist letter, and also agreed to seek a lawsuit against the Bureau dependent upon a response due no later than Wednesday. A KID board member delivered the “cease and desist” letter following the vote, asking that the BOR's Klamath Basin Area Office respond to the request within the required time frame, after which time the irrigation district plans to sue the BOR if necessary.

The Amended and Corrected Final Order of Determination (ACFOD), according to KID's letter, states that the BOR owns the "right to store water in Upper Klamath Lake to benefit the separate irrigation rights recognized for the Klamath Reclamation Project.”

“By willfully disregarding the ACFOD without obtaining a stay in the adjudication to ensure that KID and its water users are compensated for any damages resulting from the ACFOD not being enforced, BOR is trampling the due process rights of KID's water users, as well as the rights of other districts and landowners throughout the Klamath Project,” according to the letter, written by Nathan Reitmann, legal counsel for KID.

Letter received

The BOR Klamath Basin Area Office confirmed Thursday the letter was received Wednesday, but officials declined to comment on the action, according to Laura Williams, public affairs specialist for the local office.

“It's a very time sensitive situation, because by the Bureau not distributing water in accordance with water law as it exists, they're causing irreparable harm to every irrigator in the state,” Reitmann said.

If KID does seek legal action against the Bureau, Reitmann said it would be filed in Klamath County Circuit Court with Judge Cameron Wogan.

“If a party in the Adjudication doesn't want water to be distributed, the way it's supposed to be in the order of determination, they have the opportunity to go to the court and ask for a stay, and say, 'Do not enforce the order of determination,' ” Reitmann said.

“Instead of following that process, the Bureau of Reclamation has completely disregarded it and decided it can do whatever it wants.”

The Oregon Water Resources Department (OWRD) issued the ACFOD in 2013, and amended it in 2014. The order determines all the water rights of everybody in the Basin, Reitmann said.

Rights to store, use water

“The Bureau of Reclamation has a water right to store water in Upper Klamath Lake, and the irrigators on the Project have the senior water right to use that water right,” Reitmann said on Thursday. “The Bureau of Reclamation has absolutely no right whatsoever to utilize the water of Upper Klamath Lake, and contrary to the order in the (Klamath) Adjuducation, they are in fact using that water, without a water right, to provide enhanced instream flows below Iron Gate Dam.”

Prior to the the ACFOD, when the biological opinion used to determine how to distribute water was issued, the water rights in the Klamath Basin had not been determined, Reitmann said.

“They weren't regulated for or against any water user,” Reitmann said. “At that point in time, the Bureau had much more flexibility because, nobody knew what their rights were for sure.

“Now that the rights have been determined, and they are required by law to adhere to that order, they've simply disregarded it, and are distributing water without any regard whatsoever for the order of determination.

“As far as their water right, it is subject to determination, in the adjudication, not outside of it,” Reitmann added.

Waiting on communication

KID's watermaster Tyler Martin said KID requires a response from the Bureau by the end of the day on Wednesday.

“What we're looking for is communication of some kind that lets us know whether they're going to start abiding by the ACFOD, the final order, or that they intend to file a stay,” Martin said.

“The KID board acted as a separate entity for itself to protect its own patrons. I think the effect is further reaching, and we may see other districts or the water users (association) follow suit, but we really can't speculate on that.”

Martin served as watermaster for OWRD for two irrigation seasons for the Klamath Basin region before he started at KID in October, and believes a devastating summer is ahead.

“This year has the potential to have similar effects to 2001 … if not worse,” Martin said. “I think the uncertainty of allocation and start date is really detrimental to the planning aspect of agricultural operations. There are some folks who are concerned that this could be their last year in operation.”




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