Project operations unchanged by OWRD ruling
An interim order from Oregon Water Resources Department
announced on Thursday gives OWRD charge of Upper Klamath Lake
but has not specifically impacted the flushing flow of around
40,000 acre-feet from Upper Klamath Lake that occurs each spring
to reduce health risks associated with a parasite called C.
shasta that affects juvenile coho salmon.
The order urges the Bureau of Reclamation to stop releasing
stored water from Upper Klamath Lake except in accordance with
the relative and respective state law rights, unless the agency
provides OWRD with information in writing, such as the timing
and rate of the release of stored water as well as the sources
of legal authority for each release. The interim order was
posted at the Link River Dam on Thursday.
Water being released at Link River Dam for the flushing flow is
in compliance with applicable federal law, according to
Reclamation’s initial response to OWRD, signed by Michael
Gheleta, supervisory attorney-advisor, Office of the Solicitor,
U.S. Department of the Interior, in a letter which was obtained
by Herald and News. Gheleta also said an additional response is
In an email, Bureau of Reclamation’s Klamath Basin Area Office
Deputy Area Manager Jared Bottcher emphasized Gheleta’s initial
response that Bureau of Reclamation is operating during an
extreme drought in a manner consistent with the law.
OWRD is investigating the assertion by Bureau of Reclamation
that it must follow federal law in terms of water distribution
from Upper Klamath Lake, according to OWRD Policy Manager
OWRD is continuing to request information pursuant to its
investigation, Rancier said.
The interim order from OWRD is in response to litigation filed
by Klamath Irrigation District against OWRD. In 2018, a Marion
County judge ruled in favor of Klamath Irrigation District and
asked OWRD to act on water distribution from Upper Klamath Lake.
“In essence the Order is OWRD’s effort to do what the court told
it to do,” said Paul Simmons, executive director of KWUA, in an
Klamath Irrigation filed a legal petition in Marion County Court
on April 17, demanding action from OWRD. The district learned
late Thursday about the fulfillment of the petition to OWRD for
the interim order.
“Literally right now we have state and federal law in conflict,”
said Ty Kliewer, president of the KID board of directors.
OWRD officially took charge of Upper Klamath Lake on April 16,
after which it filed notification of dispute and investigation
in aid of distribution to the U.S. Bureau of Reclamation.
“The core issue that KID has raised relates to the release of
water stored under an irrigation right, and the fact that the
only water use rights for the stored water is for irrigation,”
Simmons said. “It’s KID’s position, and KWUA’s as well, that it
is not proper for the stored water for instream use, or at a
minimum if the stored water is used for other purposes, there
should be compensation to the holders of the rights of use.”
Simmons emphasized there is no reason to believe the Project
will get more water than the 140,000 acre feet announced by
Reclamation earlier this week.
“We (KWUA and KID) have important differences with the federal
agencies about how they interpret their obligations and
authorities under federal law,” Simmons said.
“And we always hope to talk with them about how the laws are
interpreted and applied in other contexts and how that may be
relevant here,” Simmons added.
Simmons said the OWRD Order reinforces that the only water
rights to stored water under Oregon law are rights to use water
“The federal government hasn’t really ever disputed that,”
Simmons said. “Our problem is the disconnect between water
rights law and the federal laws, or at least how the federal
laws are interpreted. That’s pretty much been true since the ESA
(Endangered Species Act) became part of life.”
Rancier said it was determined that the flow of the Link River
Dam was being reduced as of Friday morning.
“We do not have the information to know whether the reduction of
flow out of Link River Dam is as a result of the Order issued by
the Director yesterday,” Rancier said.
Jerry Enman, secretary of Klamath Water Users Association and
KID’s primary representative on the KWUA board of directors,
said it is likely that Reclamation had met its requirements to
complete the flushing flow as measured at Iron Gate Dam by U.S.
Geological Survey, and that was the reason for the reduction in
the flushing flow on Friday.
Both Simmons and Kliewer emphasized that Klamath Project
irrigators should pursue alternative funding sources this summer
through the Drought Response Agency’s idling programs.
“We desperately need for people who can do so to sign up for
programs for non-irrigation that the DRA may be able to offer,”
Simmons said. “If that does not occur, there could be truly
catastrophic consequences including mid-season shut-off of
water, the risk of which is already uncomfortably high.”
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