Walking a Water-Management Tightrope
The Klamath Project (“the Project”) is located in the Klamath River and Lost River Basins in southern Oregon and northern California. In accordance with applicable Oregon and California state law and the Reclamation Act, the United States through the Bureau of Reclamation “appropriated all available water rights in the Klamath River and Lost River and their tributaries in Oregon and began constructing a series of water diversion projects.” Water is drawn out of Upper Klamath Lake via the A-canal above the Link River Dam, which regulates flows in the lower Klamath River as well as Upper Klamath Lake levels.
The significant physical, hydrologic, and biological constraints on annual Klamath Project operations require Reclamation to walk a water-management tightrope.
No Back-up Water Storage Reservoir. The Klamath Project does not have a major water-storage reservoir backed up behind a large dam. Upper Klamath Lake is relatively shallow and too small to capture and store large quantities of spring runoff. The Project thus lacks facilities to store water in wet years to meet all water needs in dry years.
Fore-casting Water Runoff. As a consequence of the lack of storage in the Basin, Reclamation must base its various water management decisions each year on runoff-forecasts issued by the Natural Resources Conservation Service between January and June based on that winter’s precipitation in the basin. The primary irrigation season in the Project usually begins in late March, which means that Reclamation may not be able to forecast water availability with any accuracy until just before farming commences.
Factoring in a Myriad of Legal Responsibilities. The Secretary of the Interior, through Reclamation, must manage and operate the Klamath Project pursuant to various legal responsibilities, including the Reclamation Act of 1902, the Endangered Species Act (ESA), and the federal trust responsibility to Indian tribes. Reclamation’s water management decisions for the Project are constrained by the presence of three fish species listed under the ESA in Upper Klamath Lake and in the Klamath River in California.
Reclamation’sobligations to comply with ESA requirements may override the delivery of water to the Project irrigators. Two ESA-listed species of fish, the endangered Lost River and shortnose suckers, occupy only Upper Klamath Lake and its tributaries. Downstream and west of the Project area, the Klamath River in California provides habitat for the Southern Oregon/Northern California coast (“SONCC”) coho salmon. Three tribes in the Klamath River basin, the Klamath, Yurok, and Hoopa Valley Tribes hold treaty-based or otherwise federally reserved fishing and water rights that are senior to the water rights held by the United States for the Project. In managing the Project, Reclamation's legal obligations require it to take into account water users who use Project water for irrigation purposes, subject to the availability of water, pursuant to contracts entered into with Reclamation. Also, two national wildlife refuges rely on Project operations, receiving significant quantities of return flows and other Project waters which are used for irrigation and refuge purposes.
In light of the inability to store water in surplus years for use during shortage years, litigation regarding Klamath operations is almost an annual event, with the plaintiffs changing in relation to the Reclamation decision at issue. In years of water shortage, there is obvious tension between the needs of the endangered fish in Klamath Lake, threatened coho salmon in the Klamath River in Northern California, protected species in neighboring refuges, tribal interests in providing water to both the protected species and to non-protected hatchery fish, and irrigation activities of area farmers.
Cases of Interest:
Bennett v. Spear, 520 U.S. 154 (1997)
Kandra v. United States, 145 F.Supp.2d 1192 (D. Or. 2001)
Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005)
Pacific Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 138 F.Supp.2d 1228, 1230 (N.D. Cal. 2001).