William
Kennedy
Chairman
of the Board
Family
Farm
Testimony
Before the Task Force
On
Improving
the National Environmental Policy Act
Field
Hearing
April
23, 2005
Chairwoman McMorris and Members of the Task Force:
My name is
The ranch that I
operate is one of 1,400 family farms and ranches that depend on water supplies
from the Klamath Irrigation Project (“Project”). I sit on the board of
directors for several irrigation districts, and I’m also a board member of the
I am encouraged that
the Task Force on Improving the National Environmental Policy Act (NEPA) has
been formed to address the current state of this important environmental law.
While the Task Force will likely hear many stories of how agency interpretation
of NEPA compliance has slowed or even stopped development of projects throughout
the West, I would like to give you a slightly different perspective today. The
members of the Family Farm Alliance have many examples of how onerous and
expensive processes associated with NEPA compliance contributed to slowing and
complicating the development of otherwise feasible water supply enhancement
projects in Western states. In fact, the president of the
However, today I want
to provide another, even more serious example that demonstrates the apparent
double-standard agencies sometimes exhibit when it comes to NEPA compliance.
While NEPA can sometimes be employed by agency staff in a manner that makes
development very difficult and expensive, in my situation, compliance with NEPA
by federal agencies was bypassed, to the detriment of my entire community. I am
talking, of course, about the 2001 curtailment of
The heart of this
matter is a change in the operating criteria or rules for the Klamath Project
announced on April 6, 2001, well into the normal irrigation season.
Instead of operating to serve irrigation water needs, the Klamath Project
that year was to be operated to cause water shortage and devastate water users,
ignoring all other water use and activities in the
Klamath Project Farming
Thousands
of people — family farmers and ranchers, their employees, and
agriculture‑related businesses — make their living directly from farming
and ranching in the Klamath Project. In
turn, their activities support the communities of Malin, Merrill, Bonanza,
The
irrigated farm land of the Klamath Project includes about 230,000 acres.
Of this, the great majority is served from diversions from Upper Klamath
Lake and points immediately below on the
Klamath
Project irrigation and refuges are, of course, only some of the many uses of
water in the much‑larger
Historic Operations
For 90 years,
Klamath Project reservoirs and diversion facilities were operated to serve the
authorized irrigation purpose of the Klamath Project.
There were no downstream Klamath River flow requirements or minimum
Demand for Change in Purposes
of Operation
Starting in the
1990’s, political and regulatory demands have affected activities at the
Klamath Project. For example, in
1988, the short nose sucker and the
In late 1994,
demands were made by various parties that Reclamation reprioritize and
reallocate water. In particular,
demands were made that Reclamation take steps to increase both Klamath River
flows (as measured at Iron Gate in
In 1995, Reclamation announced that it would develop a plan for the long-term operation of the Klamath Project. The Klamath Project Operations Plan (“KPOP”) was to define water allocation scenarios in various year types. Reclamation also stated that it would prepare an analysis of environmental impacts under NEPA prior to adopting a KPOP. The KPOP was to be adopted before the 1996 irrigation season. A draft long-term KPOP was prepared but not released. Instead, a water “advisory” was released for 1996, and Reclamation stated that it would prepare a long-term KPOP and Environmental Impact Statement (EIS) by 1998.
Changes to Klamath Project Operations
In 1997, Reclamation
made a fundamental change in the operation of the Klamath Irrigation Project.
Prior to that time, Project reservoirs and other facilities were operated
to ensure irrigation deliveries; the authorized purpose of the Project.
In 1997, priorities were reversed, such that the Project was operated to
increase flows in the Klamath River and to maintain high lake levels in the
The change in operations led to a lawsuit under NEPA. Water users in 1997 contended that the change in operating criteria required an EIS under NEPA. The matter did not come before the court until July of 1997, by which time the court concluded that there would not be any injury (i.e., there turned out to be enough water to meet irrigation and wildlife refuge needs during the irrigation season in 1997). The court admonished Reclamation, however, to comply with NEPA with respect to any such future plans regarding Project operations.
Reclamation, at that time, represented that it would conduct NEPA review in the future and, in particular, that it would complete an EIS for long-term (multi-year) operations of the Klamath Project by 1999. The NEPA claim was ultimately dismissed as moot. In the stipulation for dismissal, Reclamation represented that it would comply with NEPA for its future operations plans. The stipulation also recognizes that for purposes of the NEPA analysis, the “baseline” for determining impacts would be full agricultural water deliveries.
2001 Operations Plan
By 2001, four years had elapsed since Reclamation’s commitment to comply with NEPA and two years had passed since Reclamation represented to the court that it would complete an EIS for long-term operation of the Project. However, that year the federal agencies sought to bypass both their legal duties to the water users and NEPA, based on provisions of the ESA. The resulting action was based, in part, on the amazing conclusion that such shortages are a “reasonable and prudent” alternative that fulfills the purposes of the Project.
On April 6,
2001, Reclamation announced another one‑year change in the historic
operation of the Project. That
change ultimately had dire repercussions for our community. On that day, USFWS
and NMFS each issued new biological opinions (for suckers and newly-listed coho
salmon, respectively) for Klamath Project operations.
To achieve the Klamath River flows at Iron Gate in
NEPA requires federal agencies to prepare an EIS before the implementation of “major Federal actions significantly affecting the quality of the human environment.” The federal government in 2001 did not fulfill their NEPA obligations. Instead, they merely adopted an Operating Plan in 2001 that ultimately harmed our family farms and rural communities.
Impacts
to the Community
The types of economic, human, and environmental suffering threatened by the 2001 Plan were catastrophic. Hundreds of farm and ranch families without income experienced hardship trying to support themselves. Their ability to pay bills and service debt was impaired. Collateral (land, equipment) was forfeited. Bankruptcy occurred. Similar types of impacts occurred for farm employees, and for the owners and employees of the agriculture related businesses. Long‑term supply arrangements were lost because of nonperformance. The demand for social services increased. Some people simply moved out.
City parks, schoolyards, and cemeteries went without water. Farm fields became fields of weeds and dust. Tremendous windborne soil erosion occurred, impairing land productivity and causing air pollution.
Irrigated farmland provides food and habitat for the abundant waterfowl, deer, antelope, and other species. This value was also lost. Tragically, two of the nation’s premier national wildlife refuges were left without water for wetlands and waterfowl habitat.
Increased chemical use needed to control weeds and pests has occurred in the years since 2001. Fields left fallow in 2001 showed decreased production in subsequent years.
The harm
to the
NEPA Disregarded
As
previously noted, NEPA requires the preparation of an EIS before the
implementation of actions significantly affecting the quality of the human
environment. One of NEPA’s goals
is to facilitate widespread discussion and consideration of the environmental
risks and remedies associated with a project, thereby augmenting an informed
decision-making process. NEPA is a
deliberate command that the consideration of environmental factors not be
shunted aside in the bureaucratic shuffle. The
requirement for pre-decision environmental review applies both to new projects
and changes to an ongoing project.
In
addition to the discussion of impacts of an action, core elements of an EIS are
the identification of alternatives and mitigation measures.
If an agency is uncertain whether an EIS is required, before making any
decision to go forward with a federal action, the agency must prepare an
environmental assessment (EA). If
the agency determines, based on the EA, that a proposed action has the potential
to “significantly affect the quality of the human environment,” then the
agency must prepare an EIS. But the
agency must prepare at least an EA and “convincing” findings in the record
before concluding that impacts will not be significant.
Otherwise, the failure to prepare an EIS is inconsistent with the law.
In
the 2001 Klamath Project case, there was no EIS and no EA, and, it would appear,
no NEPA compliance.
The
2001 Plan Represented “changes in the programmed operation of an existing
Project.”
The 2001 Operating
Plan was a revision to the ongoing management of the Klamath Project.
In addition to revising the water allocation scheme, the authorized
purposes of the Project were subordinated to guaranteeing
In 1996, Reclamation committed to NEPA compliance for both annual and long‑term plans. The federal government took no action to comply with NEPA before deciding to adopt the 2001 Plan. Four years had elapsed since the court admonished the federal government to comply with NEPA for its changes from historic operations. The completion of an EIS slipped and slipped again, and, in 2001, the agencies proposed to devastate farm families, Klamath Project communities, and the environment without any meaningful or public consideration of impacts or alternatives.
The 2001 Plan Was a Major Federal Action
The decision to adopt the 2001 Plan was a major federal action. It had the potential to dramatically affect the environment. Proper timing of environmental review is one of NEPA’s central themes. The purpose of such early review, of course, is to prevent the proposal from gaining such momentum that the government loses the ability to avoid or minimize significant environmental effects, and so that delayed environmental review becomes a post-hoc rationalization for the project.
On April 6, the day of issuance of
the 2001 Operations Plan, Reclamation did not release any NEPA documentation.
Reclamation first produced an Environmental Assessment (“EA”) only after
water users filed a lawsuit.
Unfortunately, the preparation of an EA does not necessarily constitute
NEPA compliance. For actions that
cause significant adverse effects, an EIS must be prepared, analyzing impacts,
mitigation, and alternatives. If the
agency concludes there are no significant impacts, it must prepare a Finding of
No Significant Impacts (“FONSI”). In
2001, there was no doubt whatever that the impacts from change in operation of
the Project would be monumentally significant.
The federal government admitted that they failed to complete the required NEPA review before issuing the 2001 Plan. They further claimed that the 2001 Plan represented an annual operations plan for a continuously operating reclamation project, and so they should not have to complete NEPA review for the Plan. The 2001 Plan represented a complete abandonment of the authorized purpose of the Project and a major change in historical operations as recognized by the court previously. Thus, the 2001 Plan was a “major federal action” requiring an EIS under NEPA.
Reclamation’s concession that the issuance of the 2001 Plan was subject to NEPA appears to suggest that Project operations may be subject to NEPA…. but only a little bit of NEPA.
Finding
of the Court
The
committee should be aware that when a lawsuit was filed by water users claiming
violations of NEPA and seeking immediate water deliveries, the court in its
preliminary injunction ruling found there was likely not a violation of NEPA
because the ESA would trump NEPA. That preliminary ruling was effectively
the end of that case because it was our only hope for obtaining historic water
deliveries in 2001.
In
effect, the multi-year delay in evaluating potential impacts to agricultural
communities and wildlife led to a situation where such impacts did not have to
be evaluated at all. We were told that impacts to our environment, our
communities, our wildlife, do not count.
The
further irony, of course, is that the National Academy of Sciences later
confirmed that the water allocations to ESA-listed fish in the Klamath River and
Upper Klamath Lake were not scientifically justified, meaning the severe
impacts to our community which did not count and were not considered, were not
necessary.
Summary
In summary, the issuance of the Biological Opinions and the adoption of the 2001 Klamath Project Operations Plan were subject to full NEPA compliance, which Reclamation admitted it did not undertake, much less complete. Even thought the EA prepared by Reclamation “disclosed potential environmental effects from Project operations . . . that could prove significant,” Reclamation did not issue a FONSI. Additionally, Reclamation admitted that it “did not prepare an EIS prior to the issuance of the 2001 Plan either.”
Federal agencies cannot pick and choose when they will comply with NEPA, and do so in a way that will destroy family farms, social structures, communities, and the environment. A massive change in historical operations requires NEPA compliance.
Klamath water users believe Reclamation had an obligation to consider and protect the contractual rights of water users. Indeed, Reclamation admitted that in its aborted NEPA process, it intended to look at its contractual obligations to water users, and would have evaluated, as potential alternatives, means by which those rights could have been protected. However, when it abandoned NEPA, it also abandoned even a superficial effort to consider its contractual obligation and the rights of Project water users. And it did this without any analysis or justification whatsoever.
Recommendations
It is difficult for me to come away
from the events of 2001 and offer up meaningful lessons learned. For the
purposes of today’s hearing, I believe the example I have just laid out
demonstrates that NEPA –like so many federal laws and regulations – can be
applied to any situation in a manner that is largely dependent on the demeanor
of the agency staff that has jurisdiction in the manner. It
is clear that NEPA can be applied in an arbitrary fashion. On the one hand, an
advocacy group points out that NEPA has not been adequately addressed and the
court shuts down intended actions. In another case, a judge agrees with a
plaintiff that NEPA has not been implemented, and still allows for the action in
question to continue.
So, the best advice we have to offer in
these situations is to stress the importance of developing sound, working
relationships with the federal agencies in your neighborhood.
While the 2001
Klamath NEPA issue is personally frustrating, I can tell you that the Family
Farm Alliance is very concerned with this issue from a broader policy
standpoint, especially as it relates to the development of new water supply
enhancement proposals. We have a few specific recommendations that we hope the
Task Force will consider as it deliberates this matter:
Dam and reservoir projects are complex and often
controversial. A dedicated local sponsor or project proponent and a documented
“purpose and need” are minimum requirements for success.
Conclusions
I do not expect that the events of 2001 in the
Thank you.