Klamath Basin Update
DEBATE CONTINUES
by Greg D. Corbin

The Klamath Basin attracted national attention last summer when the United States Bureau of Reclamation (Reclamation) halted water delivery to irrigators to comply with the federal Endangered Species Act (ESA). The Klamath Basin is home to Reclamation's Klamath Project (Project), a complex network of dams, canals, tunnels, and other facilities that provide irrigation water to over 220,000 acres of farmland in southern Oregon and northern California. It also is home to three fish species listed as endangered or threatened under the ESA: the Lost River sucker; the shortnose sucker; and the Southern Oregon/Northern California Coast coho salmon. A scarce water supply last year, coupled with competing claims to the water lead to a heated conflict centered on the ESA. This year's debate will have the benefit of a new scientific report that finds no support for protections deemed essential to the species last year, and a Biological Assessment (BA) from Reclamation that avoids reaching conclusions about whether this year's proposal would satisfy the ESA.

ESA Consultation

Section 7 of the ESA requires federal agencies, in consultation with the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), to insure that their actions are not "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification [of critical habitat]." 16 USC § 1536(a)(2). Formal consultation culminates with the FWS or the NMFS (collectively the "consulting agencies") issuing a Biological Opinion (BiOp). If the consulting agencies reach a so-called "jeopardy" determination, then they are required to suggest "reasonable and prudent alternatives" (RPA) to the federal action. 16 USC § 1536(b)(3)(A). The consulting agencies must base RPAs on "the best scientific and commercial data available." 16 USC § 1536(a)(2).

In April 2001, the consulting agencies determined that Reclamation's proposed operation of the Project for that year would jeopardize endangered suckers and threatened coho, in part by lowering Upper Klamath Lake below specified levels and decreasing minimum stream flows in the Klamath River below Iron Gate Dam in California. The BiOps proposed RPAs that specified minimum lake levels for Upper Klamath Lake and minimum stream flows in the Klamath River below Iron Gate Dam. To comply with these RPAs in a critically dry year, Reclamation shut off irrigation water. That action lead to fierce protest on many fronts.

Court Case

Farmers in the Klamath Basin unsuccessfully sought in federal court to enjoin Reclamation's action. Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001). They argued, among other things, that the consulting agencies failed to consider the best available scientific data in setting Upper Klamath Lake levels and Klamath River minimum stream flows. Id. at 1206. The court, working from the presumption that "agencies have used the best data available," found "that plaintiffs simply disagree with the scientific conclusions reached by FWS and NMFS." Id. at 1208-10. More specifically, the court concluded that:

 

"The FWS and NMFS BiOps explain how the RPA minimum UKL [Upper Klamath Lake] levels and Klamath River flows are necessary to avoid jeopardy to suckers and coho salmon and to preserved their habitat. The BiOps are supported by voluminous administrative records, rendering it unlikely that they have no rational basis."

Persistent Debate

The Klamath Basin crisis represented one of the Bush administration's first major environmental challenges. Following the end of last year's irrigation season, the debate over water in the Klamath Basin persisted in the media, the halls of Congress, and in offices and conference rooms of all interested parties.

This year is on track to be a better water year than 2001, which may ease some of the tensions so prevalent last year. Nevertheless, the debate over water use and allocation in the Klamath Basin is far from over, in part because the 2001 BiOps expire before the start of the 2002 irrigation season, and Reclamation again is consulting with the FWS and the NMFS on its operation of the Klamath Project. The outcome of this consultation is uncertain, but two recently released documents likely will set the tone for this year's inevitable debate over how to manage and allocate water in the Klamath Basin.

National Academy of Sciences Report

On February 4, 2002, the National Academy of Sciences National Research Council (NRC) released a scientific evaluation of the 2001 biological opinions on the operation of the Klamath Project (the "Report"). Interim Report from the Committee on Endangered and Threatened Fishes in the Klamath River Basin, Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin (February 4, 2002). The purpose of the Report is to "assess whether the [2001 BiOps] are consistent with the available scientific information." Report at 25. With respect to most of the RPAs in the two BiOps, the Report concludes that they are consistent with available scientific information. The two notable exceptions are the FWS' RPA requiring minimum levels in Upper Klamath Lake and the NMFS' RPA requiring minimum stream flows in the Klamath River below Iron Gate Dam.

The Report first evaluated the scientific evidence supporting the FWS' RPA. Although nearly 100 years of data on Upper Klamath Lake levels exist, the Report considers only the last 10 years' data to be relevant, because only that data allows scientists to evaluate the effect of Upper Klamath Lake levels on suckers. Report at 12. Reclamation's 2001 proposal would have lowered Upper Klamath Lake below the mean lake level for the past 10 years. Id. at 11. The FWS' RPA required levels in Upper Klamath Lake above the 10-year mean. Id. The Report concludes that there is no scientific evidence to support the FWS' lake level RPA, because the last 10 years' data do not demonstrate a connection between the level of Upper Klamath Lake and sucker survival. In particular, the Report found no scientific evidence correlating higher lake levels with improved water quality or increased available habitat, the two factors the FWS appears to have been most concerned with when setting the higher lake levels. Id. at 13. However, the Report also concludes that no scientific evidence supports Reclamation's proposal to lower Upper Klamath Lake below the 10-year mean, and that such operation of the Project could "risk of the occurrence of adverse events" on endangered suckers. Id. at 16.

The Report reaches the same conclusion with respect to the NMFS' minimum stream flow RPA. Reclamation's proposed operation of the Project could have produced minimum stream flows below Iron Gate Dam that would be less than the historic mean. Report at 19. The NMFS 2001 BiOp set minimum stream flows above that mean. Id. The Report concludes that no scientific evidence supports imposing higher minimum stream flows as a way to protect coho. Indeed, the Report suggests that higher minimum stream flows could detrimentally effect coho by washing out cold water refugia that coho rely on between July and September. Id. at 19. However, the Report also cautions that no scientific evidence supports Reclamation's 2001 proposed minimum stream flows below the historic mean. Id. at 20.

Reclamation's Draft Biological Assessment

One week before the NRC released its Report, Reclamation proposed a ten-year operating plan for the Project and released a draft Biological Assessment (Draft BA) of the effects of its proposal on threatened and endangered species. US Department of the Interior, Bureau of Reclamation, Mid-Pacific Region, Klamath Basin Area Office, Draft Biological Assessment of the Effects of Proposed Action Related to Klamath Project Operation April 1, 2002 - March 31, 2012 on Federally-Listed Threatened and Endangered Species (January 24, 2002). The Draft BA identifies a host of negative effects on endangered suckers and threatened coho that are not related to Project operations. Added to that "baseline" of effects is Reclamation's proposal to operate the Project over the next ten years "consistent with the historic operation of the Project from 1961 to 1997." Draft BA at 10. As it did in 2001, Reclamation proposes operation of the Project that could lead to lowering Upper Klamath Lake below historic levels during certain times of the year, particularly in dry and critically dry years. Id. at 51, 52. Similarly, this proposal could lead to minimum stream flows in Klamath River below Iron Gate Dam that would be less than historic levels, particularly during the irrigation season and in dry and critically dry years. Id. at 66, 67. Thus the proposed action appears to recreate water use and allocation patterns similar to those that the FWS and the NMFS last year concluded would jeopardize the listed suckers and coho, and also below those of the 1990s, which the NRC report seems to support.

In addition to the proposed action, the Draft BA proposes RPAs that Reclamation asserts are "consistent with operation of a viable irrigation project." Draft BA at 97. These RPAs do not include maintaining specified lake levels in Upper Klamath Lake or minimum stream flows in the Klamath River below Iron Gate Dam. Rather, Reclamation proposes a number of mitigation actions, including reducing the demand for Project irrigation water through outright purchase of water from farmers, a water leasing and water banking program, encouraging irrigation in the winter where appropriate, improving fish passage and reducing entrainment of fish in irrigation facilities, and a variety of studies and pilot projects aimed at addressing other factors thought to negatively affect suckers and coho. Id. at 97-103. In doing so, Reclamation appears to sidestep the debate over the most contentious parts of the FWS and the NMFS 2001 BiOps, namely, the RPAs concerning Upper Klamath Lake levels and minimum stream flows in the Klamath River. Indeed, the entire Draft BA avoids drawing any conclusions either about the scientific basis for Upper Klamath Lake levels and Klamath River flows, or whether Reclamation's proposed action avoids jeopardy.

Comments on the draft BA were due to Reclamation by February 8, 2002 and a final biological assessment is expected soon.

Questions

Debate continues. For example, on March 7, 2002, the United States House of Representatives' Resources Committee will hold a hearing on the Report that will ask difficult questions about last years' decision and how to proceed in the years to come. The question now is: how will the NRC Report affect the outcome of the 2002 consultation? Will the Report have any influence on Reclamation's final proposed action? Will it have any influence on the FWS' and the NMFS' evaluation of Reclamation's proposed action and proposed RPAs? Would the Report have changed the outcome in the court's Kandra decision? Undoubtedly there is more to the Klamath Basin debate than the NRC Report and Reclamation's proposed operation of the Project. Yet, there is no doubt that these documents raise some of the questions that will animate the 2002 debate over the use and allocation of water in the Klamath Basin.

FOR ADDITIONAL INFORMATION, CONTACT: Greg Corbin, Stoel Rives LLP, (503) 294-9632

In addition to representing clients on ESA issues, Mr. Corbin also represents clients on a variety of water law issues, including the Klamath Basin Adjudication.

Originally Published in the Oregon Insider #290, Feb. 1, 2002.

Source:  http://www.stoel.com/resources/articles/environment/env_021.shtm

++++++++++++++++++++++++++++++++++++++++++++++++++++++

NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted
material herein is distributed without profit or payment to those who have
expressed a prior interest in receiving this information for non-profit
research and educational purposes only. For more information go to:
http://www.law.cornell.edu/uscode/17/107.shtml