OR ranchers battle state over groundwater rights

A judge ruled in favor of a group of ranchers in Oregon’s Klamath Basin after the state shut off private wells to control river streamflow, without giving due process to prove wells were using river water. Short Creek flows through pasturelands in Oregon’s Klamath Basin.

The U.S. Bureau of Reclamation (Reclamation) recently released a new environmental analysis that changes the agency’s approach at the Klamath Project in order to comply with the Endangered Species Act (ESA). The analysis supports that irrigation water deliveries in the project are not subject to the same constraints in the past.

“This is positive news for family farms and ranches, rural communities, and wildlife,” said Klamath Water Users Association (KWUA) President Tricia Hill. “The federal government has recognized that we have been overregulated under the ESA, and that needs to change.”

The Klamath Project covers Klamath County, OR, and Siskiyou and Modoc counties in Northern California. The water-management project provides full-service water to about 240,000 acres of cropland in the Klamath Basin, according to Reclamation. The two main water sources for the project are the Klamath River and Upper Klamath Lake.

The project is separate from the Klamath River Hydroelectric Project, a series of hydroelectric dams on the Klamath River, which are currently on track for removal.

Reclamation’s new guidance was spurred on by a Department of the Interior’s solicitor’s opinion last fall, which advised Reclamation that its approach needed to be updated based on changes in legal circumstances over recent years.

In the past, the project water deliveries have been subject to curtailments under Section 7 of the ESA, which require agencies to ensure their actions do not jeopardize species listed on the endangered species list. This includes species such as endangered suckers in the Upper Klamath Lake and Coho salmon in the Klamath River.

“Federal court decisions have increasingly made clear that the duty under this law only applies to actions where the federal agency has some discretion to take action to protect the species,” read a KWUA press release.

The new guidance reflects the rulings in those court decisions by evaluating contracts signed before the ESA was passed, that commit the agency to water delivery in the project.

“These contracts do not reserve discretion in Reclamation to curtail water deliveries for purposes of species protection, and therefore Reclamation has no legal right to curtail the deliveries under the ESA as it has in the past,” KWUA said.

Reclamation must also comply with state water law and the Oregon Water Resources Department has made its determinations of water rights for the project, which are in full force and effect, KWUA said.

The guidance also states there are some instream federal water rights that are senior to the project, which could limit water diversions. The rights are not adjudicated or enforceable against the project as any downstream water rights for flows would not include rights to stored water in Upper Klamath Lake.

The guidance will not necessarily alter the way Reclamation operates, but it will require some fundamental changes in its operating plans, which Hill says, “need to be adopted as soon as Reclamation can do so.”

KWUA Executive Director and Counsel Paul Simmons said the guidance has been criticized by some, due to the timing of its release with the Trump administration leaving, and after a visit by then-Secretary of the Interior David Bernhardt last July.

“There could be political blow-back because Reclamation finished the work when it did, but the guidance applies rules that the federal government has recognized in other basins—such as the Rio Grande and Sacramento—since at least President [Barack] Obama’s administration, and that have been upheld in federal courts,” Simmons said.

He added that KWUA looks forward to working with the Biden administration, which he hopes recognizes the new guidance is “based on current law rather than political preference.” Simmons also noted the new guidance does not totally exempt the project from the ESA and it still has duties for species protection, but the duties do not include “imposing harmful shortages on irrigation as we have seen in the past.”

Hill added that irrigation water users do not have an absolute guarantee of water and there are still legal issues, such as Tribal water rights, that can affect users.

“We intend to continue to engage with other parties constructively to create a basin that is better for fish and farms,” she concluded. — Anna Miller, WLJ editor

 

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