Klamath River Basin Issues and Activities: An Overview

Congressional research reportSep 22, 2005

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Order Code RL33098

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Klamath River Basin Issues and Activities:

An Overview

September 22, 2005

name redacted, Coordinator

Analyst in Energy and Environmental Policy

Resources, Science, and Industry Division

name redacted

Legislative Attorney

American Law Division

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Specialists in Natural Resources Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Klamath River Basin Issues and Activities: An Overview

Summary

The Klamath River Basin, an area on the California-Oregon border, has become

a focal point for local and national discussions on water management and water

scarcity. Water and species management issues were brought to the forefront when

severe drought in 2001 exacerbated competition for scarce water resources and

generated conflict among several interests — farmers, Indian tribes, commercial and

sport fishermen, other recreationists, federal wildlife refuge managers, environmental

groups, and state, local, and tribal governments. The conflicts over water distribution

and allocation are physically and legally complex, reflecting the varied and

sometimes competing uses of limited water supplies in the Basin. For management

purposes, the Basin is divided at Iron Gate Dam into the Upper and Lower Basins.

As is true in many regions in the West, the federal government plays a

prominent role in the Klamath Basin’s water management. This role stems from

three primary activities: (1) the operation and management of the Bureau of

Reclamation’s Klamath Water Project and Central Valley Project (e.g., Trinity River

dams); (2) management of federal lands in the Basin, including five national wildlife

refuges, several national forests, and public lands; and (3) implementation of federal

laws, such as the Endangered Species Act (ESA), Clean Water Act (CWA), and

National Environmental Policy Act (NEPA).

Conflict was sparked in April of 2001 when the Bureau of Reclamation, which

has supplied water to farms in the Upper Basin for nearly 100 years, announced that

“no water [would] be available” for farms normally receiving water from the Upper

Klamath Lake to avoid jeopardizing the existence of three fish species listed as

endangered or threatened under the ESA. While some water was subsequently made

available to some farmers from other sources (e.g., wells and other Bureau sources),

many farmers faced serious hardships.

During Reclamation’s operations in September of 2002, warm water

temperatures and atypically low flows in the lower Klamath contributed to the death

of at least 33,000 adult salmonids. This die-off damaged fish stocks and the tribes,

commercial fishermen, and recreational anglers that catch Klamath fish.

There have been many studies, Biological Opinions, and operating plans over

recent years, all of which have been controversial. The events of 2001 and 2002

prompted renewed efforts to resolve water conflicts in the Klamath Basin. Congress

has responded to the controversy in a number of ways, including holding oversight

hearings and appropriating funds for activities in the area. This report provides an

overview of recent conflict in the Klamath Basin, with an emphasis on activities in

the Upper Basin, and summarizes some of the activities taking place to improve

water supply reliability and fish survival. This report will be updated as events

warrant.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Endangered Species Act (ESA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ESA in the Klamath Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Upper Klamath Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Water Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The 2001 “Water Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Lower Klamath Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Management of Lower Basin Waters . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fishery Declines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The “Fish Crisis” of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Litigation Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Water Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Land Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Groundwater Pumping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fish Passage and Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fish Passage: Dam Operations and Removal . . . . . . . . . . . . . . . . . . . 27

Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Habitat Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Salmon Fisheries: Other Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Sucker Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Chiloquin Dam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Fish Screens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Other Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

List of Figures

Figure 1. Klamath River Watershed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Figure 2. The Upper Klamath Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Figure 3. The Lower Klamath Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

List of Tables

Table 1. Reclamation’s Water Bank Expenditures, FY2002-2004 . . . . . . . . . . . 25

Table 2. Selected Federal and Basin Groups in the Klamath River Basin . . . . . 33

Klamath River Basin Issues and Activities:

An Overview

Introduction

The Klamath River Basin — a region along the California-Oregon border — has

become a focal point for local and national discussions on water management and

water scarcity. Water management issues were brought to the forefront when severe

drought conditions in 20011 exacerbated competition for scarce water resources and

generated conflict among several interests — farmers, anglers (commercial and

sport), other recreationists, federal wildlife refuge managers, environmental

organizations, and state, local, and tribal governments.

As is true in many regions in the West, the federal government plays a

prominent role in the Klamath Basin’s water management. This role stems from

three primary activities: (1) the operation and management of the Bureau of

Reclamation’s Klamath Water Project and Central Valley Project (e.g., Trinity River

Dams); (2) management of federal lands in the Basin, including five national wildlife

refuges, several national forests, and public lands; and (3) implementation of federal

laws, such as the Endangered Species Act (ESA), Clean Water Act (CWA), and

National Environmental Policy Act (NEPA).

The Congress has oversight over these federal activities and has held several

hearings to discuss Klamath Basin issues. In particular, congressional debate has

focused on the role of the ESA in water management, the operation of the Klamath

Project and, other Upper Basin topics. Therefore, this report, like its predecessor,2

focuses on the Upper Basin. It provides some information on the Lower Basin (i.e.,

the watershed area below and west of Iron Gate Dam), but it is not detailed.

Background

The Klamath River originates in southern Oregon and travels 263 miles before

emptying into the Pacific Ocean off northern California. The Klamath River Basin

— or watershed — covers approximately 12,100 square miles (Figure 1) and, for

water management purposes, is divided into Lower and Upper River Basins. The

The U.S. Geological Survey indicated that the region was in severe or extreme drought

during the summer of 2001. See the Drought Monitor archive, available on Aug. 16, 2005,

at [http://www.drought.unl.edu/dm/archive.html]. The Bureau of Reclamation’s water year

designation for the Klamath Basin in 2001 was “critically dry” (the driest possible

designation).

CRS Report RL31098, Klamath River Basin Issues: An Overview of Water Use Conflicts.

CRS-2

Upper Basin (Figure 2) lies largely above (upriver) and east of Iron Gate Dam on the

Klamath River and includes four major lakes: Upper Klamath, Lower Klamath,

Clear, and Tule. The Lower Basin includes nearly 200 miles of the Klamath River

— between Iron Gate Dam and the Pacific Ocean — and four major freshwater

tributaries: the Trinity, Salmon, Scott, and Shasta Rivers. (See Figure 3.) While the

two sub-basins are linked, some of the issues they face are distinct.

Figure 1. Klamath River Watershed

Source: U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its Water

Bank Obligations, but Information Provided to Water Bank Stakeholders Could be Improved (March

2005), GAO-05-283, p. 2, with alterations by Patricia McClaughry of the CRS technology office.

Endangered Species Act (ESA)

Description. A primary factor driving issues in Klamath Basin water

management is the interplay between federal project operations and the federal ESA.3

The 1973 ESA is intended to protect species at risk of extinction. Under the ESA,

P.L. 93-205, as amended; 16 U.S.C. §§1531-1543. For background on the ESA, see CRS

Report RL31654, Endangered Species Act: A Primer. Another important factor is the status

and potential quantification of tribal water rights.

CRS-3

species (or distinct population segments) of plants and animals may be listed as either

endangered or threatened according to assessments of the risk of their extinction.

Under the ESA, officials are required to “conserve” listed species: i.e. to recover their

numbers to the point that they no longer need the protections of the ESA. In

furtherance of this goal, federal agencies are to consult with either the Fish and

Wildlife Service (FWS) — for terrestrial and freshwater species — or the National

Marine Fisheries Service (NMFS) — for marine species and anadromous fish — on

agency actions (e.g., project operations for a given year) that might affect a listed

species, and are to avoid jeopardizing its continued existence.4

When a federal agency proposes an action, the action is analyzed in a

“Biological Assessment”5 and the FWS or NMFS issues a “Biological Opinion” as

to whether the proposed agency action is likely to jeopardize a species. If jeopardy

is likely, FWS or NMFS identifies “reasonable and prudent alternatives” (RPAs) to

the proposed agency action that would avoid jeopardy. If jeopardy cannot be

avoided, the agency must forego the proposed action, seek an exemption, or, as the

Supreme Court has noted, proceed at its “own peril” in light of the civil and criminal

penalties applicable under the ESA.6 Thus, even though civil or criminal penalties

have seldom been imposed, the Opinions and recommendations rendered by the FWS

and NMFS in practice are compelling. The agency and certain others may petition

the Secretary of the Interior to convene an Endangered Species Committee, a highlevel committee that can grant an exemption for the proposed action from the

penalties of the ESA. However, this Committee has seldom been used.

ESA in the Klamath Basin. The Klamath River Basin provides habitat for

several endangered and threatened species. Three aquatic species — the Lost River

and shortnose suckers7 (listed as endangered in 1988) and coho salmon8 (listed as

threatened in 1997) — have been the focus of water management debates. The two

species of suckers reside in the Upper Basin and are under the jurisdiction of the

FWS. The coho salmon are an anadromous species that historically existed

throughout the Klamath Basin, but are now extinct above Iron Gate Dam, which is

the first of several Klamath mainstem dams blocking fish passage; coho salmon are

under the jurisdiction of NMFS. In addition, Bear Valley NWR and other Basin

lands provide habitat for bald eagles, which were listed as threatened throughout

Oregon in 1978.9

To avoid jeopardizing the endangered and threatened species in the Klamath

Basin, federal activities in the Basin are subject to review by the FWS and the

NMFS. In particular, ESA considerations have become a major factor in decisions

regarding operating or licensing large water projects. In the Klamath Basin,

16 U.S.C. §1536(a)(2).

50 C.F.R. §402.12(a).

See Bennett v. Spear, 520 U.S. 154, 170 (1997).

53 Fed. Reg. 27130 (July 18, 1988).

62 Fed. Reg. 24588 (May 6, 1997).

43 Fed. Reg. 6230, 6233 (Feb. 14, 1978).

CRS-4

Reclamation’s Klamath Project has been at the center of debate over ESA-related

management decisions. The Klamath Project — which includes 7 dams10 and miles

of irrigation channels — regulates the timing and distribution of flows originating in

the Upper Basin.11 Each year, Reclamation establishes a management plan for the

Project based on its April 1 designation of water year type. Specifically, Reclamation

uses the Natural Resource Conservation Service’s forecast of April through October

inflows into Upper Klamath Lake to designate one of four water year types: above

average (>500,400 acre-feet (af)), below average (312,800 af — 500,400 af), dry

(185,000 af — 312,800 af), or critically dry (<185,000 af).12 While the Klamath

Project has been the primary focus of debate, management of Reclamation’s Trinity

River dams (Trinity and Lewiston Dams) in the Lower Klamath Basin is also subject

to ESA review.13 Trinity flows are diverted for delivery to central California as part

of Reclamation’s Central Valley Project. ESA considerations are a major element

in relicensing discussions for PacifiCorp’s four hydroelectric dams (Keno, J.C.

Boyle, Copco, and Iron Gate) on the Klamath River.14

Federal ESA consultation requirements and Reclamation’s responses were the

focal point of the 2001 “water crisis” in the Upper Klamath Basin; however, issues

related to species and water management, and tribal water supply allocations had

simmered for years prior to the 2001 critically dry year. The following sections

provide further detail on Reclamation’s Klamath Project and management issues in

the two sub-basins.

The Upper Klamath Basin

The Upper Klamath Basin is an area with limited water resources. It represents

approximately 38% (4,630 square miles) of the Klamath Basin land area, but

accounts for only 12% of its water runoff.15 Management of Upper Basin water has

Clear Lake Dam, Gerber Dam, Link River Dam, Lost River Diversion Dam, Malone

Diversion Dam, Anderson-Rose Diversion Dam, and Miller Diversion Dam. Accessed at

[http://www.usbr.gov/dataweb/html/klamath.html] on Aug. 16, 2005. While part of the

Klamath Project, some of the dams are operated by various non-Reclamation entities.

Pacific Power and Light (PacifiCorp) operates the Link River Dam, the Anderson-Rose Dam

is operated by Tule Lake Irrigation District, and the Malone and Miller dams are operated

by the Langell Valley Irrigation District.

See U.S. Dept. of the Interior, Bureau of Reclamation website, accessed on Aug. 16, 2005,

at [http://www.usbr.gov/dataweb/html/klamath.html].

U.S. Dept. of the Interior, Bureau of Reclamation, Biological Assessment of the Klamath

Project’s Continuing Operations on Southern Oregon/Northern California ESU Coho

Salmon and Critical Habitat for Southern Oregon/Northern California ESU Coho Salmon

(Jan. 22, 2001), p. 8.

These dams are part of the Central Valley (CA) Project. See Bureau of Reclamation

website on Aug. 16, 2005 at [http://www.usbr.gov/dataweb/html/cvp.html].

PacifiCorp also operates a power plant at Reclamation’s Link River Dam.

National Academyof Science, National Research Council, Endangered and Threatened

Fishes in the Klamath River Basin: Causes of Decline and Strategies for Recovery

(continued...)

CRS-5

largely revolved around Reclamation’s Klamath Project upstream of Keno Dam.

Authorized in 1905 and largely completed in 1907, the Project is one of the oldest

U.S. reclamation projects. The Project is different from many other Reclamation

projects because the Basin’s geography makes it difficult to find suitable sites for

reservoir storage. Upper Klamath Lake is the primary source for Project water.

However, the Lake is not a storage reservoir such as is found at other reclamation

project sites because it is relatively shallow and has little storage carryover from year

to year, and thus is highly dependent on current precipitation and snowmelt for water

supply.

Through this Project, Reclamation facilities control Klamath and Lost River

flows between the Link River Dam — at the outlet of the Upper Klamath Lake —

and the Keno (water level regulation) Dam. (See Figure 2.) The Link River Dam

controls flows from Upper Klamath Lake, sending some water downriver and some

into the A Canal for irrigation distribution. Pursuant to a contract with Reclamation,

the dam is operated and maintained by PacifiCorp, an energy company that operates

several hydroelectric and re-regulating dams on the Klamath River.16 The 50-year

operating licenses for PacifiCorp’s Klamath dams, issued by the Federal Energy

Regulatory Commission (FERC), expire in 2006; their operation and physical

infrastructure may be adjusted as part of the relicensing process.17

Reclamation’s Klamath Project facilities overall provide irrigation water to

approximately 1,400 farms (nearly 1,000 full-time farms) covering about 235,000

acres in the Upper Basin.18 Reclamation has contracts to deliver water from Upper

Klamath Lake to approximately 1,200 of these farms, which grow various crops

including wheat, malt barley, potatoes, onions, and alfalfa.19 Water is also used on

pastures where beef cattle graze.

(...continued)

(Washington, DC: 2004). p. 52. Hereafter referred to as the 2004 NRC Report.

Including Keno Dam, J.C. Boyle Dam, Copco Dam, and Iron Gate Dam.

For more information on the FERC relicensing process, see CRS Report RL31903,

Relicensing of Non-Federal Hydroelectric Projects: Background and Procedural Reform

Issues, by (name redacted).

Different acreage estimates have been reported for the Project. According to the Bureau’s

Factual Data on the Klamath Project (Oct. 1995), the Project includes 233,625 acres, of

which approximately 204,492 were irrigated in 1979. The Bureau’s 1992 Summary

Statistics, Water, Land, and Related Data (the last edition to be published) reports the total

Project area as 240,412 acres, including areas not in irrigation rotation, farmsteads, ditches,

canals, and urban and suburban lands. This source reports that 232,020 acres (1,364 farms)

were in irrigation rotation in 1992, and 190,234 acres were harvested with a gross crop value

of $98.4 million.

Some crops, such as wheat and barley, are federally subsidized “surplus crops” (with

farmers receiving income support payments as well as payments to offset low market

prices); see CRS Report RS20848, Farm Commodity Programs: A Short Primer, by (name

redacted). An effort to limit the use of project water to grow surplus crops within the

national wildlife refuges was defeated during debate on the FY2004 Interior appropriations

bill. See H.Amdt. 261 to H.R. 2691, Jul. 17, 2003.

CRS-6

Figure 2. The Upper Klamath Basin

Key: (1) Wood River Ranch, (2) Barnes Ranch, (3) Agency Lake Ranch, (4) Williamson Delta

Preserve, (5) Caledonia Marsh, (6) Running Y Marsh

Source: U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its Water

Bank Obligations, but Information Provided to Water Bank Stakeholders Could be Improved (March

2005), GAO-05-283, p. 2 and 34, with alterations by Patricia McClaughry of the CRS technology

office. technology office.

A portion of the irrigation water is returned to streams or canals for downstream

use. Some of the return flows provide water to the Lower Klamath National Wildlife

Refuge (NWR) and the Tule Lake NWR. (See Figure 2.) These Refuges contain

wetlands that are major stopping points for migratory birds on the Pacific Flyway.

The Tule Lake NWR, for example, provides habitat for at least 263 bird species,

including bald eagles which are listed as a threatened species under the ESA.

CRS-7

Project operations also affect two species of Upper Basin fish listed under the

ESA — the Lost River and shortnose suckers.20 These fish live in Upper Klamath

Lake, which is also the principle source of water for the Project. The suckers are

particularly important to the Klamath, Modoc, and Yahooskin Tribes who use the

fish for ceremonial purposes, but historically relied on the fish for sustenance. Upper

Basin tribes and recreational anglers also used to catch salmon. However, Iron Gate

Dam, constructed in 1962, blocks salmon passage upstream. (See Figure 1.)

Portions of the Upper Klamath River support a major trout fishery and other

recreational activities. In particular, 11 miles of the Upper Klamath River — from

the J.C. Boyle Powerhouse to the California-Oregon border — are designated as a

Wild and Scenic River. Fed year-round by releases from the J.C. Boyle Dam, this

section of the river contains more than 20 rapids rated class III or higher, making it

a major destination for commercial and private white-water rafting and kayaking.

Water Rights. The allocation of water rights in the Upper Klamath Basin is

a subject of continuing debate. The State of Oregon controls its water allocation;

however, certain federal or trust rights (e.g., Tribal rights) have very early, highpriority rights and there also are federal water rights associated with federal land

reservations (e.g., national forests and national wildlife refuges). However, many of

the region’s water rights have not been quantified. A general adjudication of Oregon

water rights and priorities began in 1975 and is still underway. This process will

establish or register quantities and priorities of all rights in the Upper Basin. It is

expected to be completed in 2008.21

Reclamation began acquiring water rights for the Klamath Project in 1905 and

filed a formal application with the State of Oregon in 1909 to appropriate water for

delivery to landowners within the Project area. Some private rights predate the 1909

rights for reclamation purposes. In 1957, the bi-state Klamath River Compact22 gave

domestic (including municipal) users and irrigators in the Upper Basin preferential

use of “unallocated” water supplies; however, the effect of the Compact is not clear

because it excepts the rights and obligations of the United States. Further, it is

unclear what, if any, water was unappropriated by 1957.

Although they have yet to be quantified, the Klamath Tribes may have water

rights that predate those of irrigators. A court has held that the rights of the Klamath

Tribes have a priority date of “time immemorial”23 and are not restricted by the date

53 Fed. Reg. 27130 (July 18, 1988). The scientific names of these fish are Deltistes

luxatus and Chasmistes brevirostris, respectively.

The adjudication involves an administrative process to determine pre-1909 water rights

that will then be presented to a state court for a final decree. (Oregon began regulating

water rights in 1909.) Claimants include the federal government, irrigation districts, the

Klamath and Modoc Tribes, the Yahooskin Band of Snake Indians, and individuals who may

have established or otherwise acquired rights before 1909.

P.L. 85-222, 71 Stat. 497.

United States v. Adair, 723 F. 2d 1394 (9th Cir. 1983); Parravano v. Babbitt, 70 F. 3d 539

(continued...)

CRS-8

of the Tribes’ 1864 Treaty with the U.S. government.24 These tribal water rights

could take precedence over any other water rights in the Basin. A recent court

decision clarified both the priority date of the Tribes’ rights and their possible scope.

The federal district court for Oregon held that the Klamath Tribes have reserved

gathering rights along with their hunting, fishing, and trapping rights, and that all of

these rights have accompanying water rights.25 The decision stipulated that these

rights are to be quantified at a level that will sustain productive habitat so that there

will be game to hunt, and fish to catch, as well as edible plants to gather. The state

had looked to language stating that the Tribes were entitled rights to natural resources

that would “provide the Indians with a livelihood — that is to say, a moderate

living”26 — a view that would have entitled Tribes only to that amount of

unconsumed water flowing through each described river reach as of the date of the

first Adair case, or the quantity of water claimed by the BIA for physical habitat

maintenance flows, whichever is less. However, the court concluded that the Tribes’

water could not be reduced below that necessary to maintain productive habitat and

that to do otherwise would be tantamount to assigning a 1979 or 1984 priority date

to the Tribes’ water rights, a result that was not permissible because the priority date

of the Tribes’ rights is “time immemorial.” How this holding will affect Klamath

Basin water allocations under the ongoing water rights adjudication is not yet clear.

The six national wildlife refuges in the Upper Klamath Basin were established

between 1908 and 1958.27 Two of these refuges (Lower Klamath NWR and Tule

Lake NWR) rely on water from the Klamath Project. These refuges have received

lower priority for water than irrigators or Tribes, thus they may not receive water in

times of shortage and often depend on irrigation return flows. However, the Lower

Klamath NWR (est. 1908) may have federal reserved rights for an as-yet

undetermined amount of water sufficient to accomplish its purposes.28 The presence

of migratory birds and at least one species listed under the ESA also may affect the

water supplies to the refuges.

(...continued)

(9th Cir. 1995); Klamath Water Users Association v. Patterson, 204 F. 3d 1206 (9th Cir.

2000).

United States v. Adair, supra, at 1414.

United States v. Adair, 187 F. Supp. 2nd 1273 (D. Or. 2002).

187 F. Supp. 2nd 1275-1278, discussing Adair, supra, at 1414-1415, and quoting from 443

U.S. at 686.

U.S. Dept. of the Interior, Fish and Wildlife Service, Klamath Basin National Wildlife

Refuges: California/Oregon..

Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 138 F.

Supp. 2d 1228, 1231 (N.D. Cal. 2001).

CRS-9

The 2001 “Water Crisis.”29 Recent controversy in the Klamath Basin results

from the interaction of Reclamation’s annual operation of the Project with other

purposes and legal considerations — specifically, the appropriate levels of and

releases from Upper Klamath Lake each month — and the effect of that operation on

threatened and endangered species in the Upper and Lower Basins. At the Klamath

Project, ESA issues have been an integral component of operating decisions since the

FWS listed the suckers as endangered in 1988,30 and increasing after the NMFS listed

the Basin’s coho salmon as threatened under the ESA in 1997.31

Since the ESA listings, Reclamation, the NMFS, and the FWS have issued

biological assessments and Biological Opinions addressing the Project’s effects on

the two species of suckers and coho salmon. In 1992, for example, Reclamation

prepared a Biological Assessment of Klamath Project operations, and the FWS

subsequently issued a Biological Opinion on the long-term effects of Project

operations on the two listed suckers. A 1992 FWS Biological Opinion required

Reclamation to develop a long-term operations plan, which was completed 10 years

later, in 2002.32 In 1993, FWS issued a recovery plan for the two species of

suckers.33 Further, Reclamation has consulted with the FWS annually since 1995 on

the effects of Project operations on endangered suckers, and with NMFS (for coho

salmon) for 1998 and 1999. In early 2001, however, a federal district court faulted

Reclamation for failing to formally consult with NMFS on the effects of irrigation

releases on downstream coho salmon under its 2000 operating plan, and enjoined

(prohibited) Reclamation from making further irrigation releases until it formally

consulted on its next (2001) annual plan.34

In April 2001, the FWS and NMFS each issued final Biological Opinions

concluding that Reclamation’s proposed operation of the Project for 2001 would

The “water crisis” developed when Reclamation decided to not deliver water to farmers

to comply with Biological Opinions of FWS and NMFS implementing the ESA. Many

believed violence was on the verge of breaking out; farmers threatened to open Reclamation

head gates by force, and federal officials were threatened. The crisis made national news and

created a virtual stand-off between federal officials and farmer activists.

53 Fed. Reg. 27130 (July 18, 1988).

62 Fed. Reg. 24588 (May 6, 1997). The scientific name of this fish is Oncorhynchus

kisutch.

U.S. Dept. of the Interior, Bureau of Reclamation, Final Biological Assessment: The

Effect of Proposed Actions Related to Klamath Project Operation (April 1, 2002- March 31,

2012) on Federally Listed Threatened and Endangered Species (Feb. 25, 2002), available

at [http://www.usbr.gov/mp/kbao/docs/Final_Biological_Assessment_02-25-02.pdf] on July

29, 2005. This Biological Assessment was subsequently found by FWS and NMFS to

jeopardize the existence of threatened species, resulting in Reclamation operating the project

on a one-year plan.

Under the ESA, a recovery plan only recommends actions, and does not require or force

aggency action (16 U.S.C. §§ 1533(f), 1538).

Pacific Coast Federation of Fishermen’s Assoc. v. Bureau of Reclamation, 138 F. Supp.

2d 1228 (N.D. Cal. April 3, 2001). The court was addressing the year 2000 Operating Plan;

Reclamation then consulted on the year 2001 Operating Plan.

CRS-10

jeopardize the continued existence of the two species of suckers and the population

of coho salmon, and would harm, but not jeopardize, the continued existence of the

bald eagles. Because of large die-offs of suckers in Upper Klamath Lake since 1992

and new information on the potential adverse effects of low lake levels, the FWS

concluded that higher minimum lake levels were needed than had been recommended

in its 1992 Biological Opinion and included in Reclamation’s proposed 2001

operating plan.35 NMFS’s determination on water requirements for coho salmon in

the Lower Basin further complicated matters by recommending the release of

additional water from Upper Klamath Lake at the same time that FWS was

recommending water be held to raise the lake level.36 Because of severe drought37

conditions, there was not enough water to implement both Biological Opinions, let

alone provide irrigation water for farmers.

Reclamation announced its response on April 6, 2001, implementing proposed

alternatives that severely limited the delivery of irrigation water. For the 2001 water

year, Reclamation stated that the normal (for a non-dry or non-critically dry year)

70,000 acre-feet (af) of water would be available for lands receiving water from Clear

Lake and Gerber Reservoirs, but that no water would be available from Upper

Klamath Lake for deliveries to irrigators or to the Lower Klamath NWR. In a

“normal” (non-dry or non-critically dry) year, net water deliveries for agricultural use

from the Lake could range from 325,000 af to 400,000 af.38

Subsequently, Secretary of the Interior Gale Norton announced that about

70,000 af to 75,000 af would be released from Upper Klamath Lake to assist farmers.

This amount of water represented about 15%-20% of the water typically delivered

to Project users from the Lake in non-drought years, and could have restored some

wells and saved pastures, hay, and some row crops, but came too late in the season

to provide significant help to farmers. The availability of the water was attributed to

higher-than-anticipated inflows into Upper Klamath Lake and to water conservation

measures.

Prior to the mid-July 2001 release, Project water users estimated losses to the

surrounding economy for the 2001 crop year at between $160.7 million and $222

U.S. Dept. of the Interior, Fish and Wildlife Service, Biological/Conference Opinion

Regarding the Effects of Operation of the Bureau of Reclamation’s Klamath Project on the

Endangered Lost River Sucker (Deltistes luxatus), Endangered shortnose Sucker

(Chasmistes brevirostris), Threatened Bald Eagle (Haliaeetus leucocephalus), and Proposed

Critical Habitat for the Lost River/shortnose Suckers (prepared by Klamath Falls FWS

Office, April 2001), Section I, p. 1.

U.S. Dept. of Commerce, National Marine Fisheries Service, Biological Opinion, Ongoing

Klamath Project Operations. Available Sept. 20, 2005 at [http://swr.ucsd.edu/psd/kbo.pdf].

See the Drought Monitor archive available on Aug. 16, 2005 at [http://www.drought.unl.

edu/dm/archive.html].

Written communication via facsimile, U.S. Dept. of Interior, Bureau of Reclamation,

Klamath Project, Oct. 1, 2001.

CRS-11

million.39 The National Research Council (NRC) reported that the total value of

agricultural production in the Upper Basin is $283 million, but that nearly half of this

value is from farms in Klamath, OR.40 The Klamath Water User’s Association

estimated the annual value of crops grown in the Klamath area at $110.8 million,

based upon a five-year average (1996-2000). A study by Oregon State University’s

Agricultural and Resource Economics Department estimated that Reclamation’s

water allocation plan would reduce personal income in the Klamath area by $70

million and reduce total gross sales in the area by $157 million during the first year

of implementation.41 Although some of these losses may have been offset by

payments under federal crop insurance and other disaster assistance programs, it is

not clear to what extent this relief was made available.

Unlike farms, the Lower Klamath NWR did not receive water from Upper

Klamath Lake during Reclamation’s mid-July 2001 release, and a notice of intent to

sue was filed by the Oregon Natural Resources Council and others, asserting that

under FWS’s Biological Opinion of April 5, 2001, the Refuge was to receive a

minimum of 32,255 af of any extra water that might be available from the Upper

Klamath Lake. That amount was identified as the minimum amount sufficient to

sustain about a thousand bald eagles and 6% of the Refuge’s 1.8 million birds during

the fall migration. Subsequently, the Refuge received 2,600 af from Clear Lake,

PacifiCorp donated some water, and other water was purchased. Including rainfall,

the Refuge received approximately 23,815 af from May 1 through October 31 (74%

of the minimum figure in the Biological Opinion).42 As a result of the shortfall, there

may have been less successful nesting and rearing of young waterfowl due to reduced

habitat and increased concentration of birds, which made them more susceptible to

predation.43

Because many disagreed over the fundamental guidance contained in the 2001

Biological Opinions, the Secretary of the Interior sought and secured review of the

scientific decisions by the National Research Council (NRC), an arm of the National

Academy of Sciences. The NRC concluded that there was no substantial scientific

basis for changing the operation of the Project to maintain higher water levels in

Upper Klamath Lake as proposed in the FWS 2001 Biological Opinion, or for the

lower levels proposed in Reclamation’s 2001 Biological Assessment.44 Similarly, the

Klamath Water Users Association, letter “To Whom It May Concern” (May 22, 2001).

2004 NRC Report, p. 81.

Oregon State University, Dept. of Agricultural and Resource Economics, Economic

Impacts of 2001 Klamath Project Water Allocation, (Corvallis, OR: May 22, 2001). The

primary difference in this study’s conclusion as compared with the water users’ estimate

appears to be that the OSU study used more conservative multipliers when estimating

indirect effects on the local economy.

Communication from Tim Mayer, Region 1, Fish and Wildlife Service, U.S. Dept. of the

Interior, on April 2, 2002.

Ibid.

See pages 5 - 9 of the 2004 NRC Report. In examining the scientific data available, the

NRC found that low lake levels were not always correlated with low larvae survival or fish

(continued...)

CRS-12

committee found that there was no substantial scientific support for higher minimum

flows in Klamath River as stipulated in the NMFS 2001 Biological Opinion, or for

reducing main-stem flows as would be allowed under Reclamation’s 2001 Biological

Assessment.45 Therefore, the Committee concluded scientific data were insufficient

to support any of the Upper Klamath Lake level management regimes proposed by

federal agencies for the 2001 growing season, although it did find support for other

measures included in the NMFS and FWS Biological Opinions.

The NRC report clearly points out that the ESA agencies faced a difficult

dilemma. ESA requires agencies to use the best scientific data available in their

efforts to avoid jeopardy, a standard that may benefit species.46 However, the

agencies must do this without delay, and without the luxury of extensive monitoring

and experimentation and thus some remedies may later be proved ineffective.47 This

is an especially frustrating situation for those suffering economic losses or social

disruption as a result of agency actions and has led to many calls for amending or

eliminating the ESA. For more information on this issue see CRS Report RL32992,

The Endangered Species Act and “Sound Science,” and CRS Report RL33468, The

Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and

Difficult Choices.

Given the “crisis” of 2001, current discussions in the Upper Basin focus largely

on how to manage the Klamath Project, and other Basin waters, to reduce extinction

pressures on populations of threatened and endangered species while ensuring

adequate irrigation supplies.

The Lower Klamath Basin

For management purposes, the Lower Klamath Basin is designated as the

watershed area lying below and west of Iron Gate Dam (located in California just

south of the Oregon/California border). The Klamath River at this point runs

unobstructed to the Pacific Ocean. (See Figure 3.) The Lower Basin represents

approximately 62% (7,470 square miles) of the Klamath Basin’s land area; however,

it is the origin of 88% of its runoff.48 Much of this water flows into the lower

Klamath from 4 tributaries: the Shasta, Scott, Salmon, and Trinity Rivers.

(...continued)

abundance, and hence no causal relationship could be supported. Specifically, the NRC

stated “there is no evidence of a causal connection between water level and water quality

or fish mortality over the broad operating range in the 1990s... Neither mass mortality of

fish nor extremes of poor water quality shows any detectable relationship to water level”

(p. 6). The NRC further allowed that while higher lake levels intuitively made sense, their

contribution to successful spawning was difficult to defend scientifically (p. 227) and in at

least one year appeared to be contradicted (p. 226).

Ibid.

16 U.S.C. §1536(a)(2). See also House Rept. 96-697 (1979), p. 12, indicating that the

“benefit of the doubt” should be given species.

2004 NRC Report, p. xv.

2004 NRC Report, p.52.

CRS-13

Figure 3. The Lower Klamath Basin

Source: U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its Water

Bank Obligations, but Information Provided to Water Bank Stakeholders Could be Improved (March

2005), GAO-05-283, p. 2, with alterations by Patricia McClaughry of the CRS technology office.

As in the Upper Basin, agriculture is a prominent activity in the Lower Basin.

In particular, irrigated agriculture is important in the Shasta, Scott, and Trinity River

watersheds.49 As of 1997, however, the number of Lower Basin farms (974) was

about 40% of that found in the Upper Basin, and agricultural production was

estimated to be less than half the value of Upper Basin agriculture ($114 million

compared to $283 million).50 However, both Basins support other economic

interests. Much of the acreage in the Lower Basin is managed by the U.S. Forest

Service for multiple purposes (e.g., timber production, recreation, fish and wildlife

habitat, etc.).

2004 NRC Report, p. 82.

2004 NRC Report, p. 81& 91.

CRS-14

The lower Klamath River provides habitat for several fish species. Below Iron

Gate Dam, for example, the Klamath River is inhabited by the Southern Oregon/

Northern California Coasts population of coho salmon, and other species. This

“evolutionarily significant unit”51 of coho salmon was listed as threatened under the

ESA in 1997,52 and the Klamath River was designated as critical habitat for this

population.53 There has been controversy and litigation over this listing because of

the relative abundance of hatchery-raised, as compared to native, coho salmon. (See

“Fish Hatcheries,” below.) The river also contains trout, chinook salmon, and other

fish species.

Salmon are an important resource for Tribes — including the Yurok, Hoopa

Valley, and Karuk — in the Lower Basin. Yurok tribal members, for example,

operate both subsistence and commercial gill net fisheries in the Klamath River near

its mouth. In the late 1980s, the Yurok’s commercial fishery harvest represented a

direct value to the Tribe of $3 million and additional income to the region’s

businesses.54 During this period, the Hoopa Valley Tribe caught 3,000 to 9,000

chinook salmon (fall and spring run) in the Trinity River. The Karuk Tribe also

catches Klamath fish.55 These Tribes, which have rights to 50% of the total

allowable harvest of fall run chinook salmon, have been harmed by declines of

Klamath fish.56

Salmon and other anadromous fish from the Klamath River also support

commercial and sport fisheries off the northern California and southern Oregon

coasts. In past years, more than one-third of the 600,000 Chinook salmon taken by

commercial hook-and-line trollers on the ocean between Fort Bragg, CA, and Coos

Bay, OR, are estimated to have originated in the Klamath Basin.57 Beyond the direct

revenues of these fish to commercial fishermen of nearly $6 million annually since

1986, commercial fishing also supported various businesses in fishing ports that

contribute substantially to local economies.58 Users of these fish have been harmed

by increasingly restrictive fishing regulations and low fish populations during the last

decade, exacerbated by even more stringent restrictions on fishing subsequent to the

1997 ESA listing of the coho salmon in the Klamath Basin. Since the 1970s, salmon

An “evolutionarily significant unit” (ESU) is the marine species equivalent of “distinct

population segment” used for terrestrial species under the ESA.

62 Fed. Reg. 24588 (May 6, 1997).

64 Fed. Reg. 24049 (May 5, 1999).

Klamath River Basin Fisheries Task Force, Long Range Plan for the Klamath River Basin

Conservation Area Fishery Restoration Program (Jan. 1991), p. 1-6. Available at [http://

www.krisweb.com/biblio/gen_usfws_kierassoc_1991_lrp.pdf] on July 11, 2005. Hereafter

referred to as KRBFTF Document, 1991.

KRBFTF Document, 1991.

Troy Fletcher and Sue Masten of the Yurok Tribe, “Yurok Perspective of Trinity River

Fisheries Resources,” (2001), p. 7-11, available on on July 29, 2005 at

[http://www.humboldt.edu/~extended/klamath/proceedings2001/KLAMSYM7.PDF].

KRBFTF Document, 1991.

CRS-15

landings at the ports of Eureka and Crescent City have decreased to about 5% of

historic levels.59 As of 2000, the Chinook salmon catch at these ports had declined

to 26,450 fish at a value of approximately $107,887.60

Recreational activities are also prevalent throughout the Lower Basin. For

example, recreational fishing occurs in the ocean off the mouth of the Klamath River

and upstream within the Klamath Basin.61 Further, much of the lower Klamath River

and its tributaries are part of California’s Wild and Scenic River System.

Management of Lower Basin Waters.62 In addition to the Klamath

Project, Reclamation manages some Lower Basin waters as part of its California

Central Valley Project. Congress authorized initial features of the Central Valley

Project (CVP) in the 1937 River and Harbors Act63; however, federal undertaking of

the project began two years earlier.64 The project consists of canals and aqueducts

that work in conjunction with the California State Water Project (SWP) to supply

water to the Central Valley of California and metropolitan areas in the southern

region of the state. The dams and reservoirs of the CVP were constructed primarily

to control floods, improve navigation, and develop hydroelectric power. Subsequent

laws were enacted to protect and enhance fish and wildlife (e.g., the 1946 Fish and

Wildlife Coordination Act and the 1992 Central Valley Project Improvement Act).

The Trinity River Division (TRD) of the Central Valley Project was authorized

by Congress in 1955 and completed in 1964.65 The Trinity River is the largest

tributary of the Klamath River, but enters the River not far from where the Klamath

meets the Pacific Ocean. The TRD takes water from the Trinity River system and

transports it, by means of dams, reservoirs, tunnels, and powerplants, into the

separate watershed of the Sacramento River for use in water-deficient areas to the

south.

While not discussed fully in this report, management of the Trinity River has

been a topic of ongoing debate and litigation. In particular, debate has focused on the

quantity of water that should remain in the Trinity River versus the amount exported

via the Sacramento River to other CVP water users. Until recently, nearly 90% of the

water in the Trinity River was exported to the Central Valley. These exports have

had devastating effects on Trinity and Lower Klamath River fisheries, including coho

salmon, and hence have been the subject of lawsuits and much controversy. In

2004 NRC Report, p. 92-93.

KRBFTF Document, 1991.

Prepared with assistance from Steven Viña, American Law Division, CRS.

Ch. 832, 50 Stat. 844, 850 (1937).

The CVP was initially authorized by a finding of feasibility by the Secretary of the

Interior under then-existing Reclamation Law. Federal funds were first provided by

Congress under the Emergency Relief Appropriation Act of 1935 (49 Stat. 115). Many of

the CVP units were authorized under separate project- (unit-) specific statutes.

Ch. 872, 69 Stat. 719; P.L. 84-386.

CRS-16

particular, an attempt by the U.S. Department of the Interior in the late 1990s to

increase flows in the Trinity was opposed by CVP water users and resulted in the

case Westlands Water District v. U.S. Department of the Interior.66 A recent court

decision in this case directs the Bureau of Reclamation to release the amount of water

called for in 2000 Record of Decision (discussed below) into the Trinity River.

Fishery Declines. The long-term health of Klamath fisheries is a primary

concern in the Lower Basin. The anadromous fish populations of the KlamathTrinity River system have historically supported a vast commercial, sport, and tribal

fishery, particularly in Humboldt County which borders the Pacific Ocean in

northwest California. Development of the Klamath River and its tributaries has

caused a steady decline in the fisheries and harmed the sport and commercial coastal

fishing industries. Damming of the Trinity River as part of the CVP has been

particularly harmful, because it eliminated anadromous fish access to approximately

109 miles of habitat upstream of the Lewiston and Trinity Dams. (See Figure 3.)

Construction of the Lewiston Dam also altered conditions in the lower Trinity River.

For example, the dam reduced runoff to 10% of former levels and prolonged periods

when the river was turbid. It also warmed downstream waters earlier in the season

than previously. In addition, the dam reduced spawning habitat between the North

Fork and Lewiston dam to 56% of what was available prior to its construction.

Within a decade of the 1963 Trinity diversion, biological damage by the

diversion had become apparent, and salmon and steelhead populations had declined

considerably.67 Data on numbers of salmon and steelhead returning to the Trinity

River prior to the construction of Lewiston Dam are fragmentary and incomplete;

after construction, returns declined to only a few hundred wild fish.68 The Trinity

River Hatchery, located at the base of Lewiston Dam, was constructed to compensate

for the loss of historic salmon and steelhead trout spawning and nursery grounds

upstream of Lewiston Dam, but failed to prevent the continued decline of salmon and

steelhead.69 Operating agreements for the Trinity Project identified water releases for

fish maintenance downstream from Lewiston Dam. Under 1968 conditions, 10% of

the historic (1911-1960) annual flow of 1,188,000 af was provided downstream.70

In 1981, that flow was increased to 340,000 af, but allowed for reductions in dry and

critically dry years.71 In a 2000 Record of Decision (ROD) on a proposal to restore

Trinity River fisheries, Reclamation recommended a management plan that included

instream flows ranging from 369,000 af in critically dry years to 815,000 af in

Westlands Water District v. U.S. Dept. of the Interior, 376 F.3d 853 (9th Cir. 2004).

Hereafter referred to as WWD v. DOI.

2004 NRC Report, p. 295.

59 Fed. Reg. 51607 (Oct. 12, 1994).

CRS-17

extremely wet years.72 As noted earlier, decisions on Trinity flows have been the

subject of continuous litigation.73

The “Fish Crisis” of 2002. While Klamath fisheries have declined steadily

over the last century, a dramatic event in 2002 renewed water management concerns

throughout the Lower and Upper Basins. In September 2002, thousands of adult

salmon died in the lowermost 40 miles of the Klamath River mainstem.74 While

fall-run chinook salmon were the primary species affected, coho salmon, steelhead

trout, and other species were also lost.75 This loss prompted renewed focus on

Klamath Project operations. Some believe Klamath Project water management

decisions — made in the spring of 2002 — were responsible for the 2002 fish kill;

others dispute this view.

On March 29, 2002, Reclamation began water deliveries to farms for the 2002

growing season based on two-month (April and May) “letters of concurrence” issued

by the NMFS and the FWS. By late April 2002, Reclamation had reduced mainstem

flow below Iron Gate Dam to 1,350 cubic feet per second (cfs), despite significantly

increased rainfall in the Klamath Basin. This flow was 350 cfs less than the amount

identified by NMFS’s 2001 Biological Opinion as the minimum flow necessary to

prevent coho salmon extinction. The Pacific Coast Federation of Fishermen’s

Associations (PCFFA) and others filed suit to enjoin these reduced flows, in a suit

in which many counties and Tribes intervened.76 Although the court determined the

Biological Opinion and resulting agency action to be arbitrary and capricious, it

allowed their continued implementation as to short-term flows.

On April 25, 2002, the FWS released its Draft Biological Opinion on the impact

of the Klamath Water Project on Upper Klamath Basin species, indicating that

Reclamation’s proposed 10-year (June 1, 2002, through March 31, 2012) plan would

jeopardize the continued existence of sucker species, and noting a number of actions

needed to mitigate impacts. Higher lake levels were not required except in dry and

critically dry years. On May 16, 2002, NMFS released its Draft Biological Opinion,

also concluding that Reclamation’s 10-year plan would likely jeopardize the downriver coho salmon. The PCFFA lawsuit was the first challenge to Reclamation’s 10year plan, although the plan was criticized by fishermen and the California

Department of Fish and Game as reducing the chances for successful fish restoration

and having devastating impacts on down-river salmon fisheries.

U.S. Dept. of the Interior, Bureau of Reclamation, Record of Decision, Trinity River

Mainstem Fishery Restoration, Final Environmental Impact Statement/Environmental

Impact Report (Dec. 2000).

For example, see WWD v. DOI, et al.

2004 NRC Report, p. 9.

State of California, Dept. of Fish and Game, September 2002 Klamath River Fish Kill.

Preliminary Analysis of Contributing Factors. Available on Aug. 16, 2005 at [http://www.

pcffa.org/KlamFishKillFactorsDFGReport.pdf].

Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 2003

U.S. Dist. LEXIS 13745 (N.D. Cal.2003).

CRS-18

The Final Biological Opinions from both FWS and NMFS were released on

May 31, 2002. Both Final Opinions found Reclamation’s 10-year plan likely to

jeopardize the continued existence of ESA-listed species. The NMFS jeopardy

determination focused on incremental depletions of Iron Gate Dam flows over the

10-year plan, increasing risk to coho salmon. The FWS jeopardy determination

focused on (1) sucker “entrainment” losses77 at Project dams and diversions in Upper

Klamath Lake; (2) adverse Project effects on water quality and sucker health in

Upper Klamath Lake; and (3) sucker habitat loss in Upper Klamath Lake. FWS and

NMFS each developed “reasonable and prudent” alternatives to avoid the

jeopardizing effects of Project operations. On June 3, 2002, however, Reclamation

formally rejected both Final Biological Opinions for the 10-year plan, and opted

instead to operate under a one-year plan that it asserted complied with the Opinions.

Although Reclamation asserted that its plan complied with the NMFS and FWS

Biological Opinions, more than 33,000 adult salmon died in September 2002. Most

of the salmon killed, however, were Chinook salmon, not the ESA-listed coho (which

enter the Klamath at a different time). Coming on the heels of Reclamation’s

controversial decision to curtail flows from Upper Klamath Lake in 2001 and then

to resume irrigation flows, many believed water management decisions in the Upper

Basin contributed to the 2002 fish kill; others believed flows similar to 2001 would

not have prevented the fish kill. Regardless, the direct cause of this fish kill was an

epizootic disease.78 Several factors contributed to stressful conditions for fish, which

ultimately led to the epizootic disease — (1) an above average number of Chinook

salmon entered the Klamath River from the ocean between the last week in August

and the first week in September 2002; (2) river flow and volume of water in the

fish-kill area were atypically low (due in part to drought); and (3) water temperatures

were very warm.79 These three factors resulted in high fish densities which may have

been further exacerbated by impeded fish passage upstream due to low water depths

of certain riffles, perhaps caused by higher Trinity water flows several years earlier

that may have changed the stream bed. The warm water temperatures and high fish

density created ideal conditions for pathogens to infect salmon and spread quickly;

however, neither the flows nor the temperatures that occurred were unprecedented.80

It is not clear to what degree Reclamation’s spring 2002 decisions contributed to

these factors, but the NRC postulated that the flows in the Trinity River “could be

most effective in lowering temperatures,” presumably in the future.81

Entrainment (i.e., entrapment) occurs when sucker larvae, juveniles, sub-adults, and adults

enter water diversions and become trapped. Screening of water diversions to reduce sucker

entry is the primary means to address this concern.

This epizootic disease was a combination of ubiquitous ich (the ciliated protozoan parasite

Ichthyophthirius sp.) and columnaris (infection by the bacterium Flexibacter columnaris)

pathogins.

California Dept. of Fish and Game, September 2002 Klamath River Fish-Kill: Final

Analysis of Contributing Factors and Impacts (July 2004), 173 p., available at

[http://www.dfg.ca.gov/html/krfishkill-2004.pdf].

2004 NRC Report, p. 9.

CRS-19

Litigation Overview

In part because of the economic implications of whatever actions Reclamation,

FWS, and NMFS may take regarding Klamath Basin water, suits have been filed by

many of the groups with interests in the region and its water, including Tribes,

irrigators, fishermen, environmentalists, states, and counties. In addition, suits have

been filed elsewhere regarding some of the same or similar issues. Some cases relate

to Klamath directly. Others affect Klamath indirectly, because they are relevant to

Klamath issues, such as suits regarding the authority of Reclamation to reduce water

deliveries for ESA purposes; the nature of rights under a Reclamation contract;

whether compensation is owed for water reductions; priorities of rights; extent of

tribal rights; standing to sue; and standards for the science used to support Biological

Opinions and agency decisions. A full description and analysis of the suits and

judicial opinions is beyond the scope of this paper, but a summary of some of the

most important cases and trends follows.

Some patterns are discernible among the various suits. At times, agencies have

been found to have failed to comply with important procedural requirements of either

the ESA, NEPA, or both, but often events on the ground (or in the water) may

overtake orders from the courts to remedy situations. For example, Reclamation was

found to have violated the ESA by failing to consult with NMFS concerning the

impact of the Klamath Project 2000 Operations Plan as required by §7(a)(2) of the

ESA, and was ordered to maintain minimum flows until consultation was

completed.82 The court, in this case, noted that the ESA establishes procedural

requirements that are designed to avoid substantive violations of the act.83

Reclamation then consulted on the 2001 Operations Plan; however, decisions

Reclamation made to comply with the results of consultation (e.g., to not deliver

water to certain irrigators) became the subject of new lawsuits from agricultural

interests.

As agencies and Administrations attempt to implement different policies, the

plaintiffs in suits may change, even if the nature of challenges remains the same. For

example, as just discussed, fishermen sued with respect to the 2000 Operations Plan,

and irrigators sued to enjoin the 2001 Operations Plan,84 or to receive compensation

for reduction in water deliveries. At other times, environmental groups, Tribes, or

counties have sued to challenge agency decisions. Also, even if a plaintiff may be

successful in establishing a legal right or principle, litigation may nonetheless

continue as efforts are made to compel that the principle be translated into water

flows.85

Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 138 F.

Supp.2d 1228 (D. N.D. Cal. 2001).

Id. at 1248.

Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001). In this case, irrigators and

local counties sued to enjoin implementation of the 2001 Operating Plan, but the court

denied the motion, finding the interests of the irrigators subject to the ESA requirements.

For example, the Klamath Tribes have consistently won cases articulating the extent of

(continued...)

CRS-20

The nature of contractual rights to Reclamation water will continue to figure

prominently in cases. In a case some believed to be wrongly decided,86 but which

was settled rather than appealed by the government, the Federal Court of Claims

directed the federal government to pay compensation to irrigators for water not

delivered by California pursuant to a contract between the United States and

California, even though the contracts of both the United States with California and

California with irrigation districts contained language excusing reductions in

deliveries.87 Other cases in the past have addressed the nature and compensability of

rights under Reclamation contracts,88 and additional cases will undoubtedly be filed

now. One recent suit sought compensation for Klamath irrigation water reductions.

In a significant development, fishermen were allowed to intervene in this suit, which

meant another group with a major interest in the water would be heard by the court.

The court of claims recently granted summary judgment denying compensation under

the Fifth Amendment of a “taking of water,” and the court was critical of the

previous Tulare Lake decision on this point.89

Various suits have been filed challenging the science reflected in Biological

Opinions and the actions of Reclamation in failing to consult,90 or in either releasing

or not releasing water flows for various purposes and these suits too will undoubtedly

continue. Some suits involve the CVP disputes and holdings in that some of the

waters of the Trinity River are diverted to parts of California to the south. The proper

interpretation and scope of new contract language used in renewal contracts and the

procedures by which contracts are being renewed also is generating new suits.

(...continued)

their rights to water: United States v. Adair, 478 F. Supp. 336 (D. Or. 1979)(Adair I), aff’d

United States v. Adair, 723 F. 2d 1394 (9th Cir. 1984) (Adair II), cert. denied sub nom,

Oregon v. United States, 467 U.S. 1252, (1984); United States v. Adair, 187 F. Supp. 2d

1273 (D. Or. 2002)(Adair III). However, dissension continues as to what quantities will be

released.

See, for example, the Los Angeles Times (Dec. 22, 2004), stating that the California

Attorney General’s Office, the Schwarzenegger Administration, and attorneys for the

National Oceanic and Atmospheric Administration wrote the Justice Department urging that

the decision be appealed.

Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl.313 (2001). This

opinion addressed the liability issues in the case.

O’Neill v. United States, 50 F. 3d 677 (9th Cir. 1995); Natural Resources Defense Council

v. Houston, 146 F. 3d 1118 (9th Cir. 1998); and Klamath Water Users Protective Ass’n v.

Patterson, 204 F. 3d 1206 (9th Cir. 1999), cert. denied 531 U.S. 812 (2000), holding that

irrigators were not third party beneficiaries of contract between Reclamation and a power

company to operate Link Dam, and Reclamation was not liable to them. See Reed D.

Benson, “Whose Water Is It: Private Rights and Public Authority Over Reclamation Project

Water,” Virginia Environmental Law Journal (1997), vol 16, p. 3., cited in Rio Grande

Silvery Minnow, 333 F. 3d 1109, 1139 (10th Cir. 2003), which held that Reclamation could

lawfully release irrigation water to meet its duties under the ESA.

Klamath Irrigation District v. United States, 2005 U.S. Claims, LEXIS 256 (Fed. Cl.

2005).

Pacific Coast Federation of Fishermen’s Ass’ns v. Bureau of Reclamation, 138 F. Supp.

2d 1228 (N.D. Cal. 2001).

CRS-21

Some suits have involved very basic questions, for example, what populations

of fish may be listed under the ESA,91 or who has standing to sue to question water

reductions by Reclamation. The Supreme Court recently (after the Tulare Lake

liability case) held that irrigators as ultimate recipients of Reclamation water lack

standing to challenge or enforce the contractual arrangements between Reclamation

and an irrigation district.92

It is not clear what will be the ultimate result of multiple Klamath River Basin

suits; however, each one has the potential to affect in significant ways the planning,

coordination, and management of Klamath River waters.

Management of Klamath Basin Waters

In response to the events of 2001 and 2002, stakeholder groups and regional

management entities have renewed focus on resolving water issues in the Klamath

Basin. In particular, entities are focused on preserving sufficient supplies of

irrigation water to sustain the agricultural economy of the Upper Basin and on

restoring sufficient habitat — and the associated quantity and quality of water — to

support listed species. As described later, there is no comprehensive plan for

resolving the Basin’s water issues. However, several activities are taking place —

largely with federal and state funding — to help alleviate tensions in the Basin and

improve the survival of endangered fishes.

Water Supply

A primary issue in the Upper Klamath Basin is how to provide sufficient

instream flows and adequate lake levels for listed species while not reducing water

available for irrigation. The issue of water availability is most serious during

spawning periods and during dry summer months when irrigation water is essential

for crops and low lake levels and low instream flows can lead to water temperatures

that harm fish populations.93

Storage. One strategy for increasing the water available to farmers and fish

during low-flow periods is to store water during spring floods for release when water

is more scarce. However, the geography of the Upper Basin offers little in the way

of potentially suitable sites. Even so, several options to expand or build reservoirs

have been discussed.94 The Klamath Basin Water Supply Enhancement Act of 2000

Alsea Valley Alliance v. Dept. of Commerce, 358 F. 3d 1181 (9th Cir. 2003).

Orff v. United States, 545 U.S. __, 125 S. Ct. 2606, 162 L. Ed. 2d 544 (2005).

Part of the problem is that there is limited water and it may be needed to keep lake levels

high to avoid sucker fish mortality and lower at times to provide instream flows for coho

salmon. Consequently, there is ongoing debate over what lake levels are necessary at what

times to avoid collapse of the distinct fisheries which have divergent water needs.

U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its water

Bank Obligations, but Information Provided to Water Bank Stakeholders Could Be

(continued...)

CRS-22

(P.L.106-489) authorized Reclamation to study the feasibility of increasing storage

capacity at Klamath Project facilities and developing Klamath Basin groundwater

supplies.

Reclamation’s efforts to expand existing capacity have focused on Upper

Klamath Lake. Reclamation has identified six primary options for expanding Upper

Klamath Lake onto adjacent lands at Agency Lake Ranch, Barnes Ranch, Wood

River Ranch, the Williamson River Delta Preserve, Caledonia Marsh, and Running

Y Marsh.95 (See Figure 2.) Jointly, these lands could store an additional 100,000

af of water, but could loose half that amount to evaporation.96 The amount of storage

varies, depending on the combination of projects. For example, Reclamation’s

Agency Lake Ranch could not be fully used for water storage without acquiring

Barnes Ranch; together Reclamation estimates that they could store 30,000 to 50,000

af.97 While Reclamation has conducted initial investigations into purchasing Barnes

Ranch, current proposals would place the land and Agency Lake Ranch under the

jurisdiction of the FWS. While an appraisal is underway to determine the price of

Barnes Ranch,98 Congress included $2 million in its FY2006 Department of the

Interior and Related Agencies Appropriations Act for the purchase as part of the

Klamath Lake National Wildlife Refuge.99

While the purchase of Barnes Ranch is under consideration, a number of

uncertainties are associated with options to expand storage at Upper Klamath Lake.

For example, water releases from the expanded storage could be limited by reservoir

elevation requirements established by the FWS to protect sucker fish. Furthermore,

“environmental impacts of developing water storage areas vary and would need to

be addressed by Reclamation as part of the storage development process.”100

Klamath County commissioners and other entities oppose lake expansion, arguing

that it would erode agricultural activity that supports the region’s economy and the

county’s tax base.101 There are also concerns that the purchase of Barnes Ranch is

being considered without a corresponding management plan.102

(...continued)

Improved (March 2005), GAO-05-283, p. 32. (Hereafter referred to as GAO Report 2005)

GAO Report 2005, p. 33.

U.S. Dept. of the Interior, Bureau of Reclamation, Klamath Basin Area Office, Issue Book

(July 2004), p. 4.

The property was appraised in 2003 and 2004 at $4.6 to $7.0 million dollars.

FY2006 Dept. of Interior and Related Agencies Appropriations Act, P.L. 109-54.

Conference report, H.Rept. 109-188 (July 26, 2005) p. 79.

100

GAO Report 2005, p. 36.

101

Letter from the Klamath County Commissioners to the U.S. Fish and Wildlife Service

on May 12, 2005, available July 11, 2005 at

[http://www.klamathbasincrisis.org/letters/kccommissionersbarnes051205.htm].

102

Letter from the Klamath Water Users Association to the U.S. Fish and Wildlife Service

(continued...)

CRS-23

Offstream storage is also being examined in the Upper Basin, although the

region’s terrain is not generally favorable for usual storage reservoirs. In particular,

attention has centered on Long Lake Valley, located southwest of Upper Klamath

Lake. “According to Reclamation, converting Long Lake Valley into a reservoir

could yield up to 250,000 acre-feet of water, with a depth of 250 to 300 feet when

full.”103 Storage at this site could provide flows to Upper Klamath Lake or the

Klamath River during times of shortage. These flows would likely be cooler — and

thus more beneficial to fish, particularly coho salmon — than additional water

available from Upper Klamath Lake.

As with options to expand Upper Klamath Lake, however, there are

uncertainties associated with developing storage at Long Lake. Storage would

depend on the availability of spring spills and the environmental impacts of diverting

flows to this offstream storage site are unclear. It is also unclear whether the geology

of Long Lake would provide a good barrier to prevent leakage. While Reclamation’s

initial examination of the Valley’s floor is promising, investigations of the Valley’s

walls are still underway. If these studies suggest that the valley’s walls and floors are

sufficiently impermeable, then Reclamation may move ahead with a full feasibility

study. Such a study, however, would not begin until a funding plan has been

established. According to GAO, “Reclamation estimates that a feasibility study

would take three years to complete and would cost approximately $12 million.

Subsequently, reservoir construction funds would need to be obtained. There are no

reliable estimates available, but Reclamation’s most recent projection of construction

costs is approximately $350 million, not including real estate acquisition costs. The

Long Lake development would take at least 10 years to complete, which means that

Long Lake would not address any immediate water demand issues in the Klamath

Basin.”104

Water Banks. While efforts are underway to create a more permanent source

of water, water banks are being used to free up water for instream uses. During the

water shortage of 2001, Reclamation initiated the Groundwater Purchase Program

(GPP),105 a water bank to buy water for fish and wildlife.106 Through this program,

Reclamation purchased approximately 50,091 af of water at an average cost of

$35.61 per af.

This water bank concept was incorporated into NMFS’ May 2002 Biological

Opinion. The Opinion stated that Reclamation could avoid jeopardizing the

continued existence of the coho salmon if, among other actions, it created a water

102

(...continued)

on May 11, 2005, available July 11, 2005 at

[http://www.klamathbasincrisis.org/storage/barnescommentskwua051605.htm].

103

GAO Report 2005, p. 37.

104

GAO Report 2005, p. 39.

105

Reclamation’s water bank website is at [http://www.usbr.gov/mp/kbao/pilot_water_bank

/index.html], available on July 29, 2005.

106

Washington Dept. of Ecology, Analysis of Water Banks in the Western United States

(July 2004). Available at [http://www.ecy.wa.gov/pubs/0411011.pdf] on Feb. 21, 2005.

CRS-24

bank.107 Pursuant to this Biological Opinion, Reclamation’s water bank could help

ensure sufficient flows from Keno Dam and the Lost River for coho salmon.

Following the release of the Biological Opinion, Reclamation stated that it would

work with water users to obtain 20,000 af for its water bank in 2002. The amount of

water needed for the water bank increases through 2012. Under the Biological

Opinion, Reclamation would bank 50,000 af in 2003, 75,000 af in 2004 and 100,000

af in 2005 through 2012. 100,000 af is approximately 6% of the total annual flow

through Iron Gate Dam (1,581,000 af).108

To achieve these goals, Reclamation operates two pilot water bank programs:

dryland operations and groundwater pumping or groundwater substitution. Under the

Dryland Operations program,109 Reclamation accepts bids from eligible farmers110

who are willing to forgo irrigated agriculture on their lands. Cost is the primary

selection criteria, but other factors are also considered. Under the Groundwater

Pumping and Groundwater Substitution programs,111 eligible farmers can bid to

irrigate their lands with groundwater from their own wells (groundwater substitution)

or pump groundwater to the river (groundwater pumping). Once land is accepted

into the pilot program, Reclamation pays the landowner for the associated water

rights for that year and then releases water downstream that it would otherwise pump

to farmers from Upper Klamath Lake. To date, Reclamation has used this water bank

primarily to increase instream flows during the spring runoff.

While Reclamation’s water bank is one of the few activities that actually makes

water available for instream uses, it may not be a long-term solution. In particular,

the water-bank may be difficult to maintain because of its substantial annual cost.

As shown in Table 1, Reclamation paid more than $12 million for water in the last

three years. Continuing the program is expected to cost an additional $7.6 million

per year, excluding administrative costs.112 Therefore, budget watchdogs and some

environmental organizations argue that tax dollars would be better spent to purchase

agricultural lands, thereby permanently reducing this source of demand for irrigation

water. (See “Land Retirement,” below.)

107

U.S. Dept. of Commerce, National Marine Fisheries Service (NOAA), Biological

Opinion, Klamath Project Operations (May 2002). Available on Feb. 21, 2005 at

[http://www.usbr.gov/mp/mp150/envdocs/kbao/KpopBO2002finalMay31.pdf].

108

2004 NRC Report, p. 52.

109

U.S. Dept. of the Interior, Bureau of Reclamation, “2nd Call Dryland Operations

Instructions.” Available on Feb. 21, 2005 at

[http://www.usbr.gov/mp/kbao/pilot_water_bank/docs/2005_Dryland_Operation_2nd_Call_

Instructions_and_App.pdf].

110

This program is limited to those farmers located above Keno Dam who do not operate

federal lease lands or lands under temporary surplus water contracts. Also, they must have

at least 20 contiguous acres.

111

U.S. Dept. of the Interior, Bureau of Reclamation, “Groundwater Operations

Instructions.” Available on Feb. 21, 2005 at

[http://www.usbr.gov/mp/kbao/pilot_water_bank/docs/2005_Groundwater_Operation_A

pplication_peg.pdf]. Hereafter referred to as “Groundwater Operations Instructions.”

112

“Groundwater Operations Instructions,” p. 16.

CRS-25

Certain subsets of the water bank program raise additional concerns. For

example, it is difficult to gauge the amount of water Reclamation receives from

dryland farming and crop idling. Reclamation estimates the amount of water that

would otherwise be demanded, but it has reduced its estimate from 5 af in 2003 to

2 af in 2005. The actual amount received varies depending on specific factors, such

as weather and crop types.113 While it is difficult to measure the amount of water

stored in the reservoir because of the water bank, the GAO found that Reclamation

met its obligations in terms of in-stream releases.114 Groundwater pumping is easier

to measure, but there are concerns that it could lower the water table. The U.S.

Geological Survey (USGS), found that the water level in some wells near pumping

centers declined 10 to 20 feet during the 2004 irrigation season, while wells more

distant from pumping centers — and thereby more likely to be affected by climate

than pumping — dropped 1 to 3 feet.115 Furthermore, some entities oppose paying

farmers to pump cool, clean groundwater onto crops so that warm nutrient-loaded

water can be available for instream flows.

Table 1. Reclamation’s Water Bank Expenditures, FY2002-2004

Expenditures

FY2002

FY2003

FY2004

Total

Groundwater

substitution or

pumping contracts

$1,000,000

$1,788,711

$4,009,451

$6,798,162

$2,700,789

$637,258

$3,338,047

Klamath Basin

Rangeland Trust

contracts for offProject crop idling

$948,300

$690,221

$1,638,521

Administration

$2,479

$175,233

$255,119

$432,831

Other

$10,215

$22,213

$144,785

$177,213

$1,960,994 $4,686,946

$5,736,834

$12,384,774

Crop idling contracts

(Dryland Operations)

Total

Source: U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its Water

Bank Obligations, but Information Provided to Water Bank Stakeholders Could Be Improved (March

2005), GAO-05-283.

Dollar amounts are not adjusted for inflation.

Land Retirement. Retiring land from production is another possible

mechanism for decreasing the consumptive use of Upper Klamath water. According

113

GAO Report 2005, p. 26.

114

GAO Report 2005, p. 26.

115

U.S. Dept. of the Interior, Geological Survey, Assessment of the Klamath Project Pilot

Water Bank: A Review from a Hydrologic Perspective (May 3 2005), p. 32.

CRS-26

to GAO, roughly 50,000 acres of land — approximately 9%116 of the Upper Basin’s

irrigated acreage — would need to be retired to meet water bank requirements. This

land could cost $15 to $150 million to purchase.117 While some entities advocate this

alternative, and argue that removing the Basin’s poorest quality land from production

would have little effect on agricultural output, the agricultural community is

generally opposed to any permanent decrease in farmed acreage. They argue that

removing land from production would harm the region’s agricultural economy and

would set a bad precedent for future water decisions.

Groundwater Pumping. Following the shortage of surface water in 2001,

“there is broad interest in exploring the use of ground water to augment or replace

surface water for certain uses, and to augment stream flows,”118 and the rate of well

drilling appears to be increasing throughout the Basin. Between 2001 through 2003,

124 irrigation wells were drilled, up from 14 in the previous three years.

Furthermore, Reclamation relied heavily on groundwater pumping to meet its 2004

water bank targets. In that year, Reclamation obtained nearly 70% (approximately

60,000 af) of its deliveries by pumping groundwater.

While drawing groundwater can help reduce water shortages during times of

drought, the longer-term impact of groundwater pumping on the region’s aquifers and

potential stream flows is not clear. To gain a better understanding of the groundwater

flow system and its response to proposed ground-water development, the USGS,

along with the Oregon Water Resources Department, began the Upper Klamath Basin

Ground-Water Study in 1998.119 The study is expected to be substantially completed

in 2005.120 In a study focused on the water bank, the USGS concluded that

groundwater pumping has increased in recent years and that increased pumping has

affected the water table. Specifically, the USGS found that increased pumping has

caused well interference, seasonal water-level declines of up to 20 feet, and year-toyear declines of up to 8 feet.121 However, these effects vary throughout the Upper

Basin and the long term consequences of pumping at 2003 and 2004 rates are

unclear.

Fish Passage and Water Quality

While increasing summer water supplies in the Upper Basin is likely to be

important, it is only one component of the solution for the Basin’s endangered fish

116

According to the 2004 NRC Report (p. 80) there were 541,958 acres of irrigated land in

the Upper Basin as of 1997. They estimate that total agricultural land in the Upper Basin

is 2,005,206 acres as of 1997.

117

GAO Report 2005, p. 31-32.

118

U.S. Geological Survey (USGS) Upper Klamath Basin Ground-Water Study, available

June 9, 2005 at [http://or.water.usgs.gov/projs_dir/or180].

119

USGS Upper Klamath Basin Ground-Water Study.

120

GAO Report 2005, p. 28.

121

United States Geological Survey, Assessment of the Klamath Project Pilot Water Bank:

A Review from a Hydrologic Perspective (May 3 2005), p. 33.

CRS-27

and the communities those fish support. Improving fish passage and water quality

are also seen as key to fisheries restoration.

Fish Passage: Dam Operations and Removal. Downstream of

Reclamation’s Link River Dam, five major dams122 and seven powerhouses were

constructed on the Klamath River and Fall Creek. (See Figure 1.) PacifiCorp, a

subsidiary of Scottish Power, operates these facilities which have a combined

capacity of 151 megawatts123 and produce approximately 757,000 megawatt hours

(mWh) of electricity per year.124

While these facilities provide power benefits, they also generate costs. Licensed

by the Federal Power Commission — predecessor to the Federal Energy Regulatory

Commission (FERC) — in 1956, before modern environmental requirements, only

J.C. Boyle Dam has downstream fish passage facilities.125 Without fish passage

structures, the four lowest dams block salmon, steelhead, Pacific lamprey and other

species from accessing more than 350 miles of habitat.

The FERC license (FERC Project No. 2082) for these dams is set to expire in

2006, and fish considerations have become a major subject of the relicensing

proceeding.126 In their formal comments, environmental organizations127 have stated

that fish passage should be a minimum condition of relicensing. In its final license

application, PacifiCorp proposes adding fishways at Fall Creek and Spring Creek

powerhouses, but not at 4 of the Project’s dams.128 In addition, PacifiCorp proposes

a number of project modifications to benefit fisheries. Ultimately, FERC and natural

resource agencies will determine what fishway prescriptions will be included in the

FERC license. However, PacifiCorp is currently in closed-door negotiations with

122

Keno Dam, J.C. Boyle Dam, Copco Dam No. 1, Copco Dam No. 2, and Iron Gate Dam.

PacifiCorp also operates a facility at Reclamation’s Link River Dam; see

[http://www.pacificorp.com/File/File35473.pdf] visited on Feb. 24, 2005.

123

These facilities account for 1.3% of PacifiCorp’s total generation capacity (84,195 MW).

See [http://www.pacificorp.com/File/File46511.pdf] on Feb. 15, 2005.

124

According to PacifiCorp, this is enough power to supply an estimated 69,500 homes.

Relicensing Presentation available at [http://www.pacificorp.com/File/File1010.pdf] on Feb.

15, 2005.

125

Pacificorp, “Fish Passage Planning and Restoration,” available on Feb. 24, 2005, at

[http://www.pacificorp.com/File/File35473.pdf]. Originally licensed to the California

Oregon Power Company.

126

For more information on the FERC relicensing process see CRS Report RL31903,

Relicensing of Non-Federal Hydroelectric Projects: Background and Procedural Reform

Issues, by (name redacted).

127

See, for example “American Rivers, California Trout, Trout Unlimited, and World

Wildlife Fund, Comments on NEPA Scoping Document 1, Klamath Hydroelectric Project,

FERC No. 2082-027” Federal Energy Regulatory Commission Submital 20040722-5044

(July 22, 2004).

128

PacifiCorp, Final License Application, Klamath Hydroelectric Project (FERC Project

No. 2082), Available at [http://www.pacificorp.com/Article/Article28613.html] on Mar. 14,

2005. See “Executive Summary,” p. 4-17 to 4-20.

CRS-28

these agencies and other entities to develop a settlement agreement, as part of the

FERC licensing process. An agreement could be reached by the fall of 2005.129

Further complicating matters is a proposal by another energy company to purchase

PacifiCorps’ Klamath River dams.

Dams have also become part of the broader restoration debate. In its 2003

report, the NRC recommended studying the removal of the Project’s Iron Gate

Dam.130 While PacifiCorp has not studied this option as part of its relicensing

application, a study by G&G Associates on behalf of American Rivers, produced

rough estimates of the cost of decommissioning.131 Based on these estimates, some

environmental organizations argue that removal is feasible and less expensive than

adding fishways. The Klamath Tribes, who also support dam removal, filed a $1

billion suit against PacifiCorp in May 2004, for damages associated with the loss of

salmon in the Klamath Basin.

While PacifiCorp’s dams have been the focus of relicensing discussions, the

NRC recommended examining the removal of Dwinnell Dam on the Shasta River

and the Chiloquin Dam on the Sprague River.132 Discussion has focused primarily

on Chiloquin Dam, which blocks trout and endangered sucker fish from 70 miles of

habitat. The NRC report states that “removal of Chiloquin dam has a high priority

and should be pursued aggressively.”133 A broad array of entities, including the

Klamath Water Users Association,134 support the removal of Chiloquin Dam and

activities are underway to study this option. In FY2004, Congress appropriated up

to $1 million to study the removal. Phase I and II of a preliminary study have been

completed to evaluate dam removal and fish ladder construction options. The

President’s FY2006 budget request included $2.1 million to remove Chiloquin

Dam,135 but it was not included in the final FY2006 Interior appropriations act.

Water Quality. While there has been much focus on the availability of Project

water, water quality is also an issue in the Klamath Basin. Two aspects of water

quality — nutrient loads and temperature — are of primary interest due to their effect

on fish survival. For example, sucker fish have died from low oxygen levels

(hypoxia) in Upper Klamath Lake, and high water temperatures have contributed to

fish kills in the Lower Basin. According to the Oregon Department of Environmental

129

See PacifiCorp fact sheet on settlement negotiations, available July 11, 2005, at

[http://www.pacificorp.com/File/File39739.pdf].

130

2004 NRC Report, p. 223.

131

G&G Associates, Klamath River Dam Removal Investigation: J.C. Boyle Dam, Copco

1 Dam, Copco 2 Dam and Iron Gate Dam (July 2003).

132

2004 NRC Report, p. 223.

133

2004 NRC Report, p. 223.

134

Klamath Water Users Association, Weekly Update (Nov. 7, 2003), available at [http://

www.klamathbasincrisis.org/articles/KWUA-Newsletter/NL-2003/nl-110703.htm] on July

29, 2005.

135

U.S. Dept. of the Interior, Department of the Interior Budget in Brief, Bureau Highlights,

Bureau of Indian Affairs (Washington, DC: GPA, Feb. 2005), p. BH-87.

CRS-29

Quality (DEQ), federally listed salmon “are highly sensitive to warm stream

temperatures.”136 Heat from human activities is defined as a pollutant that comes

from two sources: land use changes that increase solar radiation heat loading and heat

from the direct discharge of warm water. Nutrient loads are also an issue throughout

the Klamath Basin. Erosion and runoff from land use practices related to agriculture,

forestry, and mining are primary sources of nutrients.137

To address temperature and sediment problems in the Klamath River and some

of its tributaries, California’s North Coast Regional Board and Oregon’s Department

of Environmental Quality are working together and with the EPA to develop

guidelines for the amount of heat or nutrients that the waters can receive and still

meet water quality standards.138 These guidelines are known as Total Maximum

Daily Loads or TMDLs.139 A TMDL proposal is expected for the Klamath River and

the Lost River by the end of 2005.140

Habitat Restoration. While the TMDL’s may affect the discharge of

nutrients and heated water, they do not directly address land use practices that

contribute to erosion or increased solar radiation. To address these issues, a number

of entities are undertaking specific projects to improve water quality and restore

habitat. For example, the U.S. Department of Agriculture’s Natural Resources

Conservation Service (NRCS) has a Work Plan for Adaptive Management for the

Klamath Basin to mitigate the effects of drought on agriculture.141 The core

objectives of this program are: (1) decreasing water demand; (2) increasing water

storage; (3) improving water quality; and (4) developing fish and wildlife habitat.

Under this plan and the 2002 Farm Bill, NRCS expected to allocate approximately

$76 million in technical and financial assistance to the Basin’s private landowners

through 2007.142 Among other activities, this funding could help to implement “over

136

Oregon Dept. of Environmental Quality, Upper Klamath Lake Drainage Total Maximum

Daily Load (TMDL) and Water Quality Management Plan (WQMP) (May 2002), p. ii.

137

2004 NRC Report, p. 304.

138

Oregon Dept. of Environmental Quality, “Fact Sheet — January 2004: Lost River and

Klamath River TMDLs.” Available June 7, 2005, at [http://www.deq.state.or.us/wq/wqfact/

LostRivKlamathRivTMDLFactsheet.pdf].

139

For more information, see CRS Report 97-831, Clean Water Act and Total Maximum

Daily Loads (TMDLs) of Pollutants.

140

Oregon Dept. of Environmental Quality, “Fact Sheet — November 2004: Status of Lost

River and Klamath River TMDLs,” Available June 7, 2005, at [http://www.deq.state.or.us/

wq/wqfact/LostRivKlamathRivTMDLStatusFactsheet.pdf].

141

U.S. Dept. of Agriculture, Natural Resources Conservation Service, Work Plan for

Adaptive Management, Klamath River Basin, Oregon and California (May 19, 2004).

Available Aug. 29, 2005, at [http://www.nrcs.usda.gov/feature/klamath/images/

AMPMay19_2004.pdf].

142

Klamath Water Users Association, Summary of Environmental Restoration and Water

Conservation Efforts Undertaken by Klamath Water Users Association (KWUA) &

Landowners. Available June 10, 2005, at [http://www.kwua.org/conservation/10pgsummary

083004.htm]. Hereafter referred to as KWUA Summary.

CRS-30

27,600 acres of wetland, wildlife, and conservation buffer enhancements.”143 During

FY2002 and 2003, the NRCS reported 1,828 acres of conservation buffers among

their on-farm accomplishments.144

The FWS also promotes watershed restoration through the Klamath River Basin

Conservation Area Restoration Program based on recommendations from the

Klamath River Basin Fisheries Task Force. Through FY2006, when it expires, this

program is authorized at $1 million per year. FWS also tries to meet the

recommendations of the Task Force using funds allocated to the department’s Jobs

in the Woods and Partners for Fish and Wildlife Programs.145 Furthermore, the U.S.

Forest Service, which administers 54% of the land in the Basin,146 is undertaking

riparian restoration projects and other activities that could benefit the fisheries.147

While these activities are helping to restore fish habitat throughout the Basin, it is

unclear what affect the projects have, or will have, on fish survival and reproduction.

Salmon Fisheries: Other Activities

As described above, there are many activities taking place to develop sources

of instream flows and improve fisheries habitat. In addition, there are activities

taking place to increase the number of juvenile salmon and spawning adults.

Fish Hatcheries. Dam construction and land use changes have reduced the

amount of viable spawning habitat in the Klamath Basin. Klamath hatcheries for

coho, Chinook, and steelhead began as early as 1910 as a way to augment fish stocks.

The two primary hatcheries in the Klamath Basin are the Trinity River Hatchery,

built in 1963, and the Iron Gate Hatchery, built in 1966.148 (See Figure 3.) These

hatcheries augment fish populations by hatching and raising juveniles for release

back into the river. Jointly, the Trinity and Iron Gate hatcheries release 576,000 coho

per year, along with 7-12 million Chinook and 1 million steelhead.149 Like native or

wild fish, the hatchery fish migrate to the ocean and later return to the river

(hatchery), to spawn.

Given the number of hatchery-released fish, there is debate as to whether the

coho salmon should be listed as endangered. On September 10, 2001, a federal

143

KWUA Summary, summary.

144

KWUA Summary, p. 7.

145

U.S. Dept. of the Interior, Fish and Wildlife Service, Klamath River Basin Conservation

Area Restoration Program, FY2002 Annual Report.

146

U.S. Dept. of Agriculture, Forest Service, Briefing Paper: Restoration Activities in the

Klamath Basin. Available June 10, 2005, at

[http://www.fs.fed.us/r6/frewin/projects/klamathbasin/briefing.shtml].

147

For U.S. Forest Service projects in the region, see [http://www.fs.fed.us/sopa/state-level.

php?or] available June 10, 2005.

148

2004 NRC Report, p. 262-268.

149

2004 NRC Report, p. 262-268.

CRS-31

district court in Alsea Valley Alliance v. Daley150 struck down the listing of the

Oregon Coast Evolutionary Significant Unit (ESU) coho salmon (i.e., the coastal

population north of the Klamath River drainage) as threatened. The court found that,

while NMFS treated hatchery and wild salmon alike for some purposes and evidence

was before the court to the effect that the two were genetically identical, NMFS

considered only the wild salmon in declaring the ESU to be threatened. The court

set aside the listing decision as arbitrary and capricious, and remanded the matter to

NMFS for further consideration consistent with the opinion. The government did not

appeal the ruling, announcing instead that it would review 23 other listings of salmon

populations in light of the court’s opinion. An environmental organization was

allowed to intervene for purposes of appeal and the 9th Circuit stayed the de-listing

pending appeal. The appeal was dismissed and the stay dissolved by the 9th Circuit

Court of Appeals.151

Although NMFS has retained the listing of the Klamath River coho as

threatened,152 concerns exist as to what effect hatchery fish will have on the overall

population. In particular, there are concerns that hatchery fish harm wild

populations. Specifically, some fishery biologists are concerned that a preponderance

of hatchery fish in a population (i.e., possibly less genetic diversity) could weaken

that population’s ability to respond to a diversity of environmental stresses and

conditions. According to the NRC, hatchery juveniles tend to be larger than their

wild counterparts. These larger juveniles could harm the wild populations through

competition for food, predation, or injury.153 In addition, there have been concerns

that hatchery fish could carry disease to the wild population and reduce genetic

variation.

Fishing Restrictions for Salmon. According to the 2004 NRC Report,

overharvesting may have contributed to the initial decline in the Klamath fisheries.

In 1986, to benefit the fisheries, Congress funded a 20-year fisheries restoration plan,

and authorized a Klamath River Basin Fisheries Task Force to implement the

program.154 Various groups have attempted to negotiate fisheries management and

harvest agreements, with differing opinions on how many adult Chinook salmon

should be permitted to spawn and how large a commercial harvest should be allowed.

Because the Southern Oregon/Northern California Coasts population of coho salmon

is listed as threatened under the ESA, the commercial harvest of coho salmon have

been prohibited to protect these fish. In addition, the Chinook salmon harvest has

been restricted in northern California and southern Oregon marine waters for several

years to allow the Klamath River to attain the Pacific Fishery Management Council’s

spawning escapement goals.

150

2001 U.S. Dist. LEXIS 14443 (D. Or. 2001).

151

Alsea Valley Alliance, Et al. v. U.S. Dept. of Commerce, 38 F.3d 1181 (9th Cir. 2004),

U.S. App., Lexis 3402, 57 ERC (BNA) 2094.

152

The Klamath River coho are a part of the Southern Oregon/ Northern California ESU of

coho salmon.

153

2004 NRC Report

154

P.L. 99-552 (16 U.S.C. §460ss, et seq).

CRS-32

Sucker Management

Chiloquin Dam. Fish passage at Chiloquin Dam on the Sprague River is a

concern as this dam, although equipped with a fish ladder, continues to block

shortnose and Lost River suckers from an estimated 70-80% of their spawning

habitat.155 Section 10905 of P.L. 107-171, the Farm Security and Rural Investment

Act of 2002 (the 2002 Farm Bill), authorized the Secretary of the Interior to study of

the feasibility of providing upstream and downstream passage for fish at the

Chiloquin Dam. More recently, attention has turned to complete removal of the dam.

Toward this effort, the Bureau of Indian Affairs has assumed leadership with the

Bureau of Reclamation doing engineering and design work If this dam is removed,

additional upstream habitat restoration is anticipated.

Fish Screens. Stranding of suckers in the irrigation canals of the Klamath

Reclamation Project has been a source of contention between irrigators and the

Klamath Tribes. In some years, as many as 10,000 suckers were manually seized

from irrigation canals and returned to Upper Klamath Lake. Some of these problems

were alleviated in early 2003 when the construction of self-cleaning fish screens was

completed at the head-gates of the A Canal, where upon intercepted fish are shunted

through a bypass pipe and pumped back into Upper Klamath Lake above the Link

River Dam.156 The construction of these fish screens was partially financed by $5

million of the $15 million in FY2002 federal appropriations for the Bureau of

Reclamation’s Klamath Project included in P.L. 107-66; the total project cost was

estimated as close to $14 million.157

Other Activities. The Bureau of Reclamation is reviewing ways to improve

fish passage at other dams that may block sucker movement.158

Planning and Coordination

Following the events of 2001 and 2002, emotions have run high throughout the

Basin. Over the years, the Tribes have lost much of their land and have seen a

primary food source decline precipitously. The Upper Basin’s agricultural

community was built on the promise of water and faced severe economic hardship

with the reduction in that supply in 2001. The fishing community has also faced

economic hardships as declines in the Klamath fisheries have resulted in harvest

155

Statement of Christine Karas, Bureau of Reclamation, U.S. Dept. of the Interior at

Klamath River Basin Fisheries Task Force meeting, June 23-34, 2004, at Klamath Falls, OR.

156

Dylan Darling, “Fish Screened From Canal Danger,” Klamath Falls Herald and News

(Sept. 20, 2004), and “Screens accomplish at least one big goal,” Klamath Falls Herald and

News (Nov. 7, 2004).

157

Testimony of Sue Ellen Woodridge, U.S. Dept. of the Interior, before the House

Committee on Resources on Mar. 13, 2002.

158

For example, see U.S. Dept. of the Interior, Bureau of Reclamation, Link River Dam

Fishway Replacement Feasibility Study (May 2001). Available Aug. 5, 2005, at

[http://www.usbr.gov/pmts/hydraulics_lab/bmefford/Link%20River%20Fishway.pdf].

CRS-33

prohibitions and catch limits for many years prior to 2001. These hardships have

resulted in communities with strong feelings and a personal stake in how the Basin’s

water issues are resolved.

Given the potential for difficulty with communication and coordination among

so many entities, a number of questions are raised. What does the law require? Is

there sufficient coordination to resolve the Basin’s issues? Are federal agencies

duplicating efforts? Are federal monies being used effectively? While this section

does not answer these difficult questions, it provides a glimpse into the Basin’s

coordination activities.

As acknowledged by the panel in a July 2004 field hearing held by the House

Committee on Resources in Klamath Falls, there is no one entity that represents the

Basin and has the authority to resolve its issues.159 Rather, the Basin has more than

25 inter-agency and regional working groups.160 These groups reflect the complexity

of a Basin that lies in two states, and crosses tribal, federal, state, local, and private

lands.

Table 2. Selected Federal and Basin Groups

in the Klamath River Basin

Name

Focus and Jurisdiction

Federal and State Entities

Klamath River

Basin

Compact

Commission

Focus: Promoting comprehensive management of Klamath Basin water for a

broad spectrum of purposes as outlined in the Klamath River Basin

Compact of 1957. Furthering intergovernmental cooperation.

Membership: 3 members — 1 appointed by the President, a representative

each of Oregon and of California.

Region of Jurisdiction: Upper and Lower Basins

Authority: P.L. 85-222, Article IV, Klamath River Basin Compact.

When created: 1954, congressional consent in 1957.

Klamath River

Basin Federal

Working

Group

Focus: Advise the President on long-term solutions to enhance water

quantity and quality and address other complex issues in the Klamath

River Basin.

Membership: Chairman of the Council on Environmental Quality, and the

Secretaries of the Interior, Agriculture, and Commerce, or their designees.

Region of Jurisdiction: Upper and Lower Basins

Authority: Presidential memorandum, available at [http://www.whitehouse.

gov/news/releases/2002/03/20020301-10.html].

When created: Mar. 2002

159

U.S. House of Representatives, Committee on Resources, Subcommittee on Water and

Power, Oversight Hearing on the Endangered Species Act 30 Years Later: The Klamath

Project (Klamath Falls, OR; July 7, 2004), Serial No. 108-104.

160

For more information on these groups, see [http://www.kbef.org/groups/], available on

July 26, 2005.

CRS-34

Name

Focus and Jurisdiction

State and

Federal

Klamath Basin

Coordination

Group

Focus: Increase coordination among federal and state agencies, identify

short-term actions to improve conditions in the Basin, and develop and

implement the Klamath Basin Conservation Implementation Program

concept.

Membership: representatives from the States of Oregon and California, the

Departments of Interior, Agriculture, Commerce, and U.S. Environmental

Protection Agency.

Region of Jurisdiction: Upper and Lower Basins.

Authority: Inter-agency agreement available at [http://www.doi.gov/news/

klamathagreement.pdf].

When created: Oct. 2004

Klamath River

Basin

Fisheries Task

Force

Focus: Restoring the Klamath River fisheries (anadromous)

Membership: 16-person federal advisory committee with representation

from the commercial fishing industry; sportfishing community; the Yurok,

Hoopa, and Karuk Tribes; four northern California counties; California

Dept. of Fish and Game; Oregon Dept. of Fish and Wildlife; National

Marine Fisheries Service; the U.S. Dept. of Agriculture; and the U.S. Dept.

of the Interior.

Region of Jurisdiction: Klamath River Basin Conservation Area, as defined

in P.L. 99-552

Authority: P.L.99-552, §4 (16 U.S.C. 460ss-3).

When created: 1986.

Sunsets: 2006.

Klamath

Fishery

Management

Council

Focus: Manage harvests and ensure viable population of anadromous fish in

the Klamath Basin.

Membership: 11 members that bring together commercial and recreational

fishermen, Native American tribes, and state and federal agencies.

Region of Jurisdiction: Upper and Lower Basins and related coastal waters

Authority: P.L. 99-552, §3 (16 U.S.C. 460ss-2).

When created: 1986.

Sunsets: 2006.

Klamath

Watershed

Coordination

Group

Focus: Ensuring projects proposed and funded under the Upper Klamath

Basin Working Group are consistent with other basin-wide fish and

wildlife conservation plans by drafting a cooperation agreement.

Membership: Upper Klamath Basin Working Group, Klamath River Basin

Compact Commission, Trinity Management Council, and Klamath River

Basin Fisheries Task Force.

Region of Jurisdiction: Upper and Lower Basins

Authority: Within the Oregon Resource Conservation Act (P.L. 104-208),

§201(c) requires coordination among various groups.

When created: 1996

CRS-35

Name

Focus and Jurisdiction

Regional Entities

Upper

Klamath Basin

Working

Group

(Hatfield

Group)

Focus: Developing an overall plan for enhancing ecosystem restoration,

improving economic stability, and minimizing impacts associated with

drought.

Membership: 30 people appointed by the Governor of Oregon, representing

federal, state, and local governments and agencies; the Klamath Tribes;

conservation organizations; farmers and ranchers; and industry and local

business.

Region of Jurisdiction: Upper Basin

Authority: P.L.104-333, §1024, but existed prior to this enactment; see

details in P.L.104-208 (Oregon Resource Conservation Act, 110 Stat.

3009-532)

When created: 1996

Trinity

Management

Council

Focus: Oversight and direction of Trinity River Restoration Program to

restore and maintain anadromous fisheries resources of the Trinity River

Membership: Representatives from the U.S. Fish and Wildlife Service,

Bureau of Reclamation, Forest Service, National Marine Fisheries Service,

Trinity County, Hoopa Valley Tribe, Yurok Tribe, and the State of

California.

Region of Jurisdiction: Trinity River

Authority: Within the Record of Decision for the Trinity River Restoration

Program, an implementation plan established this Council to supercede the

Trinity River Basin Fish and Wildlife Task Force (established by P.L.

98-541, 98 Stat. 2721).

When created: Dec. 2000 to supercede the Task Force established in Oct.

1984

Federal and State Coordination. Efforts to increase coordination among

federal and state entities working in the Klamath Basin are ongoing. The Klamath

River Compact Act of 1957161 established the Klamath River Basin Compact

Commission with three representatives: one from Oregon, one from California, and

one federal representative appointed by the President.162 (See Table 2.) The

Commission is charged with administering the Klamath River Basin Compact Act

to facilitate and promote “the use of water for domestic purposes; the development

of lands by irrigation and other means; the protection and enhancement of fish,

wildlife and recreational resources; the use of water for industrial purposes and

hydroelectric power production; and the use and control of water for navigation and

flood prevention.”163 In recent years, this entity has been fairly inactive beyond

supporting the Chadwick workshops (described below), signing a Memorandum of

Understanding with Reclamation to study water storage, and holding public meetings

on water quality.164

161

Article IX, §7 (P.L.85-222, 71 stat.497). For more information see [http://www.nd.water.

ca.gov/IndexFiles/Partnerships/KRCC/index.cfm] available July 26, 2005.

162

President George W. Bush has not replaced the chair of this commission through a new

appointment.

163

P.L.85-222, 71 stat.497.

164

Personal communication with Alice Killam, chair of the Klamath Basin Compact

(continued...)

CRS-36

On March 1, 2002, President Bush announced the formation of the Klamath

River Basin Federal Working Group,165 a high-level interdepartmental group

comprised of the Secretary of Agriculture, the Secretary of the Interior, the Secretary

of Commerce, and the Chair of the Council on Environmental Quality. The group

held its first meeting March 11, 2002, and announced measures to improve water

quality and availability — including $1.6 million in Department of Agriculture funds

to deliver conservation, technical, and financial assistance for irrigation water

management, increase filter strip use, and create wildlife habitat — an extension of

the deadline for enrolling in the Emergency Conservation Program; stream

improvement projects in the Winema-Fremont National Forest; completion of

Biological Opinions for the operation of the Project on a highest priority basis; and

the acceleration of fish screen construction to minimize the number of fish entering

the A Canal (the major water diversion from Upper Klamath Lake). While this entity

reached some of its objectives, including completion of the new A Canal fish screens

on April 1, 2003, it appears that the group has become less active in recent years.

Efforts to coordinate continue. In October 2004, four federal agencies166 and the

States of Oregon and California signed an agreement to form the State and Federal

Klamath Basin Coordination Group. Under the agreement, they resolved to “place

priority on their Klamath Basin activities and on their coordination and

communication with one another and with Tribal governments, local governments,

private groups and individuals” to resolve the Basin’s issues.167 While there is

general acknowledgment that coordination and information sharing has improved in

recent years, the effectiveness of this recent agreement is unknown.

Selected Regional Entities. In addition to the federal and state coordinating

groups, there are more than 15 sub-basin groups. A major non-governmental

planning entity in the Upper Basin is the Upper Klamath Basin Working Group (or

Hatfield Group).168 This entity has drafted a plan169 for the Upper Basin and is

currently sponsoring studies and restoration activities on the Sprague and Williamson

Rivers. It also works to involve private landowners in restoration activities. The

group’s 7-member science committee is helping set priorities for restoration activities

conducted through grants awarded by the U.S. Fish and Wildlife Service.

164

(...continued)

Commission, on July 1, 2005.

165

See [http://www.whitehouse.gov/news/releases/2002/03/20020301-10.html] , available

on July 26, 2005.

166

Departments of the Interior, Agriculture, Department Commerce, and U.S. Environmental

Protection Agency.

167

Klamath River Watershed Coordination Agreement (October, 2004). Available July 13,

2005, at [http://www.doi.gov/news/klamathagreement.pdf].

168

169

See [http://www.fs.fed.us/r6/frewin/projects/ukbwg/], available July 26, 2005.

Upper Klamath Basin Working Group, Crisis to Consensus — Restoration and Planning

for the Upper Klamath Basin (Aug. 2002).

CRS-37

In the Trinity River Basin, a major planning entity is the Trinity Management

Council (TMC). The TMC reports to the Secretary of the Interior and is responsible

for management and oversight of the Trinity River Restoration Program. It is

supported by several entities including a technical advisory committee, independent

review panels, and an adaptive environmental assessment and management team.

The Council makes recommendations to Reclamation regarding the timing of

instream flow releases from the Trinity River Diversion. It also works on channel

rehabilitation, sediment management, and watershed restoration activities in the

Trinity Basin.

In the Lower Basin, two major non-governmental management entities are the

Klamath River Basin Fisheries Task Force and Fisheries Management Council.170

As established in 1986, the Task Force guides the Klamath River Basin Conservation

Area Restoration Program, working by consensus to coordinate restoration planning,

fund restoration projects, and express opinions on issues affecting the Klamath

River.171 For example, the Task Force developed a long-range plan for fisheries

restoration in the Klamath River Basin Conservation Area and has been undertaking

regional restoration activities.172 The Task Force also sponsors directors for six subbasins. These directors, who also act as grant writers, raise awareness of fish needs

in the sub-basins and help to coordinate and encourage restoration activities on

private lands. The Klamath River Basin Fisheries Management Council receives

funding from the Task Force, but is a smaller entity focused on the scientific aspects

of restoration. The Council’s technical team models Klamath fish stocks and reviews

harvest and management goals. Ultimately, the Council makes recommendations to

the Pacific Fishery Management Council regarding catch limits and management

objectives for the Klamath fisheries. Authorization for both these entities sunsets in

2006.

While these entities generally operate separately, formation of a Basin-wide task

force is a topic of continual discussion. For a number of years, the Trinity

Management Council considered expanding representation to the Upper Basin, but

this proposal never came to fruition. Recent efforts focus on creating a new Basinwide entity. In particular, Reclamation has released two draft proposals for a

Klamath River Basin Conservation Implementation Program, or CIP. The CIP is

Reclamation’s response to NMFS May 2002 Biological Opinion, which directs

Reclamation to establish a Basin-wide plan for restoring the coho salmon in

consultation with stakeholders.173 However, the CIP has been met with significant

resistance. In particular, Lower Basin entities have expressed concern that an

organization managed by Reclamation would not sufficiently represent their interests.

170

For more information see [http://pacific.fws.gov/yreka/tf.htm], available July 26, 2005.

171

P.L. 99-552, §4 (16 U.S.C. 460ss-3).

172

Klamath River Basin Fisheries Task Force, Long Range Plan For The Klamath River

Basin Conservation Area Fishery Restoration Program (Jan. 1991), available July 29, 2005,

at [http://www.krisweb.com/biblio/gen_usfws_kierassoc_1991_lrp.pdf].

173

U.S. Dept. of the Interior, Bureau of Reclamation, “Cover Letter and Program

Document,” available at [http://www.usbr.gov/mp/kbao/CIP/docs/CIP-ProgramDoc.pdf] on

July 11, 2005.

CRS-38

While there is currently resistance to Reclamation’s CIP, Basin stakeholders —

including Native American tribes, farmers/irrigators, local businesses, federal, state,

and local agencies, environmental groups, and interested community members —

have been coming together through a series of three-day workshops. These Greater

Klamath Basin Stakeholders’ Workshops, or Chadwick Workshops,174 were

prompted by a session facilitated by Bob Chadwick at the Klamath Watershed

Conference of 2004.175 Following the conference, a coalition of stakeholders

initiated subsequent workshops which have been sponsored by several Basin

entities.176 These meetings, which are ongoing and sometimes draw over 100 people,

are the main focus of activity in the Basin. The purpose of these meeting is to

address three questions: (1) is there any way to deal with competing demands for

water that recovers the fish, yet sustains and enhances the rural communities, (2) can

we create fair and equitable solutions, and (3) how can we solve these problems

locally, “from the bottom up” rather than “top down.”177 The workshops are largely

focused on giving each participant the opportunity to speak and be listened to in a

supportive environment. In addition, the workshop participants develop collective

statements, including a short term purpose statement and strategies and actions for

the next year. Due to the widespread participation in these meetings, some see them

as a grassroots entity that could eventually provide support for Reclamation’s CIP,

or that could agree on an alternative plan of action.

Conclusion

While drought exacerbates water supply issues, conflicts have been continuous

in the Klamath Basin because demands are greater than current supplies. Reducing

demand has proven difficult due to the importance of water for sustaining both

irrigation and the endangered fisheries upon which tribes and commercial fishermen

depend. However, some progress has been made since 2001 and 2002. Studies have

increased understanding of fisheries needs, groundwater aquifers, and the geology of

storage sites. Ecosystem restoration projects are slowly improving habitat and water

quality. Further, activities such as the Chadwick meetings appear to be increasing

communication and building mutual understanding throughout the Basin.

While some progress has been made, a number of uncertainties remain. In July

of 2005, another fish kill occurred, thus demonstrating that the long-term health of

the fishery is still in doubt. It also is unclear whether sufficient steps have been taken

to prevent another agricultural crisis. Additional questions include (1) is there

sufficient coordination and understanding to develop a basin-wide management plan,

174

People refer to the workshops by the name of mediator, Bob Chadwick, who facilitates

the workshops.

175

“Klamath Watershed Conference: Communities, Resources and Restoration — Putting

What We Know to Work,” held Feb. 26-26, 2004 in Klamath Falls, OR.

176

Sponsors include the Klamath Compact Commission, Oregon State University Extension

(Klamath Falls),and the Upper Klamath Basin Working Group.

177

Personal communication on Sept. 20, 2005 with Lori Fernlund, Oregon State University.

CRS-39

and (2) what should be the federal role in facilitating and implementing such an

agreement? Given the number of issues, it is likely that some level of conflict will

persist, and given the presence of the federal irrigation project and federal

responsibility under the ESA, CWA, and other federal laws, significant federal issues

and involvement will continue.

It is also likely that Congress could be faced with a number of decisions related

to the Klamath Basin. Perhaps most pressing is the decision of whether to

reauthorize the Klamath River Basin Conservation Area Restoration Program (P.L.

99-552), which sunsets in 2006, and which authorizes activities of the Klamath

Fishery Management Council and the Klamath Basin Fisheries Task Force. Further,

there is the question of how much, if any, money to appropriate for Klamath Basin

activities. In the near-term, Congress will likely be asked to continue funding habitat

restoration activities, Reclamation’s water bank, and additional studies. Further,

Congress may be faced with decisions over whether to authorize and provide

appropriations for new or expanded storage, dam removal projects, and land

purchases.

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