A History of the Klamath Basin Crisis
BACKGROUND: Under the 1902 Reclamation Act, the States of California and Oregon ceded lake and wetlands areas of the Klamath Basin to the federal government for the purpose of draining and "reclaiming" the land for agricultural homesteading. At that time, the United States declared that it would appropriate all unappropriated water use rights in the Basin for use by the Klamath Project. Under Section 8 of the Reclamation Act, these water use rights would attach to the land irrigated as an "appurtenance" or appendage to the land. The Act also stated that the appropriation would be in conformance with State water law. Under such laws, the water had to be put to beneficial use within the mapped area of the Klamath Project. This is further affirmed in Title 43, Chapter 12, Sub-chapter 1, Section 372 which states: "Water right as appurtenant to land and extent of right The right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."
Prior to commencement of the Project, historical wetlands totaled around 359,000 acres. Many, such as Clear Lake, were not hydrologically connected to the Klamath River and served as evaporation sinks, consuming over a million-acre feet of water annually. As time went on, the land was drained in phases and offered for homesteads. Many of these homesteads were awarded to WWI and WWII veterans in lottery drawings. Currently, the Klamath Project irrigates 210,000 acres of farmland, while remaining wetlands total 141,920 acres. Canals and artificially reduced shoals have created an interconnected water delivery/drainage system that has about a 93% efficiency rate. Agriculture consumes only about 2% of Basin water resources. Together, farmers and Wildlife Refuges need about 350,000 acre feet of water
In recent years, the Klamath Project has served approximately 1,400 farmers who grow a large variety of crops including barley, oats, wheat, potatoes, sugar beets and forage. This agricultural activity fuels a $300 million ag-dependent economy throughout the Basin.
In 1957, the two States formed the Klamath Compact, to which the United States consented. This established a hierarchical priority of use for conflicting water appropriations: (a) domestic use; (b) irrigation use; (c) recreational use, including use for fish and wildlife; (d) industrial use, and (e) generation of hydroelectric power.
The reclaimed land surrounding the wetlands located in National Wildlife Refuges had been land originally intended for the creation of agricultural homesteads. This land had been used for agriculture on a lease land basis. In 1964, the Kuchel Act established the purposes of the refuge to be "dedicated to wildlife conservation...for the major purpose of waterfowl management, but with full consideration to optimum agricultural use that is consistent therewith"
"The Secretary shall, consistent with proper waterfowl management, continue present patterns of leasing.... Leases for these lands shall be at a price or prices designed to obtain the maximum leasing revenues. The leases shall provide for the growing of grain, forage and soil building crops, except that not more than 25 per centum of the total leased lands may be planted to row crops."
In 1988, the US Fish & Wildlife Service listed the shortnose and Lost River sucker fish as "endangered" under the Endangered Species Act (ESA.) In the drought year of 1992, the U.S. Fish and Wildlife Service recommended that Upper Klamath Lake be kept above a minimum elevation of 4,139.0 feet during summer months, although it allowed that the lake could drop to as low as 4,137.0 feet in four out of 10 years. For the first time in the Klamath Reclamation Projectís history, irrigation deliveries were curtailed at the end of the growing season to meet minimum lake levels.
In 1996, the Bureau of Reclamation agreed to meet certain minimum instream flows below Iron Gate Dam to protect habitat for Tribal Trust resources in anadromous fish. In 1997, Southern Oregon and Northern California Coastal Coho salmon were listed under ESA as a "threatened" species. A 1999 biological opinion from the National Marine Fisheries Service concludes Klamath Project operations would affect, but not likely jeopardize, coho.
In 2000, a controversial study using experimental technology was published by Thomas Hardy Ph.D., a Utah State University hydrologist. It called for instream flows to protect the fish far higher than those set by FERC, or those agreed to by Reclamation in 1996.
A suit was filed by environmental, tribal and fishing groups to enjoin the Bureau of Reclamation from operating the Project without a current biological opinion for the coho. Judge Sandra Armstrong subsequently ruled that the Project may not be operated without adequate flows sent downstream to protect coho salmon.
Following a declaration of severe drought for the Klamath Basin in 2001, a new biological opinion from the wildlife service for the suckers called for a minimum elevation in Upper Klamath Lake to be raised to 4,140.0 feet above sea level, with no tolerance for lower elevations in drought years. A new biological opinion based on the Hardy flow study called for increased flows below Iron Gate Dam to protect coho salmon habitat. Analysis of the studies underlying the opinions shows that requirements for the two species appropriate ALL of the water available in a normal precipitation year. In fact, in a study of historic flow data taken from the past 36 years, annual flow targets were met in only 13 of those years and monthly targets were not ever achieved. It is obvious that operations consistent with these biological opinions would rarely provide water for irrigation or Wildlife Refuges. (Perhaps farming could occur three years out of eleven.)
On April 6, 2001, the Klamath Project "water allocation decision" was announced stating that based on the biological opinions and the requirements of Endangered Species Act, there would be no water available from Upper Klamath Lake to supply the farmers of the Klamath Project. Only a small area (Langell Valley and Bonanza) would receive water from Clear Lake and Gerber Reservoirs.
A suit by the irrigators to prevent implementation of the decision failed on the basis that requirements of the Endangered Species Act supersede all other obligations of the Project.
The science is flawed. Obviously opinions that fish require well over 100% of all the water in the basin for survival are skewed. Such requirements cannot be met by natural processes and are not realistic in an historic context of the areaís hydrology.
Under the Reclamation and other Acts, the Bureau of Reclamation lacks the discretion to reallocate water resources to fish needs. The water use rights are rights appurtenant to the land that is supposed to be irrigated. The rights do not belong to the federal government. The water delivery system facilities do not belong to the federal government. Construction costs have been fully paid by the users. Also, the conditions of the original water use appropriation state that the water must be applied to beneficial use within the mapped boundaries of the Klamath Project. This precludes allocation to beneficial use below Iron Gate Dam.
The action of the Bureau of Reclamation constitutes a physical Fifth Amendment "takings" of the water use rights of the landowners within the Klamath Project. It takes the value of the water and land; the value of the water use priority under the Klamath Compact; the value of water delivery contracts; and the value of "investment backed expectations." Water users and landowners should be promptly reimbursed for the "fair market value" of what they have lost, both on a temporary and permanent basis.
The action of the Bureau of Reclamation has brought social and economic chaos to the area. The federal government has an obligation to mitigate the repercussions of its actions. Relief packages should be specially crafted to meet the real needs of families, businesses and communities in the area. Agricultural and other "disaster" programs currently in place fail to meet the needs of farmers and ranchers under current circumstances. In addition, the Counties involved will suffer a loss of real tax revenues, loss of lease land revenues and increased costs of social services.
The action of the Bureau of Reclamation is causing drastic changes in the physical environment. Naked top-soil is currently exposed to substantial wind erosion. Some irrigation should be allowed to minimize this irreparable damage. The action ignores the needs of 433 other species dependent upon the region for water and food. More than 2/3 of the migratory waterfowl of the Pacific Flyway stage in the Klamath Basin. These populations will be severely impacted, particularly in the fall. Water should be made available to minimize loss to these wildlife populations.
The Klamath Basin Crisis highlights many of the failings of the Endangered Species Act, establishing why the Act should be reformed or discarded and re-drafted.