Press Release: Federal Judge Rules Against KDD Klamath River Diversions

Klamath Drainage District headgate being used to send water to Lower Klamath National Wildlife Refuge

September 14, 2023

FOR IMMEDIATE RELEASE

Contact:

Scott White, General Manager Reagan Desmond, General Counsel
scott@klamathdrainagedistrict.org rlbd@clydesnow.com
(541) 510-6311 (541) 797-0011

FEDERAL JUDGE RULES AGAINST DISTRICT’S RIGHT TO DIVERT WATER

District concerned of species restoration implications and prepares for appeal

Klamath Falls, OR – On September 11th, a federal judge in Medford’s United States District Court ruled against the Klamath Drainage District (KDD), and entered an injunction against KDD, stating that KDD can no longer divert water from the Klamath River that has not been authorized by the United States, citing the Endangered Species Act (ESA) as its primary basis. On the same day, the same judge issued Findings and Recommendations in two other lawsuits brought by Klamath Tribes against Reclamation for ESA violations under 2021 and 2022 Klamath Project operations plans. In one case, the court found Reclamation violated the ESA in 2022 by providing farmers even a diminished supply when not all species goals could be met; in the other case, the court found Reclamation had not erred by prioritizing the needs of threatened salmon in Klamath River over endangered C’waam and Koptu in Upper Klamath Lake.

Last year, the United States brought the breach of contract case against KDD, alleging that KDD breached its Reclamation Act contract with the United States by irrigating in 2022 after the United States had informed KDD there was no Project supply available for the district. Notably, the United States provided no evidence of harm to any species as a result of KDD’s diversions in 2022. KDD irrigated under its separate state water right permit in 2022, as it has done since 1977 when it was issued. The ruling issued a permanent injunction that requires the United States’ “authorization” to divert water from the Klamath River, including for any diversions under the district’s separate state permit through the district’s private facilities.

“To say we’re disappointed is an understatement. I’m in disbelief,” said Bill Walker, President of the district. “We are still evaluating the effects of this ruling, but on the surface, it appears to reach far beyond where any court has ever gone.”

The District Board met on the 12th to discuss its options and voted unanimously to appeal the decision. The District Board believes there are several appealable errors in the decision, including what appears to be an unprecedented interpretation of the Reclamation Act and court endorsement of federal control over private state water rights. “Frankly,” as Walker stated with respect to appealing the decision, “we have no choice, our livelihoods and our families are at stake.”

KDD owns and operates its own infrastructure and also pays over double the percentage of any other district of Reclamation Project Operation and Maintenance costs, regardless of whether or not Reclamation supplies water. KDD is still in the process of evaluating the costs and impacts of this ruling on the operations and rights of both the district and its landowners. However, it is immediately apparent that it will lead to a significant loss in revenue to its landowners if not overturned on appeal, particularly in light of the court’s separate ruling in the Klamath Tribes case which will almost certainly lead to a reduced amount of Project Supply for farmers under project irrigation contracts going forward.

The district is also assessing how this ruling could play a role in large-scale restoration planning. On the eve of the largest dam removal project in history, the district has been working with agencies, tribes and interested stakeholders to utilize existing district infrastructure for a massive restoration project. The district is concerned there are negative impacts to that effort as a result of this ruling.

“How can we afford to operate and maintain the facilities we are offering up for restoration when our landowners may not be able to pay their assessments,” questioned Scott White, General Manager of the district. “The financial impacts of this decision are so much larger than just harvesting a crop or not. We’re talking about the recovery of species here, and this ruling appears to have the opposite effect of what the court cited as their reason for the decision.”

For the last decade, Tracey Liskey, a lifelong landowner in KDD, a board member of the district, and the President of the Klamath Water Users Association, has committed his time, money, and energy to helping build a facility that grows endangered sucker specifically targeted at recovering the fish. “The United States and their courts are taking the tools right out of the hands wanting to do the hard work it takes for recovery,” Liskey lamented in frustration. “All we want is for these fish to recover and thrive so we can go back to what we love and here we have another ruling that hamstrings our ability to utilize our resources in that effort.”

Liskey was not alone in his concern about the species. “All the restoration experts we work with are focused on ecosystem recovery as the major ingredient to species recovery,” noted Walker. “It is our duty and responsibility to seek a favorable ruling that will not limit anyone’s ability to help in the recovery of our environment. We owe it to the water users, and we owe it to the species to appeal this ruling.”

KDD has a long history in aiding species recovery. In 1978, Bald Eagles were listed as endangered, and the district’s lands became key to the birds’ recovery. In 1983, KDD’s lands were classified as the “Oregon Feeding Grounds” for our nation’s bird due to the district’s historical practice of winter diversions making it prime hunting habitat for the raptors and critical to the bird’s survival. The spirit of recovering species and providing wildlife habitat has been a mainstay for KDD ever since.

More recently, when the Bureau of Reclamation denies water to Tule Lake and Lower Klamath National Wildlife Refuges, KDD’s fields provide the much-needed winter habitat for the migrating waterfowl of the Pacific Flyway including Bald Eagles. Last year, KDD’s lands were the only habitat in the Upper Klamath Basin where migrating water birds could find refuge due to the wildlife refuges being dry.

The district plans to begin communicating with its restoration partners immediately to discuss what this means for the projects and to identify if there are some opportunities remaining.

Klamath Drainage District (KDD) is a 27,000-acre district located in southern Oregon bordering the Lower Klamath National Wildlife Refuge in California. KDD proactively works to improve distribution and delivery of its scarce water resources including recycling over 35,000 acre-feet annually through its recently installed recirculation pumping plants. Of this recycled water, most is reused to grow crops, but a percentage is used for growers outside of the district and used for habitat improvement and other refuge purposes. KDD is home to one of the largest concentrations of bald eagles in the lower 48 states and prides itself on its restoration activities and the tremendous wildlife viewing opportunities it provides.

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May 2, 2023

Press Release: KDD Welcomes Beginning of 2023 Irrigation Season

May 1, 2023

FOR IMMEDIATE RELEASE

Contact:
Scott White
scott@klamathdrainagedistrict.org
(541) 510-6311

BUREAU OF RECLAMATION TURNS ON KLAMATH IRRIGATION PROJECT

Klamath Drainage District welcomes the beginning of the irrigation season, notes the Feds’ trimmed allocation will affect local refuges, other farms

Klamath Falls, OR – The Bureau of Reclamation has finally allowed the Klamath Project to officially begin its irrigation season today, a full month later than the traditional April 1st start date that Klamath Basin family farmers and ranchers have traditionally relied on.

With the delayed start date, the Bureau has also trimmed deliveries to Klamath Project irrigators. While 590,000 acre-feet of water will flow to the Pacific Ocean to meet claimed needs of salmon, Klamath Project farmers will receive 215,000 acre-feet, roughly 60% of the water needed for Klamath Basin agriculture and wildlife refuges served by the Klamath Project.

“In a year when snowpack reached over 200% of normal, and the Klamath Project continues to bear the brunt of questionable ESA demands, which is frustrating,” said Scott White, General Manager of the Klamath Drainage District. “But as with years past, I plan on working with TID and KID to sharpen our pencils and see how we can work together to the benefit of all the Project districts and the refuges.”

Bill Walker, president of the KDD board, added, “There are going to be 60,000 acres of farmland, including the Tule Lake National Wildlife Refuge and the Lower Klamath National Wildlife Refuge, that are probably going to go dry this year. I’m proud of the work my fellow KDD patrons are doing to free up water for Lower Klamath and create habitat on their properties, but at some point the Feds need to look at the ecological disaster they’re creating in the Upper Klamath Basin. In the meantime, KDD will continue to be the ‘Only Restaurant In Town’ that’s meeting the needs of the Pacific Flyway in the Klamath Basin.”

The Klamath Drainage District is uniquely situated to make the most of the limited 2023 water allocation. Due to the district’s natural geology and hydrology coupled with infrastructure investments, KDD returns or reuses more than 75% of the water used by patrons. Between December of 2021 and August, 2022, KDD sent approximately 3,100 acre feet of much needed water to the Lower Klamath Lake National Wildlife Refuge.

Klamath Drainage District (KDD) is a 27,000-acre district located in southern Oregon bordering the Lower Klamath National Wildlife Refuge in California. KDD proactively works to improve distribution and delivery of its scarce water resources including recycling over 35,000 acre-feet annually through its recently installed recirculation pumping plants. Of this recycled water, most is reused to grow crops, but a percentage is used for growers outside of the district and used for habitat improvement and other refuge purposes. KDD is home to one of the largest concentrations of bald eagles in the lower 48 states and prides itself on the tremendous wildlife viewing opportunities it provides.

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July 11, 2022July 11, 2022

Media Release: RECLAMATION FILES SURPRISE COMPLAINT AGAINST KDD

July 11, 2022

FOR IMMEDIATE RELEASE

Contact:
Scott White
scott@klamathdrainagedistrict.org
(541) 510-6311

RECLAMATION FILES SURPRISE COMPLAINT AGAINST KDD

District disappointed in Government’s conduct

Klamath Falls, OR – The day after our country celebrated its independence, and just three days after water in KDD’s North Canal was used to fight a wildfire in a nearby Midland neighborhood, the United States Department of Justice, on behalf of the Bureau of Reclamation, filed a complaint against the district alleging there is no “Project Supply” available for the district and further alleging the district is making “unauthorized diversions” in breach of its contract.”

Scott White, General Manager for the district notes that this is not a contract issue at all and points to the district’s existing water rights of record. “The Bureau has literally acknowledged and affirmed KDD’s water rights in the past and encouraged us to exercise them when there is no Project Supply available,” said White. “It’s incredible that they claim we are in breach of contract for doing the very thing they asked of us for years.”

KDD owns all the district’s delivery infrastructure except for the Ady Canal headgates which the Bureau says are owned by the United States. The district and its landowners are privileged with three notable water rights; a 1905 Project Claim, an 1883 claim, and a 1977 supplemental permit to be used in times of shortage.

The district is also bound by contract to deliver water to water users outside of the district, but the complaint makes no mention of the district currently facilitating the conveyance of water to the refuge under state law. “The Bureau is out of its lane in picking and choosing which law to recognize,” states Bill Walker, President of the district. “The Bureau supports state law when it means getting water to their land but does not when it means getting water to family farmers and ranchers. This isn’t law, this is politics.”

In the wake of another dry water year for Project districts, the Bureau requested that the districts come up with a plan to distribute the delivery of water to the Project based on targeted lake elevations. The districts, including KDD, spent countless hours and resources generating the plan in good faith. The plan included a distribution of water for the districts, including KDD. However, with an executed bait and switch, the Bureau then neglected to respond and went forward issuing their own plan and letters to districts counter to the districts’ plan.

The Bureau also denied KDD landowners eligibility for DRA programs that could have made 12,000 to 16,000 acre-feet available for other water uses by partially compensating farmers for not irrigating. “The Bureau continues to target our small district for their failure at managing the Project,” expressed White with disappointment. “We do so much good for the refuge, the fish, recirculation of our water, and preservation of our lands and wildlife, but none of that matters I guess.”

Walker notes the amount of effort the district has made to work with the Bureau. “We have been holding out the olive branch for the Bureau for so long and all we have gotten for it is a lawsuit and a stronger back. We are a district that believes in working with and for our neighbors. We are very disappointed in the United States right now.”

The Department of Justice filed their complaint in the United States District Court, District of Oregon, in Medford. There is no set date for trial.

Klamath Drainage District (KDD) is a 27,000-acre district located in southern Oregon bordering the Lower Klamath National Wildlife Refuge in California. KDD proactively works to improve distribution and delivery of its scarce water resources including recycling over 35,000 acre-feet annually through its recently installed recirculation pumping plants. Of this recycled water, most is reused to grow crops, but a percentage is used for growers outside of the district and used for habitat improvement and other refuge purposes. KDD is home to one of the largest concentrations of bald eagles in the lower 48 states and prides itself on the tremendous wildlife viewing opportunities it provides.

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