Klamath River Basin Issues and Activities: An Overview

CRS Report for Congress
Klamath River Basin Issues and Activities:
An Overview
September 22, 2005
Kyna Powers, Coordinator
Analyst in Energy and Environmental Policy
Resources, Science, and Industry Division
Pamela Baldwin
Legislative Attorney
American Law Division
Eugene H. Buck and Betsy A. Cody
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
In troduction ......................................................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 Klamath²
Project and, other Upper Basin topics. Therefore, this report, like its predecessor,
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

¹ 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).
² CRS Report RL31098, Klamath River Basin Issues: An Overview of Water Use Conflicts.

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

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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,
³ 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.

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 high-
level 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 River⁷⁸
and shortnose suckers (listed as endangered in 1988) and coho salmon (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 throughout⁹
Oregon in 1978.
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,

⁴ 16 U.S.C. §1536(a)(2).
⁵ 50 C.F.R. §402.12(a).
⁶ See Bennett v. Spear, 520 U.S. 154, 170 (1997).
⁷ 53 Fed. Reg. 27130 (July 18, 1988).
⁸ 62 Fed. Reg. 24588 (May 6, 1997).
⁹ 43 Fed. Reg. 6230, 6233 (Feb. 14, 1978).

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

¹⁰ 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.
¹¹ 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].
¹² 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.
¹³ 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].
¹⁴ PacifiCorp also operates a power plant at Reclamation’s Link River Dam.
¹⁵ National Academyof Science, National Research Council, Endangered and Threatened
Fishes in the Klamath River Basin: Causes of Decline and Strategies for Recovery
(continued...)

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.

¹⁵ (...continued)
(Washington, DC: 2004). p. 52. Hereafter referred to as the 2004 NRC Report.
¹⁶ Including Keno Dam, J.C. Boyle Dam, Copco Dam, and Iron Gate Dam.
¹⁷ For more information on the FERC relicensing process, see CRS Report RL31903,
Relicensing of Non-Federal Hydroelectric Projects: Background and Procedural Reform
Issues, by Kyna Powers.
¹⁸ 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.
¹⁹ 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 Jasper
Womach. 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.

Figure 2. The Upper Klamath Basin

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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.

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, high-
priority 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

²⁰ 53 Fed. Reg. 27130 (July 18, 1988). The scientific names of these fish are Deltistes
luxatus and Chasmistes brevirostris, respectively.
²¹ 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.
²² P.L. 85-222, 71 Stat. 497.
²³ United States v. Adair, 723 F. 2d 1394 (9th Cir. 1983); Parravano v. Babbitt, 70 F. 3d 539
(continued...)

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.

²³ (...continued)
(9th Cir. 1995); Klamath Water Users Association v. Patterson, 204 F. 3d 1206 (9th Cir.

2000).

²⁴ United States v. Adair, supra, at 1414.
²⁵ United States v. Adair, 187 F. Supp. 2^nd 1273 (D. Or. 2002).
²⁶ 187 F. Supp. 2^nd 1275-1278, discussing Adair, supra, at 1414-1415, and quoting from 443
U.S. at 686.
²⁷ U.S. Dept. of the Interior, Fish and Wildlife Service, Klamath Basin National Wildlife
Refuges: California/Oregon..
²⁸ Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 138 F.
Supp. 2d 1228, 1231 (N.D. Cal. 2001).

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 the³⁰
FWS listed the suckers as endangered in 1988, 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 years³²
later, in 2002. 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

²⁹ 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.
³⁰ 53 Fed. Reg. 27130 (July 18, 1988).
³¹ 62 Fed. Reg. 24588 (May 6, 1997). The scientific name of this fish is Oncorhynchus
kisutch.
³² 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.
³³ Under the ESA, a recovery plan only recommends actions, and does not require or force
aggency action (16 U.S.C. §§ 1533(f), 1538).
³⁴ 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.

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

³⁵ 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.
³⁶ 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].
³⁷ See the Drought Monitor archive available on Aug. 16, 2005 at [http://www.drought.unl.
edu/dm/archive.html ].
³⁸ Written communication via facsimile, U.S. Dept. of Interior, Bureau of Reclamation,
Klamath Project, Oct. 1, 2001.

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

³⁹ Klamath Water Users Association, letter “To Whom It May Concern” (May 22, 2001).
⁴⁰ 2004 NRC Report, p. 81.
⁴¹ 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.
⁴² Communication from Tim Mayer, Region 1, Fish and Wildlife Service, U.S. Dept. of the
Interior, on April 2, 2002.
⁴³ Ibid.
⁴⁴ 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...)

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 109^th 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.

⁴⁴ (...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).
⁴⁵ Ibid.
⁴⁶ 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.
⁴⁷ 2004 NRC Report, p. xv.
⁴⁸ 2004 NRC Report, p.52.

Figure 3. The Lower Klamath Basin

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^{Bank O}^b^lⁱ^gatⁱ^ons^{, but}^Inf^o^r^m^atⁱ^{on Pr}^ovi^d^{ed t}^o^W^a^t^e^r^{Bank St}^akehol^der^s^C^oul^{d be}^Im^pr^oved^(March
^{2005), G}^A^O^-^05-^{283, p. 2, w}ⁱ^t^h^al^t^e^ratⁱ^oⁿ^s^by^Pat^rⁱ^cⁱ^a^McC^l^a^ughr^y^o^f^t^h^e^{CRS t}^e^c^hno^l^o^gy^o^ffi^c^e^.
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.).
⁴⁹ 2004 NRC Report, p. 82.
⁵⁰ 2004 NRC Report, p. 81& 91.

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

⁵¹ An “evolutionarily significant unit” (ESU) is the marine species equivalent of “distinct
population segment” used for terrestrial species under the ESA.
⁵² 62 Fed. Reg. 24588 (May 6, 1997).
⁵³ 64 Fed. Reg. 24049 (May 5, 1999).
⁵⁴ 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.
⁵⁵ KRBFTF Document, 1991.
⁵⁶ 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/~ext ended/kl amath/proceedi ngs2001/K LAMSYM7.PDF].
⁵⁷ KRBFTF Document, 1991.
⁵⁸ KRBFTF Document, 1991.

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 Valley⁶³
Project (CVP) in the 1937 River and Harbors Act; 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 authorized⁶⁵
by Congress in 1955 and completed in 1964. 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

⁵⁹ 2004 NRC Report, p. 92-93.
⁶⁰ 2004 NRC Report, p. 92-93.
⁶¹ KRBFTF Document, 1991.
⁶² Prepared with assistance from Steven Viña, American Law Division, CRS.
⁶³ Ch. 832, 50 Stat. 844, 850 (1937).
⁶⁴ 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.
⁶⁵ Ch. 872, 69 Stat. 719; P.L. 84-386.

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 Klamath-
Trinity 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

⁶⁶ Westlands Water District v. U.S. Dept. of the Interior, 376 F.3d 853 (9th Cir. 2004).
Hereafter referred to as WWD v. DOI.
⁶⁷ 2004 NRC Report, p. 295.
⁶⁸ 2004 NRC Report, p. 295.
⁶⁹ 2004 NRC Report, p. 295.
⁷⁰ 59 Fed. Reg. 51607 (Oct. 12, 1994).
⁷¹ 59 Fed. Reg. 51607 (Oct. 12, 1994).

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 adult⁷⁴
salmon died in the lowermost 40 miles of the Klamath River mainstem. While
fall-run chinook salmon were the primary species affected, coho salmon, steelhead⁷⁵
trout, and other species were also lost. 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 down-
river coho salmon. The PCFFA lawsuit was the first challenge to Reclamation’s 10-
year 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.

⁷² 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).
⁷³ For example, see WWD v. DOI, et al.
⁷⁴ 2004 NRC Report, p. 9.
⁷⁵ 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].
⁷⁶ Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 2003
U.S. Dist. LEXIS 13745 (N.D. Cal.2003).

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

⁷⁷ 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.
⁷⁸ This epizootic disease was a combination of ubiquitous ich (the ciliated protozoan parasite
Ichthyophthirius sp.) and columnaris (infection by the bacterium Flexibacter columnaris)
pathogins.
⁷⁹ 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].
⁸⁰ 2004 NRC Report, p. 9.
⁸¹ 2004 NRC Report, p. 9.

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

⁸² Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 138 F.
Supp.2d 1228 (D. N.D. Cal. 2001).
⁸³ Id. at 1248.
⁸⁴ 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.
⁸⁵ For example, the Klamath Tribes have consistently won cases articulating the extent of
(continued...)

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.

⁸⁵ (...continued)
their rights to water: United States v. Adair, 478 F. Supp. 336 (D. Or. 1979)(Adair I), aff’d^th
United States v. Adair, 723 F. 2d 1394 (9 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.
⁸⁶ 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.
⁸⁷ Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl.313 (2001). This
opinion addressed the liability issues in the case.
⁸⁸ O’Neill v. United States, 50 F. 3d 677 (9^th Cir. 1995); Natural Resources Defense Council
v. Houston, 146 F. 3d 1118 (9^th Cir. 1998); and Klamath Water Users Protective Ass’n v.^th
Patterson, 204 F. 3d 1206 (9 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^th
Silvery Minnow, 333 F. 3d 1109, 1139 (10 Cir. 2003), which held that Reclamation could
lawfully release irrigation water to meet its duties under the ESA.
⁸⁹ Klamath Irrigation District v. United States, 2005 U.S. Claims, LEXIS 256 (Fed. Cl.

2005).

⁹⁰ Pacific Coast Federation of Fishermen’s Ass’ns v. Bureau of Reclamation, 138 F. Supp.

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

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

⁹¹ Alsea Valley Alliance v. Dept. of Commerce, 358 F. 3d 1181 (9^th Cir. 2003).
⁹² Orff v. United States, 545 U.S. __, 125 S. Ct. 2606, 162 L. Ed. 2d 544 (2005).
⁹³ 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.
⁹⁴ U.S. Government Accountability Office, Klamath River Basin: Reclamation Met Its water
Bank Obligations, but Information Provided to Water Bank Stakeholders Could Be
(continued...)

(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 of⁹⁸
Barnes Ranch, Congress included $2 million in its FY2006 Department of the
Interior and Related Agencies Appropriations Act for the purchase as part of the⁹⁹
Klamath Lake National Wildlife Refuge.
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 the¹⁰¹
county’s tax base. There are also concerns that the purchase of Barnes Ranch is
being considered without a corresponding management plan.¹⁰²

⁹⁴ (...continued)
Improved (March 2005), GAO-05-283, p. 32. (Hereafter referred to as GAO Report 2005)
⁹⁵ GAO Report 2005, p. 33.
⁹⁶ GAO Report 2005, p. 33.
⁹⁷ U.S. Dept. of the Interior, Bureau of Reclamation, Klamath Basin Area Office, Issue Book
(July 2004), p. 4.
⁹⁸ The property was appraised in 2003 and 2004 at $4.6 to $7.0 million dollars.
⁹⁹ 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
[ ht t p: / / www.kl amat hbasi ncr i si s.or g/ l et t e r s / kccommi ssi oner s bar nes051205.ht m] .
¹⁰² Letter from the Klamath Water Users Association to the U.S. Fish and Wildlife Service
(continued...)

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
[ ht t p: / / www.kl amat hbasi ncr isi s.or g/ st or age/ bar nescomme nt skwua051605.ht m] .
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.

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/K popBO2002finalMay31.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: / / w w w . u s b r . go v/ mp / kb a o / p i l ot_water_bank/docs/2005_Gr oundwater_Operation_A
pplication_peg.pdf]. Hereafter referred to as “Groundwater Operations Instructions.”
¹¹² “Groundwater Operations Instructions,” p. 16.

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 $1,000,000 $1,788,711 $4,009,451 $6,798,162
substitution or
pumping contracts
Crop idling contracts$0$2,700,789$637,258$3,338,047
(Dryland Operations)
Klamath Basin$948,300$0$690,221$1,638,521
Rangeland Trust
contracts for off-
Project crop idling
Administration $2,479 $175,233 $255,119 $432,831
Other $10,215 $22,213 $144,785 $177,213
Total $1,960,994 $4,686,946 $5,736,834 $12,384,774
^So^u^r^{ce: U.S. Go}^v^e^rⁿ^m^eⁿ^t^A^cco^uⁿ^t^ab^ility^Of^fⁱ^ce,^K^l^am^at^h^Ri^ver^Basⁱ^{n: Recl}^am^atⁱ^{on M}^e^t^It^s^W^a^t^e^r
^Bank^O^b^lⁱ^gatⁱ^ons^,^but^Inf^o^r^m^atⁱ^{on Pr}^ovi^d^{ed t}^o^W^a^t^e^r^{Bank St}^akehol^der^s^C^oul^d^Be^Im^pr^oved^(March
^{2005), G}^A^O^-^05-^283.
^{Dollar am}^ouⁿ^t^s^{are n}^o^{t ad}^j^u^sted^f^o^rⁱⁿ^f^l^atioⁿ^.
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.

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 completed¹²⁰
in 2005. 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-to-¹²¹
year declines of up to 8 feet. 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.

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 of¹²²
Reclamation’s Link River Dam, five major dams 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 Kyna Powers.
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.

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.

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 landowners¹⁴²
through 2007. 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/
LostRi vK lamathRi vT MDLFactsheet.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/LostRivKlamathRivTMDLSt atusFactsheet.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.

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
[ ht t p: / / www.f s .f ed.us/ r 6/ f r e wi n/ pr oj ect s/ kl amat hbasi n/ br i e f i ng.sht ml ] .
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.

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 9^th Circuit stayed the de-listing
pending appeal. The appeal was dismissed and the stay dissolved by the 9^th 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 the¹⁵⁴
program. 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 (9^th 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).

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 spawning¹⁵⁵
habitat. 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 was¹⁵⁷
estimated as close to $14 million.
Other Activities. The Bureau of Reclamation is reviewing ways to improve¹⁵⁸
fish passage at other dams that may block sucker movement.
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/pmt s/hydraulics_lab/ bmefford/Link% 20River%20Fishway.pdf].

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
NameFocus and Jurisdiction
Federal and State Entities
^Kl^am^ath^Rⁱ^ver^Focu^s^:^P^r^o^m^o^tⁱ^{ng c}^o^m^p^r^e^he^nsi^v^e^m^a^na^ge^m^e^nt^o^f^K^l^a^m^a^t^{h B}^a^si^{n w}^a^t^e^r^fo^r^a
^Basⁱⁿ^b^r^o^a^d^sp^ectr^u^m^o^f^p^u^r^p^o^s^{es as o}^u^tlin^edⁱⁿ^th^{e Klam}^ath^Riv^e^r^B^a^sin
^Co^m^p^a^c^t^C^o^m^p^act^of^{1957. F}^u^rt^h^e^riⁿ^gⁱⁿ^t^e^rg^ov^ern^m^en^t^a^l^cooperatⁱ^oⁿ^.
^C^o^mmi^s^sⁱ^oⁿ^M^e^m^b^ership:^{3 m}^e^m^b^ers^—^{1 appoi}ⁿ^t^{ed by}^t^h^{e Pres}ⁱ^d^en^t^,^{a repres}^en^t^a^tⁱ^v^e
^each^of^Oreg^on^an^{d of}^C^a^lif^ornⁱ^a.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^U^{pper an}^{d L}^o^w^e^{r Bas}ⁱⁿ^s
^A^u^th^ori^t^y:^P.L^.^85-^{222, A}^r^tⁱ^c^l^e^IV^{, K}^l^am^at^h^Rⁱ^v^e^{r Bas}ⁱⁿ^C^o^m^p^act^.
^{When created:}^{1954, con}^g^r^es^sⁱ^on^al^con^s^en^tⁱⁿ^1957.
^Kl^am^ath^Rⁱ^ver^Focu^s^:^A^d^vⁱ^{se th}^{e P}^r^esid^en^{t o}ⁿ^loⁿ^g^-^ter^m^so^lu^tioⁿ^s^to^en^h^aⁿ^{ce w}^a^ter
^B^a^{sin F}^e^dera^l^q^u^an^tity^an^d^q^u^ality^an^d^ad^d^r^{ess o}^t^h^e^r^co^m^p^lex^issu^{es in}^th^{e Klam}^ath
^Wo^rk^ing^Ri^ve^r^B^a^si^n.
^Gr^o^u^p^M^e^m^b^ership:^Ch^air^m^an^o^f^th^{e Co}^uⁿ^c^{il o}ⁿ^En^vⁱ^r^oⁿ^m^en^{tal Qu}^ality^{, an}^d^th^e
^Secretaries^of^th^{e In}^{terior, A}^g^ricu^ltu^{re, an}^{d C}^o^m^m^e^{rce, or th}^{eir des}ⁱ^gⁿ^ees^.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^U^{pper an}^{d L}^o^w^e^{r Bas}ⁱⁿ^s
^Autho^r^ity^:^P^r^e^sⁱ^d^eⁿ^tⁱ^a^l^me^mo^r^aⁿ^d^u^m^,^a^v^aⁱ^l^a^b^l^e^a^t^[^h^t^t^p^:^/^/^www.^whⁱ^t^e^h^o^u^s^e^.
^g^o^v^/ⁿ^e^w^s^/^r^el^eas^es^/^2002/^03/^20020301-^10.h^t^m^l^].
^{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.

NameFocus and Jurisdiction
^S^t^{ate an}^d^Focu^s^{: In}^creas^{e coordin}^a^tion^am^on^g^f^e^{deral an}^{d s}^t^{ate ag}^en^cies^{, iden}^tif^y
^Federal^sh^o^r^t-^ter^m^actioⁿ^s^to^im^p^r^o^v^{e co}ⁿ^d^itioⁿ^sⁱⁿ^th^{e B}^a^sin^,^an^d^d^e^v^e^lo^p^an^d
^Kl^am^ath^Basⁱⁿ^im^plem^en^{t th}^{e Klam}^ath^B^a^sⁱⁿ^C^oⁿ^s^erv^a^tion^Im^plem^en^tation^P^r^og^ram
^C^oordⁱⁿ^a^ti^on^con^cept.
^Gr^o^u^p^M^e^m^b^ers^hip^{: repres}^en^tativ^es^f^r^om^th^{e States}^of^Oreg^on^an^{d C}^a^lif^ornⁱ^{a, th}^e
^Depart^m^eⁿ^t^s^of^In^t^e^ri^{or, A}^g^ri^cu^l^t^u^{re, C}^o^m^m^e^{rce, an}^{d U.S}^.^En^vⁱ^ron^m^en^t^a^l
^P^r^otection^A^g^en^cy^.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^U^{pper an}^{d L}^o^w^e^{r Bas}ⁱⁿ^s^.
^Autho^r^ity^:^Iⁿ^t^e^r^-^a^g^eⁿ^c^y^a^g^r^e^e^m^eⁿ^t^a^v^aⁱ^l^a^b^l^e^a^t^[^h^t^t^p^:^/^/^www.^d^oⁱ^.^g^o^v^/ⁿ^e^w^s^/
^k^l^am^ath^a^g^r^eem^en^t.pdf^].
^{When created}^:^O^c^t^.²⁰⁰⁴
^Kl^am^ath^Rⁱ^ver^Focu^s^:^Re^st^o^rⁱ^{ng t}^h^e^K^l^a^m^a^t^{h Ri}^ve^r^fi^she^rⁱ^e^{s (}^a^na^d^r^o^m^o^u^s)
^Basⁱⁿ^M^e^m^b^ers^hip^{: 1}⁶^-^p^e^r^s^oⁿ^f^e^d^e^r^a^{l ad}^vⁱ^so^r^y^co^m^m^{ittee w}^ith^r^e^p^r^esen^tatioⁿ
^Fis^h^eries^T^a^s^k^f^r^o^m^th^{e co}^m^m^e^r^c^{ial f}ⁱ^shⁱⁿ^gⁱⁿ^d^u^str^y^{; sp}^o^r^tf^ishⁱⁿ^g^co^m^m^uⁿ^ity^{; th}^{e Yu}^r^o^k^,
^Force^H^{oopa, an}^{d K}^a^ru^k^T^rⁱ^b^es^;^f^o^u^rⁿ^o^rt^h^e^rn^C^a^lⁱ^f^ornⁱ^{a cou}ⁿ^tⁱ^e^s^;^C^a^lⁱ^f^ornⁱ^a
^D^e^pt^{. of}^Fⁱ^s^h^an^{d G}^a^m^e^;^O^r^eg^on^D^e^pt^{. of}^Fⁱ^s^h^an^{d Wi}^l^d^lⁱ^f^e;^N^a^tⁱ^oⁿ^a^l
^Marin^e^Fis^h^eries^Serv^{ice; th}^{e U.S. Dept. of}^A^g^ricu^ltu^{re; an}^{d th}^{e U.S. Dept.}
^o^f^th^{e I}ⁿ^terⁱ^o^r^.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^K^l^a^m^a^t^{h Ri}^ve^r^B^a^si^{n Co}^nse^r^va^tⁱ^o^{n A}^r^e^a^,^a^s^d^e^fi^ne^d
ⁱⁿ^P.L^.^99-⁵⁵²
^Autho^r^ity^:^P.L^.^99-^{552, §4 (16 U}^.^S^.^C^.^460s^s^-^3).
^{When created}^:^1986.
^Sunset^s^:^2006.
^Kl^am^ath^Focu^s^:^Man^a^g^e^h^a^rv^es^t^s^an^{d en}^s^u^{re v}ⁱ^abl^e^popu^l^a^tⁱ^oⁿ^of^an^adrom^o^u^s^fⁱ^s^hⁱⁿ
^Fis^h^ery^th^{e Klam}^ath^B^a^sⁱⁿ^.
^M^aⁿ^agem^eⁿ^t^M^e^m^b^ers^hip^{: 1}¹^m^e^m^b^er^{s th}^{at b}^rⁱⁿ^g^to^g^e^th^er^co^m^m^e^r^c^{ial an}^d^r^ecr^eatioⁿ^a^l
^Co^uncil^fⁱ^s^h^erm^eⁿ^,^Nativ^{e A}^m^erican^tribes^{, an}^{d s}^t^{ate an}^{d f}^e^{deral ag}^en^cies^.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^{: Up}^p^e^r^an^d^L^o^w^e^r^B^a^sin^s^an^d^r^e^lated^co^{astal w}^a^ter^s
^Autho^r^ity^:^P.L^.^99-^{552, §3 (16 U}^.^S^.^C^.^460s^s^-^2).
^{When created}^:^1986.
^Sunset^s^:^2006.
^Kl^am^ath^Focu^s^:^En^s^u^riⁿ^g^proj^ect^s^propos^{ed an}^{d f}^uⁿ^d^{ed u}ⁿ^d^{er t}^h^{e U}^{pper K}^l^am^at^h
^Waters^hed^B^a^si^{n W}^o^r^kⁱ^{ng G}^r^o^u^p^a^r^e^c^o^nsi^s^t^e^nt^wⁱ^t^h^o^t^he^r^b^a^si^n-wⁱ^d^e^fi^{sh a}ⁿ^d
^C^oordⁱⁿ^a^ti^on^wⁱ^l^d^lⁱ^f^{e con}^s^erv^a^tⁱ^oⁿ^pl^an^s^by^draf^tⁱⁿ^g^{a cooperat}ⁱ^oⁿ^ag^reem^en^t^.
^Gr^o^u^p^M^e^m^b^ers^hip^:^U^p^p^e^r^K^l^a^m^a^t^{h B}^a^si^{n W}^o^r^kⁱ^{ng G}^r^o^u^p^,^K^l^a^m^a^t^{h Ri}^ve^r^B^a^siⁿ
^Co^m^p^a^c^t^Co^m^mⁱ^ssi^oⁿ^,^T^rⁱⁿⁱ^t^y^M^a^na^ge^m^e^nt^Co^uncⁱ^l^,^aⁿ^d^K^l^a^m^a^t^{h Ri}^ve^r
^B^a^{sin Fishe}^r^ie^{s T}^a^{sk Fo}^r^c^e^.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^U^{pper an}^{d L}^o^w^e^{r Bas}ⁱⁿ^s
^Autho^r^ity^:^Wi^t^hⁱⁿ^t^h^{e O}^r^eg^on^R^e^s^o^u^r^{ce C}^oⁿ^s^erv^a^tⁱ^oⁿ^A^c^t^(P.L^{. 104-}^208),
^{§201(c) requ}ⁱ^r^es^coordiⁿ^a^tⁱ^oⁿ^am^on^g^v^a^ri^ou^s^g^r^ou^ps^.
^{When created}^:¹⁹⁹⁶

NameFocus and Jurisdiction
^R^e^gi^on^al^Eⁿ^ti^ti^es
^Upper^Focu^s^:^D^e^ve^l^o^pⁱ^{ng a}ⁿ^o^v^e^r^a^l^l^p^l^aⁿ^fo^r^e^nha^ncⁱ^{ng e}^c^o^sy^st^e^m^r^e^st^o^r^a^tⁱ^o^n,
^Kl^am^ath^Basⁱⁿ^im^p^r^o^vⁱⁿ^g^ecoⁿ^o^mⁱ^{c stab}^ility^{, an}^d^mⁱⁿⁱ^mⁱ^zin^g^im^p^{acts asso}^ciated^w^ith
^Wo^rk^ing^d^r^o^ught^.
^Gr^o^u^p^M^e^m^b^ers^hip^:^{30 peopl}^{e appoi}ⁿ^t^{ed by}^t^h^{e G}^o^v^e^rn^{or of}^O^r^eg^on^{, repres}^en^tⁱⁿ^g
^(Hatfi^el^d^f^e^{deral, s}^t^{ate, an}^{d local g}^o^v^e^rn^m^eⁿ^t^s^an^{d ag}^en^cies^{; th}^{e Klam}^ath^T^r^ibes^;
^G^r^o^up)^con^s^erv^a^tion^org^aⁿⁱ^zation^s^{; f}^a^rm^ers^an^{d ran}^c^h^e^rs^{; an}^{d in}^du^s^t^ry^an^{d local}
^b^u^sine^ss.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^:^U^{pper Bas}ⁱⁿ
^Autho^r^ity^:^P.L^.^104-^{333, §1024, bu}^t^exⁱ^s^t^e^{d pri}^o^{r t}^o^t^hⁱ^s^en^act^m^eⁿ^t^;^s^e^e
^det^aⁱ^l^sⁱⁿ^P.L^.^104-^{208 (O}^reg^oⁿ^R^e^s^o^u^r^{ce C}^oⁿ^s^erv^a^tⁱ^oⁿ^A^c^t^,^{110 S}^t^at^.
^3009-⁵³²⁾
^{When created}^:¹⁹⁹⁶
^Trinit^y^Focu^s^{: Ov}^er^sig^h^t^an^d^dⁱ^r^ectioⁿ^o^f^T^rⁱⁿ^ity^Riv^e^r^Resto^r^atioⁿ^P^r^o^g^r^a^m^to
^M^aⁿ^agem^eⁿ^t^res^t^{ore an}^{d m}^aⁱⁿ^tain^an^adrom^o^u^s^fⁱ^s^h^eries^res^o^u^r^ces^of^th^{e T}^rⁱⁿ^ity^Rⁱ^v^e^r
^Co^uncil^M^e^m^b^ers^hip^{: Rep}^r^esen^tativ^{es f}^r^o^m^th^{e U.S. Fish}^an^d^W^ild^lif^{e Ser}^v^ice,
^B^u^reau^of^R^eclam^ation^,^Fores^t^Serv^{ice, Nation}^a^{l Marin}^e^Fis^h^eries^Serv^ice,
^T^rⁱⁿⁱ^t^y^C^o^uⁿ^t^y^,^H^{oopa V}^a^l^l^e^y^T^rⁱ^b^{e, Y}^u^rok^T^rⁱ^b^{e, an}^{d t}^h^{e S}^t^at^{e of}
^Calif^o^rⁿⁱ^a.
^R^e^gi^on^{of Ju}^ri^s^dⁱ^c^ti^on^{: T}^rⁱⁿ^ity^Riv^e^r
^Autho^r^ity^{: W}^ithⁱⁿ^th^{e Reco}^r^d^o^f^Decisioⁿ^f^o^r^th^{e T}^rⁱⁿ^ity^Riv^e^r^Resto^r^atioⁿ
^P^r^o^g^r^a^m^,^an^im^p^l^em^en^tatioⁿ^p^l^an^estab^lish^e^d^th^{is Co}^uⁿ^c^{il to}^su^p^e^r^ced^{e th}^e
^T^rⁱⁿ^ity^Riv^e^r^B^a^sin^Fish^an^d^W^ild^lif^{e T}^a^sk^Fo^r^{ce (}^e^stab^lish^e^d^b^y^P^.^L^.
^98-^{541, 98 S}^t^at^{. 2721).}
^{When created}^:^D^{ec. 2000 t}^o^s^u^{percede t}^h^{e T}^a^s^k^F^o^{rce es}^t^a^blⁱ^s^h^e^{d i}ⁿ^O^c^t^.
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 meetings¹⁶⁴

on water quality.
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...)

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 See [http://www.fs.fed.us/r6/frewin/projects/ukbwg/], available July 26, 2005.
¹⁶⁹ Upper Klamath Basin Working Group, Crisis to Consensus — Restoration and Planning
for the Upper Klamath Basin (Aug. 2002).

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 sub-
basins. 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 Basin-
wide 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.

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.

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.