http://www.onrc.org/programs/klamath/ejldletter.html
May 17, 2001
Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
Re: Management of the Klamath Project: Failure to Provide Water For The Klamath Basin National Wildlife Refuges As Required by Endangered Species Act and National Wildlife Refuge System Improvement Act.
Dear Secretary Norton:
I write on behalf of the Institute of Fisheries Resources, Klamath Forest Alliance, Northcoast Environmental Center, Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Associations, Sierra Club, The Wilderness Society, WaterWatch of Oregon and Golden Gate Audubon Society (collectively, "Coalition for the Klamath Basin") regarding the operation of the Klamath Project by the U.S. Bureau of Reclamation ("BOR"). Although this letter concerns what we believe to be a serious violation of the law, this letter is not intended as a statutorily mandated notice of intent to sue under the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g). Rather, we hope that the matter may be resolved without the need for litigation.
BOR's management of the Klamath Project has been the subject of extensive litigation in recent years. In early April of this year, in a lawsuit brought by the organizations comprising the Coalition for the Klamath Basin, U.S. District Judge Saundra Brown Armstrong concluded that BOR violated the ESA by failing to initiate and complete ESA consultation on the impacts of the Klamath Project to ESA-listed coho salmon. Pacific Coast Federation of Fishermen's Associations v. Bureau of Reclamation, Civ. No. 00-01955 SBA, 2001 WL 360146 (N.D. Cal. Apr. 3, 2001). Judge Armstrong enjoined the project from making any irrigation deliveries when flows were inadequate to ensure the protection of the coho, pending the completion of the consultation process and the adoption by BOR of a management plan that would satisfy the ESA's requirements. That injunction was lifted May 3, 2001. At nearly the same time, a coalition of irrigators sued the United States over BOR's management plan for the 2001 water year, seeking an injunction to restore historic irrigation levels. Kandra et al. v. United States, Civ. No. 01-6124 AA (D. Or.). Coalition for the Klamath Basin member organizations intervened as defendants in that lawsuit. On April 30, 2001, Judge Aiken denied the irrigators' request for the injunction.
At the Kandra hearing, and in her written opinion, Judge Aiken urged the parties to seek consensus on the thorny issues surrounding Klamath Project management and basin water allocation in lieu of renewed litigation. We write this letter in the spirit of Judge Aiken's remarks.
The Coalition recognizes that 2001 has been a year of unprecedented change at the Klamath Project. BOR has limited irrigation water deliveries to a large percentage of the basin's irrigators, a decision that was required by law but nonetheless highly unpopular with some of the basin's residents. However, notwithstanding the worst drought in the history of the project, BOR has made the decision to provide approximately 70,000 acre-feet of water from Clear Lake and Gerber Reservoirs for the Horsefly and Langell Valley irrigation districts. At the same time, BOR has refused to allocate any water to Lower Klamath NWR. Failure to deliver any water to Lower Klamath NWR, even though water is available elsewhere in the system and irrigation is ongoing, is a serious violation of law.
The U.S. Fish and Wildlife Service ("FWS") has determined that delivery of 32,255 acre-feet of water to Lower Klamath National Wildlife Refuge is mandatory under the ESA. According to the FWS' 2001 Biological Opinion governing Klamath Project Operations, as many as 1,100 threatened bald eagles migrate into the Klamath Basin during fall and winter, one of the largest populations of the species anywhere in the lower 48 states. See Biological/Conference Opinion Regarding the Effects of Operation of the BOR's Klamath Project on Two Species of Suckers and Bald Eagles (FWS, April, 2001) ("FWS BiOp") at Sec. III, Pt. 1, p. 5. These eagles rely heavily on the abundant waterfowl that use Lower Klamath NWR, which in turn requires water provided by BOR. Id. at iii, 3, 8. In the BiOp, FWS extensively discussed the water needed in Lower Klamath NWR to sustain bald eagle populations. See BiOp, Sec. III, Pt. 1, p.23. Using the best available information on the relationship between water levels and waterfowl use of the refuges, as well as prey relationships between eagles and waterfowl, FWS determined that the amount of water necessary to sustain eagles would be 32,255 acre-feet of water delivered to Lower Klamath NWR. Id. According to FWS, anything less than this amount would result in substantial levels of "take" of these birds*1. Id. at 32.
In the BiOp, FWS concluded that Project operations would harm, but would not jeopardize, the eagles. Id. at 30-31. However, FWS imposed a requirement that BOR provide at least 32,255 acre-feet to Lower Klamath NWR. Id. at 31-34. This strategy "would avoid adverse effects on wintering bald eagles by providing habitat sufficient for the waterfowl threshold number . . ." Id. at 25. These water delivery requirements are mandatory "terms and conditions" of FWS's authorization of incidental take of eagles associated with Project operations. 16 U.S.C. § 1538(a)(1)(B); 50 C.F.R. § 402.14(i) (FWS may authorize incidental take of listed species via an incidental take statement, but such authorization is only operative when the agency complies with the terms and conditions of the statement).
In adopting the 2001 Operations Plan, and in public statements, BOR has indicated that it has no intention to comply with the requirement that it deliver the required 32,255 acre-feet to Lower Klamath NWR. BOR's failure to deliver water to the NWR in accordance with the terms and conditions of the incidental take statement when water is available means that: a) BOR is or will be "taking" bald eagles, see FWS BiOp, Sec. III, pt. 1, p.32; and b) that the BiOps' incidental take statement does not cover BOR's proposed operations. 50 C.F.R. § 402.14(i). In other words, BOR is, or will be, violating the ESA's prohibition on take of listed bald eagles. The amount and extent of anticipated and unpermitted take associated with the shut-off of water to the refuges is significant. "Given the historical range of the numbers of eagles that winter on Lower Klamath NWR, the Service anticipates up to 950 eagles could be incidentally taken, mainly through reduced access to food, per year as a result of the proposed action when water delivery from all sources to the Lower Klamath NWR is below 32,255 acre-feet." FWS BiOp at Sec. III, pt. 1, p. 32 (emphasis added).
Water for the refuges is important not just for the imperiled bald eagle but for myriad other species as well as the health and vitality of the entire ecosystem. Migratory birds gathering in refuge wetlands represents one of the largest gatherings of migratory birds in the Pacific Flyway, if not in all of North America. In the absence of water, the refuges will be unable to sustain most of these birds, resulting in premature migration southward, overcrowding, outbreaks of disease, and substantial reduction in numbers.
Interior's failure to provide water for Lower Klamath National Wildlife Refuge (as well as the basin's other federal refuges) not only violates the ESA, it ignores a key provision of the National Wildlife Refuge System Improvement Act, 16 U.S.C. § 668dd et seq., which states that the Secretary of the Interior "shall . . . assist in the maintenance of adequate water quantity and water quality to fulfill the mission of the System and the purposes of each refuge." There is no doubt that the purpose of the Klamath wildlife refuges generally, and Lower Klamath NWR in particular, is to provide habitat for migratory waterfowl. See 16 U.S.C. § 695k(a) (Kuchel Act) (policy of the United States is "to preserve intact the necessary existing habitat for migratory waterfowl in this vital area of the Pacific flyway.") BOR's failure to provide water to the refuges, when water is available, will undermine the central purpose of the refuges in violation of the National Wildlife Refuge System Improvement Act.
From what we've come to understand through the Court-ordered mediation in the Kandra lawsuit, as well as our discussions with federal officials, finding the requisite 32,000 acre-feet to bring BOR into compliance with the ESA should not be difficult, and need not work a hardship on irrigators receiving water at this time. BOR has purchased groundwater supplies, and the State of Oregon believes that additional groundwater sources can be developed. (Oregon is struggling with the funding for groundwater development, an area where federal assistance would be valuable.) Moreover, we understand there is approximately 25,000 acre feet of storage in Clear Lake and Gerber Reservoirs over minimum levels required for endangered suckers. Water from these and other sources is available and must be used to provide the minimum 32,255 acre-feet in order to be consistent with the ESA, the National Wildlife Refuge System Improvement Act and other governing law. *2
We hope that we can work together with BOR, FWS and other officials within your department to craft a solution that finds water for the Klamath Basin's wildlife refuges - among the crown jewels of the nation's refuge system - without causing more disruption to the irrigation community. While we will consider all options if there is no action on these matters, we hope for a resolution of these issues without further litigation, and remain committed to the effort to find a longer term solution. Thank you for your consideration of this important matter. We look forward to hearing from you at your earliest convenience.
Sincerely,
Jan E. Hasselman
Attorney for the Coalition for the Klamath Basin
*1 (back) Under the ESA, it is unlawful for any person, including a government agency, to "take" a listed species without authorization from FWS or NMFS. "Take" is defined by the ESA to encompass killing, injuring, harming, or harassing a listed species. 16 U.S.C. § 1532(19). FWS has further defined "harm" within this statutory definition as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 15 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2412-14 (1995).
*2 (back) It should be noted that 32,225 acre-feet is an absolute minimum, and will by no means provide for anything like full fall flood-up on Lower Klamath Refuge. Nonetheless, the 32,225 acre feet will avoid an ecological crisis for eagles and waterfowl, and will probably make some duck hunting on the refuges this fall a possibility.
Statement on eParka.com News
Earthjustice Statement on Decision not to Empanel Endangered Species Committee in Klamath Basin.
July 13th, 2001
Contact Info: John McManus, Earthjustice, 415-627-6720 ex 230
Zeke Grader, PCFFA, 415-561-5080
Patti Goldman, Earthjustice, 206-343-7340 ex 30
Susan Holmes, Earthjustice, 202-667-4500 ex 204
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San Francisco, CA-- Earthjustice today agreed with the decision of the Interior Department rejecting a petition calling for the convening of the Endangered Species Committee, commonly known as the God Squad, to review Klamath Basin issues. The God Squad has the authority to allow the killing of otherwise protected species thus risking their extinction when certain conditions are met. That thresh hold has clearly not been met in this case. The Interior department decision came a day after the U.S. Senate defeated an amendment by Senator Gordon Smith R-OR that would have effectively suspended the Endangered Species Act in the Klamath Basin.
Earthjustice Executive Director Buck Parker said, “There are many ways to solve the problems in the Klamath Basin. If there’s one thing Americans are for, it’s reasonable compromise and balance. There is no doubt we need to move forward to adjust the balance of how water is shared in the Klamath Basin so that coastal fishing communities, tribes, farmers and fish and wildlife, all get a fair share of the water they need.”
“The God Squad was never intended to be the first resort… it was intended to be the last resort,” said Earthjustice attorney Patti Goldman. “Rejection of this petition recognizes that droughts happen and it’s inappropriate to rollback the ESA and push a few more species into extinction every time we have a drought.”
There are strong indications coming from the region that some farmers are willing to sell their land and water rights, which will help solve the problem of over allocation of the Klamath Basin’s waters.
“Irrigated agriculture contributes far less than many people believe to the Klamath area’s economy,” said Dr. Ed Whitelaw, an Oregon economist and expert on natural resource economics. “The farm sector represents under 10 percent of Klamath County’s total employment and under 1 percent of the county’s total personal income. The sad fact is that agriculture in the Klamath basin has been on a long steady slide for many years, for reasons that have nothing to do with the ESA.” Dr. Whitelaw added, “Rather than prolong the inevitable, it’s time to help these folks make the transition to an ecologically sustainable and economically sound future.”
By rejecting this petition, for the first time, the needs of coastal fishing families and Indian tribes are finally being recognized as being as important as the needs of farming families. Zeke Grader, executive director of the Pacific Coast Federation of Fishermen’s associations said, “ This decision means not only that coho salmon in the Klamath will be spared from extinction but valuable king salmon that support tribal, commercial and sport fisheries won’t be wiped out.