Last night, Klamath Water Users Association (KWUA) filed its opposition with a federal court to a motion filed the Yurok Tribe and Pacific Coast Federation of Fishermen’s Association that was filed May 13.  The tribe’s motion requests that the court re-open a lawsuit that was put on hold for two years in March, and that the court immediately require increased flows below Iron Gate Dam in the Klamath River.

KWUA President Tricia Hill said: “The last thing we need is even less water for the Project.  Our situation is beyond dire already.”

The original lawsuit, filed in the Federal District Court for the Northern District of California last July, challenged a biological opinion that had been issued in March of 2019 related to flows in the Klamath River below Iron Gate Dam. The lawsuit was put on hold based on the Bureau of Reclamation’s completion of an interim operations plan that would augment flows in some hydrologic conditions and commitment to a process with technical advisors from different stakeholders.

KWUA intervened as a party in the lawsuit last fall.

The tribe’s motion asserts that Reclamation is not operating consistently with the interim plan and asks for flows to be augmented approximately 400 cubic feet per second (cfs), until 23,000 acre-feet of “augmentation” has been completed—over 7,000 acre-feet of augmentation flows have been released in May so far.  Today, Klamath River flows below Iron Gate, are approximately 1000 cfs.

In its filing, KWUA says that the tribe is not entitled to re-open the lawsuit at this time because the 2020 operations plan included the augmentation water, and there has been no announced change.  More importantly, the request would increase the already-severe water shortage that the Project is experiencing this year.

“We’re hoping for more but concerned that the water for the Project may only be 80,000 acre-feet this year. By comparison, there will be over 400,000 acre-feet going down the river below Iron Gate through September,” said Tulelake Irrigation District Manager Brad Kirby, and expert of Project operations who filed a declaration with the court.

“Meanwhile, 170,000 acre-feet, which is nearly half of the 400,000 acre-feet total, will be water from Upper Klamath Lake that was stored under an irrigation water right. The claim is being made that Reclamation is reducing river flows, but the fact is that the Reclamation is planning to subsidize river flows considerably with water that was stored for irrigators.”

Klamath Irrigation District (KID), although not a party or intervenor in the case in San Francisco, filed a “friend of the court” brief with the court.

The tribe’s motion points to disease concerns related to C. shasta, a microscopic parasite that can infect salmon.  In a declaration filed with the court, KWUA Deputy Director Mark Johnson explained that C. shasta concentrations dropped significantly last week, during a period that Reclamation was reducing flows to current levels.  Johnson also said that the specific genotype of the parasite that can infect coho, the species listed under the Endangered Species Act, have not been at levels of concern at any time this year.

The hearing on the motion will take place before Judge William Orrick on Friday, May 22, at 10:00 a.m. via Zoom conference.  The public can listen at https://us02web.zoom.us/j/89565679842?pwd=Y1hkeHBlMXNRT1ZzcU5Va01xWVpMQT09
Meeting ID: 895 6567 9842 Password: 582565

Brittany Johnson, the partner at the Somach, Simmons & Dunn law firm who led KWUA’s briefing effort, said she is hopeful that the court will rule, or state how it intends to rule, at the May 22 hearing to give the water users more certainty on how to manage their supplies as best they can, although a formal order may take somewhat longer.

The material filed by KWUA and KID is available here:  https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:5f53583b-b165-4f75-80c6-ec240c3f20d4