Klamath Disaster Roulette: Waterfowl and Eagles are the latest casualties

While media attention focuses obsessively on impending disasters, Klamath reality is that there is always another crisis or two simmering below the surface of the Klamath River Basin's waters. Often the next crisis bubbles up even as the previous one is winding down.

This summer of yet another drought year (they seem to be coming more often these days), media and public attention was focused on the large number of salmon expected to return to the Klamath River. The Hoopa and Yurok Tribes, in particular, called attention to low flows and poor water quality – conditions which, when combined with a large salmon run, led to a dramatic die-off of adult salmon in the Lower Klamath River in 2002. 

Each tribe called for the Bureau of Reclamation to release more water from Trinity Dam into the South Fork of the Klamath (aka the Trinity River) in order to stave off a fish kill. Others called for complementary releases from Iron Gate Dam so that adult salmon entering the North Fork of the Klamath (aka the Mainstem above Weitchpec) would not be enticed to ascend the River only to die in the low flow and poor water quality conditions found in the North Fork (Mainstem).

    Agriculture in the Upper Basin, Shasta Valley and Scott Valley is the

#1 source of Klamath River nutrient and temperature pollution

The Bureau of Reclamation responded to calls for Trinity Dam releases but delivered a silent rebuke to those calling for increased flows from Iron Gate Dam. Increasing flows from Iron Gate would have required a reduction in irrigation water delivery within Reclamation's Klamath Project. Armed with a new biological opinion granting the Agency “flexibility” to cut flows below biological opinion “minimums” (sic), Reclamation, which has always served the interests of federal irrigators above all else, simply ignored the request for release of more Klamath River Water downstream to avoid a fish kill.

Then came a spate of arson and lightning fires on the Mid-Klamath; soon smoke was blanketing much of the Basin. The fires caused road, trail and wilderness closures and evacuation orders; the fire's smoke also lowered the temperature of Mainstem (North Fork) water a full ten degrees! The smoke blocked so much solar radiation in some watersheds that streamflow was observed to increase – although the rise was not apparent in river and major tributary hydrographs.

By the end of August, rain and sustained higher humidity had tamed the fires, lifting the blanket of smoke. By then, however, shorter days and cooler air temperature assured that the worst water quality conditions would not return. While the salmon run is still not over and water quality is still not good, the threat of an adult fish kill has receded. Through a combination of nature's beneficence and serendipity, the Klamath River Basin had avoided another disaster...just barely.

The next crisis

Even as attention was focused on the feared fish kill, another crisis was developing. Relying on an Interior Department Solicitor's Opinion from the 1990s, Reclamation officials were dewatering the oldest and most important of the Klamath River Basin's eight national wildlife refuges.

Dewatered permanent marsh on Lower Klamath NWR, July 2013 

Lower Klamath National Wildlife Refuge is almost entirely located in California just south of the border with Oregon. Created in 1908 as the nation's first waterfowl sanctuary, the Lower Klamath Refuge along with Tule Lake Refuge, provides habitat for an estimated 80% of waterfowl migrating North and South on the Pacific Flyway. Wetlands on these refuges provide critical nutrition enabling birds to complete their long annual migrations. Some of those birds are tribal-trust species for a host of Northwest and Alaskan tribes and for several Canadian first nations.

This summer the Bureau of Reclamation added insult to injury when it ordered Klamath Refuge managers to release water from Lower Klamath Refuge's permanent wetlands in order to meet flow requirements in the Klamath River. That allowed Reclamation to retain more Klamath River water in Upper Klamath Lake which in turn enabled the agency to maximize irrigation water diversion and delivery. Lower Klamath Refuge was progressively dewatered so that federal irrigators could irrigate all the acreage they desired while minimizing the cost of achieving full irrigation by pumping groundwater.

One of several large irrigation wells and pumps given by

California taxpayers to the Tulelake Irrigation District (TID)

in 2001. TID sells groundwater from these wells.

As the October 1st through September 30^th water year wraps up, federal irrigators have received about 80% of the Klamath River water they desire. Meanwhile (as reported by KlamBlog) Klamath River flows were shorted while refuges and private irrigators received only about 20% of the water they need. The fact that one group of water users – federal irrigators - is favored by the federal government over all other water users flies in the face of American ideals of fairness and equity. When the federal government picks sides, something is clearly wrong.

Disease epidemic strikes the refuges

During September and October up to 4 million birds heading south on the Pacific Flyway will funnel through the Upper Klamath River Basin. In most years, migrating waterfowl and other birds stop for a time at Lower Klamath and Tule Lake Refuges where they are accustomed to rest and feed prior to moving further south. Hundreds of thousands will typically remain on the Klamath Refuges through the winter, providing excellent hunting opportunities, marvelous wildlife displays and food for hundreds of overwintering Bald Eagles.

Snow Geese and Mount Shasta: When there is water, mountains provides the 

backdrop for magnificent wildlife displays on Lower Klamath and Tule Lake Refuges

This year, however, many Pacific Flyway birds will not stop in the Klamath River Basin. As a consequence of federal water policy, only about half the normal amount of wetlands will have water when migrating waterfowl and other birds arrive this fall.

Overcrowding of the 150,000 birds already on the refuges has triggered an outbreak of avian botulism - a disease which is often fatal. Volunteers are removing about 1,000 dead birds each week in an effort to control the disease; birds deaths are expected to increase exponentially as migrating waterfowl further crowd the few remaining marshes.

Are the Feds constrained?

According to federal officials, the federal government is constrained by law from allocating Klamath River water in a more equitable manner. Federal spokespersons also assert that the only means to secure an adequate water supply for Lower Klamath and Tule Lake Refuges is the KBRA Water Deal. KlamBlog thinks those officials are wrong on both counts.

On March 7, 2013 the State of Oregon filed the Final Order of Determination ending the Klamath Adjudication.  Pursuant to that Order, the federal government holds the top adjudicated right to divert Klamath River Water. Furthermore, Oregon Water Law provides for the transfer of water rights.  A water right holder can change the place where a water right is applied and the purpose for which a water right is used. That can be done on a temporary or on a permanent basis; temporary changes are routine.

That means the Bureau of Reclamation is free to distribute the Klamath River water it controls in a more equitable manner. All those who depend on Klamath River water - including the refuges - would then get a fair share of available water; the pain of shortages would be shared.

Can the KBRA save the refuges?

Federal officials who orchestrated the Klamath Water Deal known as the KBRA claim that the refuges would not be in the dire situation they face if the KBRA had been endorsed and funded by Congress. The KBRA, they point out, would make refuges an official purpose of Reclamation's Klamath Project and would allocate fixed amounts of water to the refuges based on the water year type.

But an allocation is not a guarantee. Furthermore, as numerous court precedents affirm, water allocation is a state prerogative which can not be legally preempted by the federal government. If the KBRA were ever to become law, the provision allocating water to the refuges would, in our view, be unconstitutional and therefore subject to successful court challenge. On the other hand, as pointed out above, under Oregon Water Law Reclamation is free to change the place and purpose of its adjudicated water rights as it sees fit simply by filing a transfer with the State of Oregon.

Calling on Congress

While they clearly possess the ability, Reclamation and the Obama Administration willfully refuse to share water shortages equitably. Instead they dewater the refuges, short river flows and provide as much water as possible to federal irrigators. That's why Congress should step in to mandate that water shortages within the federally-operated Klamath Irrigation Project are to be equally shared.

Hopes for a more equitable distribution of Klamath River Water were raised when Oregon Senator Ron Wyden declared his intention to solve the Klamath's water crises once and for all. However, the Task Force Senator Wyden established with support from the rest of Oregon's Congressional delegation has refused to even consider refuge water needs. Instead the Task Force is devoting most of its efforts toward convincing the Klamath Tribes to forebear exercising the Tribes' in-stream water rights so that non-federal irrigators can continue using the same amount of water they used prior to completion of Oregon's Klamath Adjudication.

As KlamBlog's editor, Felice Pace, has opined elsewhere, historians will likely look back at the three dozen western water deals already completed and dozens more that are in process as yet another round of massive rip-offs of Indigenous Natives in what is now the USA. According to Pace, most of these deals involve tribes relinquishing water rights worth billions for the modern equivalent of a handful of beads. In the case of the Klamath and other Northwest Tribes, what is being relinquished or deferred includes the river flows needed for salmon stocks to recover abundance.

The Endangered Species Act can only provide minimum flows needed to prevent extinction. Where they exist, however, tribal in-stream water rights can provide flows which are sufficient to restore abundance. In some cases tribal leaders may be selling out the salmon they claim to value for monetary considerations and jobs. Often those jobs are operating hatcheries to replace wild salmon with artificially-raised, genetically-deficient fish.

Calling for a California Champion

Most of Lower Klamath Refuge and all of Tule Lake Refuge are in California. It has become clear that Oregon's Congressional Delegation does not include a member willing to champion these refuges. What they need is a California congressional champion.

Recently Northcoast Congressman Jared Huffman stepped up to champion increased Trinity River flows in order to avoid another Klamath Salmon disaster. Congressman Huffman is an expert on western water issues and a budding environmental champion in Congress. Will Mr. Huffman go further and become the champion the world renowned Klamath Wildlife Refuges need so desperately?

Stay tuned!