Irrigators, tribes object to extending Klamath Project interim operations plan

JUNE 17, 2022 Letter from KWUA to U.S. Bureau of Reclamation

Via Electronic Mail Only
Ernest Conant, Regional Director
U.S. Bureau of Reclamation, California-Great Basin Region
2800 Cottage Way, MP-100
Sacramento, CA 95825-1898
econant@usbr.gov
Subject: Status of the Interim Operations Plan for the Klamath Project
Dear Mr. Conant:
Klamath Water Users Association (KWUA) objects to the U.S. Bureau of Reclamation’s
(Reclamation) stated intent to extend the so-called “Interim Operations Plan” (IOP) for the
Klamath Project (Project) beyond September 30, 2022. KWUA has expressed its concerns
informally in the past; here, we discuss some of the reasons we believe Reclamation must
conclude that it cannot simply extend the IOP.
By its terms, the IOP expires on September 30, 2022. Putting aside that expiration date,
the IOP is not a functional plan. It is not grounded in a coherent regulatory logic. It is based on
erroneous data, flawed hydrologic assumptions, and a proposed action that does not comport
with current operations. Further, there is new scientific information that must be considered, and
additional new scientific information will be in hand before the 2023 irrigation season.
Below, we discuss these problems further. This discussion does not re-iterate our
differences of opinion on legal issues, and we reserve our position on those matters. The
deficiencies discussed below are not dependent on the resolution of those issues.

The IOP is Not a Functional Plan
and is Not Based on a Coherent Regulatory Logic

The three years of attempted operation under the IOP has been a period of chaotic, ad hoc
decision-making. KWUA has, for well over a year, emphasized the lack of any coherent
regulatory construct for the IOP. That point is underscored by the fact that the IOP has required
Reclamation to do things that literally are impossible.
Three core defects in the IOP’s approach to Endangered Species Act (ESA) compliance
render it unworkable and irrational. First, the IOP does not concern itself with the effects of
Reclamation’s discretionary actions, which is the relevant consideration under Section 7 of the
ESA. Rather, it is a product of agencies simply bargaining for water, in a negotiation in which
Reclamation has almost no leverage and the National Marine Fisheries Service (NMFS) and
Phone (541) 883-6100 Fax (541) 883-8893 ~ 2312 South Sixth Street, Suite A, Klamath Falls, Oregon 97601

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 2

U.S. Fish and Wildlife Service (USFWS) are not accountable. Second, the IOP requires the
Project to be the guarantor of certain hydrologic conditions in the Klamath Basin, something that
is beyond Reclamation’s power and physically impossible. Third and related, the ESA-driven
IOP is not based on addressing limiting factors for ESA-listed fish; the IOP has caused great
harm to farm families and rural communities, wildlife, and the environment of the Project region,
while yielding no benefit for ESA-listed species. In short, the IOP is unfair, ineffective, and
dysfunctional.
How Things Got Here
We believe it is essential that policy leadership in the Biden Administration gain an
understanding of how the IOP came to be. One cannot solve a problem without understanding
what the problem is. In January 2021, career staff in Reclamation completed an ESA
“Re-assessment.” Secretary Haaland withdrew the Re-assessment for reasons unrelated to its
merits. KWUA has accepted that reality. But the Re-assessment includes a historical narrative
of how Project operations evolved to the current dysfunctional state, which should be read and
understood by anyone involved in the process.
During 2012-2013, there was a Section 7 consultation, driven by a collaborative approach
to developing a proposed action. For this effort, parties set aside strict legal positions and
extreme environmental demands for water, in favor of developing an interest-based outcome that
parties could live with. It was not a routine Section 7 consultation; it was a negotiated operation
that worked well enough, under the circumstances then existing.
Unfortunately, the NMFS Biological Opinion (BiOp) for that proposed action identified a
limit on incidental take for coho salmon, expressed by a surrogate measure that had nothing to do
with take of coho salmon. That surrogate measure was exceeded in 2014 and 2015, which
ultimately resulted in litigation being filed in 2016. In 2017, the court found that Reclamation
was in procedural violation of the ESA due to its failure to reinitiated consultation. In early
2017, the court entered an injunction in the form of an add-on to the action that was operationally
unworkable. Reclamation did not conclude until late in 2018 that it needed to complete a new
consultation expeditiously. When it did so, it did not start from scratch; it started with the
construct of the negotiated 2013 proposed action, but added different, unworkable add-ons.
NMFS and USFWS issued new BiOps in early 2019.
One of the errors in the 2019 consultation was that a consultant for the federal agencies
made a mistake. He provided the wrong file to the agencies for use in hydrologic modeling.
Soon after the 2019 consultation concluded, the same consultant was hired by the Yurok Tribe.
Working for the Yurok Tribe, he discovered his own mistake.
The Yurok Tribe and others filed a lawsuit in the U.S. District Court for the Northern
District of California (Case No. 3:19-cv-04405-WHO), in which the plaintiffs alleged, in part,
that Reclamation failed to reconsult after it became aware of erroneous data provided by the
once-federal, now-Yurok consultant during the federal agencies’ Section 7 consultation process.

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 3

The plaintiffs also sought a preliminary injunction. In March 2020, the parties to that litigation,
including KWUA, entered a stipulated agreement to stay the proceedings, which the court
approved by order dated March 27, 2020. The stay was effective through September 30, 2022,
conditioned upon Reclamation operating the Project in accordance with the IOP during that
period. The IOP effectively amounts to the proposed action from the hurried 2019 consultation
action modified to include a trigger for releasing an additional 40,000 acre-feet (beyond the
calculated Environmental Water Account) to the Klamath River in some hydrologic conditions.
Thus, there may be reasons that the IOP came to be as it is, but the IOP most certainly is
not the product of a proper Section 7 consultation. As you know, in January 2021, Reclamation
completed an ESA “Re-assessment” that shined a light of much of this same history. Secretary
Haaland withdrew the Re-assessment for reasons unrelated to its merits. KWUA has accepted
that reality. But the withdrawal does not mean that the current approach is correct.
Where Things Are: Foreign to Section 7
Under Section 7, a federal agency is required to consult with USFWS and NMFS, as
applicable, to ensure that its proposed actions are not likely to jeopardize the continued existence
of federally listed species or adversely modify designated critical habitat. Not all agency actions
are subject to the Section 7 consultation process. A federal agency must have discretion over an
“action” in order to trigger Section 7’s substantive obligation to avoid jeopardy and the related,
procedural Section 7 consultation obligation. Actions over which the federal agency has no
discretion because the action is legally mandated or the agency has no direct physical control
over are not actions upon which it must consult.
1

A gross flaw in the proposed actions underlying the IOP is they extend to natural
conditions and events, as well as actions by third parties, over which Reclamation has no control.
A thorough analysis of all the non-discretionary actions that Reclamation has attempted to
include within its Section 7 consultation process is beyond the scope of this letter, but two
fundamental examples highlight this defect: (1) hydrology over which Reclamation has no
control; and (2) diversions and other activities over which Reclamation has no control.
For instance, under the IOP, Reclamation attempts to produce water levels in Upper
Klamath Lake that match the modelled output of the Klamath Basin Planning Model (KBPM),
often within a hundredth of a foot of the desired level. This commitment exists, regardless of
whether actual stored water and inflows are sufficient to achieve the modelled output. This leads
to nonsensical results, such as in 2021, when Reclamation was apparently violating the IOP and
BiOp incidental take limits despite taking no overt operational actions. The same issue exists for
river flows, particularly those more than 40 miles downstream of the Project, after water released
from Upper Klamath Lake has passed through four non-federal hydroelectric dams and

1 KWUA’s purpose here is not to argue that any given Project-related activity is or is not discretionary. Rather, our
point is that the IOP and related consultation materials make no effort to determine what is or is not discretionary.
This may be explainable by the tortured history that preceded the IOP, but it is not how Section 7 works.

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 4

reservoirs. These two hydrologic conditions are the most glaring, but not the only natural
processes or events that Reclamation purports to control under the IOP.
Reclamation further commits itself in the IOP to producing certain hydrologic conditions
regardless of whether the actions of non-federal parties prevent or interfere with any of those
conditions from occurring. In particular, there are hundreds of private, non-federal diversions
from Upper Klamath Lake and the Klamath River over which Reclamation has no physical or
legal means of control over. Among these non-federal actors are individuals and entities with
contracts with the United States for water from the Project, which do not afford Reclamation any
discretion to curtail deliveries to, at least certainly not for the express benefit of listed species.
To the extent that there are diversions associated with other federal activities or projects, there is
a completely different set of rules that applies to those activities, and they are not required to be
the guarantor of instream water levels.
The effects of actions over which Reclamation has no discretion – even though those
actions may occur within the service area or involve existing facilities of the Project – cannot
reasonably be characterized as agency actions that may cause impacts to listed species or
modification of their critical habitat within the meaning of the ESA. Those effects are not an
agency action subject to consultation. Rather they are activities or conditions that exist
independent of Reclamation’s operation of the Project and are therefore properly attributable to
the environmental baseline. It is only the agency’s discretionary actions that are subject to
consultation and the IOP makes no attempt to distinguish between actions over which
Reclamation retains discretion, and the multitude of processes, events, and activities within the
Project or involving Project facilities over which Reclamation has no physical or legal means of
control.
This problem extends further in that the IOP burdens Reclamation with the duty to
mitigate, or attempt to mitigate, the effects of other factors that affect fish populations. In 2021
and 2022, the IOP or its spin-off “temporary” plans require the Project to augment Klamath
River flow artificially during the irrigation season. It is not conceivable how that can be
necessary to avoid prohibited “effects” of the Project.
Worse, the bargaining-for-water that drives the IOP approach and current operations is
only that: bargaining for water. The IOP and BiOps do not concern themselves with whether
increased instream water levels will address limiting factors for ESA-listed species. For
example, no regulation of the Project has improved or will improve recruitment to adulthood for
endangered suckers. Similarly, Project deliveries are curtailed in order to maximize the area of
physical habitat in the Klamath River, but it is virtually certain that physical habitat in the
mainstem Klamath River is not a limiting factor for coho populations.
This is not the first time we have identified these fundamental problems. There has been
no response to our prior communications, and no effort to engage with KWUA on these topics,
despite repeated requests. However, even if the agencies continue to avoid these issues, there are
other, independent reasons that the IOP cannot be extended.

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 5

The September 30, 2022 Termination of the IOP is Part of a Bargained-for Agreement
As discussed above, the IOP is the result of a settlement in litigation. The stipulated
agreement between the parties, approved by court order, is premised on Reclamation’s
commitment to complete a new ESA Section 7 consultation prior by September 30, 2022 at the
latest. The September 30, 2022 date is not incidental or accidental. The parties weighed the
risks of a potential preliminary injunction against an IOP of specific duration. That duration was
actively negotiated as part of a deal. The IOP thus states (p. 2) that Reclamation “proposes an
Interim Plan that would be in effect until the earlier of September 30, 2022, or the completion of
reinitiated ESA Section 7 consultations on a modified or new proposed Operations Plan . . . to
supersede . . . the Proposed Interim Plan.” Until very recently, Reclamation had been regularly
providing status reports to parties to the litigation on the consultation process, consistently
indicating its intent to comply with the September 30th deadline.
The IOP Does Not Satisfy Section 7 of the ESA

Reclamation adopted the IOP because it had not adequately completed the ESA Section 7
consultation process. By letter dated March 25, 2022, Reclamation advised the parties that it
proposes to operate the Project “consistent with the [IOP] until that time . . . .”; that time
apparently is when “reinitiated consultation on Project operations biological opinions is
completed.” This circular statement provides no fixed time by which Reclamation would
complete the required ESA Section 7 consultation process, and would have the agency continue
to follow the IOP indefinitely.
Reclamation officials have suggested that this letter is intended to convey the agency’s
intent not to complete the consultation process until sometime after removal of the four
hydroelectric dams on the mainstem of the Klamath River. This timeline is therefore to be
unbounded, according to Reclamation, but certainly not within the next two years.
As previously noted, Reclamation’s biological assessment, dated December 21, 2018,
relied upon erroneous data related to aquatic habitat for salmon in the Klamath River
downstream of Iron Gate Dam. NMFS BiOp, dated March 29, 2019, also relied upon the same
erroneous data for purposes of its analysis and resulting opinion. Reclamation attempted to
rectify this deficiency through a five-page memorandum sent to USFWS and NMFS, dated
March 27, 2020.
Rather than updating or amending Reclamation and NMFS’ analysis based on the

corrected data, Reclamation proposed in the IOP to add a large volume of water (40,000 acre-
feet) to the already immense volume to be released to the river in April and May in certain year

types. To support this change, Reclamation’s March 27, 2020, memorandum included one
paragraph “evaluating” the change, basically stating that the additional water would now meet
the “conservation standard” it had previously analyzed for salmon habitat (i.e., 80 percent of
maximum available habitat, or so-called “Hardy flows”).

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 6

NMFS formally responded in writing, acknowledging that the new operations regime
would presumably result in the conditions it analyzed in its 2019 BiOp with the erroneous data.
So, in effect, Reclamation’s solution to the defective data and resulting analysis was to amend its
proposed action.
To further change the nature of the proposed action, Reclamation also included
“springtime water borrowing operations” from PacifiCorp’s reservoirs, whereby Reclamation
would “borrow water or modify augmentation releases . . . to ensure that [Upper Klamath Lake]
elevations would not fall below 4,142.0 feet during April and May during that water year.” In
other words, to offset the potential impact to the lake from the additional releases to the Klamath
River, Reclamation said it would borrow water from PacifiCorp. Notwithstanding the fact that
the proposed “springtime water borrowing operations” have not occurred in 2020, 2021, or 2022,
despite Upper Klamath Lake’s elevation falling or being below 4,142.0 feet in April and May
each year, Reclamation is now proposing to continue this “borrowing” indefinitely, through and
after PacifiCorp’s dams have been breached. How will Reclamation “borrow” water from
PacifiCorp reservoir’s when they are gone? These are the kinds of logical inconsistencies that
stem from a plan that has never been fully analyzed.
Other Erroneous Data

There are other, fundamental data errors that underly the IOP. One is the bathymetric
data for Upper Klamath Lake (i.e., “Neuman 2017”). Reclamation’s 2018 biological assessment
stated that “specific concerns have been raised regarding the accuracy of the [Upper Klamath
Lake] bathymetric layer utilized [] to model this [Proposed Action]; however, it is the best
information currently available and it is unclear and [sp.] to what extent (if any) a revised
bathymetric surface will have on existing area capacity curves” (pp. 3-5 and 4-5).
Apparently because of doubts over the accuracy of Reclamation’s bathymetry, USFWS
collected its own “new, high quality bathymetric data” (“Shelly et al. 2019”) prior to preparing
its 2020 BiOp. This data USFWS collected is apparently not comprehensive, covering only the
northern portion of the lake. The data is also not publicly available, nor has it been peer
reviewed. Nonetheless, there are apparently significant discrepancies between the two data sets.
KWUA understands that Reclamation has recently collected new bathymetric data for
Upper Klamath Lake and is currently developing a revised area-capacity curve. What this new
data means for other key biological factors, like the amount of habitat at various depths and
access to water quality refugia, also needs to be analyzed. Reclamation already has the corrected
data, so this analysis should already be underway. Reclamation also has an obligation to share
this new, corrected data with KWUA and other stakeholders for their independent review.
Another key data point for Reclamation’s 2018 biological assessment is the amount of
wetland habitat around Upper Klamath Lake that remains inundated with at least a foot of water,
presumably for its importance to larval and juvenile sucker survival. Putting aside the obvious
questions about the premise underlying this assumption, Reclamation’s 2018 biological

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 7

assessment included an error in how it determined the amount of wetland habitat inundated at
certain lake elevations. Specifically, the percent of wetland habitat was calculated in relation to
the elevation of the bottom of the lake, not the lake’s water surface. This error meant that
Reclamation was comparing two different benchmarks when it analyzed the effect of water
surface elevations on inundated wetland habitat, referring to the lakebed when discussing water
levels.
Reclamation identified and attempted to correct this error in a 2019 paper, which, like the
bathymetric data, has not been publicly released or undergone any form of peer review.2 Read in
its totality, this paper raises serious questions about Reclamation’s methodology to determine
wetland habitat. Nevertheless, the key point here is that Reclamation never corrected the
analysis that now underlies the IOP.
We do not here intend to endorse any specific data or speak to its biological significance.
Rather, we believe it is critical to acknowledge that much of the key data behind the IOP and
related federal agencies’ analysis is known to be erroneous.
Flawed Hydrologic Assumptions

The IOP is based on outputs from the KBMP, which is intended to provide predictive
hydrologic outcomes, particularly for lake elevations and river flows, under different operational
scenarios. The KBPM was developed and is based around a designated hydrologic period of
record, 1981 through 2019. If the model is inaccurate or the period of record is unrepresentative
of likely conditions, the anticipated hydrology under the proposed operations will not in fact be
predictive. Experience has shown that one or both of these deficiencies exist.
The best evidence of the problems is the entire history of operation under the IOP. In
each of 2020, 2021, and 2022, it has not been possible to operate the Project to produce the
hydrologic outcomes projected in the KBPM.
Using lake levels as one hydrologic indicator, the KBPM showed that a water surface
elevation of 4,142.0 feet could be maintained throughout April and May in 85 percent of all
years; whether or not it has a particular biological significance, that operating criterion plays a
part in the IOP. Yet Upper Klamath Lake elevations have not met that standard in any of the
three years under the IOP. At no time in the period of record did the KBPM anticipate that
Upper Klamath Lake would fail to reach 4,142.0 feet in April or May in multiple consecutive
years, let alone three years in a row.
At the end of May 2022, despite more than a month of above average precipitation, the
level of Upper Klamath Lake was still more than 1.2 feet below the standard set for April and
May in the IOP (4,142.0 feet). That difference in elevation represented a storage volume of over
105,000 acre-feet. This outcome, it should be noted, is after Reclamation elected to leave an
2 Hereford, Danielle M. and J. Roberts, Reclamation, “Assessment of wetland habitat for larval and young of the
year suckers at various lake elevations in Upper Klamath Lake, Oregon” (Mar. 18, 2019).

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 8

extra 40,000 acre-feet of water in Upper Klamath Lake at the end of 2021. 2022 is not the driest
year in the period of record used in the KBPM, and yet the lake levels now occurring were never
supposed to happen according to the KBPM.
Likewise, the commitment in the IOP to release up to 50,000 acre-feet prior to April 15
of each year for a “surface flushing flow” has proven to be problematic, given all the other
hydrologic requirements coded into the KBPM. Reclamation has been unable to match the
72-hour, 6,030 cubic-feet-per-second flow at Iron Gate Dam in all three years under the IOP.
Another failed aspect of the IOP is the notion of a “locked in” minimum Project Supply
calculated on April 1. This “locked in” supply was intended to provide water users some level of
assurance, in part so that farmers and water managers can attempt to plan rationally for a limited
supply. The first two years of the IOP did not result in a locked-in Project Supply; this year, the
necessary deviations from the IOP have led to a different approach to Project Supply than
originally contemplated in the IOP.
Whether it is the model or the data inputs, something is wrong. In general, KWUA
believes it is inherently flawed to attempt, as Reclamation does, to manage an entire river basin
in accordance with model outputs. Moreover, the KBPM has become a Frankenstein-type
product, as Reclamation has repeatedly reallocated more water for river releases, clearly to a
level that natural hydrology cannot sustain.

Operational Inconsistencies

Beyond the problems with the KBPM and its associated period of record, the IOP
assumes the operation of certain Project facilities at odds with how these facilities are currently
being operated.
A clear example of this inconsistency is Tule Lake Sump 1A, which is also part of the
Tule Lake National Wildlife Refuge and critical habitat for birds in the Pacific Flyway. As part
of the IOP, Reclamation committed to maintaining minimum year-round elevations in Sump 1A
for the protection of suckers, characterizing these operations as “consistent with historic
operations . . . .” (p. 7-28). Under exceptional conditions, Reclamation anticipated low water
levels in Sump 1A might force the temporary relocation of suckers there, causing the potential
mortality of up to 100 adult suckers (p. 7-29).
In the summer of 2020, the first year of the IOP, Sump 1A would have gone dry had
Reclamation not implemented a water exchange from Clear Lake Reservoir. This novel
operation was not part of the IOP. Despite this exchange and Tulelake Irrigation District’s (TID)
efforts, water levels in Sump 1A still fell below the minimum under the IOP, leading to a severe
outbreak of avian botulism.
In 2021, TID again had to warn Reclamation that Sump 1A was going dry, but by then it
was already too late. To avoid the inevitable stranding of suckers and a repeat of avian botulism,
USFWS and Reclamation decided to drain Sump 1A into Sump 1B. The agencies coordinated to

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 9

salvage suckers from the drying lakebed, but their inability to get equipment and personnel in
and around the muddy sump hampered these efforts and only approximately 300 adult suckers
were saved. Flocks of pelicans, seagulls, and other birds likely consumed tens of thousands of
fish, many of which were undoubtedly endangered suckers.
Since then, for the first time in human history, Tule Lake Sump 1A has remained
completely dry, creating dust storms that have plagued local communities. It is unlikely that
Sump 1A will be refilled in 2022. In fact, now Sump 1B appears likely to go dry in the coming
months, forcing additional fish salvage efforts, causing the mortality of hundreds if not
thousands of fish, and eliminating the last sliver of waterfowl habitat in the refuge.
There is currently no plan between Reclamation and USFWS for refill of either Sump 1A
or 1B (when it inevitably goes dry). In fact, neither Reclamation nor USFWS have even raised
the need to refill the sumps or identified this as a priority. It appears that both agencies have
essentially written off the Tule Lake Sumps as habitat for both endangered suckers and birds
migrating along the Pacific Flyway.

New Information

There is significant new scientific information, and there will be more in the near future.
For example, the NMFS 2019 BiOp calls for regulation of Klamath River flows on the basis that
endangered Southern Resident killer whales eat Klamath River Chinook salmon. NMFS’
exceptionally qualitative analysis makes no attempt to determine the importance of Klamath
River salmon for the Southern Resident whales, and it certainly does not provide a convincing
logic that variations in Klamath River flows are consequential for the whales. There is
substantial new information that indicates that Klamath Chinook amount to a very small
percentage of the whales’ diet, and only during a few months of the year. This information must
be considered.
Also, in the near future, there will be two reports from the U.S. Geological Survey
concerning the relationship between Upper Klamath Lake elevations and water quality and
sucker survival. The work of the acknowledged federal expert agency should be considered
immediately in Project operations.

Conclusion

The IOP expires on September 30, 2022. That date cannot come soon enough. The IOP
is a product of a unique context. It was never intended to satisfy Reclamation’s Section 7
consultation obligation, but rather as a short-term measure to address known errors in the data
the agencies relied upon and to afford Reclamation time to complete a proper consultation.
Reclamation should complete a new consultation process prior to October 1, 2022. For
that consultation, it must fundamentally change its approach, from one based on bargaining for
water to one that: clearly specifies the proposed discretionary action or actions that are the
subject of consultation, identifies an environmental baseline consistent with federal regulations,

Ernest Conant
RE: Status of the Interim Operations Plan for the Klamath Project
June 17, 2022
Page 10

and evaluates the effects of the discretionary agency actions by comparison to the environmental
baseline. In the near term, we believe the most prudent approach will be one-year-at-a-time
consultations, which can evolve to longer term or permanent proposed actions in the future.
I look forward to discussing this with you in the near future.

Sincerely,

Paul S. Simmons
Executive Director and Counsel

cc: KWUA Board of Directors
Klamath Project Managers
Paul Souza, USFWS
Scott Rumsey, Ph.D., NOAA Fisheries
Jeff Payne, Reclamation
Lisa Van Atta, NOAA Fisheries
Alan Heck, Reclamation
Chris Beck, Reclamation
Carter Brown, Office of the Solicitor
Lance Wegner, Office of the Solicitor
Moss Driscoll, KWUA

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