Aug 212015

Full decision below

The Ninth Circuit has affirmed a district court opinion concluding that discharges from the Klamath Straits Drain into the Klamath River did not violate the Clean Water Act (ONRC Action v. U.S. Bureau of Reclamation, 12-35831).

The case attracted a great deal of interest because of the nature of the legal issue, which has been before the Supreme Court, most notably in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013), which the appeals court panel said "provid[ed] a simpler path to resolving this appeal." The court continued:

In that case, the Supreme Court considered the question of whether "the flow of water out of a concrete channel within a river rank[s] as a 'discharge of a pollutant' " under the CWA. Id. at 711. The Court answered that question in the negative. It held that "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA," id. at 711, citing to its prior decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004). The L.A. County Flood Control decision acknowledged that 'storm water is often heavily polluted.' 133 S. Ct. at 712. Nonetheless, it is the addition of pollutants from a point source that is prohibited under the CWA, and the Court held that "no pollutants are 'added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. A water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are "meaningfully distinct water bodies." Id. (quoting Miccosukee, 541 U.S. at 112).

The court found that "The record in this case demonstrates that the waters of the KSD are not meaningfully distinct from those of the Klamath River."

Summary prepared by court staff (which constitutes no part of the opinion)

The panel affirmed the district court’s summary judgment in favor of the United States Bureau of Reclamation and other defendants in a citizen suit brought by an environmental group under the Clean Water Act, alleging defendants violated the Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The Clean Water Act limits the “discharge of pollutants,” and makes unlawful the addition from a point source of any pollutant to navigable waters without a permit. The Klamath River is a navigable water. The Klamath Straits Drain moves water from Lower Klamath Lake back to the Klamath River, and is part of the Klamath Irrigation Project operated by the Bureau of Reclamation in parts of Oregon and California.

The panel held that because the waters flowing into the Klamath River from the Klamath Straits Drain were not “meaningfully distinct,” as that term was used in L.A. Cnty. Flood Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013) (holding that “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body”), a permit was not required under the Clean Water Act.

Feb 192015

Statement by Hollie Cannon, executive director of the Klamath Water and Power Agency, in response to the whistleblower complaint filed by PEER (received and posted Feb. 19)

This is nothing more than a petty and spiteful attack on the Klamath Basin's family farms and ranches from a disgruntled former BOR employee and an organization that is prone to hyperbole.

KWAPA was formed to assist the federal government and the irrigation community in preparation for implementation of a landmark water sharing agreement, which was negotiated amongst farmers, ranchers, conservation organizations, refuge interests, tribes and governments.

This action won't help the environment or any individual; it will only hurt struggling farms and ranches reeling from a third consecutive year of drought. Unfortunately, it is these sorts of malicious union attacks that give good public employees a bad name.

The specific allegations concerning authority of Reclamation to engage with KWAPA in the WUMP will have to be addressed by Reclamation. However, the allegations that the Water User Mitigation Program (WUMP) did not attain the task of “benefit of fish and wildlife habitat” is absolutely false.  The Lower Klamath Lake National Wildlife Refuge (LKLNWR) gets all the attention because it has suffered greatly since the impacts of ESA-caused water shortages beginning in 2001. PEER and others should also keep in mind what the situation [would be] without the WUMP.  Without question, the WUMP has provided water that allowed the LKLNWR to receive water it would not have in 2010, 2012 and 2013.  The Tulelake National Wildlife Refuge has been 100% watered (this refuge also provides habitat for endangered suckers).  Crops grown on private land provide tremendous benefit to wildlife for shelter and food.  Without the WUMP there would have been thousands of acres of farmland that would not have produced crops and the associated wildlife benefit.

As far as the administration of the WUMP by KWAPA, we are very careful to adhere to the requirements of the Office of Management and Budget.  An independent audit of the KWAPA financials is conducted each year and is available for public review.  Reclamation conducted a Procedures Review of the WUMP in 2013 as well.

Feb 182015

Federal whistleblowers are alleging that the Bureau of Reclamation's relationship with Klamath Basin irrigators has gotten too close, leading to the spending of nearly $70 million "without any apparent legal authority."

A 2008 contract between BuRec and the Klamath Water and Power Agency “has morphed beyond any recognizable shape from a feasibility study into a direct subsidy bearing no relationship to fish and wildlife,” said Paula Dinerstein, senior counsel for Public Employees for Environmental Responsibility, which filed the scientists’ disclosure with the U.S. Office of Special Counsel. “It appears KWAPA just sucked in more and more government funds with little oversight and for no discernible benefit to the general public.” (PEER news release)

ESWR has requested a comment from KWAPA and will post whatever we receive. Update: KWAPA's Hollie Cannon responded to the charges, calling the complaint "nothing more than a petty and spiteful attack on the Klamath Basin's family farms and ranches from a disgruntled former BOR employee and an organization that is prone to hyperbole." He also said that "the allegations that the Water User Mitigation Program (WUMP) did not attain the task of 'benefit of fish and wildlife habitat' is absolutely false." (Full response here.)

In its news release issued today, PEER said:

"A federal program that was supposed to help drought-stressed fish populations in the Klamath Basin has been hijacked for the sole benefit of select irrigators, according to a whistleblower disclosure filed today by Public Employees for Environmental Responsibility (PEER). Overall, the U.S. Bureau of Reclamation has spent nearly $70 million without any apparent legal authority to do so."

The Office of Special Counsel has 15 days from today to decide whether the disclosure shows a “substantial likelihood of validity.”

"If so, the Special Counsel is supposed to direct the Secretary of Interior to conduct a formal investigation into systemic violations," PEER said. "If the violations are confirmed it could result in the reimbursement of unauthorized payments as well as punishment for responsible Reclamation officials."

More documents from PEER:

Sep 032014

U.S. District Judge Lawrence O'Neill rejected a request by California irrigators to stop extra flows provided by the Bureau of Reclamation to help prevent a die-off of chinook salmon in the Klamath River (San Luis & Delta-Mendota Water Authority v. Jewell, 13-1232 LJO-GSA, Cal. E.D.).

"[T]he flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary," O'Neill said in his Aug. 27 order. "There is no dispute -- and the record clearly reflects -- that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts."

The judge issued a similar ruling last year, when the same groups sought to stop increased flows to protect the fish.

"The Court finds that, although Reclamation has not presented an entirely consistent approach to determining the need for [Flow Augmentation Releases], the circumstances justify the planned 2014 FARs as a measure needed to prevent a fish kill that could significantly impact this year’s fall-run Chinook in the lower Klamath."

Biologists' principal concern is that the low water levels make the fish more susceptible to an epizootic outbreak of Ich, a fresh-water ciliated protozoan parasite.

In his conclusion, the judge wrote:

The Court concludes that, even though Plaintiffs are likely to (and in all likelihood soon will) succeed on the merits of at least one of their claims against Reclamation in connection with the 2013 FARs, the balance of the harms does not warrant an injunction at this time. Even if the Court were prepared immediately to issue a final ruling on the merits in favor of Plaintiffs, an injunction would not be automatic. The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 does not outweigh the potentially catastrophic damage that “more likely than not” will occur to this year’s salmon runs in the absence of the 2014 FARs.

In a "Note," he added:

Federal Defendants are hereby on notice that the Court will view future FARs (and requests to enjoin them) in light of all the circumstances, including the fact that Federal Defendants repeatedly have treated as “emergency” circumstances that appear to merit a consistent, reasoned, policy rationale. All involved deserve a reasonable opportunity to challenge any such rationale, and all interested, including the Court, deserve to be able to give to these issues “the time and attention [they] deserve.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 606 (9th Cir. 2014). Failure to heed this notice may disappoint Defendants in future orders.

Coverage (scroll over for hed)

Eureka Times-Standard (Jeff Barnard, AP, and Will Houston, Times-Standard) (8/27)

Bay Area Indy Media (Dan Bacher) (8/28)