[env-trinity] Klamath Basin Coalition Letter on Klamath Water Bank

Sun Jan 30 20:41:30 PST 2005

Forwarded by Glen Spain FISH1IFR at aol.com 

  The Klamath Basin Coalition
                                       PO Box 1375, Eugene, OR  97440

      (541) 689-2000  Fax:  (541)689-2500

      Email:  klamathcoalition at aol.com

        Web:  www.klamathbasin.info

January 27, 2005

Dave Sabo

Bureau of Reclamation

6600 Washburn Way

Klamath Falls, OR  96703

RE:  Comments on Klamath Basin Water Banking Program

Dear Mr. Sabo:

                                                                                                                                                                                                Via Email & Mail

This letter is on behalf of the Klamath Basin Coalition, an alliance of local, regional and national organizations dedicated to conserving and restoring the biological resources of the west's once-great Klamath Basin. Coalition membership includes American Rivers, Defenders of Wildlife, Earthjustice, Friends of the River, Headwaters, Institute for Fisheries Resources, Klamath Basin Audubon Society, Klamath Forest Alliance, Northcoast Environmental Center, Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Associations, the Sierra Club, Trout Unlimited, The Wilderness Society, Waterwatch of Oregon, and the World Wildlife Fund.  The Coalition appreciates the opportunity to comment on Reclamation's water banking program in the Klamath Basin.  

As Reclamation is painfully aware, water has been severely over-allocated and over-promised in the Klamath Basin.  Any meaningful long-term solution will require considerable downsizing of the Klamath Project and the retirement of many other water rights (both Project and non-Project) throughout the basin on a permanent basis.  In order to restore balance to the basin and avoid ongoing water crises, acquisitions must be on a permanent basis and the water saved or acquired must be dedicated to fish and wildlife and to meet Tribal water obligations.

The current water banking program is for too little water, is too limited in scope, is not properly managed, is not sustainable, is not a good long-term investment, and does not offer permanent protection. The Coalition first sets forth reasons the current water banking program is not a viable or sustainable long-term solution to the basin's problems and then offers some immediate and longer term recommendations for improvement.

Reasons the Water Bank Program is Not Viable or Sustainable 
1.  The Current Program is For Too Little Water 

The 100,000 acre-feet of water that is to be acquired and provided for instream flows below Iron Gate Dam under the current water bank program is not enough to bring water use in this over-appropriated basin back into balance with what is ecologically sustainable.   It will not add any water to Klamath Lake or the Klamath River over and above the inadequate and minimal amounts required simply to prevent jeopardy to ESA listed species under the existing biological opinions.  Recovery will likely require more water than merely preventing immediate jeopardy. 

Not only is the amount inadequate for ultimate recovery of ESA listed species, but it falls far short of what is needed to meet the federal government's Tribal trust responsibilities, to proactively meet the needs of other important fish and wildlife species so as to prevent them from later becoming ESA listed, and the needs of the basin's critically important national wildlife refuges (utilized by 80% of the birds in the Pacific Flyway and by the largest populations of wintering bald eagles in the lower 48 states, as well as a myriad of other species).  

The Secretary of Interior has a legal duty under the National Wildlife Systems Improvement Act to insure that the nation's wildlife refuges have adequate supplies of water.  That duty is not being met.  Upper Klamath National Wildlife Refuge is frequently completely drained because of current management of the Klamath Project by the Bureau, and many acres of Lower Klamath Lake and Tule Lake National Wildlife Refuge wetlands are also frequently dewatered and lost to wildlife each season.

Reclamation should be using the water bank only as a means of transitioning to permanent demand reduction, while it designs and phase in a permanent demand reduction program that will allow it to meet all of the federal governments legal obligations and that will actually restore balance to the basin between supply and demand.  If the Bureau does not accomplish this task, the basin will remain in crisis.

2.  The Current Program is Too Limited In Scope

As stated above the program should not just be focused on fulfilling the minimal water needs of ESA listed species, but additionally on meeting all of the federal government's other legal obligations, including the needs of the Tribes, the national wildlife refuges, and other fish and wildlife species.  

To the extent the current water bank program only applies to dry or critically dry water year types, the scope of the program is too limited to address the fact that there is simply not enough water to meet the needs of the Tribes, fish and wildlife, the refuges, or the federal government's other legal obligations even in wetter water year types.  Under the current program fish will still only be receiving survival flows (at best) even in good water years.  In essence what is happening is permanent drought conditions are being artificially institutionalized for fish and wildlife, especially in the lower river.  One way this happens for flows through Iron Gate Dam is that in its Annual Operations Plans the Bureau has in the past two years artificially distorted the "base flows" radically downward, based on a clear misreading of the NRC report, so that base flows are now sometimes at or near historic lows.  Then the water bank water is added "on top" of these already artificially low base flows, eventually bringing the water flow levels below Iron Gate Dam back within the range of where they should originally have been set to begin with as base flows - though this time at great taxpayer expense. 

In other words, in several recent instances the Bureau appears to simply be holding back too much water from the river at the onset (including during recent winter flows), then putting the same water it artificially withheld back into the river and calling that water the "water bank".  This is bogus bookkeeping at best, and will never achieve the purposes for which the water bank was established.

We remind you that the water bank was established to assist the Bureau in meeting its legal obligations under the Coho Biological Opinion (BiOp) t achieve long-term flows pursuant to Table 9 (pg.70) of that BiOp, including minimum flows at Iron Gate Dam of no less than 1,000 cfs throughout July, August and September as well as minimum flows of no less than 1,300 cfs in October of each year.  This water level is essential to prevent another disastrous fish kill like the two fish kills (spring and fall) of 2002 as well as to meet ESA, Clean Water Act and Tribal trust obligations.  The Bureau will never achieve those water targets by simply first taking too much water out to begin with, then returning that same water and calling that returned water the "water bank" addition.  When combined together, one way or another, the total flow has to meet those long-term targets.  To do that must include reducing the net demand for water in the upper basin, on both Project and non-Project lands, through phased in willing seller water purchases.

The water bank was intended merely to be the first phase toward that type of permanent demand reduction program.  The current program should be redesigned to start the process of purchasing land and/or water rights from willing sellers and permanently retiring the water use so that the demand reduction benefits can be realized every year.

3.  The Current Program is Not Properly Managed 

A. Lack of Accountability and Monitoring.  Reclamation does not measure or monitor water use in the Klamath Project closely enough to ensure that the water being acquired at taxpayer expense is in fact going to supplement river flows as intended.  In fact Reclamation's capacity to do so is limited, because of inadequate or nonexistent measurement and flow control capacity throughout the Project.  Reclamation does not have the ability to shepherd acquired water through the Project back to the river or enough information to know to what extent that is actually occurring.  Although flows through Iron Gate Dam can be measured with some accuracy, at present the "error bars" on the Bureau's measurement systems within the Project can exceed 50% error.  Thus it is nearly impossible to ascertain whether projected water bank savings within the Project actually exist. These contentions are supported by a 2003 "Technical Memorandum" prepared for the Bureau by Dr. Burt.

This lack of accountability leads to covert water use by individuals paid not to use water and/or use of the acquired water bank water by other irrigators within the Project.  Dr. Burt also noted a lack of enforcement by the Bureau, with some "fallowed" lands still being irrigated and grazed during 2003, in effect allowing some landowners to double-dip, getting income from both the water bank fallowing program as well as irrigated crop production.  This means that to an unknown but potentially large extent the water acquired from irrigators or from groundwater for fish is actually being used for irrigation instead.  To make up the difference more water than should be is taken from Upper Klamath Lake, the national wildlife refuges, or from other parts of the Project.

Reclamation needs to establish a better internal measuring, monitoring, headgate and enforcement program that ensures the purchased water actually goes to fish and wildlife. Water users need to be held accountable to ensure that the money spent provides the public benefits intended.  Reclamation might also consider blocking acquisitions to make it easier to manage and account for the acquired water.

B.  Inappropriate Flow Regulation.  Reclamation should be regulating diversions into the Project at the front end to account for the water acquired in the water bank rather than just hoping it will come out the pipe at the other end.  This is especially important because of the lack of internal monitoring capacity within the Project itself.

In other words, the acre-feet of water acquired within the Project for the water bank should be converted to cubic-feet per second (cfs) over the course of the irrigation season, and diversions at the A-canal or other diversion points to the Project should be reduced throughout the irrigation season by the number of cubic-feet per second acquired.  In other words, Reclamation should be regulating the rate of diversions not just the overall duty.  The best way to ensure that Project users do not exceed their overall duty is to regulate the rate of diversion into the Project at the front end throughout the irrigation season. 

The diversions approved in the Bureau's Annual Operations Plan should be limited to the average diversion level for the Project for similar water year types and then further reduced by the cfs purchased for the water bank.  This procedure would also ensure that the water actually purchased is not lost in the black box of the Project and is therefore available for its intended purpose. Unfortunately, Reclamation is regulating water diversions to the Project in a manner that undercuts the intended benefits of the water bank. 

For example, instead of using average Project water diversions in similar water year types as a baseline and then reducing the rate and duty of diversions from there by the amount of water secured within the Project for the water bank, in its 2004 Operations Plan, the Bureau allocated 335,000 AF of water to the Project for that year, far above the average of 299,000 AF of water for every other similar water year over the past 41 years of record, and 5,000 AF higher than in any prior such water year in the past 41 years.  In other words, the Bureau completely offset the 23,893 AF of Project demand reduction achieved due to the 2004 water bank, simply by raising the allocation to the Project to 36,000 AF above annual average for all prior similar water years - all at taxpayer expense.  In fact, the net Project water demand reduction was thus NEGATIVE in 2004, at a cost to the taxpayers of $2,339,365.79, according to the Bureau's own Fact Sheet summarizing the 2004 water bank program.  To make up the difference and meet the water bank requirements Reclamation then reduced water deliveries to the refuges well below their needs, had to take more water from Upper Klamath Lake then it would otherwise have had to, and/or had to resort to water bank flow accounting tricks that are unfair to downstream interests.  Instead of being transparent and understandable, management of the water becomes a sophisticated sort of shell game where it's difficult to tell who is getting what water and where it is coming from.  This greatly erodes trust in the Bureau and in the water bank program itself.

C.  Unreasonable Reliance on Ground Water Substitution and Supplementation.  We are very concerned about the growing reliance of the water banking program on groundwater.  It is well known that groundwater is connected to surface water in the basin in many ways, especially above Upper Klamath Lake and in the Lost River Basin where a great deal of surface water inflow is from springs.  Paying irrigators to switch from surface water to groundwater is no more than robbing Peter to pay Paul. 

There are many signs that the groundwater aquifer is declining and connected to declining surface flows.  USGS and others are developing more information on the groundwater aquifer, and before those studies are completed, it doesn't make sense to rely so heavily on groundwater as a component of the water bank.  In a basin with an already overdrawn aquifer, more reliance on groundwater for the water bank not only exacerbates the depletion of that aquifer, but simply causes more surface water to be absorbed into the aquifer, reducing the effective inflow to Upper Klamath Lake and the Lost River, two sources which the Project already draws from.  This is confirmed by 2004's Upper Klamath Lake inflow figures, which were far less than predicted based on actual precipitation and prior experience.  The missing inflow probably was absorbed into an exceptionally dry aquifer.  Thus, taking water from the aquifer to feed the Project would be offset by less inflow to the Project - the functional equivalent of a transfusion from one arm to the other arm of the same patient.

There are also some indications that by paying irrigators to shift to groundwater, there is an actual increase in irrigation because some irrigators are able to irrigate lands with ground water that they could not effectively irrigate with surface water, and because of the federal payments to shift to groundwater they now find it economically viable to irrigate lands that didn't get much, if any, irrigation before.  This ultimately increases the demand on the basin's overstretched water resources rather than reduces it.  

The increased reliance of the water banking program on groundwater pumping out of an aquifer that is already overdrawn and dropping rapidly - all to maintain Project water demand that is clearly excessive - is not responsible.  Without real demand reduction, no net water saving is actually achieved, only a shifting of water from one place to another at enormous taxpayer expense. 

D.  Lack of Multiple Year Participation Requirement.  Single-year participation in the water bank promotes excess water use at the end of the prior years' irrigation season and at the commencement of the succeeding-years irrigation season thereby diminishing the return from water bank acquisitions.  The program should be structured to limit irrigation on the same lands for more than a single irrigation season.  This would also make enrollment in the program easier to predict year to year and cut down on some of the paperwork.  

Frankly, the program, as currently structured and managed, appears to mainly serve the function of propping up an unsustainable level of irrigation and risks being subverted into another government subsidy to support over-appropriation in the basin at high taxpayer expense, while not providing the intended public benefits. 

4.  The Current Program is Not Sustainable 

The year-to-year water-banking system is not a permanent solution and is not sustainable in the long-term.  Any gains or improvements that might accrue through implementing the program would be lost if the program cannot be sustained because of lack of Congressional funding or lack of participants in any future year.  It also becomes a gigantic game of "musical chairs" with many willing participants left out of the program each year through lack of funds.  This make it very hard for landowners who would like to plan their finances based on greater certainty.  Worse, it could set up a massive new entitlement program for irrigators, serving only to compensate participants during the few times they may not receive full water deliveries under the existing biological opinions, and actually end up discouraging permanent demand reduction in the long run..

The ground water component of the water bank is also not sustainable for additional reasons.  We are already seeing serious declines in the ground water table making it necessary to drill deeper and deeper wells.  Increased groundwater development has been affecting domestic water supplies and has caused pollution of the City of Bonanza's domestic water supply.  It should also be noted that groundwater pumping in the basin is currently greatly subsidized by power rates many times lower than typical for agricultural users.  This subsidy will end in 2006, making it economically unfeasible for Reclamation to maintain the current level of reliance on groundwater for meeting its water bank goals.

5.  The Current Program is Not a Good Long-Term Investment 

The water-banking concept is likewise not a good use of taxpayers' dollars over the long term.  A century from now US taxpayers should not be forced to continually pay water users in the Klamath Basin to not harm threatened fish and wildlife. The water bank program is far more expensive, in the long run, than outright purchase of and retirement of both land and water rights.  

Approximately 20% of the lands that are dependent on the Project's water system are now or have recently been offered for sale.  Permanent acquisitions could be obtained from willing sellers that would give benefits every year at a one-time cost that is far cheaper to the taxpayer than a year-to-year water banking system that would have to last forever and would need perpetual funding.  Over time, the water bank could easily cost taxpayers between 2.5 and 3.5 times the present fair market value of the lands and all the water rights associated with those lands.

It is also important to note that by simply phasing out the commercial farming leases on the national wildlife refuges, irrigation season Project water demand could be permanently reduced by about 10% at no cost to the taxpayer.  In fact each year the federal government pays more per acre to idle land in the Project than it receives from leasing out land on the national wildlife refuges that shouldn't as a policy mater be leased for commercial farming purposes in the first place.

The taxpayer is actually paying more for less under the current program.  The current program simply doesn't increase natural storage, pollution abatement, or fish and wildlife habitat opportunities like a focused permanent demand reduction program could.  

6.  The Current Program is Not a Permanent Solution to the Water Crisis

In short, the current water bank program only makes sense as a short-term fix while a permanent demand reduction program is funded and implemented.  If not coupled with a permanent demand reduction program it risks becoming little more than another expensive and unnecessary subsidy to irrigators, with very little or no actual benefits to fish and wildlife.  It will not solve the water crisis in the basin and as currently managed could end up exacerbating it over the long-term.

SUMMARY OF RECOMMENDATIONS

Short-Term Recommendations
1. Decrease Reliance on Groundwater and Increase Crop Idling

Reclamation should consider immediately eliminating payments for groundwater substitution as this is just paying irrigators to use a different straw from the same source and has nebulous benefits. Groundwater Supplementation should also be eliminated or at least decreased as this is not really a new source of water from which to draw and is not sustainable.  A larger emphasis should be put on the crop idling portion of the program.

2. Regulate Diversions to the Project Based on Water Year Types and Water Bank Acquisitions

Though its difficult to regulate water use within the Project, there is no reason Reclamation could not regulate diversions into the Project at this time.  However, before Reclamation can regulate it needs to determine how much water should be delivered to the Project each year.  Much in the manner the lake and the river are allocated so much water in different water year types, the Project should also only be allocated so much water in various water year types.  The baseline should be based on the average diversions for various water year types over the last 41 years of record.  This baseline should then be reduced by the amount of water acquired within the Project for the water bank, and Reclamation should then regulate the rate and duty of diversions into the Project at the A canal and other diversions accordingly.  This would bring immediate accountability to the water bank and assure taxpayers that their dollars are actually providing the intended benefits.

3.  Encourage Multiple-Year Participation

Reclamation should encourage multi-year participation in the crop idling program by maintaining an option to idle the same land over at least a three-year period at the same price.  This would give more certainty to the program and would increase program benefits because there would be less of an increase in irrigation from those about to enter or go out of the program.

4.  Phase-out Commercial Farming on The National Wildlife Refuges  

Reclamation should consider not auctioning off the national wildlife refuge lands that come up for auction this year for commercial farming.  This would be a very inexpensive way to meet a portion of the water bank requirements at no cost to the taxpayer. 

5. Develop a Permanent Demand Reduction Program

Reclamation should develop a permanent demand reduction program this year and make it a priority for the CIP process.

Long-Term Recommendations 

1.  Develop and Implement a Permanent Demand Reduction Plan

Water has been severely over-allocated and over-promised in the Klamath Basin.  Any meaningful long-term solution will require considerable downsizing of the Klamath Project and the retirement of many other water rights throughout the basin (e.g. the Wood, Williamson, and Sprague Rivers in Oregon and the Shasta and Scott Rivers in California) on a permanent basis.  There are currently tens of thousands of acres for sale in the Klamath Basin.  A federally funded, voluntary program to give financial assistance to the farmers, who want to sell their land or water, by buying their land or water at a fair price would be an equitable way to reduce agricultural demand, while giving more security to those who want to stay in business.  In order to commence restoring some balance to the basin and avoid ongoing water crises, acquisitions must be on a permanent basis and the water saved or acquired must be dedicated to fish and wildlife.

Other benefits could also be achieved by a demand reduction program that focused on reclaiming and restoring wetlands, especially in the Lower Klamath and Tule Lake Wildlife Refuge areas and around Upper Klamath Lake.  These benefits would include providing for natural water storage, improving and increasing fish and wildlife habitat, and improving water quality. The recent report by the National Research Council highlighted the need to establish a massive wetlands restoration program in the Klamath Basin, and to re-flood portions of Lower Klamath and Tule Lake that were drained by the Klamath Project. 

2. Phase-out Commercial Farming on the National Wildlife Refuges.

Over 22,000 acres of federal refuge land in the Tule Lake and Lower Klamath National Wildlife Refuges is leased for commercial agriculture.  These leases should be phased-out by allowing the leases to expire at the end of their existing lease terms. This would not only allow management of these refuge lands for fish and wildlife, eliminate the use of pesticides on the refuges, allow refuge personnel to devote more time to refuge management, and help secure a reliable source of water for refuge purposes by allowing for the storage of approximately 30,000 to 40,000 acre-feet of water, but it would ease the irrigation season water demands of the Klamath Project.  Water demand in the Klamath Project could be reduced by approximately 10% just by phasing out commercial farming on land already owned by the federal government.  It's the right thing to do for the refuges, is cheaper than idling land through the water bank, and is an important step in solving the water crisis in the basin.  

Thanks for the opportunity to comment.

Sincerely,

Robert G. Hunter

Staff Attorney, WaterWatch

On Behalf of The Klamath Basin Coalition

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