<html><head></head><body><div class="ydp1c92fd28yahoo-style-wrap" style="font-family:garamond, new york, times, serif;font-size:16px;"><div dir="ltr" data-setdir="false"><a href="https://mavensnotebook.com/2023/09/12/courthouse-news-judge-finds-feds-violated-law-by-favoring-irrigators-in-the-klamath-basin/" rel="nofollow" target="_blank">https://mavensnotebook.com/2023/09/12/courthouse-news-judge-finds-feds-violated-law-by-favoring-irrigators-in-the-klamath-basin/</a> <br></div><div dir="ltr" data-setdir="false"><div><h4>Monday’s order upholds the notion that irrigators’ rights come after
the Bureau of Reclamation’s obligations to protected fish species and
tribal rights in the Klamath Basin.</h4>
<p><em>By Alanna Madden, Courthouse News Service</em></p>
<p><a href="https://i0.wp.com/mavensnotebook.com/wp-content/uploads/2023/09/Courthouse-News-Service.png?ssl=1" class="ydp8197fcd7tipi-lightbox" rel="nofollow" target="_blank"><img class="ydp8197fcd7alignright ydp8197fcd7size-medium ydp8197fcd7wp-image-149298" src="https://i0.wp.com/mavensnotebook.com/wp-content/uploads/2023/09/Courthouse-News-Service.png?resize=500%2C49&ssl=1" alt="" data-recalc-dims="1" style="width: 500px; max-width: 500px;"></a>A
magistrate judge in Oregon sided with the Klamath Tribes on Monday in
finding that the U.S. Bureau of Reclamation violated the Endangered
Species Act by misallocating limited water supplies from the Upper
Klamath Lake, harming endangered sucker fish and other aquatic wildlife.</p>
<p>In the 52-page <a href="https://www.courthousenews.com/wp-content/uploads/2023/09/clarke-findings-and-recommendation-klamath-tribes.pdf" rel="nofollow" target="_blank">findings and recommendation</a>,
U.S. Magistrate Judge Mark D. Clarke found the central question is
whether the federal government broke the law by allocating water for
irrigation when it knew it could not comply with its Endangered Species
Act obligations to endangered sucker fish in the Upper Klamath Lake, a
freshwater reservoir in the southern Oregon portion of the Klamath
Basin.</p>
<p>“The answer to this question is yes,” Clarke wrote, adding that the
courts have held that irrigators’ rights are subservient to the bureau’s
obligations under the Endangered Species Act and the tribes’ fishing
and water rights.</p>
<p>Known to the tribes as <em>C’waam</em> and <em>Koptu</em>, the Lost
River and shortnose sucker fish represent two species in Oregon’s
largest freshwater lake that have “played a central role in the tribes’
cultural and spiritual practices” for millennia, according to the
Klamath Tribes.</p>
<p>The two species were listed as endangered in 1988, and since 2001,
their populations have decreased substantially. In 2018, the Upper
Klamath Lake had an estimated 100,000 Lost River suckers and 20,000
shortnose suckers. Four years later, this number dropped to 27,000 and
3,500, respectively, the tribes claim in their May 2022 lawsuit.</p>
<p>The Klamath Tribes noted in <a href="https://www.courthousenews.com/judge-wont-divert-water-for-endangered-sucker-fish/" rel="nofollow" target="_blank">similar lawsuits</a>
that the lake’s water levels frequently fall below the historical
minimum of 4,140 feet, interfering with the suckers’ spawning, rearing,
feeding and access to water quality refuge areas. These changes, they
contend, first began after the Link River Dam was built in 1921 to
regulate water for the Klamath Project, an undertaking that diverts
about 340,000 acre-feet of water annually to farms and ranches.</p>
<p>However, this particular case — initially filed against the bureau
and U.S. Fish and Wildlife Service — shines a light on how the Klamath
Basin had been experiencing its third straight year of intense drought,
making it “nearly impossible” for the bureau to balance competing
interests, including that of tribal water and fishing rights,
obligations under the Endangered Species Act and project irrigators.</p>
<p>According to the tribes’ <a href="https://www.courthousenews.com/wp-content/uploads/2023/09/klamath-tribes-complaint-v-bureau-reclamation.pdf" rel="nofollow" target="_blank">complaint</a>,
Reclamation consulted with Fish and Wildlife regarding the Endangered
Species Act on its proposed action for operating the project from 2020
to 2022. Ahead of that consultation, they say, Fish and Wildlife issued a
<a class="ydp8197fcd7glossaryLink" data-cmtooltip="<div class=glossaryItemTitle>biological opinion</div><div class=glossaryItemBody>Under provisions of section 7 of the federal Endangered Species Act, a federal agency that carries out, permits, licenses, funds, or otherwise authorizes activities that may affect a listed species must consult with the federal fish and wildlife agencies to ensure that its actions are not likely to jeopardize the continued existence of any listed species.NOAA Fisheries/National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (US FWS) share responsibility for implementing the provisions of the Endangered Species Act. Whether it is the US FWS or NMFS that is consulted depends on the species; generally, US FWS manages land and freshwater species, while NMFS manages marine and anadromous species.The process begins by the federal agency requesting a list of listed species in the area of the proposed project. If no species are affected, the project can proceed without further consultation. If the project may affect listed species, an informal consultation process begins during which if the federal agency determines that the action is not likely to adversely affect listed species and USFWS/NMFS agrees with that determination, concurrence is provided in writing and no further consultation is required.If through the informal consultation process, the federal agency determines that the action is likely to adversely affect listed species, it must then request initiation of formal consultation. If the proposed action includes 'major construction activities' as defined by NEPA that would impact listed species or their critical habitat, a biological assessment must be prepared as part of the consultation initiation process. A biological assessment is not required if the action is not considered a major construction activity; however, if listed species are present in the action area, the federal agency must document to the Services its evaluation of the effects of the action to the listed species.After the request for formal consultation is initiated, certain timelines apply. USFWS/NMFS is then allowed 90 days to consult with the agency and applicant (if any) and 45 days to prepare and submit a biological opinion; thus, a biological opinion is submitted to the federal agency within 135 days of initiating formal consultation.USFWS/NMFS will make a determination on whether the proposed action will result in jeopardy of a listed species by looking at the current status of the species and the various effects – direct, indirect, interrelated, and interdependent – of the proposed federal action, as well as other non-federal actions that might occur. Jeopardy occurs when an action is reasonably expected, directly or indirectly, to diminish a species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced.At the conclusion of the consultation period, a <strong>biological opinion</strong> is issued that contains several components:a. Jeopardy or No Jeopardy Opinion: The opinion as to whether a federal action is likely to jeopardize the continued existence of a threatened or endangered species or result in the destruction or adverse modification of critical habitat.<br/>b. Reasonable and Prudent Alternatives (RPAs): Reasonable and Prudent Alternatives are alternative methods of implementing the project that would avoid the likelihood of jeopardy to listed species or modify critical habitat.<br/>c. Incidental Take Statement: An Incidental Take Statement is included which exempts incidental take of a listed species from the Section 9 prohibitions and sets amount or extent of anticipated take due to the Federal action. The Endangered Species Act prohibits 'take' (defined as harming, killing, or harassing a listed species); incidental take resulting from a federal action may be allowed if approved through an incidental take statement. It is generally a specific number calculated as the number of individuals reasonably likely to be taken or the extent of habitat likely to be destroyed or disturbed.<br/>d. Reasonable and Prudent Measures (RPMs): Reasonable and Prudent Measures are included as part of the Incidental Take Statement and are actions that USFWS/NMFS believes are necessary or appropriate to reduce the amount of incidental take. They are binding conditions included as part of the Incidental Take Statement, and are non-discretionary measures that must be undertaken by the federal agency.<br/>e. Terms and Conditions: These set specific methods by which RPMs are to be accomplished and include reporting and monitoring of incidental take.<br/>f. Conservation Recommendations<br/>g. Requirements for re-initiation of consultation: Standard requirements for re-initiation are exceeding the amount of incidental take, modification of the agency's action; new information to be considered, or new species listed and/or critical habitat designated.<br/>If a biological opinion with a jeopardy determination is issued, the federal agency then has several options: implement one of the reasonable and prudent alternatives;<br/> modify the proposed project and consult again with the Service;<br/> decide not to undertake (or fund, or authorize) the project;<br/> disagree with the opinion and proceed;<br/> apply for an exemption.<br/><br/>A federal agency must comply with all reasonable and prudent measures (RPMs) and the implementing terms and conditions listed with the incidental take statement in order to avoid potential liability for any incidental take.For more information ... Section 7 Consultation (from the US Fish and Wildlife Service)<br/> Frequently Asked Questions (from the US Fish and Wildlife Service)<br/> The Endangered Species Handbook (from the US Fish and Wildlife Service)<br/><br/>&nbsp;</div>" href="https://mavensnotebook.com/glossary/biological-opinion/" data-mobile-support="0" data-gt-translate-attributes="[{attribute:data-cmtooltip, format:html}]" tabindex="0" rel="nofollow" target="_blank">biological opinion</a> concluding that the project would not harm the endangered fish or adversely modify their <a class="ydp8197fcd7glossaryLink" data-cmtooltip="<div class=glossaryItemTitle>critical habitat</div><div class=glossaryItemBody><div data-canvas-width="176.46380000000002"><strong>Critical habitat</strong> is defined as the specific geographic areas, whether occupied by a listed species or not, that are essential for its conservation and that have been formally designated by rule published in the Federal Register.</div></div>" href="https://mavensnotebook.com/glossary/critical-habitat/" data-mobile-support="0" data-gt-translate-attributes="[{attribute:data-cmtooltip, format:html}]" tabindex="0" rel="nofollow" target="_blank">critical habitat</a> — a conclusion based on the bureau’s proposed action, including its water allocation formula.</p>
<p>“Reclamation’s response to this year’s poor hydrology, however, has
been in direct contravention of that formula,” the tribes say, adding
that after the agencies adopted a 2022 operations plan, the bureau began
allocating water to project irrigators in the middle of spawning
season, cutting the species off from spawning grounds and leaving no
rearing habitat for larvae and juvenile fish.</p>
<p>“The net effect of the 2022 ops plan, therefore, is to consign to
death 2022’s entire year class of baby C’waam and Koptu,” the tribes
say, later noting that Fish and Wildlife had identified several risks to
the fish and failed to rescind or modify its <a class="ydp8197fcd7glossaryLink" data-cmtooltip="<div class=glossaryItemTitle>incidental take statement</div><div class=glossaryItemBody>An <strong>Incidental Take Statement</strong> is issued to a federal agency as part of a biological opinion that estimates the amount or extent of incidental take of listed species likely to result from the action subject to consultation and exempts that take from section 9 take prohibitions.Per section 7(o)(2) of the ESA, actions that are conducted in conformance with the terms and conditions of an incidental take permit are exempt from the section 9(a)(1) prohibitions on take.See also: biological opinion</div>" href="https://mavensnotebook.com/glossary/incidental-take-statement/" data-mobile-support="0" data-gt-translate-attributes="[{attribute:data-cmtooltip, format:html}]" tabindex="0" rel="nofollow" target="_blank">incidental take statement</a> from its 2020 biological opinion.</p>
<p>Ultimately, the tribes sought a declaration that the bureau violated
the Endangered Species Act and the National Environmental Policy Act for
improperly prioritizing irrigators over endangered fish and
implementing unpermitted take. Judge Clarke recommended granting the
tribes that declaration on Monday, concluding that the agency failed to
take a hard look at the environmental consequences of its actions that
violated sections seven and nine of the Endangered Species Act.</p>
<p>Clarke wrote that while severe drought made it impossible to maintain
sufficient water levels in 2022, “severe drought conditions were not an
excuse for Reclamation to abandon its ESA obligations to the suckers in
UKL and instead allocate water for Klamath project irrigators.”</p>
<p>The judge said the bureau’s obligations “required it to take all
steps necessary to avoid jeopardizing the suckers, even if that meant
allocating no water to project irrigators for a second consecutive
year.” Yet, instead of heeding Fish and Wildlife’s warnings about
failing to meet certain water levels, Clarke noted that the bureau
delivered 60,000 acre-feet of water to irrigators by July 2022,
deviating from its 2018 water allocation formula that would have
directed zero irrigation delivery.</p>
<p>Intervenor defendant Klamath Water Users Association argued in its
motion for summary judgment that the tribes had not provided any
evidence of fish take, which includes significant habitat modification
that harms wildlife by impairing essential behavioral patterns. Clarke
disregarded this argument, though, finding lower water levels are
directly proportional to decreased reproductive output and increased
larvae mortality.</p>
<p>“Even if the precise number of suckers taken is difficult to
determine, it is beyond question that the suckers’ spawning behaviors
have been impaired,” Clarke wrote. “The tribes need not literally bring a
dead fish before this court to show that Reclamation’s operation of the
Klamath project under the 2022 TOP has harmed the suckers. As such,
KWUA’s argument is unavailing.”</p>
<p>Clarke’s recommendation next goes to a federal judge who will make a
final ruling. Representatives for the tribes and the bureau were not
immediately available for comment.</p></div><br></div></div></body></html>