Court Decision Denies Relief to Community



Klamath Falls, OR – Yesterday, a United States District Court judge for the Northern District of California denied a motion brought by Defendant-Intervenors Klamath Water Users Association (KWUA) and member districts for relief from an injunction issued last year. The injunction, a group of pulse and dilution flow requirements ordered in the spring of 2017, can require over 100,000 acre-feet of water to be released to augment flows in the Klamath River that are aimed to help with C. shasta, a disease that impacts listed species. Presently, the injunction is also resulting in delay in the ability to divert any water.  These flows were ordered until consultation on a new biological opinion is complete. The current schedule for completion of a new biological opinion is 2020.
“Although the court says these flows are based on the best available science, the plaintiffs’ science has yet to be peer reviewed,” said Jerry Enman, a KWUA member of the board and farmer near Merrill, Oregon.
“Federal fisheries biologist experts raised serious questions to the validity of dilution flows as prescribed in the injunction. Coupled with that, I felt we did a great job showing the court that the science relative to the need for an injunction and dilution flows is doubtful.”
The order states that the court consider[ed] the merits of intervenors’ motion but denied it because the motion did not show newly discovered evidence sufficient to justify suspending or modifying the injunction. The court also indicated that with more authoritative evidence, presumably from federal fisheries biologists, the court would have been more inclined to agree with KWUA.
“Obviously we’re disappointed and obviously this doesn’t help with our issues this year,” said Scott White, Executive Director for KWUA.
“But look, our approach since the 90’s has been to conserve water and support activities based on best available science that were supposed to help the fisheries. Twenty-five years later, and we continue to wait to see those benefits. We’ve taken over 25,000 acres out of production and sent more water down the river for the sake of the fishery and they’re apparently worse off now than before. Maybe we need to change our mindset and rethink our approach.”
Many water users feel that courts have historically sided with fish based on soft science and without consideration of what it means to people and their livelihoods. With agriculture being the backbone of Klamath County, impacts of the injunction are already being felt throughout the community.
“We’re seeing the business community take notice to this region’s water issues like never before,” said Heather Tramp, Executive Director of the Klamath County Chamber of Commerce.
“When the water was shut off in 2001, it really opened the eyes of our business leaders. They’re seeing the same thing happen again and they are not happy. People don’t realize that this doesn’t just impact agriculture.”
The court’s decision is compounded on top of an already challenging situation for delivering water this year. Fifty thousand acre-feet must be held in reserve, above ESA mandated Upper Klamath Lake levels through June 15th, or until it is used to dilute C. shasta in the river.
“This leaves very little water to be delivered to the Project during this time,” said Brad Kirby, President of KWUA and Manager of Tulelake Irrigation District.
“We’ve threaded the needle in the past, and will do what we can to do it again. We’re not going to have much to work with, but we’ll work nonstop.”