[Federal Register Volume 66, Number 138 (Wednesday, July 18, 2001)]
[Notices]
[Pages 37446-37453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17922]


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DEPARTMENT OF COMMERCE

Office of the Secretary

[Docket No. 010712176-1176-01]


Notice of Receipt of Petition for Exemption from the Requirements 
of Section 7(a)(2) of the Endangered Species Act

AGENCY: Office of the Secretary, Department of Commerce.

ACTION: Notice.

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SUMMARY: The Secretary of Commerce announces the receipt of a petition 
filed by Pacific Legal Foundation (PLF or Petitioner) requesting that 
the Klamath 2001 Operations Plan (Plan) be exempted from the 
requirements of section 7(a)(2) of the Endangered Species Act. Under 
Department of Commerce regulations implementing the Endangered Species 
Act, the Secretary is required to give the public prompt notice of the 
receipt of such a petition. The intended effect of this notice is to 
give such public notification.

DATES: The Secretary of Commerce or his designee will make a 
determination as to whether the petition for exemption meets the 
requirements for an application for such an exemption no later than 
July 15, 2001. If the Secretary of his designee determines that the 
petition meets the requirements for an application, the Secretary or 
his designee will conclude a threshold review no later than July 25, 
2001.

ADDRESSES: Copes of the petition for exemption are available for 
inspection in Room 5876 of the Herbert C. Hoover Building, 14th St. and 
Constitution Avenue NW., Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Daniel Cohen, Chief Counsel for 
Regulation, at (202) 482-4144.

SUPPLEMENTARY INFORMATION: On July 5, 2001, PLF filed a petition for 
exemption from the requirements of section 7(a)(2) of the Endangered 
Species Act for the Plan. PLF filed the petition on behalf of the 
Klamath Irrigation District in Oregon and the Tulelake Irrigation 
District in California. PLF asserts that the halting of delivery of 
water for irrigation pursuant to the Plan, aimed at protecting Coho 
salmon and two species of sucker fish, threatens certain

[[Page 37447]]

communities in California and Oregon and threatens other wildlife 
habitat.
    Set forth below is a copy of the petition for exemption, without 
attachments:

    David E. Haddock, Anne M. Hayes, M. Reed Hopper, Pacific Legal 
Foundation, 10360 Old Placerville Road, Suite 100, Sacramento, 
California 95827, Telephone: (916) 362-2833, Facsimile: (916) 362-
2932, Attorneys for Klamath Irrigation District, and Tulelake 
Irrigation District.

Introduction

    On April 6, 2001, the Untied States Bureau of Reclamation adopted 
the Klamath Project 2001 Operations Plan pursuant to Biological 
Opinions issued by the United States Fish and Wildlife Service on April 
5, 2001, and the National Marine Fisheries Service on April 6, 2001. 
These Biological Opinions require that surface elevations of reservoirs 
in the Klamath Irrigation Project (Klamath Project or Project), and 
river flow because Iron Gate Dam, must be maintained at such high 
levels that water will not be made available to irrigators this year.
    Until recently the Klamath Project had been operated chiefly for 
the purpose of making water available to irrigators, who paid for the 
construction of the project, and contracted with the United States for 
the delivery of water. In recent years, however, concern about impacts 
on endangered species has shifted the Project's focus away from 
irrigation in favor of environmental enhancement. This year, delivery 
of water for irrigation was halted because of questionable concerns 
about two species of sucker fish and the Coho salmon. As a result of 
these actions, other wildlife habitat is threatened, and area 
communities are being destroyed.
    Because delivery water according to Project contracts is likely to 
have little detrimental impact on endangered species, and operating the 
Project to withhold water will destroy both wildlife habitat and human 
communities, applicants Klamath Irrigation District and Tulelake 
Irrigation District ask the Endangered Species Committee to exempt the 
operation of the Klamath Project from the water use restrictions 
imposed under the Endangered Species Act; the Klamath Project should be 
allowed to operate according to historical practice, as the Bureau of 
Reclamation proposed in this action.
    The applicants for exemption are irrigation districts depend on 
water supplies from the Klamath Project. Applicants represent water 
users who hold the beneficial interests in water rights established at 
the turn of the last century and earlier. For almost 100 years, they 
and their ancestors have toiled to support their families and build 
their communities which are dependent on agriculture. They are entitled 
to Project water delivered through Project facilities pursuant to 
contracts with the U.S. Bureau of Reclamation (``Reclamation'') and 
have done all they promised to do under those contracts. The United 
States has a duty under those contracts and reclamation law to preserve 
and protect the water supply for irrigation purposes.
    The Klamath Project is a federal water project that lies within the 
Klamath River basin, straddling the border between Oregon and 
California. It was created pursuant to the Reclamation Act, enacted by 
Congress in 1902. The 1902 Act provided for federal financing of 
irrigation works, with the construction cost to be repaid over time by 
Project water users. Lands were made available to homesteaders who 
accepted the responsibility to undertake improvements and pay water 
changes. In May of 1905, the federal government specifically authorized 
the development of the Klamath Project pursuant to the 1902 Act.
    The irrigable lands of the Klamath Project are in South-Central 
Oregon (62%) and North-Central California (38%). The Project provides 
full service water to approximately 240,000 acres of cropland. The 
total drainage area, including the Lost River and the Klamath River 
watershed above Keno, Oregon, is approximately 5,700 square miles. The 
Project consists of many dams, reservoirs, canals, tunnels, and pumping 
plants in both states. Various streams, springs, and other tributaries 
flow into upper Klamath Lake. Near the City of Klamath Falls, the 
lake's outlet is Link River, which eventually becomes Lake Ewauna and 
the Klamath River. After joining with numerous tributaries in 
California, the Klamath River discharges to the Pacific Ocean, at a 
point about 220 miles from Klamath Falls.
    The Klamath Project delivers water under water rights that were 
originally obtained under state law. For example, with encouragement 
from the State of Oregon, the Untied States, acting through the U.S. 
Bureau of Reclamation, appropriated all the water of the Klamath River 
and its tributaries for use in the Project. Reclamation also acquired 
additional preexisting water right by purchase from private parties.
    Lands within the Klamath Project have many different legal 
histories. Some landowners were issued certificates of Project water 
rights or had their own individual contracts with the government 
providing for delivery of water through project facilities in the early 
years of the Project. Many other landowners receive deliveries of 
Project water from various irrigation districts which, in turn, receive 
Project water pursuant to contracts with United States. The contracts 
also define the obligations of water users for repayment of 
construction costs and for reimbursement of operation charges for any 
facilities still operated by the Bureau of Reclamation. In many cases, 
irrigation districts have assumed full responsibility for operation and 
maintenance of federally constructed Project facilities.
    Historically, the Klamath Project operated primarily to conserve 
and deliver water for irrigation use. However, in 1988, the shortnose 
sucker and the Lost River sucker, two species that live in Upper 
Klamath Lake, were designated as ``endangered'' under the Endangered 
Species Act. Since that time the U.S. Fish and Wildlife Service has 
scrutinized operation of the Klamath Project to ensure that operation 
of the Project does not jeopardize the continued existence of these 
species.
    Under section 7(a)(2) of the Endangered Species Act, each federal 
agency is required to consult with the U.S. Fish and Wildlife Service 
or the National Marine Fisheries Service (for anadromous fish) to 
``insure that any action authorized, funded, or carried out by such 
agency * * * is not likely to jeopardize the continued existence of any 
endangered species or threatened species.'' Pursuant to this provision, 
the Bureau of Reclamation initiated consultation with these agencies as 
it has developed operating plans for the Project. As a result of 
section 7 consultation, in 1992 and 1994 the Fish and Wildlife Service 
issued Biological Opinions that required the Project to maintain 
minimum reservoir elevations to protect the suckers. These operating 
elevations were adopted by the Bureau of Reclamation.
    In 1995, the Bureau of Reclamation announced that it would develop 
a plan for the long-term operation of the Project. Rather than adopt a 
long-term operating plan before the 1996 growing season, as was 
expected, the Bureau of Reclamation issued a series of interim one year 
operating plans. These plans contained new standards for maintaining 
lake levels and stream flow conditions. Under these new standards, the 
irrigators were eligible to receive only the water left over after new 
standards for holding and releasing water were satisfied. Although new 
standards were in force during these years, water deliveries were not 
reduced

[[Page 37448]]

because supply was sufficient. This changed in 2001.
    On February 13, 2001, the Bureau of Reclamation released its Final 
Biological Assessment for proposed operation of the Klamath Project for 
2001, and thereby initiated consultation with the Fish and Wildlife 
Service and the National Marine Fisheries Service under section 7 of 
the Endangered Species Act. This consultation concluded when the 
Services issued new Biological Opinions requiring that Reclamation 
maintain minimum flows and minimum reservoir elevations. On April 6, 
2001, the Bureau of Reclamation released the Klamath Project 2001 
Operations Plan adopting these standards, and, for the first time in 
the history of the Project, prohibited all water diversions for the 
irrigation of tens of thousands of acres of farmland. That prohibition 
on water diversions has created a crisis. It has subjected 
approximately 1,400 farms and many more families to potential economic 
ruin and caused damage to the very ecosystem the government was try to 
protect.
    But this crisis is entirely of the government's making. Beginning 
almost a century ago, the United States enticed homesteaders to the 
Klamath area with promises of guaranteed water. In exchange for these 
homesteaders' agreement to pay the costs of building the very project 
in question here, the United States entered into binding contracts to 
provide water for irrigation in perpetuity. Later, the United States 
enacted the Endangered Species Act which, according to current federal 
policy, requires government agencies to withhold promised water for 
species preservation. Government officials oversee the Klamath Project, 
as they have since its construction.
    Government biologists prepared the environmental assessment and the 
Biological Opinions that were applied to deprive exemption applicants 
of their water. The water users have done nothing to create or 
exacerbate the problem. They have merely irrigated their fields with 
water that the United States promised them. Without water, most fields 
are unplanted this year. Some perennial crops persist from prior years, 
but their demise is almost certain because of the lack of water from 
the Project. Unfortunately, the government has not remedied this 
situation, and restrictions on water use persist. Therefore applicants 
seek an exemption from these water use restrictions.

II. Application for Exemption

    Under 50 CFR 451.02 (2001), an application for exemption to the 
Endangered Species Committee must include the following information.
    1. Name, mailing address, and phone number, including the name and 
telephone number of an individual to be contacted regarding the 
application.
    David E. Haddock, Pacific Legal Foundation, 10360 Old Placerville 
Road, Suite 100, Sacramento, CA 95827, [email protected], Telephone: 
(916) 362-2833, Facsimile: (916) 362-2932.
    2. A comprehensive description of the applicant's proposed action.
    The general action at issue here is the Bureau of Reclamation's 
proposed operation of the Klamath Project in accordance with historical 
precedents. The Project supplies water to irrigation districts and 
other individual irrigators pursuant to contracts with the United 
States and established water rights. A comprehensive description of the 
proposed action can be found in the April 5, 2001, Biological Opinion 
for the suckers and bald eagle, attached as Appendix B.
    3. A description of the permit or license sought from the federal 
agency, including a statement of who in that agency denied the permit 
or license and the grounds for the denial.
    Exemption applicants are parties to contracts with the Bureau of 
Reclamation for the delivery of irrigation water from the Klamath 
Project. Since these contracts give exemption applicants ``the right in 
perpetuity * * * to receive from the Klamath Project all water needed * 
* * for beneficial irrigation uses,'' in 1991 Reclamation initiated 
consultation with the U.S. Fish and Wildlife Service to ensure that 
fulfilling Reclamation's duties under this and other contracts would 
not jeopardize the continued existence of two endangered fishes, the 
Lost River sucker (Deltistes luxatus) and shortnose sucker (Chasmistes 
brevirostris).\1\ As a result of this and additional consultation, 
Biological Opinions were issued by the U.S. Fish and Wildlife Service 
in 1992 and 1994 that permitted the continued operation of the Project 
under reasonable and prudent alternatives designed to avoid jeopardy to 
suckers. In December, 2000, Reclamation reinitiated consultation with 
the Fish and Wildlife Service on continuing operations of the Klamath 
Project.
    In its final Biological Assessment dated February 13, 2001, 
Reclamation stated that it proposed ``continuing operation of the 
Klamath Project to supply water to Project users and refuges.'' The 
Biological Opinion issued by the U.S. Fish and Wildlife Service on 
April 5, 2001, which required reservoir surface elevations so high as 
to eliminate water deliveries to Project contractors, grew out of this 
reinitiation of consultation that began in late 2000. Similar 
restrictions relating to minimum flows below Iron Gate Dam were imposed 
by the National Marine Fisheries Service in its Biological Opinion 
relating to the Coho salmon, released April 6, 2001.
    On April 6, 2001, the Bureau of Reclamation formally denied Project 
contractors the water they are entitled to by formally adopting the 
Klamath Project 2001 Annual Operations Plan. While acknowledging that 
``Reclamation has contractual obligations to Project water users to 
provide water primarily for domestic and irrigation uses,'' the 2001 
Operations Plan eliminated water deliveries by adopting the minimum 
reservoir elevation levels and minimum stream flows required by the 
Federal agencies' Biological Opinions.
    4. A description of all permit(s), license(s), or other legal 
requirements which have been satisfied or obtained, or which must still 
be satisfied or obtained, before it can proceed with the proposed 
action.
    Exemption applicants are parties to contracts with the United 
States to receive Klamath Project water for beneficial irrigation uses 
in perpetuity. The present contracts have been in force for more than 
40 years, are in effect now, and will continue to be in effect in 
future years. No other legal requirements need to be satisfied for 
exemption applications to receive water promised under the contracts. 
See water contracts attached at Appendix H and Appendix I.
    5. A copy of the permit or license denial.
    Exemption applicants were denied their right to receive water from 
the Klamath Project by operation of the Bureau of Reclamation's Klamath 
Project 2001 Operations Plan, issued April 6, 2001. The 2001 Operations 
Plan incorporated requirements of the Fish and Wildlife Service and 
National Marine Fisheries Service's Biological Opinions to eliminate 
water deliveries. See attached, Appendix E.
    6. A copy of the biological assessment, if one was prepared.
    See attached, Appendix A.
    7. A copy of the Biological Opinion.
    See attached, Appendix B.
    8. A description of the consultation process carried out pursuant 
to section 7(a) of the Act, to the extent that such information is 
available to the applicant.
    As noted in Item 3 above, consultation was initiated by the Bureau 
of Reclamation in December, 2000. A Draft Biological Opinion for the 
suckers and the bald eagle was released by the

[[Page 37449]]

Fish and Wildlife Service on March 13, 2001. The Final Biological 
Opinion was prepared in a scant 23 days, and was released in final form 
on April 5, 2001, presumably to ensure that exemption applicants would 
receive no water in time for planting this year.
    Consultation with the National Marine Fisheries Service was 
concluded on April 6, 2001, with the release of the Biological Opinion 
relating to the Coho salmon. A further description of the consultation 
process as it concerns the 2001 Operations Plan may be found in the 
attached April 5, 2001, Biological Opinion for the suckers and bald 
eagle, Section I, Page 1, entitled ``Consultation History'' (Appendix 
B), and the April 6, 2001, Biological Opinion for the Coho salmon at 
Page 1 (Appendix D).
    9. A description of each alternative to the proposed action 
considered by the applicant, and to the extent that such information is 
available to the applicant, a description of each alternative to the 
proposed action considered by the federal agency.
    As part of the proposed action presented in its Biological 
Assessment for the suckers, the Bureau of Reclamation incorporated both 
planned and ongoing provisions of the Fish and Wildlife Service's 1992 
and 1994 Biological Opinions, including mitigation measures, Reasonable 
and Prudent Alternatives, Reasonable and Prudent Measures, and 
Incidental Take Statement terms and conditions. These measures are 
described in Reclamation's February 13, 2001, Biological Assessment, 
Section 13, entitled ``Appendix 1 ESA Consultation Review,'' and in the 
Fish and Wildlife Service's April 5, 2001, Biological Opinion, Section 
I.1, entitled ``Consultation History.'' These documents are attached to 
this application at Appendix A and Appendix B.
    In addition to alternative proposed in prior Biological Opinions, 
the Fish and Wildlife Service has identified what it call ``[a] 
reasonable and prudent alternative (with 8 elements).'' This so-called 
alternative is fully described in Section III, Part 2, Page 143, of the 
April 5, 2001, Biological Opinion, beginning at Item 6.0. Although the 
alternative is described as having eight elements, the Biological 
Opinions lists only six: (1) Maintenance of Minimum Surface Elevations 
in Upper Klamath Lake; (2) Operation Plan for Low Water Year; (3) 
Adaptive Management through Water Quality Monitoring and Reporting; (4) 
Entrainment Reduction and Fish Passage at A-Canal and Link River Dam 
and Monitoring and Restoration of Sucker Habitats from Keno to Link 
River; (5) Management of UKL Water Quality Refuge Areas and Emergent 
Vegetation Habitats; and (6) Maintain Minimum Lake Levels in Clear 
Lake, Gerber Reservoir, and the Tule Lake Sump. The Biological Opinion 
for the Coho Salmon also presents a so-called Reasonable and Prudent 
Alternative that requires stream flows at higher than historical 
levels. See Appendix B.
    10. A statement describing why the applicants' proposed action 
cannot be altered or modified to avoid violating section 7(a)(2) of the 
Act
    As an initial matter, serious questions about the scientific 
conclusions of the Biological Opinions persist. As discussed below, it 
is doubtful that operating the Project according to historical practice 
would have any detrimental impact on the survival of the species. 
Consequently, it is not clear, despite the conclusions of the Fish and 
Wildlife Service and the National Marine Fisheries Service, that the 
proposed action would in fact violate section 7(a)(2).
    Contracts with the United States entitle exemption applicants to 
receive irrigation water from the Klamath Project. However, the 
alternatives described in the Biological Opinions, which were adopted 
by the Bureau of Reclamation in its 2001 Operations Plan, set reservoir 
elevations and stream flows so high that they effectively prohibit 
water from being made available to exemption applicants in low water 
years, such as this year. Federal officials claim no water can be 
diverted for irrigation purposes without violating section 7(a)(2) of 
the Endangered Species Act.
    11. A description of resources committed to the proposed action by 
the permit or license applicant subsequent to the initiation of 
consultation.
    Klamath Project water has been used continuously for almost 100 
years. Applicants, and others like them, commit significant resources 
each year, including this year, in anticipation of receiving water from 
the Klamath Project. To prepare for the growing season, exemption 
applicants must plow fields, purchase seed, pay rent on leased 
farmland, and hire labor. Some of this preparation has followed the 
initiation of consultation by the Bureau of Reclamation. Exemption 
applicants committed these resources because every year prior to 2001 
the United States has honored its contractual obligation to make water 
available through the Project. Exemption applicants expected that the 
United States would honor its contractual duty in 2001 as well. But 
because the United States has failed to make water available, resources 
committed to preparing for the 2001 growing season have been wasted. As 
a result, literally hundreds of farms are facing the possibility of 
economic ruin.
    12. A complete statement of the nature and the extent of the 
benefits of the proposed action.
    Ordinary water use provided by the Klamath Project offers 
substantial environmental, economic and social benefits. For example, 
water from the Klamath Project supports one of the most important 
staging areas for migratory waterfowl on the Pacific Flyway. Over 430 
documented species of wildlife, including the largest wintering 
concentration of bald eagles in the lower 48 states, depend in part 
upon water diversions from the Project, diversions that are no longer 
allowed. Through direct releases and agricultural runoff, the Klamath 
Project supplies water for the lower Klamath and Tulelake national 
wildlife refuges. Water used for agriculture also serves environmental 
values by providing food and habitat for waterfowl and other wildlife.
    In addition, the Klamath Basin produces $100 million in hay, 
grains, and vegetables each year. The agricultural industry supported 
by the Klamath Project includes 1,400 farms totaling more than 210,000 
acres. Klamath farms produce livestock, barley, oats, wheat, potatoes, 
sugar beets, and forage. Approximately 110,000 acres serve as forage, 
including forage for migrating waterfowl and other wildlife; 57,000 
acres are planted in cereal crops; 16,000 acres in vegetables; 7,000 
acres are planted in cereal crops; 16,000 acres in vegetables; 7,000 
acres in miscellaneous field crops; 298 acres in seed crops; and 227 
acres in nursery crops.
    The Klamath investment in agriculture produces an additional $250 
million in economic activity in the various agriculturally dependent 
communities throughout the region. Livestock herds, that are being 
liquidated as a result of the lack of water this year, are worth 
another $100 million in replacement costs.
    This traditional use of the Klamath Project for irrigation and 
other purposes guards against the catastrophic destruction of the 
Klamath Basin and the families and farms in the region, including 
disastrous effects on the economy and environment. Klamath farming 
communities and a rural way of life are dependent on regular water 
diversions from the Klamath Project.
    Without water, farms cannot operate, and farm workers will be 
unemployed. Without farmers to buy seed, supplies,

[[Page 37450]]

and equipment, the infrastructure of small businesses that support 
agriculture will collapse. In turn, restaurants, grocery stores, and 
other small community businesses will lose their customer base. 
Property values will plummet, loans will be in default, and county tax 
revenues will spiral downward.
    The farmers and communities in the Klamath Basin have committed 
their livelihoods, their way of life, and the welfare of their families 
to cultivation of the region's agriculture, based on the water promised 
to them by the government through he Klamath Project.
    Some individual farmers stand to lose nearly half a million dollars 
in potential income, based on resources that were long ago committed to 
farming the land. The predicament of David Cacka is typical of what is 
happening in the basin. Cacka runs a farming operation. He owns 80 
acres of land and leases an additional 420 acres, some of which is 
owned by his father, some of which is owned by an elderly widow, and 
some of which is owned by other retired individuals. Each of Mr. 
Cacka's landlords depends for their livelihood on the rent he pays 
them. Cacka raises potatoes, grain, and alfalfa. He has one full-time 
employee and up to nine seasonal employees in his farming operation. 
Operating expenses for the farming business run as high as $400,000 per 
year, all of which is spent in the economy of the Klamath Basin. See 
Declaration of David Cacka in Support of Plaintiffs' Motion for 
Preliminary Injunction, Kandra v. United States, No. 01-6124-TC, 2001 
U.S. Dist. LEXIS 6932 (D. Or. Apr. 30, 2001), attached at Appendix J.
    Because of the loss of water due to the application of the 
Endangered Species Act to the Klamath Project, Cacka has had to leave 
idle farmland that has been in continuous production for 91 years. He 
will not have any employees, and will not be able to support the local 
businesses or contribute to the local economy. He and the other farmers 
in the Klamath Basin who depend upon water from the Klamath Project are 
facing economic hardship, if not outright ruin. Id.
    Because the region developed and grew based on a century-old water 
rights agreement with the United States government, virtually the 
entire community has its resources committed to receiving its 
allocation of water from the Klamath Project, including schools, fire 
departments, libraries, parks, churches, community service 
organizations, and businesses, as well as county and city governments.
    13. A complete discussion of why the benefits of the proposed 
action clearly outweigh the benefits of each considered alternative 
course of action.
    The Biological Opinions, and the 2001 Operations Plan that was 
adopted pursuant to them, did not consider any alternative that would 
actually allow the exemption applicants to receive water. If such 
alternatives had been considered, they would have shown how recognizing 
exemption applicants' contractual right to receive water from the 
Project would have led to few impacts on imperiled species and would 
have served several other important interests. Because serious impacts 
on the suckers and coho would be unlikely, the benefits of making water 
available from the Klamath Project according to the terms of the 
contracts and according to historical practice, would clearly outweigh 
the benefits of eliminating water deliveries.
    If operation of the Klamath Project according to historical 
practices would actually threaten to extirpate the species, requiring 
higher reservoir elevations would certainly provide an important 
benefit to be weighted. But there are legitimate reasons to doubt the 
validity of the Biological Opinions' conclusions. For example, 
fisheries biologist David Vogel, who has made significant contributions 
tot he understanding of the suckers at issue here, and was a principal 
contributor of information for the 1992 Biological Assessment on Long-
Term Operations of the Klamath Project, has raised grave questions 
about the reliability of the Fish and Wildlife Service's scientific 
conclusions. Vogel testified before Congress recently about the 
scientific problems with the conclusions in the Biological Opinion for 
the two species of sucker fish.
    As a scientist who has also provided comments on scientific 
analyses related to the Klamath Project, Vogel claims that in recent 
times it is ``virtually impossible to comment and certainly impossible 
for the agencies to consider the comments objectively and 
meaningfully'' because the time for submitting comments is too short. 
In this case, for example, the time between the issuance of the Draft 
Biological Opinion on March 13, 2001, and the issuance of the Final 
Biological Opinion on April 5, 2001, was only 6 days. The ``overriding 
sense'' Vogel has from this process is that ``the goal is to dismiss 
what we have to offer.''
    More important, though, is that this flawed process leads to flawed 
results. Vogel raises serious questions abut the status of the suckers 
as endangered, and the value of higher Upper Klamath Lake elevations 
for their continued survival. For example, Vogel argues that within 
three years after the sucker listing it ``became apparent that the 
assumptions concerning the status of the shortnose suckers and Lost 
River suckers in the Lost River/Clear Lake watershed were in error.'' 
Consequently, Vogel concludes, ``[t]he species were either 
inappropriately listed as endangered because of incorrect or incomplete 
information or the species have rebounded to such a great extent that 
the fish no longer warrant the `endangered' status.'' Moreover, Vogel 
argues that ``artificially maintaining higher-than-historical lake 
elevations,'' as the Fish and Wildlife Service has required here, ``is 
likely to be detrimental, not beneficial, for sucker populations.'' 
Accordingly to Vogel, the facts show that in past low water years, 
increased fish kills simply have not occurred at low reservoir 
elevations. See attached, Appendix F, for a complete transcript of the 
``Testimony of David A. Vogel Before the House Committee on Resources 
Oversight Field Hearing on Water Management and Endangered Species 
Issues in the Klamath Basin, June 16, 2001.''
    Vogel's concerns are merely examples of the scientific problems 
inherent in the Biological Opinions. Others abound. For example, there 
is no evidence that historical stream flows below Iron Gate Dam will 
have any detrimental effect on Coho salmon. With more study, and a 
truly objective scientific approach, it might be possible to arrive at 
a better understanding of the needs of these fish. Yet, at this point, 
the conclusions of the Biological Opinions are too questionable to 
accept in their fullness. But this is not all.
    As discussed below, the 2001 Operations Plan threatens serious 
impacts to other critical wildlife resources, such as two federal 
wildlife refuges, and a major stopover for migratory waterfowl. 
Moreover, federal action, like this, that impairs the habitat of 
migratory birds and other species may violate international 
conventions. For example, the Convention on Biological Diversity, 
signed in 1992 by more than 160 nations, including the United States, 
obligates the United States to ``[r]egulate or manage biological 
resources important for the conservation of biological diversity 
whether within or outside protected areas, with a view to ensuring 
their conservation and sustainable use.'' See Appendix G. The United 
States must also ``[p]romote the protection of ecosystems, natural 
habitats and the maintenance of viable populations of species in 
natural surroundings.'' Id. By

[[Page 37451]]

depriving federal wildlife refuges and other wildlife resources of 
necessary water, the United States violates its commitments to the 
international community.
    Also, the Fifth Amendment to the United States Constitution 
concludes: ``[N]or shall private property be taken for public use, 
without just compensation.'' The purpose of that clause--as the oft-
quoted language from Armstrong v. United States, 364 U.S. 40, 49 
(1960), explains--is ``to bar Government from forcing some people alone 
to bear public burdens which, in all fairness and justice, should be 
borne by the public as a whole.'' It is well established that a right 
to use water is a compensable property right. See United States v. 
State Water Resources Control Board, 227 Cal. Rptr. 168. (Dist. Ct. 
App. 1986) (explaining that ``once rights to use water acquired, they 
become vested property rights. As such they cannot be infringed by 
others or taken by governmental action without due process and just 
compensation.''). This is so even when the right to use water is 
derived from contract. See Tulare Lake Basin Water Storage District v. 
United States, 49 Fed. Cl. 313 (2001) (finding liability under the 
Takings Clause of the Fifth Amendment where the United States 
interfered with contractual rights to receive and use water). By 
depriving exemption applications of the water to which they are 
contractually entitled, the United States not only violates the terms 
of applicable contracts, but it also takes exemption applicant's 
private property in violation of the Fifth Amendment.
    The United States important public benefits when it keeps its 
commitments and follows fundamental principles; it engenders trust 
among its citizens. The benefits of the United States fulfilling its 
contractual obligations and following the U.S. Constitution, in this 
case by making water available, thereby protection struggling 
communities of people and wildlife, are incalculable. These public 
benefits outweigh the questionable benefits that will occur as a result 
of depriving exemption applicants of the water to which they are 
entitled.
    14. A complete discussion of why none of the considered 
alternatives are reasonable and prudent.
    Federal law requires that once a determination has been made that a 
proposed action will jeopardize the continued existence of the species, 
the consulting agency must propose ``Reasonable and Prudent 
Alternatives'' to the proposed action. The regulations define 
``reasonable and prudent alternatives'' as alternative actions 
identified during formal consultation that can be implemented in a 
manner consistent with the intended purpose of the action, that can be 
implemented consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that is economically and technologically 
feasible, and that the Director believes would avoid the likehood of 
jeorpardizing the continued existence of listed species or resulting in 
the destruction or adverse modification of critical habitat.
    50 CFR 402.02 (2001).
    The greatest problem with so-called reasonable and prudent 
alternatives required by the Fish and Wildlife Service and the National 
Marine Fisheries Service is that they violate the first requirement, 
that alternatives be ``consistent with the purpose of the underlying 
action.'' The purpose of the Klamath Project is, and has always been 
deliver irrigation water to Project contractors, who have contracted 
for delivery of the water, and have paid substantial sums to the United 
States in exchange for the right to receive it. Alternatives that look 
only to environmental protection, like those offered in the Biological 
Opinions, are not ``consistent with the purpose of the underlying 
action.'' To the contrary, the alternative involved here are flatly 
inconsistent with the established irrigation purposes of the Klamath 
Project because they make the availability of water for irrigation 
secondary to other values.
    Also, the requirements of the Biological Opinions may actually harm 
environmental values. The sucker Biological Opinion mandates Upper 
Klamath Lake surface elevations substantially higher than they have 
historically been, even in above-average water years. The difference 
between a full reservoir in wet years and the average low point in 
critically dry years is only about six feet. Yet the Biological Opinion 
sets a minimum Upper Klamath Lake elevation almost three feet higher 
that historic averages in critically dry years. As discussed more fully 
in Items 13 and 15, lower lake elevations are not likely to jeopardize 
the continued existence of the sucker fish. In fact, the unprecedented 
high elevation will hurt both wildlife and the environment by reducing 
foraging habitat for migratory birds and valuable wetlands. The higher 
elevation requirement will also result in increased sediment runoff and 
injure other protected species like the bald eagle.
    Because the alternatives proposed are not consistent with the 
purposes of Klamath Project, and are not necessary for the ultimate 
protection of the fish, they do not fall within the definition of 
``reasonable and prudent alternatives'' as provided in the regulations.
    15. A complete statement explaining why the proposed action is in 
the public interest.
    The public interest includes many things in addition to protecting 
imperiled wildlife. The public requires food and shelter, along with 
other aesthetic, educational, historical, recreational, and scientific 
values. In the Klamlath region, as in most of the Western United States 
these public interest values cannot be achieved without water. Water is 
necessary for all life, not just the life of endangered suckers. The 
proposed action would help satisfy these many public interests by 
providing this essential ingredient.
    State law, which governs the use of water, finds specifically that 
the public interest includes other concerns beyond environmental 
protection. For example, ``in acting upon applications to appropriate 
water,'' the California State Water Resources Control Board is required 
to consider the relative benefit to be derived from (1) all beneficial 
uses of the water concerned including, but not limited to, use for 
domestic, irrigation, municipal, industrial, preservation and 
enhancement of fish and wildlife, recreational, mining and power 
purposes, and any uses specified to be protected in any relevant water 
quality control plan.
    Cal. Water Code section 1257. In-stream uses, such as higher flows 
for fish protection, are not favored over other uses in determining 
what would be serve the public interest. They are simply one factor to 
be considered. California courts, for example, have specifically 
rejected the notion that California is prohibited from favoring water 
uses such as irrigation, even where harm may result to fish and 
wildlife resources. The California Supreme Court explained:
    As a matter of current and historical necessity, the Legislature, 
acting directly or through an authorized agency such as the Water 
Board, has the power to grant usufructuary licenses that will permit an 
appropriator to take water from flowing streams and use that water in a 
distant part of the state, even though this taking does not promote, 
and may unavoidably harm, the trust uses at the source stream. The 
population and economy of this state depend upon the appropriation of 
vast quantities of water for uses unrelated to in-stream trust values. 
California's Constitution, its statues, decisions, and commentators all 
emphasize the need to make efficient use of California's limited water 
resources: all recognize, at least

[[Page 37452]]

implicitly, that efficient use requires diverting water from in-stream 
uses. Now that the economy and population centers of this state have 
developed in reliance upon appropriate water, it would be disingenuous 
to hold that such appropriations are and have always been improper to 
the extent that they harm public trust uses. * * *
    National Audubon Society v. Superior Court of Alpine County, 638 
P.2d 709, 727-28 (Cal. 1983) (emphasis added; citations and footnote 
omitted). In short, according to statute, California must be able to 
balance competing water uses according to its own ideas about the 
public interest. Similar rules apply to Oregon water rights.
    The States of California and Oregon permitted the United States to 
appropriate water for the Klamath Project with the understanding that 
such water would be distributed for irrigation. Thus, in this case, 
state water agencies have already exercised their authority to 
safeguard the public interest, have considered the water needs of fish 
and wildlife resources, and have nevertheless authorized the use of 
water for irrigation.
    Beyond this, cutting off water to the basin will have injurious 
consequences to a wide array of wildlife in the region. The Klamath 
Basin is one of the most important staging areas for migratory 
waterfowl on the Pacific Flyway. Each year nearly three-quarters of all 
Pacific Flyway waterfowl stop in the Klamath Basin, including peak fall 
concentrations of over 2 million ducks, geese, and swans, and the 
largest wintering concentration of bald eagles in the lower 48 states. 
The wetlands and other resources upon which these birds depend require 
a regular supply of water from the Klamath Project. Some of the 
necessary water is delivered directly from the Project to federal 
wildlife refuges. Other important resources are supplied by 
agricultural runoff. But these sources have been cut off. As the 
region's 185 miles of canal ecosystem and 516 miles of drainage canal 
ecosystem are destroyed by government-imposed water prohibitions, the 
environment will suffer.
    If Klamath Project water is not delivered as it has been in prior 
years, it will become extremely difficult to maintain the facilities 
used to divert and deliver water, along with the facilities used for 
draining runoff. This will reduce the availability of wildlife forage 
and valuable wetlands, not to mention increase the risks to public 
safety and property in the future due to hazards such as flooding. 
Irrigated land in the Tulelake area also supports large numbers and 
diversity of birds and other wildlife, including migratory waterfowl, 
raptors, deer, and antelope. These species feed on grain, alfalfa, and 
other crops grown in area farms. Irrigated farmland provides valuable 
wildlife habitat. Without irrigation water from the Project, once-
productive farmland will not longer provide these important habitat 
values.
    16. A complete explanation of why the action is of regional or 
national significance.
    Agricultural production is one of America's greatest strengths. 
Americans spend a smaller percentage of income on food than residents 
of other nations. Forty-six percent of the world's soybeans are grown 
in the United States, 41% of corn. One-forth of the world's beef and 
nearly one-fifth of the world's grain, milk, and eggs are produced in 
the United States. About 17% of raw U.S. agricultural products are 
exported yearly, including 83 million metric tons of cereal grains, 1.6 
billion pounds of poultry, and 1.4 million metric tons of fresh 
vegetables. Much of this abundance is produced using water from federal 
water projects such as the Klamath Project.
    The Klamath Basin produces $100 million in hay, grains, and 
vegetables, with more than 1,400 farms totaling approximately 210,000 
acres being supplied by the Klamath Project. Klamath farms produce 
livestock, barley, oats, wheat, potatoes, sugar beets, and forage. For 
example, 110,000 acres serve as forage, 57,000 acres are planted in 
cereal crops, 16,000 acres in vegetables, 7,000 acres in miscellaneous 
field crops, 298 acres in seed crops, and 227 acres in nursery crops.
    The Klamath investment in agriculture produces an additional $250 
million in economic activity in the various agriculturally dependent 
communities throughout the region. Livestock herds, that are being 
liquidated a result of the lack of water this year, are worth another 
$100 million in replacement costs.
    The failure of the Klamath Project to deliver water to Project 
contractors threatens catastrophic destruction in the region. Without 
water, farms cannot operate, and farm workers will be unemployed, 
Without farmers to buy seed, supplies, and equipment, the 
infrastructure of small community businesses will lose their customer 
base. Property values will plummet, loans will be in default, and 
county tax revenues will spiral downward.
    The farmers and communities in the Klamath Basin have committed 
their livelihoods, their way of life, and the welfare of their families 
to cultivation of the region's agriculture, based on the water promised 
to them by the government through the Klamath Project.
    As noted above, some individual farmers, like David Cacka, stand to 
lose nearly half a million dollars in potential income, based on 
resources that were long ago committed to farming the land. This 
predicament is typical of what is happening in the basin.
    Because the region developed and grew based on a century-old water 
rights agreement with the United States government, virtually the 
entire community has its resources committed to receiving its 
allocation of water from the Klamath Project. Directly or indirectly, 
availability of water from the Klamath Project is necessary for area 
schools, fire departments, libraries, parks, churches, community 
service organizations, and businesses, as well as county and city 
government.
    Not only the region, but the nation as a whole, has an interest in 
preserving the Klamath Basin and averting disaster. The impact on the 
environment from lack of irrigation water is of tremendous regional and 
national significance. As a result of the Biological Opinions, 
displaced bald eagles will go elsewhere and battle for survival. Some 
likely will starve or die of exposure or disease. Others will have a 
harder time breeding successfully next spring.
    The effects will be felt in employment, too, which has far-reaching 
consequences for the region and beyond. Steve Kandra, a third-
generation farmer from Merrill in Klamath County has already had to lay 
off his work force: ``I have been forced to lay off all of my 
employees, half of whom are Hispanic. Half of the students in our local 
public schools are Hispanic, most with parents who have jobs associated 
with agriculture. The Hispanic community would be a group severely 
impacted by the lack of irrigation water.'' See Declaration of Steven 
L. Kandra in Support of Plaintiffs' Motion for Preliminary Injunction, 
Kandra v. United States No. 01-6124-TC, 2001 U.S. Dist. LEXIS 6932 (D. 
Or. Apr. 30, 2001), attached at Appendix K. The failure to make water 
available will result in defaulted loans and lost farms. According to 
David Solem, manager of the Klamath Irrigation District, all of these 
types of impacts (social, cultural) are likely to occur, including 
impacts to ethnic communities and other local cultural attributes, loss 
of food, foraging and habitat for migratory waterfowl and other birds 
and wildlife that makes heavy use of farmland, soil erosion, air 
quality, impacts from soil erosion, infestations, future chemical

[[Page 37453]]

applications to control weeds and pests, and loss of fish and wildlife 
habitat in irrigation canals and drains.
    See Declaration of David A. Solem in Support of Plaintiffs' Motion 
for Preliminary Injunction, Kandra v. United States, No. 01-6124-TC, 
2001 U.S. Dist. LEXIS 6932 (D. Or. Apr. 30, 2001), attached at Appendix 
L.
    According to Rick Woodley, Director of Klamath County Soil and 
Water Conservation District, denial of water will adversely affect the 
soil in the region, which will have dramatic regional significance.
    Without normal crop production or establishment of cover crops on 
the bare soil, as it continues to dry, the entire Klamath Basin will 
see the full effect of life without water on the farmland. The loss of 
topsoil can never be recovered. The sedimentation (pollution) on the 
lakes, rivers, and streams of this basin, when rain does come, will 
have adverse effects to the very species this decision was designed to 
``protect.''
    Letter from Rick Woodley, Apr. 18, 2001, attached at Appendix M.
    17. A complete discussion of mitigation and enhancement measures 
proposed to be undertaken if an exemption is granted.
    The Bureau of Reclamation's February 13, 2001, Biological 
Assessment for the suckers incorporated planned and ongoing provisions 
from the 1992 and 1994 Biological Opinions that do not require 
unprecedented reservoir elevations. These measures are fully discussed 
in the Biological Assessment in Section 2.6, entitled ``1992 and 1994 
Biological Opinion Provisions,'' and in Section 13.0, entitled 
``Appendix 1 ESA Consultation Review.'' They encompass a wide range of 
substantial and effective mitigation and enhancement measures, 
including sucker toxicity studies, taxonomy projects, spawning 
enhancement, marsh restoration, watershed improvement, and many other 
measures. These measures may continue without prohibiting essential 
water diversions for irrigation and wildlife in the Klamath Basin.

III Conclusion

    Delivering water according to Project contracts is likely to have 
little detrimental impact on endangered species. Yet operating the 
Project to withhold water, as the Fish and Wildlife Service and the 
National Marine Fisheries Service have required, will destroy both 
wildlife habitat and human communities. Exemption applicants therefore 
ask the Endangered Species Committee to exempt the operation of the 
Klamath Project from the onerous water user restrictions imposed under 
the Endangered Species Act. The Committee should allow the Klamath 
Project to operate according to historical practice, as the Bureau of 
Reclamation proposed.

July 2, 2001.

Respectfully submitted,

David E. Haddock, Anne M. Hayes, M. Reed Hopper,
By---------------------------------------------------------------------
David E. Haddock, Attorneys for Klamath Irrigation District and 
Tulelake Irrigation District.

    1. On June 11, 1991, the United States Department of the Interior 
Agreement on Compliance with the Endangered Species Act entered into. 
The U.S. Fish and Wildlife Service considered the agreement to be a 
request for formal consultation pursuant to section 7 of the Endangered 
Species Act.

[End of Petition]

    Section 451.02 of the Title 50, CFR requires the Secretary of 
Commerce or his designee to initially determine whether a petitioner is 
eligible to apply for an exemption, whether a petition is timely, and 
whether the petition presents all required information. If the 
Secretary or his designee determines that a petitioner is eligible to 
apply for an exemption and that the petition is timely and presents all 
required information, Sec. 451.02(f)(3) of Title 50, CFR requires the 
Secretary or his designee to conduct a threshold review and make 
determinations in accordance with the requirements of Sec. 452.03 of 
Title 50, CFR.

Michael A. Levitt
Assistant General Counsel for Legislation and Regulations.
[FR Doc. 01-17922 Filed 7-17-01; 8:45 am]
BILLING CODE 3510-22-M