The Klamath Agreements DO NOT affect the Endangered Species Act
Currently, Klamath River flows are regulated and established pursuant to a biological opinions that are specific for ESA listed coho salmon, and in the Upper Basin, the Lost River and shortnose suckers. Since there are no real limits on irrigation diversions today, all the river ever sees are ESA minimums which must meet the weak and limited legal standard of preventing the extinction of these listed species while ignoring the needs of Chinook salmon, steelhead, lamprey and other species. Since the mandated ESA minimum flows are rarely exceeded, they effectively cap flows for fish.
Through the KBRA, we seek to significantly enhance river flows from the very top of the system (in the Sprague, Williamson, and Wood River Valleys) to the mainstem Klamath River and manage the newly available water to better meet the needs of the entire Klamath ecosystem.
Measures to increase water availability for fisheries include:
1) an irrigation cap on diversions to the Klamath Irrigation Project
2) permanent water retirement programs in the Williamson, Sprague, and Wood River Valleys
3) increasing the natural storage of Upper Klamath Lake.
Together, these measures ensure more water for the river in the majority of years. Still, in the driest years, we must still rely on the ESA to set minimum flows. In other words, the ESA will serve its purpose as a safety net instead of a comprehensive mangement tool.
In no way, shape, or form is the applicability of the ESA limited through the Klamath Agreements. The following sections of the KBRA clearly establish this intention:
KBRA Section 2.1. Compliance with Legal Responsibilities.
Except as otherwise expressly provided, by entering into this Agreement, each Party represents that it believes that this Agreement is Consistent with its statutory, regulatory, or other legal obligations for conservation, use, or management of affected resources of the Klamath River Basin. In the implementation of this Agreement, Public Agency Parties shall comply with existing legal authorities, including National Environmental Policy Act, Endangered Species Act, Clean Water Act, and other Applicable Law, and shall act Consistent with the terms of the Authorizing Legislation.
KBRA Section 19.1 Purpose and Scope of Drought, Climate Change, and Emergency Plans
The Parties intend that the obligations and the bargained-for benefits of this Agreement are fulfilled and realized in all circumstances, including Drought and extreme Drought, Emergency circumstances, or long-term climatic conditions which cannot now be predicted foreseen. In the instances of Drought and Extreme Drought, Emergency, or climatic changes, the Parties intend that water and resource management actions be taken such that no Klamath Basin interest shall bear an unreasonable portion of burdens imposed or the risk of loss or injury. Nothing here is intended to limit the applicability or effect of the Endangered Species Act or other Applicable Law.
KBRA Section 20.3.1 Water Rights and other Legal Requirements
Management of Managed Environmental Water will be Consistent with: (i) Applicable Law, including obligations of Reclamation and other Parties under the ESA; (ii) any related secondary rights to use the stored water, as well as consistent with senior water rights, and (iii) this Agreement
KBRA Section 22.5 Reservation of Rights
By entering into this Agreement, NMFS and FWS are not prejudging the outcome of any process under the ESA and NMFS and FWS implementing regulations, and NMFS and FWS expressly reserve the right to make determinations and take actions as necessary to meet the requirements of the ESA and implementing regulations.
KBRA Section 21.3.1 B. iii. (e) Assurances Before Diversion Limitations Are In Effect
Before Appendix E-1 is in effect as provided in Section 15.3.1.A or 2017, whichever is earlier, a Party other than Federal and State Public Agency Parties shall not seek to enforce Applicable Law to impose limitations on the water quantity for diversion, use, and reuse in the Klamath Reclamation Project, unless… the Party believes that the water quantity diverted for use and reuse in the Klamath Reclamation Project may result in jeopardy of listed Species under the Endangered Species Act or other prohibited impact to the natural resources of the Klamath Basin under other Applicable Law...