The Klamath Drainage District claims the Endangered Species Act doesn’t allow the U.S. Bureau of Reclamation to conserve water by restricting a non-federal irrigation diversion.

The district is asking the 9th U.S. Circuit Court of Appeals to overturn a ruling that allows Reclamation to limit a water right even though it doesn’t rely on federal irrigation works.

Though the federal agency can exert control over water delivered to the district through the Klamath Irrigation Project, “Reclamation lacks authority over the water KDD diverts under its separate water rights,” the district said.

The Klamath Irrigation Project, which spans more than 200,000 acres along the Oregon-California border, was built by the Bureau of Reclamation as part of a massive effort to “reclaim” Western lands for agriculture and settlement.

The federal agency must manage the project to avoid violating the Endangered Species Act, but the district argues it has exceeded its authority by trying to restrict an outside irrigation diversion.

“Nothing in the record establishes that Reclamation’s ability to comply with the state process for administration and enforcement of Oregon’s water right priority system conflicted with Reclamation’s planning process or ability to comply with the ESA,” the district said.

1943 contract

Under its 1943 contract with the federal agency, the district can annually divert roughly 110,000 acre-feet of Klamath Irrigation Project water.

However, the district also has a 1977 water right allowing it to appropriate up to 57,700 acre-feet a year directly from the Klamath River through its own canal.

In 2023, a federal judge blocked the district from using the 1977 water right for irrigation without permission from Reclamation, agreeing that such diversions violate its 1943 contract with the agency.

The district’s diversions under the 1977 water right “hinder Reclamation’s ability to operate the Klamath Project in compliance with its ESA obligations” to protect threatened and endangered fish, the judge said.

The 1977 water right cannot be used to “sidestep Reclamation’s water allocation under the terms of the 1943 contract,” which would “disturb Reclamation’s careful balance of these competing interests,” the ruling said.

District seeks reversal

The district now wants the 9th Circuit to reverse that decision and lift the injunction affecting its 1977 water right, arguing the judge impermissibly allowed Reclamation to pre-empt state water law.

“The 1943 Contract does not contain any provisions constricting KDD’s ability to pursue additional water rights in accordance with state law,” the district claims. “Thus, the parties did not contract for the obligation the district court engrafted onto the 1943 Contract.”

Oral arguments in the case were scheduled for Jan. 17 but were canceled after the 9th Circuit decided to resolve the issue based on the submitted legal briefs.

The district’s arguments are supported by several organizations — including the Oregon Farm Bureau, Oregon Wheat Growers League, Klamath Water Users Association, Family Farm Alliance and Oregon Water Resources Congress — who submitted legal briefs in the case.

The agricultural groups claim Reclamation relies on the “erroneous premise” that it has the authority to “require actions by nonfederal actors at nonfederal facilities.”

This premise “impermissibly expands the scope” of the Endangered Species Act, which is “problematic” because its enforcement in the Klamath basin “has been chaotic and tumultuous, resulting in disastrous results for agriculture and wildlife refuges,” the groups said.

“Expanded and unrestrained agency ‘discretion’ over nonfederal diversions and state-issued water rights only magnifies these problems, and the district court’s injunction gives Reclamation unfettered authority to enforce its expanded version of ‘discretion’ on a water user simply by virtue of holding a federal contract,” the agriculture groups said.

Government

’s claim

The federal government argues the district wants to turn the 1943 contract “on its head,” allowing it to jeopardize protected species and “vault ahead of the Project’s highest priority obligations, circumventing a system of contracts and law that have managed the Project for over a century.”

The 1943 contract broadly prohibits the district from “diverting water contrary to Reclamation plans,” including through its own canal under the 1977 water right, the government claims.

The district’s interpretation of the contract would produce an “illogical and one-sided result,” allowing downstream diversions of water that Reclamation releases to help fish by increasing stream flows, according to the government.

While the district claims that Reclamation can’t stop it from diverting water through its “own private infrastructure,” the 1943 contract limits such diversions regardless of what canals are used, the government said.

The case is ultimately “a contract suit, not an ESA enforcement suit,” and doesn’t bring Reclamation’s authority into conflict with state water law, the government said. “Specifically, no state law prohibits the parties from agreeing by contract to limit KDD’s diversions.”