NAS panel investigates Klamath water shutoff

Published February 1, 2002

At the direction of Interior Secretary Gale Norton, the National Academy of Sciences has assembled a panel of 11 scientists to investigate the shutoff of irrigation water to farmers in the Klamath Basin of California and Oregon. On November 6, the panel held public hearings on the issue and is expected to release interim findings by January 31, 2002.

Irrigation water shut off

On April 7, 2001, the federal Bureau of Reclamation decided to allocate nearly all the water in the Klamath Project for the benefit of suckerfish in Upper Klamath Lake, and for coho salmon in the Klamath River. The Bureau determined higher water levels in both bodies of water were necessary for the well-being of the allegedly endangered fish.

Although Klamath farmers rely on lake water to irrigate their crops and feed their livestock, the Bureau ruled the fish’s rights to the water trumped those of the farmers, despite the government’s prior agreement to supply the farmers with irrigation water.

Since the April 2001 water cutoff, area farmers have staged large protests attracting national attention. Nevertheless, on July 13, 2001, Norton refused to convene a “God squad” of cabinet-level officials with the authority to set aside Bureau decisions enforcing the Endangered Species Act.

Subsequently, a group of farmers announced they had hired property rights specialists Marzulla & Marzulla to present a Fifth Amendment Takings claim in federal court. They acknowledged courtroom litigation may take years to resolve the issue.

Federal court throws out ESA determination

The current review by the NAS panel was spurred in part by a September 2001 federal district court decision that a similar population segment of coho salmon must be taken off the endangered species list because the government had significantly undercounted the number of such salmon. According to the court, the government had improperly counted only the number of wild coho salmon, while completely ignoring the thousands of identical fish raised in hatcheries.

Norton has now directed the NAS panel to conduct a “thorough and objective peer review” of the science behind the Reclamation Bureau’s decision to shut off the Klamath farmers’ irrigation water. The federal court decision regarding the other segment of coho salmon should have a bearing on the NAS investigation.

“There are a lot of questions about the science by people affected by the decision,” stated Norton.

The Endangered Species Act (ESA) requires that biological opinions be based on “the best available science.” However, “none of the biological opinions were subjected to peer review,” noted Bob Gasser, spokesperson for the Klamath Water Users Association. Gasser argued the Bureau of Reclamation ignored substantial peer-reviewed scientific data calling into question the need to shut off Klamath Basin irrigation water, and instead cited only data that supported the outcome it desired.

Farmers concerned about NAS panel

While the farmers welcome an investigation into the issues, many are concerned about the makeup of the NAS panel and its procedures. Gasser pointed out that NAS panel member Dr. Peter Moyle of the University of California at Davis has written a highly opinionated article about some of the issues under investigation for Defenders of Wildlife magazine.

“Maybe he can put his personal beliefs aside and be impartial, but it’s hard to see how,” observed Gasser.

Ric Costales, Pacific Region president of the Frontiers of Freedom, further noted that Moyle authored many of the studies under review by the NAS panel. “He would be reviewing his own studies,” observed Costales, who called on Moyle to recuse himself from the panel.

Moreover, Gasser pointed out that the farmers were given very little notice about the November 6 hearings, which prevented them from presenting their two best-qualified scientists to testify regarding the issues.

“The deck is already stacked against us,” stated Gasser.

Other methods untried

In addition to the recent federal court decision to delist a similar segment of the coho salmon population, Klamath farmers note other methods could have and should have been utilized to protect the region’s fish prior to shutting off the irrigation water.

Senator Gordon Smith (R-Oregon) has observed that the U.S. Fish and Wildlife Service (USFWS) had previously released a plan with a series of recommendations for the recovery of the suckerfish. While prescribing Upper Klamath Lake’s minimum level at 4,137 feet above sea level, the plan called for the federal government to actively manage the lake with such programs as water aeration, removal of suckerfish predators, wetland rehabilitation projects, and enhancement of spawning habitats.

After the government failed to act on the plan, it responded to current concerns over the suckerfish by raising the mandatory lake level to 4,140 feet–effectively shutting off the water flow to Klamath Basin farmers.

“The people of the Klamath Basin are having their lives destroyed because a federal agency failed to take its own advice and do its job to recover fish,” stated Smith. “Farmers are now being asked to pay for the government’s inaction, while the suckerfish may be no better off in the end.”

Added Smith, “The Endangered Species Act was never meant to rob people of their livelihoods; it was designed to guide the federal government’s management of wildlife recovery efforts. But instead of actively managing as even the Fish and Wildlife Service said it should, it has chosen to blindly throw water at the suckerfish and deprive farm families of that same water without any guarantee of ultimate success.”

ESA a tool for other motives?

R.J. Smith, senior environmental scholar for the Competitive Enterprise Institute, asserted that the issue, as far as anti-market environmental groups are concerned, is not so much the protection of fish populations as it is control over the region’s current and future land use. According to Smith, the ESA is merely being used as a tool to take control over the region’s water rights.

“It’s the key to the entire crisis,” stated Smith. “Using the ESA to take private property and shred the Bill of Rights, instead of protecting wildlife.”

Indeed, Smith noted environmental groups have proposed that the federal government take over the Klamath Basin and turn it into a wildlife preserve.

The NAS panel’s interim report will affect water usage in the Klamath Basin in 2002, while a more final, comprehensive report is due by March 30, 2003.

“We are encouraged by the fact that the committee members asked questions about things we didn’t expect, such as the effect of ocean conditions on the salmon,” said Gasser. “We’re convinced that we will win if the NAS committee reviews all the science. They will find out that what was done this year has hurt the fish more than it helped them.”