This article was published on: 10/12/21 3:32 PM
The U.S. government is challenging an order from Oregon water regulators that forbids water releases from Upper Klamath Lake to boost flows in the Klamath river.
The legal dispute pits the enforcement of state water rights against the federal government’s obligation to operate the Klamath irrigation project in compliance with the Endangered Species Act.
To improve stream conditions for threatened salmon in the Klamath river, the U.S. Bureau of Reclamation releases water through its Link River Dam under an operations plan for the irrigation project.
In April, the Oregon Water Resources Department issued an order prohibiting Reclamation from making releases that would drain water from Upper Klamath Lake to which irrigators hold water rights.
Since then, OWRD has twice issued notices of violation to the federal government for releasing water contrary to the order. The federal government claims officials from the state agency have also threatened to impose civil penalties or take other enforcement actions.
The U.S. government is now seeking a declaration in federal court that OWRD lacks the authority to stop water releases from Upper Klamath Lake, as well as an injunction against the state agency’s enforcement of the order.
“As an Oregon state body, OWRD has jurisdiction that extends solely to the administration of Oregon state water rights,” according to the federal government. “OWRD has no jurisdiction or authority to determine the existence, nature, or extent of a federal agency’s obligations under any federal law or regulation, or to issue an order or directive that limits or interferes with a federal agency’s ability to comply with any federal law or regulation, including but not limited to the federal ESA and its implementing regulations.”
Aside from preventing Reclamation from operating its facility consistently with the ESA, the state agency’s order would interfere with the water rights of the Yurok and Hoopa Valley tribes downriver in California, the federal government claimed.
Under legal precedent set by the U.S. Supreme Court, the federal government must conform with state water law — however, state water law “must cede to federal authority” when it conflicts with federal statutes, such as the ESA, according to the federal government.
By forbidding Reclamation from releasing the stored water, “the Challenged Orders are contrary to the ESA and therefore preempted under the Supremacy Clause of the United States Constitution,” the federal government alleges.
Representatives of OWRD could not be reached for comment as of press time.
Last year, a state court ruling ordered the agency to “take charge” of water in Upper Klamath Lake and distribute it based on state water law, which prompted OWRD’s order to stop Reclamation’s water releases into Klamath river.
The federal government claims the ruling and the agency’s order are “grounded in state law without regard to federal requirements.” It’s challenging the OWRD’s order in existing federal litigation over the Klamath irrigation project, as well as in a standalone federal complaint that it will pursue if its other motion is dismissed.