United States Sues for Declaratory Relief from Oregon Order in Klamath Project Water Dispute

In a lawsuit filed last Friday, the United States has sued the Oregon Water Resources Department in Oregon federal court, alleging that an order proffered by the state agency blocking the release water stored at the Klamath water management project is invalid as it does not allow the federal government to fulfill its obligations under the Endangered Species Act.

The Klamath Project is a water management system in Oregon which provides irrigation to hundreds of thousands of acres of farmland. The declaratory judgment action explained that the order at issue bars the “‘distribution, use or release of stored water from the UKL, in excess of amounts that may be put to beneficial use under KA 1000 downstream of Link River Dam.’” KA 1000, the complaint explains, refers to a specific irrigation use defined by Oregon state law. The problem for the federal government, the complaint explained, is that certain protected species require certain water levels to survive.

Endangered or threatened species include two varities of sucker fish, the coho salmon, and the Southern Resident killer whale, the complaint said.

“As these water volumes are biologically-necessary, water may not be excluded from the volumes based on legal classifications under state law. Inevitably, operations to ensure against jeopardizing listed species and adversely modifying critical habitat will include some amount of water that OWRD would classify as having been ‘stored’ in [Upper Klamath Lake] under Oregon state water law,” the federal government’s filing states.

The federal government also cited reserved water obligations to the Yurok and Hoopa Valley Tribes, downstream of the Klamath Project. The government said that the state agency excveeded its authority by not allowing for an exemption for federally mandated water rights, and that the action is preempted under the Supremacy Clause.

“The United States therefore requests declaratory relief, including relief from the Challenged Orders insofar as they prevent Reclamation from operating the Project in compliance with federal law and subject Reclamation to potential improper enforcement actions by OWRD and potentially others for noncompliance,” the complaint said.

The plaintiffs are seeking a declaration that the orders challenged by the suit are invalid, among other declaratory relief.