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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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New USFWS Critical Habitat
Rule for Bull Trout Adds Complications
Responding to a court order,
the U.S. Fish and Wildlife Service earlier this week announced it is
designating approximately 1,748 miles of streams and 61,235 acres of
lakes in the Columbia and Klamath River basins of Oregon, Washington,
and Idaho as critical habitat for the bull trout under the Endangered
Species Act. While many western producers cheered the news that the
final rule is much less broad than those originally proposed, the new
rule imposes another potential layer of regulation on Klamath Project
operations.
Congressman Chris Cannon
(UT), Chairman of the Western Caucus said, "This designation
demonstrates that science-based cooperative efforts are effective.
Habitat and species can be recovered through cooperative measures. It is
comforting to see that science has prevailed in this case. I applaud the
Fish and Wildlife Service for a job well done."
Dan Keppen, Executive
Director of the Klamath Water Users Association, acknowledged that the
final rule should be far-less ranging than the original proposal, but
that local water managers are concerned about potential additional
regulations that might effect Upper Klamath Lake water users.
"Despite formal concerns that
we transmitted to USFWS in May 2003 on its proposed rule, the final rule
includes Agency Lake within the critical habitat designation," Keppen
said. "Now we have four individual fish species listed under the
Endangered Species Act to deal with, when the perceived water needs of
three are already in competition with one another." |
New USFWS Habitat Rule for
Bull Trout Adds Complications (Continued)
The critical habitat rule
includes a "migratory corridor" for bull trout that includes Agency
Lake, which could impact the ability of the federal government to use
this area for storage, and could also complicate efforts to expand
storage into adjacent lands, like the Barnes property. The justification
for the migratory corridor was to provide a safe route to allow bull
trout to move between streams that enter Agency Lake. The map developed
in the final bull trout rule, however, does not include the streams for
which the original migratory corridor was proposed to connect.
Environmental groups ripped
the decision, since the final rule includes much less critical habitat
across the Pacific Northwest than the original proposal. Wednesday's
announcement dropped all Montana waters off the list and reduced the
regionwide total by 90 percent. Supporters for the designation promised
to sue over the recent rule decision.
"If a judge doesn't overturn this decision, bull trout will go extinct,"
said Michael Garrity, executive director of Alliance for the Wild
Rockies, told The Missoulian. "Now habitat can be degraded in
Montana. Now it will be gone. Bull trout have lost all of that
protection."
Critical habitat refers to
specific geographic areas that are essential for the conservation of a
threatened or endangered species and which may require special
management considerations. A designation does not set up a preserve or
refuge, but it can apply to situations where Federal funding, permits,
or projects are involved. It does not affect citizens engaged in
activities on private land that do not involve a federal agency.
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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Activists Won Court Decision
that Pushed Feds to Complete Bull Trout Rule
Wednesday’s designation by
the U.S. Fish and Wildlife Service (USFWS) is the first of two legally
mandated critical habitat designations that will be made for bull trout.
In January 2002, the Service and the Alliance for the Wild Rockies and
Friends of the Wild Swan reached a court settlement establishing a
schedule for the proposal of critical habitat for bull trout. The two
environmental groups had sued USFWS for not designating critical habitat
when it listed bull trout in 1998 as threatened throughout its range in
the lower 48 states.
In Oregon, USFWS designated
706 miles of streams and 33,939 acres of lakes and marshes as critical
habitat for bull trout. All of the lakes and marshes are in the Klamath
River basin, and include Agency Lake and Sycan Marsh.
After proposing critical
habitat in November 2002 for bull trout in the Columbia and Klamath
river basins, USFWS held nine public hearings and numerous public
meetings, reviewed 549 written comments from the public and obtained
peer review of its proposal from the American Fisheries Society. The
public had a total of seven months to review and comment on the critical
habitat proposal and the draft economic analysis.
"As a result of the extensive
public comment we received on our proposed designation, the Service
found there were many areas that already had conservation efforts in
place and did not need to be designated," said Dave Allen, regional
director of the Service’s Pacific Region. "In other areas, the Service
found that the social and economic cost of a designation outweighed the
conservation benefit."
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Court Decision Pushed Feds to
Complete Bull Trout Habitat Rule (Cont’d)
The Klamath Water Users
Association in May 2003 submitted formal comments on the proposed rule,
and focused concerns on the proposal to include Agency Lake as critical
habitat for bull trout.
In response to several
requests, and in accordance with the Endangered Species Act (ESA), the
USFWS also is conducting a five-year review on the bull trout to
determine whether a change in status is warranted. That review is
expected to be finished in 2005. Meanwhile, work on a recovery plan for
bull trout is on hold until the review to determine whether the species
is threatened is complete.
Under the ESA, federal
agencies must ensure that any activity they fund, carry out or authorize
is not likely to destroy or adversely modify a protected species’
critical habitat. By consulting with the USFWS, an agency can minimize
or avoid any potential conflicts with listed species and their critical
habitat, and the proposed project may proceed.
In 30 years of implementing
the ESA, USFWS has found that the designation of critical habitat
provides little additional protection to most listed species, while
preventing the agency from using scarce conservation resources for
activities with greater conservation benefits.
The USFWS will publish the
final designation for bull trout in the Federal Register in the near
future.
Maps, fact sheets,
photographs and other materials relating to this week’s announcement may
be found on the Pacific Region’s Bull Trout Website at
http://species.fws.gov/bulltrout.
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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Relationship of Bull Trout
Critical Habitat Rule to the Klamath Project
This week’s designation of
bull trout critical habitat on Agency Lake has an unknown, but very
definite potential, impact on the ability of the Bureau of Reclamation
(Reclamation) to meet fishery, refuge and irrigation demands associated
with Klamath Project operations. While federal officials downplay the
potential impacts of critical habitat on private property owners, they
do not dispute that federal activities can be influenced by such a
designation. Critical habitat refers to specific geographic areas that
are essential for the conservation of a threatened or endangered species
and which may require special management considerations. A designation
does not set up a preserve or refuge, but it can apply to situations
where Federal funding, permits, or projects are involved.
Operation of the Klamath
Project by Reclamation involves storage of water in Upper Klamath Lake,
including Agency Lake and Agency Lake Ranch. Water is diverted during
irrigation season into the A-canal at the southern end of Upper Klamath
Lake to supply Klamath Project irrigation and refuge water needs. Water
is also released into the Klamath River downstream of Link River Dam to
meet the needs of agriculture, national wildlife refuges, coho salmon,
and other purposes.
The Upper Klamath Lake
critical habitat subunit of the Klamath River Distinct Population
Segment of bull trout appears to have the potential to directly impact
Klamath Project operations. The areas included within this subunit are
considered by the U.S. Fish and Wildlife Service (USFWS) to be essential
to restoring migratory forms of bull trout
in the Upper Klamath Lake
core area and reestablishing connectivity among populations of bull
trout in Rock, Cherry, Threemile, and |
Relationship of Bull Trout
Critical Habitat to the Klamath Project (Cont’d)
Sevenmile Creeks on the west
side of the upper Klamath Basin, and populations of bull trout in the
Wood River drainage and Crater Lake National Park.
The USFWS proposes to provide
a migratory corridor for bull trout in Agency Lake. In comments
submitted to USFWS on May 12, 2003, the Klamath Water Users Association
(KWUA) expressed skepticism over this original proposal.
"We have questions about the
historic presence of migratory bull trout in this area, and are further
concerned about the hospitability of this environment for newly
introduced bull trout in the future," the KWUA letter stated. "We
believe the benefits of excluding this area from critical habitat
designation outweigh the benefits, and do not believe that failure to
designate this area as critical habitat will result in the extinction of
the species."
KWUA noted in its comment
letter that the proposed habitat designation and recovery plan could
prove to be a significant factor as federally-funded future storage
enhancement and water purchase programs are considered north of Upper
Klamath Lake. KWUA at the time supported the general intent expressed by
others – including Water for Life, Inc. – to revise the proposed rule
and create a critical habitat designation that is narrowly tailored to
minimize economic impacts to existing rural water users and their
communities.
KWUA’s specific concerns with
the final critical habitat designation are further outlined elsewhere in
this newsletter.
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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KWUA Believes USFWS Needs to
Justify Inclusion of Agency Lake in New Rule
Klamath Project irrigators
formally expressed concerns about critical habitat rules proposed by the
U.S. Fish and Wildlife Service (USFWS) in 2003 for the Klamath Basin.
Specifically, the Klamath Water Users Association (KWUA) asked USFWS to
provide further justification for its proposal to "re-establish" a
"migratory corridor" between distinct populations of bullhead trout
located on tributaries to Upper Klamath Lake.
KWUA’s first concern is that
the proposed rule does not clearly demonstrate that migratory
populations of trout historically utilized this area. Secondly, this
area currently fails to satisfy several of the "constituent elements" to
qualify for designation as bull trout critical habitat.
Did Migratory Populations of
Bull Trout Utilize the Agency Lake Area?
Based on the information
presented in the Draft Recovery Plan, KWUA could not discern any
empirical data that document the presence of bull trout either currently
or historically in Agency Lake. Consider the following:
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USFWS cites a previous
study that found "historical records for the Klamath Basin suggest
that bull trout in this distinct population segment were once widely
distributed and exhibited diverse life-history traits in that part of
their range" (Ziller 1992). However, Ziller’s study focused on the
Sprague River subbasin. USFWS did not provide evidence suggesting that
the Ziller study specifically addressed the presence of migratory bull
trout in the area of northern Upper Klamath Lake and Agency Lake.
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USFWS Needs to Justify
Inclusion of Agency Lake in Bull Trout Rule (Cont’d)
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USFWS finds that,
currently, "bull trout in this basin are almost entirely nonmigratory,
resident fish that are confined to headwater streams." (Goetz 1989 as
cited in USFWS 2002).
The proposed rule
acknowledges "…uncertainty about the exact historical range, the
number and size of historical populations, and the role of natural
factors in the status of the species."
The Draft Recovery Plan
stated that it is "essential to establish with greater certainty the
current distribution and season use areas of remnant migratory bull
trout within the mainstem rivers within the Klamath River Recovery
Unit." KWUA’s May 2003 letter agreed.
"In the absence of other
information that indicates otherwise, we believe this observation can be
made with greater conviction when applied specifically to the northern
fringes of Upper Klamath Lake and Agency Lake," the letter stated.
_________________________
50 CFR Part 17, RIN
1018-AI52, Page 17
Id. Page 19
Bull Trout Draft Recovery Plan, Chapter 2, p. 28.
Bull Trout Draft Recovery Plan, Chapter 1, p. 25.
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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USFWS Needs to Justify
Inclusion of Agency Lake in Bull Trout Rule (Cont’d)
Agency Lake Does Not Appear
to Qualify as Bull Trout Critical Habitat
Included as critical habitat
are some areas with low levels of bull trout occupancy or where presence
of the species is unknown. Upper Klamath Lake and Agency Lake appear to
fall into this category. In accordance with section 3(5)(A)(i) of the
ESA and regulations at 50 CFR 424.12, in determining which areas to
propose as critical habitat, USFWS is required to base its proposal on
the best scientific data available, and to consider those physical and
biological features that are essential to the conservation of the
species and that may require special management considerations or
protection. The regulations also require that USFWS include a list of
known primary constituent elements with the critical habitat
determination.
USFWS determined nine primary
constituent elements for bull trout from studies of their habitat
requirements, life-history characteristics, and population biology. It
appears that inclusion of Agency Lake as proposed critical habitat fails
to satisfy at least two of these elements:
1. The Agency Lake "migratory
corridor" does not possess "minimal physical, biological or chemical
barriers….including intermittent or seasonal barriers induced by high
water temperatures":
Bull Trout Draft
Recovery Plan, Chapter 2, p. 28.
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USFWS Needs to Justify
Inclusion of Agency Lake in Bull Trout Rule (Cont’d)
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According to USFWS, "one
species of myxosporean parasite has been found in Klamath River
drainages and lower elevation tributaries to Klamath Lake. The
distribution of this parasite within the Klamath River basin is
unknown….whether Klamath River bull trout are resistant is unknown. If
bull trout are susceptible to this parasite, recovery of the char
beyond colder natal and mainstem drainages could be difficult."
2. UKL / Agency Lake
conditions do not satisfy USFWS criteria that "few, or no predatory,
interbreeding, or competitive nonnative species" are present.
According to the Draft
Recovery Plan (DRP), competition between bull trout and nonnative
species has undoubtedly been a contributing factor in the decline of
bull trout in the Klamath River basin. Hybridization with nonnative
species is a very significant threat and has been a major contributor to
the decline of bull trout in the Klamath River Recovery Unit. Chapter 1
of the DRP notes that restoring connectivity of the type proposed along
northern UKL and Agency Lake must not encourage invasion of nonnative
species. The proposed rule does not evaluate the potential for increased
predation by warmwater nonnative fish (e.g. perch) on newly introduced,
"migratory" bull trout.
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Draft
Recovery Plan, Chapter 1, Page 43.
Continued
on page 6 |
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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Bull Trout Habitat
Designation for Agency Lake Raises Economic Concerns
Significant economic impacts
could result if Klamath Project water supply potential is limited due to
uncertain future critical habit-driven conditions placed on Agency Lake
Ranch and surrounding properties, claim Klamath Project irrigators.
The U.S. Bureau of
Reclamation (Reclamation) in 1998 purchased Agency Lake Ranch to
increase the water storage capacity of Agency and Upper Klamath Lakes
and make that additional storage available for Klamath Project purposes.
Since that time, water has been diverted onto the property during late
winter and spring months when inflows to Upper Klamath Lake exceed the
storage capacity of the lake. Water is then pumped off in late May and
June, directly into Agency Lake. Reclamation plans to continue using
Agency Lake Ranch for water storage during winter and spring months.
This property is located within the proposed Upper Klamath Lake Critical
Habitat Subunit.
Plans have also been proposed
to further enhance Upper Klamath Lake supplies by conjunctively managing
Agency Lake Ranch with the adjacent Barnes property, which could be
transferred to federal ownership in the near future. Proponents of this
project say that proper design and operation of these properties will
help alleviate the burden borne by Klamath Project irrigators to meet
ESA requirements for suckers and coho salmon.
ESA requires that USFWS take
into consideration the economic impact, and any other relevant impact,
of specifying a particular area as critical habitat. Areas may be
excluded from critical habitat designation if it can be demonstrated
that the
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Habitat Designation for
Agency Lake Raises Economic Concerns (Cont’d)
benefits of such exclusion
outweigh the benefits of including the areas within critical habitat,
unless it is determined that the failure to designate such area as
critical habitat will result in the extinction of the species. In order
to be included in a critical habitat designation, the habitat must be
"essential to the conservation of the species."
"It does not appear from our
studies that exclusion of Agency Lake from the critical habitat rule
will result in the extinction of the bull trout," said Dan Keppen,
Executive Director of the Klamath Water Users Association.
Significant economic impacts
could result if Klamath Project water supply potential is limited due to
uncertain future critical habit-driven conditions placed on Agency Lake
Ranch and surrounding properties imposed by a critical habitat
designation.
"Even with the uncertain
nature associated with how such a critical habitat designation would
affect management of these properties, past experience with other types
of regulatory processes validates our concerns," said Keppen.
The Draft Recovery Plan even
provides a hint of how a critical habitat designation that overlaps
Agency Lake Ranch could impact future operations when it addresses
future implications in its discussion on dams and water control
structures on Klamath bull trout.
"The degree of threat posed
by these structures will undoubtedly change as abundance and
distribution of local and migratory populations of bull trout increase
in response to recovery actions," it notes.
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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No Secret Meetings Going at
USBR –
Just a Parking Lot Improvement
The mass of cars and trucks
parked outside the offices of the Bureau of Reclamation and U.S. Fish
and Wildlife Service complex on Washburn Way in Klamath Falls does not
indicate the presence of high-level, secret negotiations. Instead, a
recent paving job within the fenced enclosure surrounding the offices
has forced federal employees to park along Washburn Way. The local
Bureau folks have asked that we extend their message to be patient with
the construction project.
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CALENDAR OF EVENTS
Monday, September 27, 2004.
Wetlands Tour. Hosted by the Klamath Watershed Council, The Urban Issues
Group and the Klamath River Group. 10:00 a.m. Parking area south of
203 Riverside Drive, Klamath Falls, Oregon
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Klamath Water Users Association
2455 Patterson Street, Suite 3
Klamath Falls, Oregon 97603
Phone (541) 883-6100
FAX (541) 883-8893
kwua@cvcwireless.net |
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Content and Logo: Copyright
© Klamath Water Users Association, 2002 All Rights Reserved
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