Is it acceptable to simply take water from farmers for environmental purposes, without paying them?
A recent federal audit prepared in response to claims lodged by federal “whistleblowers” in the Klamath Basin of California and Oregon appears to support this premise. This is serious, and has ramifications not just for family farmers and ranchers throughout the West, but also for anybody with an interest in protecting fish and wildlife resources.
The Office of Special Counsel (OSC) alleges improprieties regarding an agreement between the Bureau of Reclamation (Reclamation) and the Klamath Water and Power Agency (KWAPA) for a water-banking program. The report claims that Reclamation did not have authority for the program, “resulting in $32.2 million in wasted funds spent by KWAPA.”
The OSC ignores long-standing precedent for this type of water-banking arrangement, which is based on the Fish and Wildlife Coordination Act (FWCA), a 1934 law that has been used by Reclamation in other watersheds. FWCA authorizes actions to protect fish and wildlife. Leaving water in streams and lakes instead of consuming that same water for irrigation fits completely within this act.
There is a glaring disconnect between the on-the-ground reality in the Klamath Basin and the findings of the OSC audit, which are based on a 2016 report of the Interior Department’s Office of Inspector General (OIG). The federal investigators concluded that the Klamath water bank did not benefit fish and wildlife. Those who live in the Basin know differently; any water not used for irrigation is water that benefits fish and wildlife. As a result of the program, water stayed in streams and lakes, benefiting a national wildlife refuge and endangered fish species.
But more troubling for anybody in the West who cares about farms and wildlife is the language in the federal audit suggesting that water long used by farmers, who have established a property interest in that water, can simply be taken by the federal government for Endangered Species Act purposes without compensation. The OIG and OSC reports are of the view that the federal government can simply take water for ESA purposes, and therefore it is a waste to pay farmers who agree not to take water. Reclamation shouldn’t have to pay for something it can take for free, right?
Well … not really. The federal reports fail to mention that Reclamation already tried that once before, in 2001, with serious repercussions. The taking of water in 2001 devastated local communities and economies, and impacted more than 400 species of fish and wildlife, many of which rely on food and habitat provided by adjacent agricultural activity. This action also generated ongoing litigation that directly calls the question of whether Reclamation has the authority to “take” water without compensation. Yet this very key fact – that a judge is about to answer the question of whether Reclamation can take water without paying for it under identical circumstances – was not discussed.
From a purely practical standpoint, use of agency authority to provide funds to resolve conflict, instead of engaging in litigation that tears communities apart and only further harms the resource, is one of the most important tools available to Reclamation. To be clear, we are not discussing senior water rights and application of the prior appropriation system. But what we are discussing are tools that help resolve differences and foster collaborative solutions. There must be incentives, however, in bringing folks to the table. Taking water, especially in the face of ongoing litigation, is not such an incentive. FWCA is such a tool.
These pertinent issues were not addressed by the federal investigators. Had they been, we all would have been provided useful perspective in the final audit findings.
Audits like these are certainly an important part of evaluating federal programs, and agencies must keep records to ensure funds are appropriately expended. But audits are just one tool for evaluating programs, and their limitations should also be understood. Audits are often limited to specific transactions, and their scope is not usually meant to account for the larger context in which these programs operate.
To be fair, the OIG, OSC and their attorneys are not water experts who deal with these complex issues daily. Whether they should have known – or been informed of these facts – is a different matter. What we do know is that the audit findings do not provide a full picture. Facts and context do matter. What has happened in the Klamath Basin has potential repercussions for all Western water users as discretionary actions such as the use of the FWCA to avoid protracted litigation and resolve disputes, are essential in solving problems throughout the West.
We should all be vigilant in eradicating waste from agency programs, but we should also be vigilant in ensuring that before a rush to judgment, we have “the rest of the story.”
John Bezdek is a former attorney at the Department of the Interior holding several senior positions over a 20-year career working on water resources and related issues. He is now an attorney in private practice in Washington, D.C.
Dan Keppen is executive director for the Family Farm Alliance, a nonprofit association that advocates for family farmers, ranchers, irrigation districts and allied industries in 17 Western states. He has 28 years of experience in Western water resources engineering and policy matters.
The views expressed in this article belong to the authors and do not necessarily reflect the editorial policy of Water Deeply.