Biological Opinions - Bureau of Reclamation

were not arbitrary and capricious. The Ninth Circuit Court of Appeals concluded that the RPA
was arbitrary and capricious, because NMFS did not analyze how implementation of the short –
term measures of the RPA, for 8 of 10 years of the plan for Project operations, would avoid the
likelihood of jeopardy to coho salmon. The Ninth Circuit Court of Appeals remanded the case to
the district court for appropriate injunctive relief. 1 On remand, the district court granted a
motion for injunctive relief and ordered: (1) NMFS and Reclamation to reinitiate consultation on
the Klamath Irrigation Project; (2) NMFS to issue a new BiOp based on the current scientific
evidence and the full risks to threatened coho salmon; and (3) Reclamation to limit Project
irrigation deliveries if they would cause flows in the Klamath River at and below IGD to fall
below 100 percent of the Phase III flow levels specifically identified by NMFS in its 2002 BiOp
as necessary to prevent jeopardy (i.e., Table 9 in the 2002 BiOp), until the new consultation for
the Klamath Irrigation Project was completed. 2
In 2007, Reclamation reinitiated consultation with the NMFS and the USFWS on its ongoing
operations of the Project. Reclamation proposed to change its ongoing activities to address
concerns with monthly time-step management of downstream flows and UKL elevations.
Reclamation also sought to address the court order, which dictated that Reclamation must meet
Phase III flow levels in the RPA of the NMFS’ 2002 BiOp for Reclamation’s Project operations
until a new BiOp was developed. The USFWS completed a non-jeopardy BiOp on the Project
for the LRS and the SNS in April 2007. The NMFS issued a draft jeopardy BiOp on the Project
for the SONCC coho salmon ESU in June 2008. On October 6, 2008, Reclamation requested
that the NMFS suspend the finalization of the consultation until further notice. On March 4,
2010, Reclamation requested that the NMFS finalize its BiOp on the Project. On March 18,
2010, NMFS released its BiOp (NMFS 2010a) on Reclamation’s Project operations from 2010–
2018, and concluded that Reclamation’s proposed operations would likely jeopardize the
continued existence of SONCC coho salmon and would likely destroy or adversely modify
SONCC coho salmon designated critical habitat; the BiOp also included a RPA.
2.1.1 Oregon Water Rights Adjudication
This proposed action was developed beginning in 2011 and finalized in December 2012. On
March 7, 2013, the Oregon Water Resources Department delivered the Findings of Fact and an
Order of Determination in the Klamath River Basin Adjudication regarding water rights in the
Klamath Basin (within the state of Oregon) to the Klamath County Circuit Court. Adjudicationrelated
proceedings in the Oregon portion of the Klamath Basin have been conducted since 1975,
and the completion date was unknown as the proposed action was developed. Because the
Findings of Fact and Order of Determination were unknown as the proposed action was
developed, or even when the Oregon Water Resources Department might complete the Findings
of Fact and Order of Determination, the proposed action does not anticipate or account for the
1 Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation, 426 F.3d
1082 (9 th Cir. 2005).
2 Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation, 2006
WL 798920 (N.D. Cal. 2006), amended on reconsideration, 2006 WL 1469390 (N.D. Cal.
2006), affirmed, 226 Fed. Appx. 715, 2007 WL 901580 (9 th Cir. 2007).
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