ESA Preempts Oregon Water Rule In U.S. District Court Decision

On February 6, the U.S. District Court for the Northern District of California sided with the Bureau of Reclamation (Reclamation) and plaintiffs Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations, and the Yurok Tribe, in holding that an order governing Reclamation's operation of Upper Klamath Lake (UKL) from the Oregon Water Resources Department (OWRD) is preempted by the Endangered Species Act (ESA). The order, issued in the midst of a recent drought to meet the needs of irrigators, mandated Reclamation to "immediately preclude or stop the distribution, use or release of stored water from the UKL, in excess of amounts that may be put to beneficial use" under Reclamation's and other users' rights to divert natural flow from Upper Klamath Lake. Reclamation has consulted with the U.S. Fish and Wildlife Service and National Marine Fisheries Service for decades over its operation of UKL to ensure it complies with the ESA. Reclamation