The Proposal was developed under a “confidentiality agreement”; public information on what was being negotiated has been scant. Press releases issuing from a small number of participating organizations have been promotional rather than substantive.
Now the Proposal, which was developed by a group of federal and state agencies, four of the Klamath River Basin’s six federally-recognized tribes, a commercial fishing organization, two trout organizations and a group of local, regional and national conservation groups has been released. Finally, the People who actually live work and depend on the River and its resources can get a look at what the folks meeting behind closed doors have developed.
The agencies, tribes and organizations which developed the Proposal worked hard and in good faith for more than two years. We should honor their work. But neither the People of the Klamath River Basin nor the state and federal governments which are being asked to foot the billion dollar cost should rubber stamp their efforts. Instead, the 137 page Proposal, the appended draft federal and California legislation and appended budget proposals totaling just under $1 billion should be studied and seriously considered.
Unfortunately some of the Proposals authors appear to want to push for the Proposal’s adoption before folks have a chance to read and debate it. Pressure is being brought on participating organizations to endorse the Proposal even though some key provisions have not yet been drafted. This attempt to over-promote a complex and costly Proposal must be rejected. WE HAVE HAD A CLOSED DOOR, SECRET PROCESS; NOW IS THE TIME FOR AN OPEN, DEMOCRATIC CONSIDERATION OF THE PROPOSAL.
Adoption of the Proposal is been heavily promoted by a subset of irrigators and tribes which stand to gain most if it is adopted. Their public relations campaign claims that the Proposal must be accepted because that is the only way to get four Klamath River dams removed. It is now clear that this public relations claim is false: there is no necessary connection between the Klamath Restoration Proposal and an agreement being negotiated with PacifiCorp to remove the dams. In fact, in the face of federal and state budget deficits, the high-cost “Restoration Agreement” is likely to be in competition for funding with a dam decommissioning deal. For this reason, the Proposal must stand on its own and not as the price of dam decommissioning.
While it is named by its authors a “Restoration Agreement” the 137 page Proposal deals with much more than restoration. In fact, in addition to “restoration” the Proposal calls for:
- set allocations of water for a sub-set of irrigators;
- specific river flows;
- development of “new water” through new storage and demand reduction;
- funding for “Tribal Benefit” and “County Benefit” programs;
- energy subsidies for a sub-group of Klamath Basin irrigators, and
- Management and institutional changes it claims will benefit Klamath River Basin Wildlife Refuges.
These reports – the best independent science available to guide decisions concerning Klamath water management and restoration investments - have been the main tool KlamBlog has used to analyze the Klamath Proposal and to formulate feasible alternatives to those aspects of the Proposal which do not appear to be consistent with restoring the Klamath River, Klamath River Salmon and Klamath River Basin Communities.
There follows KlamBlog’s analysis of strengths and weaknesses of twelve key aspects of the Proposal as well as presentation of feasible alternatives to what is proposed for each of these twelve areas.
Readers should bear in mind that the analysis presented here is not exhaustive. For one thing certain key provisions – including language on the waiver of tribal water rights, the governance structure for implementing the Proposal and the plan to reduce and manage water use within the Klamath Project - have not been completed. KlamBlog will expand on this analysis in future posts which will deal in greater depth with unfinished and unwritten aspects of the Proposal and especially with problematic, unknown and unintended consequences which can, to some extent, be analyzed.
Now on with the analysis:
Water Allocation Provisions
Strengths:
¨ The amount of water that can be used by those who receive water from the Klamath Project is capped. Theoretically there is currently no cap on project water use. However, biological opinions for Kuptu and Tsuam (suckers species) and Coho salmon have effectively limited how much water can be delivered by the Bureau of Reclamation via the Klamath project. It should be noted that not all of this water is for irrigation. If you look at the list of parties in section 1.1 of the Proposal you will see that water is and will continue to be delivered to the following non-farm companies and interests: “Modoc Lumber Company, Inter-County Title Company, Reames Golf and Country Club, Winema Hunting Lodge, Inc., Collins Products, LLC and Klamath Water and Power Agency.”
¨ The signing parties obligate themselves to make reasonable efforts to oppose new out of basin transfers.
Weaknesses:
¨ One group of primarily agricultural interests – those who receive water from the Bureau of Reclamation through the Klamath Project – and who currently use about 40% of the water diverted for “agriculture” in the Klamath River Basin - will have first claim to water above all other interests. This means that, if the Proposal is enacted into law, US Solicitors Opinions which give primacy to ESA and tribal water rights over agriculture will be annulled with respect to this limited group of irrigators - the Klamath’s Irrigation Elite.
¨ There will be more pressure put on those who use the other 60% of water diverted from the Klamath and tributaries to supply water needed by fish and communities. If more water (flow) is needed for salmon or because of global warming these other diverters will have to give up their water. This includes farmers and ranchers in the Upper Basin outside the Klamath Project and in the Shasta and Scott.
Alternatively or additionally, the priority use could be granted but at a more reduced level by limiting use of Project Water to irrigation of crops or forage and to supply refuges (fish and wildlife). This would prevent federally subsidized water from going to golf resorts, timber companies and other commercial, non-farm private enterprises. Also, those who get top priority for irrigation water could be required to voluntarily forego use of groundwater for irrigation of crops or forage. This would likely result in an end to the unsustainable mining of water in the Lost River Basin.
Klamath River Flow Provisions
Strengths:
The amount of water allocated for Klamath flows is generally an improvement over what we have currently. However, in an analysis we just received, Water Watch of Oregon claims that “flows are projected to be less at times in dry years than required under the current biological opinions.” We believe this is referring to spring-time flows which are needed to get young salmon, steelhead and lamprey to move out of the river to the sea before the river becomes lethally warm.
Weaknesses:
Based on the best independent science, what we need is a Restoration Plan that looks at the entire Basin and which is linked to the new biological opinion for Coho which is under preparation. The Proposal seeks an accommodation of interests in only one part of the Basin; the alternative is a process that uses the best available science to reach a just accommodation Basin-wide considering all interests and all uses in a fair and equitable manner.
Advantages:
¨ If everything goes as projected in the Proposal, government and tribal managers will have “environmental water” which they could use when they think it will most benefit salmon.
¨ The Bureau of Reclamation and the Klamath Project Water Users would be committed to demand reduction.
¨ Demand reduction would be from “willing sellers” only.
Disadvantages:
¨ The proposed “improved” flows would not be available immediately but rather would depend on a program of demand reduction and new storage that are in turn dependent on adequate federal funding and are totally under the control of the Bureau of Reclamation and Klamath Project Water Users - the Irrigation Elite. Therefore, there is no guarantee that the improved flows would actually happen. Additionally, there is high likelihood that those in control would prioritize development of additional storage through the Alpine and/or Long Lake dam and reservoir proposals. These would then likely be challenged with – at best – a long delay in that “new water’ actually coming available for the improved flows. As a result of all the above, actual flows under the Proposal could turn out to not only not meet what is projected.
¨ In terms of demand reduction, the Proposal relies on the same mechanisms – on farm water conservation – that we’ve already spent $50 million on in the Basin with no clear benefit to flows or water supply. Under Klamath EQIP, Upper Basin irrigators exploited groundwater, giving themselves redundant irrigation options rather than saving water for other uses. The Proposal asks us to trust these same irrigators to now save water on farm by giving them many more millions of taxpayer funds. But the water conservation EQIP provision in the newly house passed Farm Bill was gutted in committee so that irrigators can get the money by promising only “minimal reduction in consumptive water use.” (The quote is from the EQIP provision of the house-passed Farm Bill).
¨ Demand reduction would be focused outside the Klamath Project. Again, this favors the Irrigation Elite over other water users. More importantly, those other, so-called “non Project” water users have recognized that this Proposal is not in their interest and they have indicated they will not sign the proposed Agreement. At best this will delay demand reduction; at worst it will result in the improved river flows, the “environmental water” called for in the Proposal, not actually appearing.
Drought, Climate Change and Uncertainty
Advantages:
¨ The Proposal includes provisions for drought, climate change and uncertainty that require all parties to work in good faith to address these as well as emergency conditions.
¨ There are provisions for monitoring springs along and above Klamath Lake and along the Klamath River to assure that groundwater pumping (the only option to meet a future deficit in supply over demand) would not impact the Klamath River or Upper Klamath Lake.
Disadvantages:
¨ The drought plan is deferred until later – after legislation is passed and governance structures are in place. Therefore, there is no way of knowing now whether the drought plan will be adequate or when it will be completed. There is likely to be a delay of one or more years while complex plans with multiple parties are negotiated, required assessments are made and required permits/authorizations are obtained.
¨ The Proposal would specifically allow the use of groundwater to meet drought flow requirements. This is very bad because: 1. groundwater in California is not regulated and 2. The US Geological Survey has already found that groundwater pumping in the Lost River Basin is permanently lowering the water table and is not sustainable. This is the source the Bureau of Reclamation has relied upon to meet current flow requirements through the Klamath Water Bank. The USGS has stated that the Water Bank is not sustainable. Most of this water has come from wells drilled with state funds and or with Klamath EQIP funds that were supposed to lower water demand but did not. The addition flows called for in the Proposal would require even more groundwater pumping. Essentially the Lost River Basin in general – and in particular its groundwater resources – are sacrificed in this Proposal to keep Klamath Project irrigation use at a certain level while providing Klamath River flows. THIS IS NOT SUSTAINABLE. It also will further impacts towns and homes in the Lost River which must drill ever deeper and pump ever higher to get water from the shrinking groundwater aquifer.
¨ The Proposal specifically would legalize the “lease” of water from willing sellers to meet river flow needs during a drought, emergency or if needed to address climate change impacts. This would weaken the Public Trust Doctrine (actually abolish it within the Klamath River Basin) by legalizing the lease of water that by Public Trust right is required to be left in the stream.
Alternative:
The Alternative to mining Lost River groundwater in order to meet the excess of water demand over water supply is to truly bring water into balance. Agriculture now consumes approximately 80% of the base flow – the flow in late summer and fall – Basin wide. This needs to be reduced to at most 60% in order to meet the needs of salmon and other aquatic species. This can be done through responsible on-farm conservation and demand reduction or through changed cropping systems (planting crops like seed garlic which require little to no water during the critical late summer and fall seasons). In cases when due to drought or emergency further cuts are needed, irrigators can be compensated in dollars. This is much preferable to damaging the Public Trust Doctrine and to unsustainable groundwater mining in the Lost River Basin.
Federal & State Endangered Species Law
Advantages:
¨ While this matter should be thoroughly analyzed by ESA legal experts, it appears that the applicability of the federal ESA would not be impacted by this Proposal. However, because the Proposal calls for an active “reintroduction” program for salmon into the Upper Basin, those salmon populations which are reintroduced would be “experimental populations” under the ESA. Such populations are not well protected under the ESA. The federal government can completely remove the population if it so desires and “take” prohibitions of the ESA can be suspended or waived.
Disadvantages:
¨ Like the Mexican Gray Wolf in the Southwest, salmon populations introduced into the Upper Basin would be at the mercy of politics; Upper basin salmon could be reduced or eliminated at any point in the future via an agency or political decision.
The alternative to providing federal and state exemptions – the “regulatory assurances” discussed in the Proposal - is to treat everyone – including the Irrigation Elite - fairly and equally by maintaining the integrity of both the state and federal ESAs.
National Wildlife Refuges
Advantages:
¨ Tule Lake and Lower Klamath NWRs become an official “purpose” of the Klamath Project.
¨ Tule Lake and Lower Klamath NWRs are assigned a specific water allocation which appears to be adequate for refuge needs.
¨ It is unlikely under this agreement that we would see the sort of extreme refuge dewatering which occurred in a significant number of years over the past 20 years.
Disadvantages:
¨ It appears that the refuge water allocation will be junior to essentially all irrigation allocations with the possible exception of Lower Klamath ag lease lands. While there are certain provisions for proportional reduction if demand exceeds supply, since the irrigation districts manage this water it is unclear if those proportional reductions can be enforced. This conclusion is reached due to the lack of any language either defining the refuges as equal in BOR priority to irrigators – the so-called “Class A” users.
¨ The commercial lease lands on both refuges remain and are given additional weight through federal legislation. These lands provide some wildlife benefits but these benefits are much lower than could be obtained if the FWS managed them for wildlife purposes.
¨ The water delivered to the refuges can be of any water quality. This would appear to give legislative approval to a current violation of the CWA, i.e. to disposal of polluted ag return flows by pumping onto the refuges. This is a particular problem in the SE section of Tule Lake NWR.
¨ There is no prohibition on pumping groundwater to meet the refuge water allocation. As a result, the allocation is likely to be met in some years by increased unsustainable mining of Lost River Basin groundwater.
¨ The water plan which will provide the specifics about whether the refuge will remain a ‘second class citizen’ when it comes to Klamath Project water allocation has not yet been written; that plan would be developed under the exclusive control of the Irrigation Elite.
¨ 20% of Wildlife Refuge lease revenues are given to two irrigation districts whose members already benefit from commercial farming on those refuges. So the federal government would be paying irrigation interests for farming that is not the land use which would most benefit refuge wildlife. This is a way of paying the districts for the water they are allowing BOR to convey to the refuges through facilities owned by the feds/BOR but operated by the irrigation districts.
Alternative:
In addition to making them a purpose of the Project, the legislation should clearly designate the refuges as equal in water allocation priority within the Klamath project to the so-called “A” water users. This is the ONLY way to assure that these refuges will not be sacrificed in order to maintain irrigation deliveries as they have been sacrificed regularly in the past. The plumbing is so complex and the management is in the hands of the Tulelake Irrigation District which can manipulate the water in ways that few people understand. Also, giving the refuges water must not be done by transferring more money to irrigation districts so that they can pay for accelerated mining of groundwater.
Power Program
Advantages: KlamBlog can’t find any. This program appears designed to restore the substantial electric power subsidy that the Irrigation Elite enjoyed under a 50 year BOR contract with PacifiCorp. They lost that subsidy when the contract ran out and the California and Oregon PUC’s denied the Irrigation Elite’s request for a power subsidy renewal. They do have stepped down subsidies for a number of years as granted by the PUC’s but – unless the Proposal becomes law - they will eventually have to compete on a level playing field (power wise) with other farmers and ranchers in the Basin.
Disadvantages:
¨ By federal legislation the Irrigation Elite would get priority to receive cheap Bonneville Administration Power. This would affect other Bonneville power users resulting in higher power costs for them. Who are the losers – they are not identified in the Proposal?
¨ The new subsidies would remove any incentive for the Klamath Project to reduce its energy use, i.e. to become more energy efficient. The profligate power use that has characterized this federal Project would likely continue.
¨ The Irrigation Elite would receive over $34 million to plan and develop alternative energy supplies for their exclusive use or which they could subsequently sell for profit onto the grid while they use cheaper Bonneville Power for irrigation.
¨ The Irrigation Elite would receive almost $8 million additional to further soften the blow of loosing the power subsidy from PacifiCorp.
Alternative:
The alternative to new power subsidies for the Irrigation Elite is to use the roughly $42 million in federal funds for development of alternative energy throughout the Basin on a competitive basis. A Basin-wide alternative energy program could use this money to fund the best projects rather than giving one relatively small group of well-off Basin residents a large subsidy that will disadvantage others who have to compete with this elite.
The $42 million could also be used to develop “replacement power”. For the dams to go, replacement power must be developed.
Tribal Benefit Program
Advantages:
¨ Klamath River Basin Tribes are disadvantaged; they suffering from high rates of poverty and unemployment, abnormal incidence of health problems, etc. The four tribes named – the Klamath, Karuk, Hoopa and Yurok – would receive $22 million in funding for economic development. The bulk of this ($21 million) would go to the Klamath Tribes, which already have economic development plans in place, to purchase cut-over timberlands for a reservation. The Karuk, Yurok and Hoopa Tribes would receive funds to write economic development plans.
¨ The Proposal would provide preference for the funding of certain tribal programs and bureaucracies. Specifically, funding for the fisheries and “conservation” programs of the four tribes named and being asked to sign on – the Klamath, Karuk, Hoopa and Yurok – would be assured for ten years in the amount of $58 million or $14.5 million per tribe. There would also be additional BIA funds “reprogrammed” for these tribes. The reprogrammed funds would have to come from the budgets of other tribes or the BIA.
¨ The Klamath Tribes would receive an interim fishing location between Iron Gate dam and i-5 until the salmon return or a re reintroduced into the Upper Basin
Disadvantages:
¨ There are six federally recognized tribes in the basin but the Tribal Benefits program only applies to the four large tribes. There is an equity issue here with the potential for development of “rich’ and “poor” tribes in the Basin, i.e. a Tribal Elite to parallel the Irrigation Elite.
¨ To the extent that the Tribal Benefits program relies on “reprogramming” BIA and other agency funds, those funds will be taken from the budget allocations of other tribes and or other federal agencies.
¨ The interim fishing location for the Klamath Tribes (between Iron Gate Dam and Interstate 5) is located within the territory of the Shasta Nation. The Shasta Tribe has applied for but has not been granted federal recognition. There has been no attempt to get their approval or to consult with Shasta Tribe leaders.
¨ There is no attempt to provide the Karuk Tribe with a fishing right or to provide for co-management of their ancestral territory in conjunction with the Forest Service.
Alternative:
The alternative to a benefit program that will create “rich” tribes that get additional federal benefits and “poor” tribes that are left out in the cold is a Tribal Benefits program that recognizes all six of the Klamath River Basin’s federal tribes and treats all six equitably. In addition, we should help the two tribes which have applied for but not yet received federal recognition. Except for the Hoopa, the tribe’s which would benefit under the Proposal were once unrecognized by the federal government. One would wish that these tribes would remember their former plight and support the other two tribes waiting for federal recognition: the Shasta Tribe and the Hayfork Band of Nor-El-Muk Wintu Indians. Recognition of these two tribes should be included in federal legislation.
County Benefits Program
Advantages:
KlamBlog cannot find advantages or benefits to this program. Of the four counties with lands in the Klamath River Basin, only two are provided benefits under the Proposal. Siskiyou County would get $20 million and Klamath County would get $3.2 million. The Siskiyou County subsidy is particularly egregious since economic studies indicate that substantial economic benefits will accrue to Siskiyou County if the dams are removed, that property values in the reservoir areas will actually rise (and with them assessed value and county taxes) and that all counties will benefit if fisheries and water quality are restored.
Disadvantages:
¨ Allowing Siskiyou County to extract a “pound of flesh” in exchange for agreeing not to challenge the proposed settlement is not conducive to a sustainable Klamath River Basin community characterized by respect and equity.
Alternative:
The $23.2 million that is allocated in the Proposal for Siskiyou and Klamath Counties could be added to Alternative Power funding to be granted on a competitive basis to those governments, tribes and other entities basin-wide which create the best (most efficient and effective) alternative energy projects. In that manner ALL can benefit as opposed to a select few.
Fisheries Programs
(including restoration, reintroduction and monitoring)
¨ $322.5 million in federal dollars over ten years would be authorized for “restoration”.
A. Restoration Disadvantages:
¨ The Proposal uses essentially the same restoration model that has been implemented over the past 20 years pursuant to the Klamath Act. That Act resulted in expenditures of approximately $40 million. However, fisheries restoration was not achieved. Instead our salmon and other fisheries have continued to decline. The problem: the collaborative process in which entities essentially fund themselves and each others results in the easiest and most socially preferred projects receiving funding. Meanwhile key factors limiting fisheries are ignored or unaddressed because they are not favored by one or more of the “stakeholders”. The classic example in our Basin is the Scott River where an estimated $20 million in “restoration” funds has been expended over 25 years while the progressive dewatering of the river has continued unabated and with it the progressive extirpation of salmon species.
¨ Neither the Proposal nor the accompanying draft federal implementing legislation requires that implementation and effectiveness monitoring of restoration projects and expenditures be conducted. Under these conditions, the restoration funds will be treated as pork and diverted to the needs and interests of landowners, bureaucracies and communities at the expense of the fisheries which will not be restored.
A. Restoration Alternative:
We need to learn from our past failures and build a restoration program that will actually lead to recovery. The requirements have now been studied and are well known:
1. We need a basin wide approach not the we’ll-keep-the-money-for-ourselves-and-our-pet-projects approach of the Proposal.
2. Legislative language would require that all stream projects aim to restore “properly functioning” stream condition.
3. Implementing legislation would require that project selection and funding decisions be made by independent restoration scientists and NOT by entities making funding decisions in which they have a financial, political or geographic interest, i.e. conflicts of interest would be indentified and addressed.
4. Implementing legislation would mandate implementation and effectiveness monitoring.
These measures are necessary because restoration is now increasingly treated as pork to be used for one’s own benefit and not for the fish or to restore “properly functioning” stream condition.
B. Reintroduction Advantages:
¨ If it works, we will get more salmon sooner into the Upper Basin
The alternative to human managed reintroduction is natural colonization by a species which is genetically predisposed to reoccupy habitat from which it has been extirpated. If the habitat is there the salmon and steelhead will find it and use it.
C. Monitoring Advantages:
¨ Klamath Basin tribes and agencies have developed advanced fish monitoring expertise and infrastructure.
C. Monitoring Disadvantages:
¨ KlamBlog can identify no disadvantages to tribal, agency and community fisheries monitoring. This is something tribal, community and agency folks have learned to do very well!
C. Monitoring Alternative:
The funds which were projected for reintroduction could be reallocated and used to accelerate habitat restoration or to pay the extra cost to evaluate whether restoration projects are effective. This sort of Effectiveness Evaluation would make the “adaptive management” language in the Proposal actually mean something. Absent real effectiveness evaluation adaptive management is nothing more than window dressing!
Governance
The governance section of the Proposal has not yet been finalized. Therefore, KlamBlog’s evaluation is interim based on drafts of the section which have been provided to KlamBlog.
Advantages:
¨ There appears to be a real attempt to provide all Settlement Group participants – but probably not all interests – a role in the governance structure.
Disadvantages:
¨ The approach of the drafts envisions an agency and tribal driven process under which decisions are made by agency and tribal bureaucrats rather than elected and appointed officials. This means little to no accountability.
¨ The approach of the drafts is very similar to the approach taken in CalFed legislation. It also looks a lot like the manner in which restoration has been “governed” over the past 20 years under the Klamath Act. Both CalFed and the Klamath Act restoration programs failed to deliver what they promised, i.e. restoration of fisheries. Instead the resources CalFed and the Klamath Act were supposed to recover are in worse shape now than they were when the programs were created by federal legislation. It appears that the negotiators favor using the same approach that has failed in the past.
¨ There is no mandate for Basin-wide water management coordination or Basin-wide restoration.
¨ The negotiations appear to be headed toward certain key governance processes being reserved for secret government-to-government negotiations between tribes and feds.
Alternative:
The alternative to placing restoration decisions in the hands of unelected, unappointed bureaucrats and into the hands of those with clear conflicts of interest is a new Klamath River Compact, a new Law of the River, that will provide an accountable governance framework for water management and restoration going forward. This approach would not need to attempt to foresee and address all possible future problems. Instead it would provide mandates and empowers a democratic process to solve problems and mediate disputes. A new Law of the River would empower a Compact Commission with voting seats for feds, states, federal tribes and counties. The Commission would be appointed by elected officials. It would be mandated to:
1. Coordinate and harmonize water management Basin-wide – including the Trinity.
3. Lead and manage a basin-wide restoration program.
4. Oversee basin-wide “benefit” programs like Alternative Energy Development, tribal economic development, etc.
5. Oversee and take advice from stakeholders through advisory committees for each major mandate.
6. Focus restoration on “properly functioning” stream condition, a basin-wide strategic approach, a basin-wide flow study and independent evaluation of restoration project effectiveness.
A new Klamath Compact with these attributes would represent learning from past mistakes in order to establish basin-wide water management and restoration governance characterized by accountability, transparency, performance and fairness. It would be a true alternative to special interest, winner and loser, restoration-as-pork politics and provide the basis for true sustainability, social and environmental justice. And it just might work!
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