A clandestine attempt to get Congress to endorse the Klamath Water Deal in the Klamath River Basin has failed; but the incident raises important questions:
-- Was the proposed “Sense of Congress” Resolution intended to discourage federal agencies from enforcing the Endangered Species Act?
-- Have members of the Klamath Settlement Group (KSG) misused the Group’s Confidentiality Agreement in an attempt to hide the proposed “Resolution” from Klamath River Basin citizens?
KlamBlog has learned that certain members of the Klamath Settlement Group – the group of federal and state agencies, federal Indian tribes, Upper Basin irrigators, fishing and environmental groups that met in secret to produced the controversial Klamath River Basin Restoration Agreement – have created a document titled: Concurrent Resolution Expressing the Sense of Congress regarding the proposed Klamath River Basin Restoration Agreement. These members attempted to enlist Congressman Mike Thompson in an effort to quietly slip the Resolution through Congress during the final days of the 110th Congress.
KlamBlog investigated. We learned that the draft Resolution was created by either the Klamath Water Users Association or the Yurok Tribe and that these two groups were aided in their efforts to promote it by Trout Unlimited. KlamBlog was told by a Congressional staff member that promoters of the Resolution told them that it had the support of all 26 members of the Klamath Settlement Group. But the Northcoast Environmental Center flatly rejected the Resolution and other KSG members told promoters that it would need to be debated by their Boards of Directors before they could endorse or reject it. The Klamath Settlement Group includes federal and state agencies, Upper Basin irrigation interests, four federal tribes, environmental and fishing organization.
Efforts to get the Resolution through Congress have failed. According to congressional staff members, Congressmen Wally Herger and Greg Walden, who each represent portions of the Upper Klamath Basin, were not interested in the Resolution because the proposed Water Deal faces strong opposition in their districts.
The text of the Resolution is reprinted at the end of this post. Careful study of that text reveals that it was intended to put pressure on federal agencies not to move forward with actions to help Klamath River Coho salmon. KlamBlog has learned that a draft Biological Opinion for Operation of the Klamath Irrigation Project has been prepared by the National Marine Fisheries Service (NMFS). While that Biological Opinion has not yet been publicly released, insiders say it will order the Bureau of Reclamation to release more water into the Klamath River during the driest times of the year. The minimum flows which will be ordered by NMFS are said to exceed the minimum flows which the proposed Water Deal would lock in through Congressional legislation.
Thus the Biological Opinion appears to disprove assertions by Water Deal promoters that the Deal is the only way to get more water into the river for Coho and other fish. In promoters minds, giving more water to fish now would undermine the Deal. Consequently it appears that these promoters want to prevent the Biological Opinion from being released or to have it altered prior to release so that it does not provide more water for Coho than the proposed Water Deal has proposed.
Here are the sections of the now-defunct Resolution that appears aimed at preventing a new Biological Opinion from ordering the BOR to put more water into the Klamath River:
(3) Actions of all Federal Departments and Agencies, prior to completion of the agreements described in (1) – (2) above, should be consistent with the goals of maintaining the collaborative environment and atmosphere which led to the development of the proposed Klamath Basin Restoration Agreement and have characterized relicensing discussions; and
(4) Congress encourages the Secretaries of the Interior, Commerce, and Agriculture, and other agencies, departments, and instrumentalities of the United States, to continue to use existing authorities to preserve the ability to fully implement the proposed Klamath Basin Restoration Agreement.
Readers can judge for themselves whether these provisions were intended to provide ammunition to those who want to suppress the Biological Opinion and therefore prevent increased flows in the Klamath River. Those who wrote the Sense of Congress Resolution – the Yurok Tribe and/or Klamath Water User Association -and Trout Unlimited which circulated it, will surely deny that they are trying to prevent more water from being allocated for Coho and the Klamath River. KlamBlog offers these groups the opportune to explain on this blog what other “actions of federal Departments and Agencies” they were aiming to prevent when they wrote and circulated the Sense of Congress Resolution.
In this regard KlamBlog also wondered why PCFFA and other groups that have won lawsuits challenging the inadequacy of flows for Coho have not gone back to the judge in that case to ask for more water for fish in light of the large juvenile fish kill – including Coho salmon - that occurred this July below Iron Gate Dam (see our last KlamBlog post below) and similar fish kills that occur nearly every year. There is a strong case that more water flowing in the river would reduce juvenile fish kills below Iron Gate Dam.
The Pacific Coast Federation of Fsihermen's Associations (PCFFA) and a group of environmental organizations including the Klamath Forest Alliance are represented in the Coho lawsuit by Earthjustice. KlamBlog invites PCFFA, the other plaintiffs, or their Earthjustice lawyers to explain on this blog why they have not asked the judge in the Coho case to order more water into the Klamath for ESA-listed Coho.
Confidentiality Agreement abused:
One of the two copies of the proposed Sense of Congress Resolution provided to KlamBlog is marked “Privileged: Subject to Confidentiality Agreement” and is dated September 9, 2008.
On its face, the attempt to use the Klamath Settlement Group’s (KSG’s) Confidentiality Agreement to shield a Resolution of Congress from the public is not only undemocratic but also a misuse of the Agreement itself.
The Confidentiality Agreement referred to here was established by the KSG so that PacifiCorp and the groups’ members could share proprietary information in negotiations which they would not be willing to disclose to the public generally. Confidentiality was also intended to protect negotiations from outside pressure. It was not intended – nor is it in our view proper in a democracy - for that Confidentiality Agreement to be applied to a proposed Congressional Resolution.
But attempts to hide proposed actions from the public are nothing new for members of the Klamath Settlement Group. For example, as KlamBlog reported at the time, those who dominate the KSG intended to quickly slip an exemption from the California Endangered Species Act through the California Legislature before the ink was dry on a final Agreement. The plan was to use a shell bill which had been pre-positioned by state senator Pat Wiggins.
The proposed exemption – which is still in the current version of the Water Deal - is designed, among other things, to protect the Upper Basin’s Irrigation Elite and the Bureau of Reclamation from prosecution for “take” of Bald eagles under the California Endangered Species Act. If scientists are correct, Bald eagles die each year in the Upper Klamath Basin because the BOR fails to provide sufficient water to Lower Klamath and Tule Lake National Wildlife Refuges to support the waterfowl food base critical to survival of wintering Bald eagles. Up to twelve hundred Bald eagles winter in the Upper Klamath Basin each year; many of these eagles rely heavily on Lower Klamath and Tule Lake Wildlife Refuge waterfowl.
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Siskiyou County official promotes Coho “Take” permit in secret, invitation-only presentation in Humboldt County:
KlamBlog has learned that Bill Krum, Siskiyou County rancher and president of the Siskiyou Resource Conservation District, is traveling to Humboldt County to promote a proposed permit which would allow Siskiyou County ranchers and farmers to “Take” Coho salmon. The presentation is by invitation only and reportedly is to be held in the Humboldt County Supervisors Chambers. According to KlamBlog sources, John Corbett, an attorney working for the Yurok Tribe who is also a member of the North Coast Water Quality Control Board, organized and issued invitations for a meeting which will be closed to the public.
KlamBlog submitted the following questions to Mr. Corbett concerning Mr. Krum’s presentation:
1. Why did the Yurok Tribe decide to organize/sponsor this presentation?
2. Is the Yurok Tribe promoting adoption of the proposed ITP?
3. Why a secret meeting?
4. Who did the Yurok Tribe invite to attend?
5. Did the Yurok Tribe tell the Quartz Valley Tribe what you were up to? Has the Yurok Tribe consulted with the QVIR concerning the proposed ITP? If not, does the Yurok Tribe intend to consult government-to-government with the QVIR on this subject?
In our message we told Corbett that we requested the answers so that we could report about the meeting at KlamBlog. Here is the response that KlamBlog received from Mr. Corbett:
“This is not a paranoic (sic) Stalinist state where nobody can talk with each other without fear of reprisal. How ridiculous. Groups have been meeting in the Klamath throughout the last ten years. I am even willing to bet you have met with someone but have not directly reported to me. You better stop that and your constant sell outs. We had darkened windows on the limosine (sic) that drove Greg King of the NEC to attend. (Right). Your questions show such a complete lack of reality that they don’t warrant specific refutation.”
The proposed Coho “take” permit would cover ALL agricultural operations of those farmers and ranchers in the Scott and Shasta Valleys who choose to participate. That is where the problems come. In the Scott Valley, for example, ranchers and farmers are pumping unregulated groundwater that is interconnected with surface flow. As a result, according to California Department of Water Resources data, irrigation water use in the Scott Valley has doubled since the 1950s. Consequently, the Scott River has been progressively dewatered and adjudicated flows for fish that were granted to the US Forest Service are now not met even in average water years. In dry years Coho have been trapped low in the Scott Canyon behind low-flow barriers waiting for heavy rain to raise the flow and permit them to reach spawning grounds in and above Scott Valley. Fishing was still open on the Scott during one recent drought year. Trapped Coho bunched up below low flow barriers where they were vulnerable to anglers. The Scott currently sees a fair run of Coho (over 1,000 spawners) only once in every three years. Biologists take this as a clear indication that Scott River Coho salmon are threatened with extinction.
Farmers and ranchers in the Scott Valley have participated in taxpayer funded programs that provided them with fish screens for their surface water irrigation diversions. Taxpayer funds have also been used to maintain these fish screens. When irrigators are careful and don’t dewater the streams when they turn on their irrigation diversions in the spring, “Take” of Coho salmon no longer takes place at the diversions because now fish screens are in place. If irrigators would also agree not to dewater streams below their irrigation diversions – a practice that has “taken” Coho in the past – they should get a permit to operate the diversions. But giving farmers and ranchers a “Take” permit for ALL agricultural operations including groundwater pumping that has dewatered the Scott makes no sense.
At this point, none of the self-styled “Defenders of Klamath Salmon” have taken action to challenge the proposed “Take” permit for Siskiyou County Agriculture or to challenge the actual “Take” of Coho that is occurring nearly every spring on the Scott when agricultural diversions are turned on, fish below the diversions are stranded in isolated pools, and these pools subsequently dry up. KlamBlog wonders what these Salmon Defenders are waiting for!
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Below is a copy of the proposed “Sense of Congress” Resolution which was circulated to KSG member organizations and allegedly misrepresented to members of Congress:
Privileged; Subject to Confidentiality Agreement
Draft Sept. 9, 2008
Concurrent Resolution Expressing the Sense of Congress regarding the proposed Klamath Basin Restoration Agreement
Whereas the Klamath River Basin in south-central Oregon and northwestern California is a region rich in natural and cultural resource heritage;
Whereas fish and other natural resources of the Klamath River Basin are central to the well-being of resident Indian Tribes;
Whereas fish of the Klamath River Basin also support commercial and recreational fisheries;
Whereas the Klamath River Basin is home to family farming and ranching operations and related communities;
Whereas the Klamath River Basin supports substantial waterfowl and wildlife resources, on both private and public land including National Wildlife Refuges;
Whereas Federal Energy Regulatory Commission Project 2082 consists of various dams and appurtenant facilities for generation of hydroelectric power and is currently under consideration for relicensing;
Whereas the Klamath River Basin has experienced intense and divisive conflict concerning issues of water allocation, fisheries, irrigation, and wildlife, which has been detrimental and costly to the communities of the Basin and the Nation and such conflict is likely to continue and perhaps worsen absent effective settlement;
Whereas a diverse group of stakeholders, with support and assistance of Federal and state agencies, has produced a proposed Klamath Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities;
Whereas State and Federal agencies, the owner of Project 2082, and other diverse stakeholders, have been engaged in fruitful discussions related to alternatives to relicensing the existing current hydroelectric facilities;
Whereas the proposed Klamath Basin Restoration Agreement
- is intended to address longstanding disputes regarding water use and allocation and numerous resource and other conflicts that have plagued the Klamath River Basin;
- is intended to protect the sustainability of agricultural uses and communities along with public and trust resources;
- is intended, consistent with National policy with respect to Native American tribes, to provide Tribes with both sustainable natural resources and sustainable communities;
- includes comprehensive and interrelated programs, commitments, and compromises to realize the objectives of the Agreement and provide collaboration in future implementation of the Agreement;
- including its provisions related to Project 2082, represents a carefully constructed and delicate balancing of interests which must be considered as a whole; and
- presents an unparalleled opportunity to promote and bring about a positive future for the communities and resources of the Klamath Basin and serve National interests:
Now, therefore, be it resolved by the House of Representatives (the Senate concurring), that it is the sense of Congress that—
(1) Congress commends the tireless effort, commitment, and spirit of cooperation and compromise of the United States Government, Tribal Governments, governments of the States of Oregon and California, local governments, and irrigation, conservation, and fisheries interests in the production of the proposed Klamath Basin Restoration Agreement : and encourages the continuation and completion of that effort;
(2) Congress commends the intensive efforts of all parties engaged in discussions related to alternatives to the relicensing of the existing hydroelectric facilities included in Project 2082 and urges the parties to find solutions that will be in the interest of all parties;
(3) Actions of all Federal Departments and Agencies, prior to completion of the agreements described in (1) – (2) above, should be consistent with the goals of maintaining the collaborative environment and atmosphere which led to the development of the proposed Klamath Basin Restoration Agreement and have characterized relicensing discussions; and
(4) Congress encourages the Secretaries of the Interior, Commerce, and Agriculture, and other agencies, departments, and instrumentalities of the United States, to continue to use existing authorities to preserve the ability to fully implement the proposed Klamath Basin Restoration Agreement.
Passed the House of Representatives September xx, 2008.
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