Does no Dam Removal Agreement mean no Water Deal?

The Yurok Tribe, Karuk Tribe, Trout Unlimited and the Pacific Coast Federation of Fishermens Associations (PCFFA) are among those who have most loudly insisted that if there is no deal to remove four PacifiCorp Klamath River dams the proposed Water Deal also known as the Klamath River Basin Restoration Agreement will not be completed. Do they mean what they say? If the press asks the right questions, we may soon know.

At this point the answer to the question is unclear. All four of these organizations joined the Bush Administration, Governor Kulongoski and Governor Schwarzenegger in a joint press release praising the Agreement in Principle on the dams. But does that Agreement constitute a commitment to remove the four dams? Not if you believe PacifiCorp.

On December 12th the Siskiyou Daily News reported on a presentation by Dean Brockbank, PacifiCorp’s vice president and general counsel, to the Siskiyou County Board of Supervisors. The Siskiyou County Supervisors – who govern the county where three of PacifiCorp’s five dams are located - have been among the loudest opponents of both dam removal and the Water Deal that irrigators who get water from the federal Klamath Project, three federal tribes as well as some environmental and fishing groups have promoted. Mr. Brockbank was unequivocal: “The AIP is not a dam removal agreement," Brockbank asserted. "There are many conditions that have to be met before we can arrive at a Final Agreement."

While some press releases have muddied the water, the language of the Agreement In Principle (AIP) is quite clear: it says that a decision whether or not to remove the dams will be made by the federal Interior Department in 2012. The AIP also says that decision will be based not on the dams’ environmental performance but rather on a “Cost Benefit Analysis” or CBA.

CBA has been used by the Bush Administration to avoid actions to protect and restore the environment. In a CBA the future benefits of salmon restoration will be deeply discounted and may not equal the power benefits which the dams produce in the present. CBA is notoriously subject to political manipulation. For example, the Bush Administration recently lowered the dollar value of a human life in order to produce CBAs that favor industrial interests like coal fired power plants which produce pollution that kills people.

Will the promoters of the Water Deal be willing to wait until 2012? Or will they interpret the Agreement in Principle as sufficient and move to finalize the Water Deal, draft federal legislation to implement it and get Congress to appropriate the billion dollars in subsidies and other payouts which would be necessary to implement the Deal?

We should soon know the answer. If the priority is dam removal, organizations will not endorse the Agreement In Principle because it not only is not an agreement to remove the dams but actually makes dam removal less likely. If the priority, however, is the Water Deal organizations will call the AIP “a sufficient step forward” and will move to finalize the Water Deal and draft federal legislation.

Where will the members of the Klamath Settlement Group come down? Is dam removal only a flagship for the Water Deal or is dam removal their top priority? We should soon know although it may be necessary to debunk the spin that will be woven around the decisions these groups make. KlamBlog will attempt to do just that.

Meanwhile an Ag Alert issued by the California Farm Bureau in late November revealed one likely reason the Siskiyou County Supervisors oppose the Water Deal. Siskiyou County Farm Bureau Past-President Mike Luiz was quoted in the Alert: "Siskiyou County Farm Bureau is concerned that in dry years, such as this year and last year, the Klamath will dry up in spots and the government will be looking to the Scott and Shasta rivers to make up those flows."

This aspect of the Water Deal debate has not been covered by the press in spite of the fact that KlamBlog identified the issue when the proposed Water Deal was first announced last January. The Deal would give first priority for water to irrigators within the federal Klamath Project solidifying their standing as the Basin’s Irrigation Elite. It would also set Klamath River flows. The Deal is silent on flows from other rivers and streams including the Shasta, Scott and Trinity Rivers which are also heavily used by agriculture. Instead it relies on a flow needs assessment which independent scientists with the National Research Council have identified as deeply flawed because it treats the Klamath “like the Upper Basin and a gutter to the sea.”

The independent scientists called for a basin-wide flow assessment to determine flows needed from tributaries – including the Shasta and Scott – as well as from the Upper Klamath. In the absence of such an assessment, the Shasta and Scott will be the first place regulators, tribes and fishermen look for more water in drought years. Pressure on the Shasta and Scott will be particularly strong if federal funds are not available to lease water for fish from the Irrigation Elite whose massive taxpayer-financed pumps mine water from the California portion of the Lost River Basin. That groundwater has been utilized by the Bureau of Reclamation’s Klamath Water Bank to meet ESA mandated flows and lake levels while maintaining full irrigation deliveries. The US Geological Service has called the pumping and the water bank “unsustainable”.

Klamath Dams Agreement in Principle: Is it a “step forward” or a step back?

The Agreement in Principle (AIP) reached by the Bush, Schwarzenegger and Kulongoski Administrations with PacifiCorp has now been out for a couple of weeks and most of the players have weighed in with press statements and releases. Even KlamBlog’s principle author got into the act at the request of the Siskiyou Daily News.

As expected, those organizations which have been pushing a parallel Water Deal (official title: Klamath River Basin Restoration Agreement) praised the move while those who have been skeptical found new support for their positions. One organization – The Pacific Coast Federation of Fishermen’s Association – made conflicting press statements. While Executive Director Zeke Grader voiced concern and skepticism, PCFFA’s Klamath negotiator Glen Spain joined a press release praising the deal and signed a letter (also signed by several federal officials, the Klamath, Yurok and Karuk Tribes, Trout Unlimited and American Rivers) requesting that the California Water Resources Board indefinitely delay a decision on whether the dams can meet water quality standards. It is widely believed that water quality is the dams’ Achilles Heal. If the water quality hearings went forward, some say, dam removal proponents would emerge with a much stronger hand in dam removal negotiations.

One organization that has been generally (but quietly) supporting the Water Deal – Friends of the River – voiced concerns about the AIP. FOR may have been influenced by the linkage of Klamath dam removal with new dams, reservoirs and a new canal to bring Northern California water south. Governor Schwarzenegger made the connection explicit during the press conference announcing the Klamath Dams Deal. Long-time salmon advocate Dan Backer spelled out the connection in an article published on Bay Area Indy Media and by KlamBlog (see November 17th KlamBlog post).

The ink was scarcely dry on the Agreement in Principle when the very organizations which had campaigned for years to brand PacifiCorp and principle owner Warren Buffett as an outside corporate heavyweight with its foot on the neck of Klamath River communities were positively gushing over the company’s civic mindedness. One wonders whether the rank and file who took off work to journey to protests in Portland and Omaha are confused by the about face.

But while the dominant message that came through media reports was that the AIP is a positive step toward dam removal, careful analysis of the Agreement reveals that it actually makes dam removal farther off and more difficult to achieve, Here’s why:

The AIP calls for 12 years of “studies” before a decision is made on whether or not to take out the dams. And when that decision comes it will not be made by the California Water Quality Control Board or even the Federal Energy Regulatory Commission but by the federal Administration which is in office in 2020. In the meantime PacifiCorp will continue to operate the dams and the dams – through their impact on water quality – will continue to contribute significantly to the fish disease epidemic in the Klamath River which is claiming thousands (and perhaps millions) of juvenile salmon and steelhead each year on their way to the ocean.

But that is not the worst part.

According to the AIP the decision on whether to take out the dams will be based on Cost Benefit Analysis. Cost Benefit Analysis is notorious among environmentalists because it has been a principle tool the Bush Administration has used to avoid environmental protection. In fact, a case was argued before the Supreme Court just this week in which environmental groups criticized Cost Benefit Analysis because it is subject to political manipulation. In the case before the high court, public utilities seek reinstatement of a Bush Administration regulation that environmentalists had successfully overturned in lower courts. The Bush regulation gutted the Clean Water Act mandate stating that when utilities upgrade or refurbish power plants they must put in new technology which eliminates water and air pollution. Utilities could avoid the clean technology mandate under the Bush regulation if the cost of the new cleaner technology failed cost-benefit analysis. All Things Considered reported on the case yesterday.

Basing a decision on whether or not to remove the dams on Cost Benefit Analysis makes dam removal less likely – or at least more remote. This is so not only because Cost Benefit Analysis is subject to manipulation but also because using it changes the standard which the dams must meet to remain in place.

It is now widely recognized that PacifiCorp’s Klamath River dams can not meet water quality standards established pursuant to the Clean Water Act. Therefore, the dams must install new technology to clean the water or they can not be legally relicensed and must be removed. That new clean water technology – coupled with the fish passage requirements already ordered - would cost more than the aging plants are worth. Removing the dams would then be the best business decision for the company.

The AIP avoids this result. It puts the Clean Water Act on the shelf for 12 years and substitutes Cost Benefit Analysis for Water Quality as the standard by which the dams will be judged. And if Cost Benefit Analysis makes it into legislation to implement a dam and water deal there is the possibility that the Klamath dams could be exempted entirely from the Clean Water Act. That would clear the way for them to be legally relicensed.

But why would the Karuk Tribe and the Yurok Tribe which have been among the staunchest defenders of the Klamath River and Klamath Salmon agree to such a deal? That is a question which increasing numbers of these tribes’ members are also asking.

In such cases it is prudent to head ancient wisdom and "follow the money". In this case the AIP itself provides part of the answer. Under the AIP PacifiCorp would devote at least $500,000 per year for 12 years to water quality, engineering and other studies. With water quality and fisheries departments in place, the tribes are well positioned to receive some of these contracts. And these departments are in a bind because they are dependent on federal and state grants which have dwindled in recent years.

The rest of the $5 million or more that will be dispensed over 12 years will be picked up by state agencies – a fact which also helps explain their support. Essentially, PacifiCorp is paying half a million dollars a year so that its dams can avoid complying with the Clean Water Act for 12 years. If the Cost-Benefit Analysis says dam decommissioning is not economical, the whole process of relicensing the dams begins again. That process has already taken up the better part of a decade.

The question which is not being faced is this: Can Klamath Salmon survive 12 to 20 more years with the Klamath River dams in place? A new study released by CalTrout appears to suggest that - while the dams are only one among several factors - wild Klamath River Coho Salmon may be only a memory when the dams come down (if they ever do).

Klamath Deal dissenters – the Northcoast Environmental Center, Water Watch and Oregon Wild – have done a good job pointing out problems with the AIP and the previous Water Deal. But these organizations have yet to clearly articulate an alternative path to dam removal. This lack of a well articulated alternative strategy that leads to dam removal remains the main argument which supporters are using to promote both the Dam Deal and the Water Deal which they will seek to join together before taking the whole package to Congress. Until opponents of what can now be called the Dam and Water Deal clearly articulate an alternative path, that argument will remain potent.