The Upper Basin-Lower Basin divide - Contemporary expression and historical roots

One of the persistent problems in the Klamath River Basin is the yawning divide between the “Upper” and the “Lower” Basin. There are historical reasons for that divide which we explore below. But first we will address one of the most important aspects of the divide - the fact that Lower Basin media news outlets rarely report on what is going on in the Upper Basin and vice versa. Furthermore, while in the Upper Basin the web site Klamath Basin Crisis does a good job collecting and publishing press clips from throughout the Basin and beyond, no Lower Basin organization performs this service for Lower Basin residents. This is a need that one of the Lower Basin’s environmental organizations could address. But so far none of these organizations has stepped forward to provide a Basin-wide news clip service.

Late Fall brought many examples of important information on Klamath water issues which were reported in the Upper Basin but not reported in the Lower Basin. A few of those stories are summarized below along with links to the original news reports and comments on the significance of events reported. Unfortunately, many of these reports come from Klamath Falls based Herald and News. Unlike most news outlets, the H&N charges for access to its archives; articles are only available without charge for 14 days. Therefore no links are provided for those reports.The Pioneer Press is a weekly published out of Fort Jones. It does not have a web site.

Late Fall 2008 in the Klamath River Basin

• On November 19^th the Herald & News reported on the breeching of levees above Upper Klamath Lake which will create 2200 acres of restored wetlands. The project was lead by The Nature Conservancy which owns the Williamson River Delta Preserve established on what was previously Tulane Farms. TNC paid $7.5 million for the properties with funding from federal, state and private sources. The current project is part of an ongoing effort by TNC, the Bureau of Land Management and others to restore previously diked and drained wetlands around Upper Klamath Lake to improve water quality and to provide habitat for endangered Kuptu and Tshuam (sucker species). You can learn more about restoration efforts around Upper Klamath Lake on TNC’s web site. (http://www.nature.org/success/klamath.html)
  

Commentary:

One of the “selling points” often cited by proponents of the proposed Klamath Water Deal (AKA the Klamath River Basin Restoration Agreement) is that it will establish a restoration program. However, a lot of the restoration work which is included in the Deal is already going on (see example above) and appear to have no problem securing funding. In fact, by legislating how restoration funds would be used the Water Deal (if it ever is enacted into law) will tie the hands of restorationists, preventing allocation of restoration funding based on “most benefit for the buck.” Instead restoration projects favored by those interests which have dominated Klamath negotiations (the Klamath Water Users Association, Klamath Tribes and Yurok Tribe) would be mandated while other projects which would provide more benefit to salmon – including projects in the Shasta and Scott and to address Keno Reservoir water quality – would have a difficult time finding funding.

• Siskiyou County Supervisor Marcia Armstrong writes the column “Ridin’ Point” for the Pioneer Press published in Scott Valley. In her 11/19 column, Armstrong revealed for the first time one of the reasons Siskiyou County does not support the Water Deal. According to Armstrong the Deal’s governance structure “includes no representation for agriculture in the Scott and Shasta Valleys, timber and mining.”

Commentary:

The proposed Water Deal not only does not provide “representation” for Shasta and Scott Ag interests it all but ignores these Basin’s altogether. This is one of the main weaknesses of the Deal and reveals its explicitly political and anti-scientific approach. The Water Deal’s disdain for science includes ignoring the recommendations of the two independent Klamath science evaluations completed by the National Research Council. The first NRC Report pointed out that the Shasta and Scott provide the best opportunities to help Coho salmon and are key to recovery of Coho in the Klamath River Basin. The second NRC report singled out the Klamath River Flow Assessment conducted by Dr. Thomas Hardy under contract to the Interior Department for its harshest criticism. The NRC pointed out that the Flow Assessment treated the Klamath River Basin as if it were “the Upper Basin and a gutter to the sea.” Instead the NRC strongly recommended that a basin-wide flow assessment be conducted in order to properly determine flows from the Upper Basin, Trinity, Shasta, Scott and other tributaries which are needed to provide for restoration of the River and recovery of Klamath Salmon.

The Water Deal’s most controversial provision – the water allocations and river flow regime it seeks to lock in via federal legislation – is based on the flow assessments which the NRC identified as the wrong approach. How will this abandonment of good science be viewed by the incoming Obama Administration? Obama has emphasized that decisions in his Administration will be based on solid science as opposed to the Bush Administration where politics routinely trumped science. The Klamath Water Deal may be among the first issues where that Obama promises will be tested.

The conservation groups who have most strongly promoted the Water Deal are American Rivers and Trout Unlimited. Both groups have been critical of the Bush Administration for basing resource and environmental decisions on politics rather than science. Both organizations also claim that they are committed to basing water and other resource decisions on solid science. Both are open to criticism for not practicing what they preach when it comes to the Klamath, i.e. when they promote a Water Deal that ignores the best independent scientific judgment about what is needed to restore the Klamath River and Klamath Salmon.

• On November 25^th the Herald and News reported that the Siskiyou County Supervisors have produced a document titled “Solutions and Alternatives for the Klamath River” which includes alternatives to dam removal. One of those alternatives (“Hart Bypass”) would develop a salmon migration channel from below Iron Gate Dam to the upper end of Copco Reservoir.
  

Commentary:

You can request a copy of Siskiyou County’s “Solutions and Alternatives for the Klamath River” from the county’s natural resource specialist Ric Costales (rcostales@co.siskiyou.ca.us ).

• On November 28^th the Herald and News reported that the “Off-Project Water Users” – those who do not receive water via the federal Bureau of Reclamation managed Klamath Project – have again asked the Klamath County Commissioners to arrange a meeting with the “On Project Water Users” and the Klamath Tribes. The Commissioners agreed to bring up the issue with its Natural Resources Advisory Committee in January.

Commentary:

The Klamath County Commissioners are in a tough place. Traditionally they have backed the “On Project Water Users” (the Irrigation Elite) who have more money, are better organized and enjoy much greater political influence as compared to the “Off Project Water Users”. However, in this case the elected state senator and assemblyman for the area both oppose the Water Deal and the congressman – Greg Walden – has not endorsed it. Furthermore, some members of the Commission appear to have ideological problems with the Water Deal which they see as a big government approach. They are also hesitant to support dam removal. Look to them to continue to sit on the fence neither endorsing nor opposing the Water and Dam Deals.

• On December 10^th the Herald and News reported that the Klamath County Commissioners would not send a representative to the meeting of the self-styled Klamath Settlement Group which met in Sacramento in mid-December. Reportedly two of the three commissioners considered attending the meeting but decided not to “on advice of legal counsel.” County Counsel Dan Bunch said he was concerned about “how an elected official can be held to a confidentiality agreement.”

Commentary:

Where was this county counsel during the past two years? Over that period, one of Klamath County Commissioners attended numerous “confidential” meetings of the Klamath Settlement Group. Humboldt County Supervisor Jill Geist also attended many of the secret meetings as did Siskiyou County’s legal counsel.

Why is the issue of the legality (and appropriateness) of discussing public resources, government policy and exemptions from state and federal law in meetings covered by a written and legally binding “confidentiality agreement” only being raised now? And why have none of the groups which oppose the secret deal making not filed suit under the Federal Advisory Committee Act (FACA)? FACA prohibits federal officials from “taking advice” from private entities in closed door meetings; it was passed specifically to prevent the sort of process the Klamath Settlement Group has followed – making public policy while excluding the American Public from the process.

By going along with “confidentiality agreements” that prevent public participation and oversight, our elected officials have failed to champion the right of the public to participate in the making of public policy. It now appears clear that the tribes, conservation and fishing groups, government agency reps as well as the local elected officials who participate in the Klamath Settlement Group have no interest in upholding FACA! Secrecy breeds mischief. Perhaps what we need more than anything else in the Klamath River Basin is a democracy watch dog group which will look out for the interests of the all the people!

• On December 10^th the Pioneer Press reported on dissent within the Karuk Tribe over the Tribe’s support for dam removal. Allegedly a group of “angry Karuk and Klamath River residents fired off an angry letter and petition to the county (of Siskiyou) against dam removal and the Karuk Tribal Council.” The petition reads in part: “All tribal members and community members should be able to have a voice, not a select few.”

Commentary:

The Karuk Tribe has for many years had two main political factions which have competed for control of the tribal government. While the current tribal council has championed causes like dam removal and limits on “recreational” mining, the other faction has opposed these causes. The current tribal council has often been in conflict with Siskiyou County which has supported recreational mining and opposed dam removal.

• On December 18^th the Herald & News published a report with the headline “Water meetings: Mum’s the word.” The article asserts that “Stakeholders who want to participate in talks about Klamath River dam removal will have to sign confidentiality and protocol agreements in order to attend future meetings on the issue.”

Commentary:

It appears to KlamBlog that “confidentiality agreements” are being used in the Klamath River Basin to exclude not only the public but also those interests which do not agree with the dominant (and controlling) stakeholders. In this case we need to ask why a “protocol agreement” as well as a “confidentiality agreement” and why the substance of those two agreements have not been released to the public?

Given past behavior of the Bush Administration and the Klamath Settlement Group’s dominant players, we suspect that what is behind this behavior is control and manipulation. On the Klamath as elsewhere the Bush Administration is attempting to tie the hands of the new Obama Administration by locking in the Agreement in Principle (AIP) on PacifiCorp’s dams. As we have pointed out previously (see December 3rd post), the AIP changes the standard for deciding whether or not the dams should come out and thereby makes dam removal less rather than more likely. The AIP also unnecessarily delays the earliest commencement of dam removal until 2020. Tribal governments and state agencies have been given incentives to go along with the delay: under the AIP they will divide up $500,000 per year in “mitigation” funds from PacifiCorp for every year of delay in commencing dam removal.

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The Upper Basin/Lower Basin divide: Historical Roots and Political Realities

In 1905 when the federal government chose the Upper Klamath River Basin for its second big project under the Reclamation Act, the Klamath River Basin was a backwater, far from the minds of state officials in Salem and Sacramento. So it is not surprising that the Oregon and California state governments went along with the proposal that the feds take over all water rights between Upper Klamath Lake and the Cascade Canyon. Neither state had the funds to develop Klamath water resources and local interests which were primarily involved in agriculture favored the cession of all water rights to the feds.

It seems amazing to us now but the federal Bureau of Reclamation was allowed to take rights to the entire flow of the river. Just as they had dewatered Lower Klamath Lake the feds planned to completely dewater the Upper Klamath. Allowing any water to flow into the Cascade Canyon and Lower Basin was considered waste.

It was only development of hydropower in the Klamath’s Cascade Canyon which persuaded the Bureau of Reclamation to allow water to flow in the Klamath during the summer. This is the origin of the Irrigation Elite’s claim that they deserve subsidized power from what are now PacifiCorp’s Klamath dams. That claim has been rejected by both the Oregon and California Public Utilities Commissions.

With the exception of water allowed to flow to PacifiCorp’s dams, the Upper Basin was managed as if it was completely separate from the Lower Basin. The separation is revealed in language: the term “Klamath Basin” meant the Upper Basin; the term Klamath River meant the Lower Basin. That portion of the Klamath River above the Cascade Canyon was renamed. No longer would there be a Klamath River in the Upper Basin. The new name assigned was Lake Ewana. Today school children in Klamath Falls, Malin and Tulelake remain ignorant of the fact that the Klamath River begins at the outlet of Upper Klamath Lake. The historical record is silent on whether there was any protest from the Lower River when the Basin was redefined so that it could comfortably be treated as two rather than a single river basin.

This changed a bit in the 1960’s when Iron Gate Dam was built. By that time the Federal Power Act had been passed and the California Department of Fish & Game was able to file arguments for “mitigation” for the loss of habitat blocked by the dam and for dam bypass flows sufficient to support salmon and other fisheries in the Lower River. As for the mitigation, that was and is the Iron Gate Hatchery. While it is run by California Department of Fish & Game, the cost is born by PacifiCorp, the owner of Iron Gate Dam.

The next change affecting the separation of Upper and Lower Basins occurred with the listing of Coho salmon in the 1990s as threatened pursuant to the federal Endangered Species Act. As a result, the Bureau of Reclamation had to consult with the National Marine Fisheries Service on the Klamath Project’s impacts to Coho salmon in the Klamath River. When that consultation did not result in enough water in the Lower River for salmon, environmental and fishing groups sued. These groups have subsequently won consecutive lawsuits and each time that has resulted in more water being allocated to the Lower Klamath. It is this trend which the Irrigation Elite seeks to roll back. More water in the Lower Klamath means less water in the Upper Basin for diversion to farms, ranches and golf courses. The Coho listing and the Endangered Species Act remain the only way that more water has been obtained for salmon and the Lower Klamath River. While there has been much talk about tribal rights to flows for salmon, the one tribe that clearly has those rights – the Yurok Tribe – has not asserted them on behalf of salmon or the river. On the Klamath it is the ESA – not tribal rights – which has done the heavy lifting on behalf of salmon and water for the Lower Klamath River.

Seen within this historical context, the proposed Klamath Water Deal is an attempt to re-separate management of the Upper and Lower Klamath River Basin. If the amount of water which is allowed to flow to the Lower Klamath River is locked-in via federal legislation, Upper Basin interests can go about managing what is left without concern for future needs and future demands from the Lower Basin. This is what Upper Basin water interests refer to as “certainty”.

Locking in the amount of water which flows from the Upper Basin through legislation will mean that any future flow needs above that amount would need to come from other sources or be purchased from Upper Basin water interests. Since Trinity River flows are also set by legislation that leaves the Shasta and Scott as the only remaining sources where a substantial amount of water is consumed by agriculture and therefore where water can be reallocated for fish and flows. Let’s say, for example, that Klamath Chinook salmon are listed at some point in the future and biologists subsequently determine that to survive and recover Chinook need more water in the Klamath River in September. If the proposed Klamath Water Deal is enshrined in federal legislation that water will have to come from the Shasta and the Scott. No wonder Siskiyou County opposes the Water Deal!