Who’s on First? - California water quality meeting should clarify camps in Klamath River Dam and Water Controversy.

For some time now it has been difficult to decipher who is on whose “side” - and who is truly on the side of the Klamath River and Klamath Salmon - in the controversy over the fate of Klamath River Dams and of a controversial Water Deal which some interests seek to tie to removal of four of PacifiCorp’s five Klamath River dams. A fifth dam and reservoir – Keno – is proposed for transfer to the Bureau of Reclamation. The fate of that dam will likely become more prominent as its impact on Klamath River water quality becomes better known.

With the exception of Siskiyou County, the major players in the Klamath River Dam and Water Controversy all favor removing four of the five dams or have not taken a position on dam removal. The differences come in how these “stakeholders” think a dam removal agreement should be accomplished, how that removal and development of replacement power should be financed, whether dam removal should be linked to a billion dollar Water Deal and what PacifiCorp should be required to do between now and dam removal to address ongoing Klamath River water quality impairments which are linked to the company’s dams and reservoirs.

The last issue – water quality impairment and interim operating conditions for the dams to address these impairments – will likely dominate discussion when the California State Water Board receives input on February 17th in Sacramento on the Agreement in Principle (AIP) signed by PacifiCorp, Governor Schwarzenegger, Governor Kulongoski and the Depart of Interior.

The Water Board will not make a decision on February 17^th. The meeting should clarify, however, who supports PacifiCorp’s desire to again delay water quality hearings and who opposes that effort. Those hearings are a key part of the dam relicensing process. The California Water Board and Oregon’s Department of Environmental Quality must determine if the energy company’s Klamath River dams can comply with water quality standards establish for the Klamath River and, if the dams can’t comply, what changes must be made in order to achieve water quality standards. It is this process which will also be used to implement the Klamath TMDL Action Plan – the plan currently being developed by the North Coast Water Board to clean up nutrient, toxic algae and other pollution in the Klamath River. Oregon’s Departament of Environmental Quality is also developing a Klamath TMDL.

The question of whether the Klamath River dams can comply with water quality standards is critical not only to the fate of the dams but also to who will pay for removal or relicensing. Here’s what a Federal Energy Regulatory Commission (FERC) official told KlamBlog would happen if California or Oregon deny PacifiCorp’s request for water quality certification:

If water quality certification for the project is denied, then we can not issue a license and we would begin a surrender proceeding. The costs associated with surrendering the project would be borne by the licensee.

This statement reveals why PacifiCorp has twice delayed the water quality certification hearings and why the company appears to be seeking yet another postponement. According to the AIP electric ratepayers in Oregon and taxpayers in California will be asked to shoulder the cost of dam removal; if water quality certification is denied, however, PacifiCorp’s shareholders might have to foot the bill. That is one reason KlamBlog has called the AIP a sweetheart deal.

Such a deal may be appropriate for Valentine’s Day but not for government-corporate relations. In fact, it appears that Governor Schwarzenegger and Governor Kulongoski are favoring PacifiCorp over ordinary citizens by conspiring to shift the cost of dam removal from the corporation to the citizens.

Meanwhile the Hoopa Tribe is encouraging the California Water Board not to delay the water quality certification process yet again. The Hoopa are also asking FERC to establish interim conditions for dam operation which will protect salmon and other aquatic resources. Hoopa’s representatives have pointed out that the AIP is NOT an agreement to remove the dams but only an agreement to make a decision on dam removal by 2012. The Hoopa Tribe says the water quality certification process should not be delayed in part because PacifiCorp has yet to make an application to FERC to modify its operations while it and the federal government are deciding the long-term fate of the dams. A request to change the current operating permit would itself require state water quality certification.

The Hoopa Tribe has distributed a briefing paper on “Klamath Project Water Quality Certification.” In that paper the tribe states: “We encourage your organization to demand that the State Water Board continue with its certification proceeding. If PacifiCorp refuses to conduct the studies necessary to complete the certification process, or withdraws its application, the State Water Board should deny certification.”

The California State Water Board will receive input on the water quality certification and related CEQA process until February 23rd. Comments can be submitted electronically by sending e-mail to commentletters@waterboards.ca.gov or via snail mail to: Ms. Dorothy Rice, State Water Resources Control Board, PO Box 100, Sacramento, CA 95812. Klamath Riverkeeper has a form letter to the Water Board which can be sent from the group’s web site.

KlamBlog believes that PacifiCorp is maneuvering to avoid Clean Water Act certification because it knows the changes which would be required to address dam-related water quality impairments would render its Klamath Hydroelectric facilities unprofitable.

Oregon Wild (OW) has also written to the Water Board concerning the water quality certification process. OW's letter makes the following points:

¨ The Agreement in Principle should not be the basis for continued extensions or delays in the water quality certification process.

¨ Delays in 401 certification put human and natural communities at risk.

¨ Interim conditions for operation of the dams designed to address Klamath River water quality impairments must be mandated.

KlamBlog has learned that the North Group of the Sierra Club’s Redwood Chapter, the Environmental Protection Information Center (EPIC). and the Center for Biological Diversity have signed on to the Oregon Wild letter. It is likely that other organizations have also signed it.

FERC has written to the California Water Board and Oregon DEQ concerning the water quality certification process. Here are excerpts from FERC’s letter to the California Water Board:

¨ The Commission has been unable to act on the license application because neither the state of Oregon nor California has acted on PacifiCorp’s request for water quality certification under section 401 of the Clean Water Act.

¨ The Federal Power Act, which governs the authorization of non-federal hydropower projects, calls for this Commission to move forward in the review of all projects, including the Klamath Project.

¨ Bringing this relicensing proceeding to its conclusion is appropriate and may provide various measures to improve fisheries, water quality and other project-affected resources. Consequently, we encourage the Water Board to act as soon as possible on PacifiCorp’s application for water quality certification.

FERC also made a statement in the letters that points to the uncertainty introduced into the process by the attempt to tie dam removal to an expensive and controversial Water Deal:

In November 2008, an Agreement in Principle (AIP) was reached among PacifiCorp, the United States Departments of the Interior, Commerce, and Agriculture, and the states of California and Oregon, for the continued operation and potential future removal of the Klamath Project’s four main stem dams......The AIP, the envisioned Final Agreement, and the measures proposed therein are predicated on a number of items, most notably the passage of federal and state legislation…..We are uncertain whether and, if so, when this legislation will occur.

FERC staff members have confirmed that a clean dam removal settlement would not require federal legislation.

It is clear from the FERC letter that their staff suspect that - because it requires federal legislation including appropriation of up to a billion dollars in federal funds – the proposed Klamath River Basin Restoration Agreement – the Water Deal – has the potential to delay for many years to come a final decision on what to do with the Klamath River dams. KlamBlog has argued that – contrary to the claims of its promoters - the Water Deal makes dam removal less rather than more likely.

As predicted long ago by KlamBlog, water quality is proving to be at the heart of the controversy over what to do with the Klamath dams. It has been our contention that PacifiCorp’s Klamath River Dams can not meet water quality standards established to protect salmon and other beneficial uses of the Klamath River without the expenditure of sums of money which would eclipse the $300 million cost to put fish ladders on the dams. We believe completion of water quality certification in Oregon and California would make it clear that PacifiCorp can not make money on the Klamath Hydroelectric Project if the changes necessary to render the dams environmentally responsible were made.

In the maneuvering currently in process over water quality certification, the Hoopa Tribe appears to hold the trump cards. That is because the Hoopa are the only Klamath River Basin tribe which has taken the time and expense to secure certification as a state for purposes of the Clean Water Act. As a "state" whose lands cross the Klamath River, the Hoopa Tribe has the right to establish water quality standards of its own for the Klamath River. More importantly, upstream states have obligations to downstream states – including recognizing and meeting their water quality standards. And while the means by which the Hoopa could enforce their standards upstream are clearer with regard to point sources, there is also potential to force upstream states (California and Oregon) to regulate non-point sources of pollution in order to meet Hoopa water quality standards for the Klamath River.

While the State of California will not take action on February 17th to either grant or deny PacifiCorp’s request for yet another delay in the Clean Water Act certification process, those who tune in may get a better idea of which “stakeholders” are supporting PacifiCorp and the governors and which are not. One organization which bears watching is the Pacific Coast Federation of Fishermen’s Associations (PCFFA). Will PCFFA continue to support the AIP when most observers believe it will be used by Governor Schwarzenegger to sell his plan for new dams and a new canal to carry more Northern California water south? Will the trio of sport fishing groups involved – Trout Unlimited, Cal Trout and the Federation of Flyfishers - continue to support the AIP even as it becomes clear that such support will delay dealing with fish-killing water quality conditions in the Klamath River?

Those who want answers can tune in remotely to the California State Water Board meeting on February 17th. KlamBlog will be tuned in and will report which “stakeholders” line up behind PacifiCorp and Governor Schwarzenegger and which align with the Hoopa Tribe and others who reject the AIP because they believe it is not in the interest of the River, will delay dam removal and is intended primarily to shift the cost of dam removal from PacifiCorp shareholders to ratepayers and taxpayers.

Stay tuned!

River of Renewal tours Northcoast (and) A major architect of the Water Deal speaks out!

A film about the Klamath River made the tour of the Northcoast recently. We caught up with River of Renewal in Crescent City where Steve Most’s award winning documentary was sponsored by Friends of Del Norte.

Steve Most’s film is a sensitive and inspirational look at the long struggle of Lower Klamath River Indigenous Peoples to continue the core of their cultural, economic and spiritual connection to the River and the salmon. And while Most has a tendency to romanticize his subjects, his film captures quite a bit of the spirit and personal dimensions of the long struggle. The film also does a fair job presenting the history of Klamath salmon and water conflicts. Understanding this history will no doubt help a new generation of Native and Non-Native leaders better understand the true nature and subtle dimensions of that struggle. This is a valuable service in a society in which historical perspective is rare indeed.

You can read a synopsis of the film, contact the film makers and check on future showings at the Terrapin Films web site. The film is also available on DVD for purchase.

At the Del Norte showing, those attending were also treated to a short film by Northcoast photographer and filmmaker Thomas Dunklin. Cedar Creek Fish Passage Restoration is the clearest and most visually pleasing presentation of an actual restoration project that we can remember seeing. Dunklin is a prolific photographer of the Klamath, other western rivers and salmon. You can check out his photographs and contact Thomas via his web site.

After the film showings, Troy Fletcher was invited by producer Most to make a short presentation on contemporary Klamath River issues. A fisheries biologist and former tribal executive, Fletcher represents the Yurok Tribe in Dam and Water Deal negotiations and is widely recognized as one of the main architects of the scheme to have popular dam removal carry a controversial Water Deal full of special interest subsidies and other controversial provisions. Fletcher’s comments reveal quite a bit about the Dam and Water Deals and about the thinking and strategies of those who are promoting linking them together.

Troy Fletcher was well aware that the Crescent City showing’s sponsor – the Friends of Del Norte – has serious concerns about the Dam and Water Deals. Perhaps this explains why he began his presentation by telling the 80 or so folks assembled what the Deals are not.

According to Fletcher the Dam and Water Deals are “not a silver bullet” which will fix the Klamath’s problems but rather a big step in an ongoing process of restoration. He then acknowledged that the Deals “are not a basin-wide approach.” This is a significant admission. For over a decade a coalition of environmental groups, fishing organizations and tribes have had as a core objective advancing “one basin management” for the Klamath River Basin. This goal has been deemed necessary in order to end treating the Klamath as if it were not one but two basins – an Upper Basin where most of the river’s summer and fall flow is diverted to serve irrigated agriculture and a lower basin which must make due with river flows which are insufficient to provide for the needs of salmon and aquatic species and are of such poor quality that much of each year’s young salmon perish in water-quality related disease epidemics before reaching the ocean. The Water Deal’s critics claim that it is a step back toward managing the Klamath as if it were not one but two basins.

Mr. Fletcher then engaged in a critique of the federal Endangered Species Act which Klamath watchers would have found familiar. In fact, in 2004 Fletcher criticized the ESA at a congressional hearing in Klamath Falls. Because it was designed by the Republican House Majority to trash the ESA, Democratic members of Congress and environmentalists boycotted those hearings. The Northcoast Journal reported on them, including on Fletcher’s testimony. Many environmentalists felt at the time that Mr. Fletcher was spectacularly unappreciative of the ESA which is the only way (so far) that more water has been wrested from the hands of irrigators and returned to the Klamath River for fish. Contrary to what many folks believe, it was environmentalists and fishermen who brought that lawsuit and who deserve the credit for securing more water for salmon. The Yurok and several other tribes intervened in the lawsuit but they did not shoulder the expense and work needed to bring the issue to federal court. The much-maligned environmentalists are also responsible for securing protection for key Klamath salmon watersheds – those Klamath streams whose high quality waters play a crucial role in keeping our salmon from going extinct.

Acknowledging that they were controversial, Fletcher predicted that there will be litigation over the Water and Dam Deals. He suggested that litigation along with time to complete needed studies are why we will have to wait until 2020 at the earliest for dam removal to begin. Actually, however, the 2020 date is necessitated not by the need to do “studies” (these could be completed by 2014) or to resolve litigation (an unknown) but rather by the controversial plan for dam removal financing which is now before the Oregon Legislature. You can read the latest on that bill at Oregon Live.

Concerning the studies and engineering needed before dam removal can begin; the California Coastal Conservancy has already conducted or has in process no less than 24 separate studies or assessments related to Klamath dam removal.

Mr. Fletcher also said that projections which have been done for drought years indicate that water to meet the Klamath River flows which the Water Deal prescribes for fish would have to be purchased on an annual basis from Upper Basin Irrigation Interests. He was asked whether this was sustainable since it would require federal taxpayers to foot the bill. Fletcher responded that this sort of thing was already happening in other river basins as well as in the Klamath. Here he was referring to Klamath and other so-called “water banks” which the Bush Administration used to reduce irrigation demand in order to meet requirements of the ESA. These schemes were not true “water banks” (which are water marketing arrangements) and – in the case of the Klamath – the BOR was not buying water for fish but rather reducing irrigation demand so that it could meet a range of other obligations. Fletcher did not address the sustainability question.

The proposal to give irrigators the first call on Klamath Water via legislation (THE ONLY WAY IRRIGATORS WHO GET WATER VIA A FEDERAL PROJECT CAN GET WATER AHEAD OF ESA LISTED FISH) is one of the most controversial provisions in the proposed Water Deal. Deal critics – including KlamBlog – believe that such legislation would set a dangerous precedent, undermine the Public Trust Doctrine and that the approach is not sustainable. Think about it this way: how much would taxpayers need to pony up on a regular basis to buy water for fish in the Columbia, Klamath, Sacramento, San Joaquin and Colorado Rivers? And what if we add in tributaries like the Shasta, Scott, John Day and Deschutes Rivers?

The flows which the Klamath River would receive under the proposed Water Deal have also been widely criticized. According to respected fisheries biologist Bill Trush the scheme does not provide enough in the way of “good” flow years, that is, years in which flows are sufficiently robust in quantity and quality to result in high salmon production and high survival of young salmon on their journey to the sea. The Hoopa Tribe has also been critical and has pointed out that Klamath River flows under the proposed Water Deal would be lower in some months than the flows which are currently mandated to comply with the Endangered Species Act. If the Hoopa are correct (and KlamBlog has seen documentation indicating that they are) then Troy Fletcher’s complaints that the ESA does not provide enough water for salmon ring hollow.

Water Deal flows have also been criticized (including by KlamBlog) because they ignore good science. Specifically, the National Research Council – one of the nation’s most prestigious scientific bodies – has criticized the flow assessments on which the Water Deal’s allocation of water is based. Independent NRC scientists who reviewed Klamath flow assessments indicated that salmon needs and river flows could not be properly assessed and prescribed using studies which they compared to treating the River as if it were “the Upper Basin and a gutter to the sea.” NRC scientists called for a basin-wide flow needs assessment before in-stream flow requirements and water allocations are finalized. No such study is called for or contemplated by the proposed Water Deal.

Troy Fletcher deserves high marks for his candor and for being willing to engage with members of the Friends of Del Norte and others who are concerned about the Dam and Water Deals. For filmmaker and author Steve Most that is what it is all about – dialogue. In conversation with KlamBlog Most emphasized that his hope is that River of Renewal will create opportunities for discussion and contribute to creating a public space where Klamath River Basin residents can come together, recognize their mutual interests, gain mutual respect and achieve a lasting accommodation.

FERC comes to Yreka to listen

Three officials from the Federal Energy Regulatory Commission (FERC) came to the Klamath River Basin on January 29^th to – as they put it – learn about the Agreement in Principle (AIP) on Klamath dams signed by PacifiCorp, the Department of Interior, Governor Schwarzenegger and Governor Kulongoski. Two FERC-sponsored sessions were held in Yreka on January 29th – one during the day and one in the evening. Well over a hundreds people attended the daytime meeting and about 40 attended the evening meeting. KlamBlog was at the evening meeting.

Most of the people attending the meetings were from Siskiyou County. FERC has been criticized for not holding a meeting on the coast. In a letter to FERC, Congressman Mike Thompson formally requested that FERC hold a meeting on the Northcoast.

The FERC folks opened the meeting by explaining that this was not a hearing but a fact finding meeting. Then they described FERC’s policy on settlements.

FERC staff said that the Commission favors settlement but can not accept all settlements because some proposed settlements conflict with the laws and regulations which govern FERC. They also mentioned that FERC frowns on “cost caps”, that all settlement provisions must be clearly “need based” and that they can not endorse settlement provisions that are beyond their jurisdiction or authority.

The Agreement in Principle contains a cost cap on the amount of funds that will come from PacifiCorp or its ratepayers for dam removal. Some of the expenditures mentioned in the AIP do not appear to be “need based” and the attempt to link the proposed Water Deal to a dam settlement would appear to be beyond the jurisdiction of FERC and therefore not appropriate for FERC endorsement.

The FERC folks also indicated that they will provide an observer for ongoing dam negotiations in order to assure that a proposed settlement “works for FERC” – i.e. that it complies with applicable laws and regulations.

Representatives of PacifiCorp, the Department of Interior and the California Department of Fish & Game were present at the meeting to answer questions about the AIP. Questions from the audience as well as to and from FERC staff occupied most of the meeting. Here are a few highlights of what was revealed:

¨ The Department of Interior’s representative was asked in both the daytime and evening sessions whether the “confidential” meetings which had produced the AIP and the Water Deal violated the Federal Advisory Committee Act (FACA). The representative said that it was a good question and committed to researching the subject but also asserted that the Department of Interior did not sponsor or lead the meetings. This was immediately challenged from the audience. It was pointed out that Interior had paid for the facilitator and that an Interior official had chaired the Klamath Settlement Group (KSG) up until the time FACA issues were raised. KlamBlog is reminded of the old saying: if it walks like a duck, swims like a duck and quacks like a duck IT MUST BE A DUCK! We think the courts would likely agree.

¨ One member of the audience stated that crashing the closed-door Klamath negotiations might be in the cards. The representatives of AIP signatories were asked what they would do if members of the public or ratepayers showed up and demanded to be let in. The representatives declined to answer.

¨ Some promoters of the Water Deal and of linking that Deal to an agreement on the Klamath dams have been arguing that federal legislation is necessary in order to remove the dams. FERC staff confirmed that this is not necessarily the case. In fact, most dam relicensing settlements do not go to Congress. It is only if federal funds are needed to implement the settlement that federal legislation is required. But the AIP allocates the cost of implementing a settlement to California taxpayers and PacifiCorp’s ratepayers. Since there is no proposal to appropriate federal funds to implement a dam settlement, an act of Congress is not needed. This tends to confirm what KlamBlog has long asserted: linking the dam settlement to the Water Deal is an attempt by certain interests to get a popular dam removal proposal to carry an expensive and controversial Water Deal.

¨ Representatives of AIP signatories were asked why the document substituted Cost-Benefit Analysis for the legal criteria by which dams must be judged, including the Clean Water Act and The Federal Power Act. The Department of Interior’s representative answered that they really didn’t mean Cost-Benefit Analysis but rather some other process by which the Secretary of the Interior would weigh the costs and benefits of keeping or removing the dams before making a decision on their fate. However, the representative offered no specifics about the decision process that will be used. Critics of the AIP contend that it substitutes Cost-Benefit Analysis for the requirement that the dams comply with the Clean Water Act and other applicable laws. As KlamBlog has previously reported, Cost Benefit Analysis has been used by the Bush Administration to ignore science and gut environmental protection.

¨ FERC staff disclosed that some of the measures proposed in the AIP as “Interim Conditions” had not been analyzed in the EIS which FERC prepared for the proposed relicensing. This means that these provisions would likely need independent environmental review – and possibly Clean Water Act compliance certification - before FERC could adopt them into the annual licenses which, under the AIP, would be given to PacifiCorp yearly until 2020. A member of the audience then brought up the petition by the Hoopa Tribe to get FERC to implement flows below J.C. Boyle dam for Redband Trout as recommended by federal and state biologists (see January 27^th KlamBlog post). The FERC staff said that denial of this petition was under appeal and therefore they could not discuss it.

¨ Sponsors of the AIP were asked to explain why under the AIP dam removal could not begin until 2020. In the course of the presentation that followed it became obvious that all needed studies could be completed and dam removal could begin as early as 2014 and possibly earlier. From this admission it appears that delaying the commencement of dam removal until 2020 is not necessary “to complete needed studies” but rather is a gift to PacifiCorp Shareholders. The question is whether Coho and other salmon can survive that long before Klamath River water quality is significantly improved via dam removal. It is now well documented that many and perhaps most of the salmon produced in our watersheds die in the Klamath River prior to reaching the ocean. Biologists believe fish diseases which are related to the Klamath River’s poor water quality are the #1 cause of Klamath salmon mortality.

¨ Roy Hall Junior – chairman of the Shasta Nation – was in attendance and offered a perspective on the AIP. Mr. Hall is concerned about the rights of local people. Apparently he sees the Klamath Settlement Group effort as a power grab by the federal government designed to take away the rights of the people.[1] There have been tensions between the Shasta Nation and the Karuk Tribe for many years now. One source of that tension may be a proposal by the Karuk Tribe to build a casino along Interstate 5 in Siskiyou County in what is traditionally Shasta territory. The four dams which have been proposed for decommissioning are also all located in traditional Shasta territory. The Karuk Tribe has been one of the main promoters of the Water Deal and of linking that Deal to dam removal.

¨ One member of the audience asked FERC staff to speculate on how long it would take FERC to go through the formal relicensing process and make a decision on whether or not to relicense the dams. Staff was loath to make such a prediction, however, since it is a process which can be more or less lengthy depending on a number of factors. Members of the audience then speculated about whether the time-line laid out in the AIP would resolve the issue sooner than the formal process. This question is important because one of the arguments which promoters have made for negotiating a settlement with PacifiCorp is that this would speed up the process and secure relief for salmon much sooner than the formal FERC process. The 2020 start of dam removal in the AIP now appears to have resolved this question: under the AIP salmon would likely have to wait longer for relief from lethally bad water quality.

While it did not come up during the formal meeting, KlamBlog learned from conversations during breaks that at least some Interior Department Officials are having second thoughts about certain provisions of the proposed Water Deal. Specifically, these officials have cold feet about backing a legislative proposal that contains many millions in special interest subsidies at a time when the federal government is running huge deficits. It is likely that these officials are also concerned about how their newly appointed supervisors will view such support. The Water Deal and AIP are creations of the Bush Administration; regular Interior employees will be careful not to back proposals that the new political appointees at Interior may not favor.

The Interior folks’ cold feet reflect the traditional carefulness of government officials who must answer to political appointees. To date it is not clear whether President Obama’s appointees at Interior, Commerce and Agriculture will support the Water Deal or the proposal to link it to a dam settlement. Some of those nominations are yet to be made.

Influencing Obama appointees who will set the new Administration’s Klamath positions is likely to be a top priority for promoters and opponents of the Water Deal and the AIP in the months ahead. KlamBlog will do its best to keep you informed about efforts to influence the Obama Administration’s Klamath position.

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[1] The Shasta Nation has requested but not received recognition by the federal government. The federally recognized tribes in the Klamath River Basin are (starting Upriver): the Klamath Tribes (Klamath, Modoc and Yahooskin Peoples), the Quartz Valley Indian Reservation (mostly Karuk Indians but open to some Shasta Indians as well), the Karuk Tribe, The Hoopa Tribe and the Yurok Tribe.