Friday, October 30, 2009

Opposition grows to PacifiCorp Dam Deal

Concerns are mounting that the recently unveiled Klamath Hydroelectric Settlement Agreement (KHSA) may not actually result in dam removal. Problematic provisions have been identified that could frustrate dam removal or delay it for decades. Klamath Salmon advocates also worry that by the time the dams actually come down Coho and Spring Chinook Salmon may have already been driven to extinction in the Klamath River Basin. Here is a summary of the main concerns which have surfaced so far:

• The KHSA does not make a commitment to dam removal. Instead it outlines a process by which the Secretary of Interior would make a decision in 2012 concerning whether dam removal is in the public interest. An increasing number of dam removal advocates are saying that this is not good enough. These activists want PacifiCorp and the Obama Administration to make a definite commitment to TAKE DOWN THE DAMS!

• The KHSA contains numerous provisions that could stop the process and allow PacifiCorp to back away from dam removal. Activists say these provisions could be used by PacifiCorp to indefinitely delay dam removal or even to avoid it altogether. Meanwhile the company would continue to reap profits while Klamath River Salmon continue to suffer from lethal water quality and inadequate flow below the dams.

• The KHSA would delay dam removal at least a decade beyond the time necessary to complete engineering and environmental impact studies. The only reason for the delay is to allow PacifiCorp to collect money for dam removal from its customers in Oregon and Northern California. Under the KHSA PacifCorp would continue to make profits during this period but would contribute no funds toward dam removal. Activists say that PacifiCorp stockholders should share bear part of the cost of removing facilities it owns and that the federal government should advance funds for dam removal and recoup those funds later from ratepayers.

• The KHSA does not adequately protect water quality or salmon during the decade-long period it proposes to delay dam removal. In fact, the Deal would in effect provide PacifiCorp with an exemption from the Clean Water Act. This in turn would prevent the North Coast Water Board from implementing the Klamath TMDL Clean-Up Plan it is currently developing. That Klamath Clean-Up Plan offers hope that the severe water quality problems which kill millions of young salmon every year might finally be addressed.

The dams are only part of that water quality problem – pollution from irrigation return flows and livestock operations create even more pollution than the dams. We can not clean-up the Klamath without addressing both Ag and dam-related pollution. Furthermore, Agricultural interests will rightly cry fowl if they are expected to clean up their pollution while PacifiCorp is allowed to continue business as usual.

Water polluted with livestock waste flows from a ditch into the clear water of Patterson Creek in the Scott River Valley

• The KHSA would absolve PacifiCorp from any and all liability associated with 100 years of powerhouse and power generation operations. Old power generation facilities often contain hidden toxic legacy which can be very costly to remediate. Activists say that it is OK to free PacifiCorp from liability for dam removal but they should remain liable for any toxic legacies associated with their operation of power generating facilities .

Connection to Water Deal Questioned

Grassroots activists and organizations are also questioning the wisdom of connecting the Dam Deal with the proposed Klamath Basin Restoration Agreement. Like KlamBlog, these activists and organizations realize that saddling dam removal legislation with the weight of controversial water allocations and costly cash subsidies could well sink the legislation or delay it in Congress for a long time.

The nearly $1 billion in subsidies and new programs included in the controversial KBRA will require shifting money from other tribes and other federal programs. That will be opposed by those other interests and programs because they would loose government funding as a result. The KBRA also requires nearly $500,000 in new funding – much of it for subsidies to the small group of wealthy irrigators who dominate Upper Klamath River Basin politics. Under congressional rules a congressperson or senator who proposing such spending will have to specify which programs will be cut to provide for the new spending. Cutting existing programs can be very controversial and all it takes is a single senator to put an indefinite hold on such legislation.

The KHSA and KBRA also include a provisions which would provide irrigators in the Upper Klamath River Basin with power from the Bonneville Power Administration. Because it is cheap Bonneville Power is coveted across the West. Those who currently have access to that power are vigilant lest they loose some of it. But the Dam and Water Deals both propose taking some of that power away from current industrial users and giving it to wealthy Klamath Basin irrigators. In response the Northwest Industrial Power Users Association – a trade group made up of internet firms and aluminum producers – has become involved in Klamath dam issues. This is a powerful and well connected lobby group whose opposition could kill dam removal legislation.

Termination of Tribal Rights

While the above list of problems with the proposed KHSA and KBRA are formidable they are not the least of the problems with these proposed deals. Exploding onto the national scene recently have been concerns about a waiver of rights which the four federal Indian tribes involved in dam negotiations – the Hoopa, Yurok, Karuk and Klamath Tribes - would be required to sign as part of the Deal. While the Yurok and Karuk Tribes argue that the waivers are conditional on funding and other aspects of the deals going forward, tribes across the US have become concerned about provisions in the KHSA which would allow the federal government to waive the rights of a dissenting tribe should the other tribes involved decide to sign the waiver.

This provision of the KHSA appears to be aimed directly at the Hoopa Tribe which has expressed serious reservations about the waiver of rights and about how the KBRA would impact Trinity River restoration.

The Hoopa Tribe may hold the trump card when it comes to Klamath Water Deals because they have the status of a state for purposes of the Clean Water Act. Because a portion of the Hoopa Reservation crosses the Klamath River above Weitchpec, the Hoopa Tribe’s water quality standards must be addressed. But the combination of KHSA provisions empowering the federal government to terminate the Hoopa right to decide for themselves whether to waive their water rights and the proposed suspension of the Clean Water Act discussed above could in combination render objections of the Hoopa to the Dam and Water Deals ineffective and irrelevant.

Indigenous activists like Chris Peters, president of the Seventh Generation Fund, have spoken out against an agreement that would empower the federal government to terminate the rights of a sovereign tribe without their consent. Many members of the three lower Klamath River tribes – the Yurok, Hoopa and Karuk - are related or have common ancestors. The three tribes also participate in each others traditional dances and ceremonies. Will the Karuk Tribal Council and Yurok Tribal Council go along with the consultants and staff who are telling them that it is OK to treat the Hoopa in this manner? Only time will tell.

You can read Chris Peter’s statement on “termination” of tribal rights in KlamBlog’s October 10th post below.

Termination of tribal rights without a tribes consent would set a modern national precedent and harkens back to days when Indians were treated like small children for whom the federal parent decided virtually everything. Both the Affiliated Tribes of Northwest Indians and the National Congress of American Indians recently passed resolutions in support of each tribes sovereign right to enter into or reject water agreements.

Widespread tribal attention to the proposed Klamath Deals calls attention to the broader context in which the Klamath Dam and Water Deals are being pursued. If one were to add up all the water to which western federal tribes have claim it would likely amount to about half of all the water in the West. But when that water was divided during past centuries those claims were ignored.

Over the past two decades the federal government has been systematically cutting deals with tribes across the West that are designed to make sure those tribal claims never are quantified or perfected. All of these deals involve tribes giving up water rights – or the ability to exercise those rights – in exchange for the promise of federal funding, restoration and – in the case of the Klamath Tribes - land. But in the modern world of water banks and water brokering those tribes which hang onto and perfect their water rights are likely to be much more wealthy than the wealthiest casino tribes of today. Still the allure of funding and the promise of restoration has proven difficult for cash strapped tribal governments to resist.

Seen in this light the Klamath Dam and Water Deals can be viewed as part of yet another vast swindle whereby Indigenous People are being divested of the most valuable right they hold – the right to life-giving Water. History may look back and condemn our complicity with this immoral federal project which has and continues to be implemented in Democratic as well as Republican administrations.


Dr. Hamid Rasool said...

Learned on Twitter:
Warren Buffet = Old Man Non-River

Tom said...

Felice you invited me to read your blog and make comments, what you didn't know I've been reading it and as always there is a lot of information in it, The only problem is the things you say and the picture of Patterson Cr. in it are inaccurate and untrue. Patterson Creek is not full of cow manure, you are. That photo was taken in the winter and that's pure water runoff from the Marbles I would drink it. You can see the snow and the foliage of winter. But keep trying a lot of people believe what you say. And as always you have the cart before the horse, and before the dams are removed there is massive restoration and dam removal that will have to take place elsewhere, before Irongate is removed or else all will fail. TOM

Felice Pace said...

Tom is correct about Patterson Creek. In the photo it is coming in from the right and it is clear. The ditch referred to is coming in from the left and it is full of a brown discharge. This discharge has been tested by the Water Board and found to be highly contaminated with bovine waste, aka livestock manure.

The ditch actually carries the water from Johnson and Crystal Creeks and several springs which arise in the area. The lower portion of these combined creeks and springs were ditched by the folks who built Crystal Creek Dairy.

There are currently thousands of livestock in the lower portions of Crystal and Johnson Creeks and they are allowed to defecate in the creeks. The resulting pollution is evident in the photo.

Glen Spain -- PCFFA said...

To correct some serious errors in the 10/30/09 posting, consider:

(1) Dam removal under the agreement will CONCLUDE by 2020, not begin. The process of doing the necessary studies began several years ago and will blossom into a full NEPA/CEQA analysis for the Secretarial Decision by 3/31/12. 10 years to take out four dams is not a long time. Condit has taken 11 to date, and Savage Rapids took 18. This project is far larger and more complex.

(2) The federal government is not going to commit to taking out the dams without a full NEPA process, and without knowing the cost. The KHSA process is fair, reasonable and required by law -- and ends in a definite decision in a little over 2 years. That is not unreasonable.

(3) The KHSA has robust "Interim Measures" paid for by PacifiCorp to protect salmon during the interim next 10 years. Plus the KHSA requires meeting TMDL standards through a TMDL Implementation Plan (Sec. 6.3.2). Your analysis is simply wrong on this point.

(4) The "liability waiver" PacifiCorp gets is for dam removal actions ONLY after it has transferred title to the DRE -- not before (Sec. 2.1.1(E)). This is standard practice in such transactions -- the later owner takes the responsibility.

More careful analysis is warranted.