Monday, January 11, 2010

Yuroks take Klamath deals to the Del Norte County Supervisors – Final KBRA draft opens door to tinkering with bedrock environmental laws

In a bid to build support for dam and water deals they are promoting, the Yurok Tribe will make a presentation tomorrow – Tuesday January 12th at 11 AM - to the Del Norte County Board of Supervisors in Crescent City. This comes in the wake of Friday’s announcement that a final version of the controversial and costly Klamath Basin Restoration Agreement (KBRA) had been produced and would be released for public review. That document - along with the fianl version of the Klamath Hydroelectyric Settlement Agreement - is now available on line. These final versions are called "public review drafts" but it is clear promoters intend them to be the final versions.

The proposed KBRA does have one provision which would apply to Del Norte County and would require approval by the Del Norte County Board of Supervisors. Here’s that provision from page 169 of a very long document:
  • “ Del Norte County agrees not to file a claim in federal or state court, or before theCalifornia Board of Control or any other administrative agency, against the State of California, the State of Oregon, any state agency, department, division or subdivision thereof, or the United States, arising from any decrease in property tax revenue or alleged business or economic losses, including property values, due to Facilities Removal.”
If the supervisors agree to this provision they could not subsequently take action if there were any damage to land or public resources here in Del Norte County which results from release of sediment or from any other cause during facilities removal. This would be akin to “buying a pig in a poke” as the old saying goes. Similar provisions applying to Humboldt and other counties with land inside the Klamath River Basin are also in the Public Review Draft released Friday.

It had been suggested to at least one Del Norte supervisors that they also hear from those who do not support the Deals including Del Norte County based Friends of Del Norte. However, only the Yurok Tribe is listed on the agenda for tomorrow’s meeting.

The item is identified on the agenda as a “workshop” which indicates that board action on the Yurok’s presentation will not be taken at the meeting.

In spite of the fact that they have jurisdiction on the lower portion of the Klamath, the Del Norte Supervisors were not included in negotiations which – over the course of over two years – expanded from the fate of Klamath River dams to include water management, restoration funding and a long list of subsidies. In the course of those two years two groups were kicked out of the confidential negotiations and other entities – including the Hoopa Tribe and the Northcoast Environmental Center - have said they can not support the resulting deals.

Now that the deals are final, the focus of Klamath politics shifts to the Obama Administration and to Members of Congress. Will the Obama White House support a process that originated with the Bush Administration, would sacrifice the Klamath refuges and which some say totally ignores the recommendations of the only independent scientists to evaluate what is needed to restore Klamath salmon? Will members of the California and Oregon Congressional Delegations carry legislation essentially written by PacifiCorp and other promoters of the deals or will these members fix some of the problems opponents of the deals say threaten world-class Klamath Wildlife Refuges and preclude the recovery of Klamath Salmon?

No one as yet knows the answer to these questions. While North Coast California Congressman Mike Thompson recently declared that he hopes to introduce Klamath River legislation in January with an unnamed Oregon congressman it is unknown whether he will simply take the deals promoters have produced and turn them into federal legislation or whether he will listen to constituents who want him to fix what they say are errors and environmentally-damaging provisions in the deals.

The Public Review Draft of the KBRA released on Friday is 369 pages long and will take some time to review. However KlamBlog has taken a look to see if the claims of promoters that the legislation would not seek to amend or compromise the nation’s bedrock environmental laws are born out in the language of the agreements. Here is the applicable language from Appendix A of the KBRA:
  • Provide that nothing in the KBRA title of the legislation shall: determine existing water rights, affect existing water rights beyond what is stated in the KBRA, create any private cause of action, expand the jurisdiction of state courts to review federal agency actions or determine federal rights, provide any benefit to a federal official or member of Congress, amend or affect application or implementation of the Clean Water Act, Endangered Species Act, Federal Land Management Policy Act, Kuchel Act (Public Law 88-567), National Wildlife Refuge System Improvement Act of 1997 (Public Law 105-57), or supersede otherwise applicable federal law, except as expressly provided in the federal legislation. (emphasis added)
That is a very big “except” at the end. What it indicates is that parties to the deals have agreed to tinker with aspects of the ESA and other environmental laws but want to keep their intentions and the specifics of the tinkering hidden. You can be sure, however, that KlamBlog as well as environmental organizations which seek to change environmentally damaging provisions of the KBRA will be on the look out to see if such mischief or tinkering makes its way into federal legislation. It is hoped that avowed environmental champions like Mike Thompson, Peter DeFazio and Barbara Boxer will not abide tinkering with the ESA, CWA and other bedrock environmental laws or with mischief about how those laws are applied within the Klamath River Basin.


Glen Spain - PCFFA said...

Dear KlamBlog…..
Here are some fundamental errors in your above analysis of the recently released final draft of the KBRA that need to be pointed out, and which might not be obvious to your non-lawyer readers:

FIRST ERROR: The supposedly scary legislative language you cite in KBRA Appendix A, far from being a way to “tinker with bedrock environmental laws,” is standard legislative language “boilerplate” to PREVENT that from happening, even by implication. In other words, it prevents someone from saying later that any of these key environmental laws have been modified BY IMPLICATION from some provision in the KBRA. Any changes to law, if any, would have to be “expressly provided in the federal legislation” under this protective provision, not somehow interpolated by implication from the KBRA.

SECOND ERROR: Nowhere in the KBRA or any of its Appendices does it say or imply that any environmental laws will be changed. In fact, just the opposite. Provisions at Secs. 2.1, for instance, state plainly: “In the implementation of this Agreement, Public Agency Parties shall comply with all applicable legal authorities, including … National Environmental Policy Act (NEPA), Endangered Species Act, Clean Water Act, and other Applicable Law.” See also Sec. 2.2.7 “No Alteration of Environmental Review.” Similarly in Sec. 20.5.4.A “No waiver of federal Clean Water Act requirements or of comparable state water quality standards…. is intended by any provision of this Agreement.” Likewise every regulatory assurance mentioned in Secs. 21-22 are to be provide ONLY IN ACCORDANCE WITH APPLICABLE LAW.

As many have commented, there are problems with the KBRA but, as a mere restoration agreement, it cannot override the ESA, Clean Water Act, NEPA or any other environmental laws on its own, and there is not one shred of evidence for any intent of the Parties to do so through implementing legislation. In fact, just the opposite. The KBRA should be read as a whole, not selectively.

– Glen Spain, for PCFFA

Glen Spain said...

Dear KlamBlog ---

In the analysis above I note you once again use the phrase that the KBRA "would sacrifice the Klamath [national wildlife] refuges." In the spirit of debate, just how would the KBRA do that? And why, then, are the Klamath National Wildlife Refuge Managers FULLY supportive of the KBRA?

Here are the benefits to the wildlife refuges that the KBRA would bring:

1. In KBRA Sec. 15.1.2.E, a guaranteed minimum summer inflow water right for the Lower Klamath National Wildlife Refuge of between 48,000 and 60,000 acre-feet (scaled depending on the water year type). At present these National Wildlife Refuges have no water right assurances whatsoever, which means they can be (and have been) completely dried up during previous low rainfall years. This new refuge water right can be scaled down to no less than 24,000, but only in the most extreme water shortages under Sec. 15.1.2.F.i.

2. The Agreement would provide for federal implementing legislation (See Appendix A-1, provision G) which would for the first time specifically add “fish and wildlife and National Wildlife Refuges” as legally authorized purposes of the Klamath Reclamation Project. This change will institutionalize the requirement for the Bureau of Reclamation to provide reliable water supplies to the nearby National Wildlife Refuges.

3. Under Sec. 15.4.4.B.iii of the KBRA, US Fish and Wildlife Klamath Refuge managers would for the first time have a dedicated funding stream (20% of future lease land revenues) to better provide for fish and wildlife needs on the wildlife refuges themselves, including enforcement and implementation of new mitigation measures required for the lease land program in accordance with the Kuchel Act. Refuge managers believe this will make much better management of the refuges for wildlife possible. At present, the U.S. Fish and Wildlife Service gets none of these lease land revenues, and refuge managers must instead tap the U.S. Treasury for all of their refuge management funds, competing (sometimes unsuccessfully) against every other use of federal taxpayer dollars.

4. An additional benefit to waterfowl generally from the KBRA will also be the reclaiming and addition of several thousands of new wetlands acres to the existing upper basin wetlands land base, to be used for additional water storage as well as waterfowl (KBRA Sec. 18.2).

Some refuge advocates are disappointed that the KBRA, a mere contract, cannot repeal the 1964 Kuchel Act by which Congress allows commercial leaseland farming on parts of these refuges. And while there must also be authorizing legislation submitted to Congress to implement the KBRA, that authorizing legislation will only clarify long-standing disputes on how lease land revenues are divided up among more or less the same parties as have been receiving portions of these revenues since 1964. However, it will neither overturn nor change the Kuchel Act’s nor any other laws’ important wildlife protections for these refuges in any way. (Appendix A, Item L)

-- Glen Spain, for PCFFA

Anonymous said...

Could you please post on why you believe the tribes to be such vocal advocates of this deal?

It's unclear to me (from skimming the KBRA)exactly what the tribes get from this deal...and, given their history of (understandably) distrusting the government, I wonder what they're getting that we don't know about that's making them (Yurok and Karuk mostly) so pro-KBRA.