Schwarzenegger stomps on the North Coast Water Board - PacifiCorp exempted from compliance with Klamath Clean-Up Plan

On March 24th in Eureka the North Coast Water Quality Control Board – the body charged with enforcing the Clean Water Act in California portions of the Klamath River Basin -  unanimously approved a clean-up plan for the Klamath River. While most environmental and fishing interests praised the plan, long-time Klamath River Activist Felice Pace alleged that the decision had been tainted by interference from the office of California Governor Arnold Schwarzenegger.

Last week Pace told the Water Board that the Governor’s office ordered the Board and its staff to change provisions applying to PacifiCorp – the Berkshire-Hathaway-Warren Buffet subsidiary which owns the five main stem Klamath River dams. According to his hearing testimony, the Water Board dutifully changed language in the clean-up plan in a manner that exempts PacifiCorp from Clean Water Act compliance.

PacifiCorp's Iron Gate Dam - the lowest of five mainstem Klamath River dams owned and operated by the company

This means that PacifiCorp will not be required to directly clean-up Microcystin – a toxic, blue-green algae by-product - which is proliferating in the company’s Klamath Reservoirs. Microcystin from those reservoirs has rendering Klamath River water dangerous for people and animals which come in contact with it all the way from the dams to the Pacific Ocean. Microcystin is a powerful liver toxin.

Instead, PacifiCorp will pay farmers and ranchers above the dams to reduce the nutrient pollution they discharge. This in turn is supposed to improve the quality of the water PacifiCorp receives in its reservoirs and likewise the quality of the water discharged from the dams. The whole scheme has not been tried before or modeled and it is unknown whether or not it will be effective in reducing pollution from the dams.

Toxic Algae bloom - Iron Gate Reservoir

(photo by Thomas Dunklin)

What is known is that, if the North Coast Water Board decision stands, PacifiCorp will have escaped from the obligation for discharges from its reservoirs to meet Klamath River water quality standards. Those standards were established to protect Public and Tribal Trust Resources – including salmon and recreation. They include not only a prohibition on the release of Microcystin but also temperature and dissolved oxygen standards which the PacifiCorp dams do not meet.

Who’s on First? – Who is writing Klamath Deal Legislation and why do the Obama Administration and Members of Congress provide different answers?

Last week KlamBlog published information from a credible source in Washington DC indicating that the Department of Interior (DOI) was not drafting legislation to implement the Klamath Dam and Water Deals but rather that North Coast California Congressman Mike Thompson and Oregon Senator Jeff Merkley were “taking the lead” in drafting Klamath Deals Legislation. Soon afterward we received information from a credible source indicating that DOI was indeed doing the drafting. This second source also pointed us to a web site where draft Klamath Deals Legislation – presumably drafted inside DOI - is available on line.    

Someone drafted the Klamath Deal Legislation available on line. Both DOI officials and Members of Congress who represent Klamath constituencies are saying it is not them and pointing fingers toward each other. Why the confusion? Why is the entity that produced the draft legislation now available on line unwilling to take responsibility for it?  We can think of a couple of reasons:

Members of Congress may be unwilling to admit that they are drafting Klamath Deals Legislation because the Deals are controversial with their constituents or because they want to discourage opposition from getting organized early on. This is not really plausible with respect to Senator Merkley who attended the high profile Deal signing event in Salem Oregon and appears to have reached the conclusion that supporting the Deals is in his political interest.

DOI officials may want to deny having their fingerprints on the legislation because of FACA - the Federal Advisory Committee Act. FACA provides that government officials can only take “advice” from private entities via processes that are open to the public and fully vetted.

If the legislation which is eventually introduced conforms closely to the Klamath Dam and Water Deals, DOI officials may have trouble convincing a judge that they have not violated FACA  They may also then be subject to Freedom of Information Act requests which force them to disclose interactions they have had in private with other entities concerning what is in the legislation. If DOI officials distributed a legislative draft to select private entities for comment and then used those comments to revise the draft, for example, FACA has been violated.

The EPA has good guidance on “Collaboration and FACA” available on line.

Section 204(b) of Unfunded Mandates Reform Act of 1995 (P.L. 104-4) provides an exemption from the provisions of FACA for “intergovernmental consultations involving intergovernmental responsibilities or administration.”

Whether consultations on Klamath Deal Legislation fit the exemption is a matter of interpretation which, as far as we can tell, has not yet been adjudicated. However, FACA clearly applies when non-government entities are involved as is the case for the Klamath Deals. A FACA challenge to legislation based on the closed and confidential negotiations which lead to the Deals may be just a matter of time – particularly if Klamath legislation introduced into Congress conforms closely to the Deals and if drafting by DOI with the input of private entities can be proven.  

It is not known whether Congressman Thompson and Senator Merkley have decided to carry the Klamath Deals Legislation which is currently available in draft form. Constituents and other interested parties may want to ask them. Like all members of Congress they can be contacted on line through the Mike Thompson and Jeff Merkley web sites or via www.congress.org.

News Flash – Congressman Thompson and Senator Merkley are drafting Klamath legislation

KlamBlog has learned that the Department of Interior is not drafting legislation to “confirm, ratify or approve” the Klamath Dam and Water Deals. Instead, Representative Mike Thompson of California and Senator Jeff Merkley of Oregon are taking the lead in the drafting. It is unknown whether they will adhere to all provisions in the proposed deals or will make changes to better conform the deals to the Public Interest.

What deal promoters want in federal legislation is laid out clearly in Appendix E of the final KBRA. That appendix is reprinted at the end of this post.

Those who care about the Klamath River – and those who are concerned about the damaging precedents the Klamath Deals could set for future dam removals and river restoration programs - may want to let Congressman Thompson and Senator Merkley know what they think about the Klamath Deals. Here is contact information for both members:

Congressman Mike Thomson                       Senator Jeff Merkley
Jonathan Birdsong, Legislative Director     107 Russell Senate Office Building
231 Cannon House Office Building,             District of Columbia 20510-3704
District of Columbia 20515-0501                Phone: (202) 224-3753
Phone: (202) 225-3311                               Fax: (202) 228-3997
Fax: (202) 225-4335                                   Portland Office: (503) 326-3386
jonathan.birdsong@mail.house.gov            Michael.Zamore@mail.senate.gov
Eureka Office:
Phone: (707) 269-9595

An easy way to send e-mail to any member of Congress can be found at Congress dot Org.

KlamBlog suggests asking these servants of the people to hold public hearings here in the Klamath River Basin and not just in Washington DC. Public hearings on Klamath legislation here in the Basin will make it possible for all those who were excluded from confidential invitation-only deal negotiations to share their ideas for Klamath solutions with those who represent us in Congress.  Public hearings here would also demonstrate that these two members of Congress are not just going to carry water for the special interests and agencies which made these deals and which favor some irrigators over others, some tribes over others and some communities over others. 

Here is KHSA Appendix E:

Bob Hunter responds to “Glen Spain’s view of Reality"

[From the moderator:  Glen Spain – who works for the Pacific Coast Federation of Fishermens’ Associations – has emerged as a main apologist for the now final Klamath Basin Restoration Agreement (KBRA) and Klamath Hydroelectric Settlement Agreement (KHSA). We have published his views on this Blog and he frequently publishes extensive “corrections” as comments on KlamBlogs... Glen has worked on Klamath issues for many years. So has Bob Hunter, a senior attorney with Water Watch of Oregon and someone who knows the Upper Klamath  Basin and its issues like few others. Bob is also the only person involved on the Klamath who has actually been largely responsible for taking out a salmon-killing dam – Savage Rapids Dam on Southern Oregon’s Rogue River... Below is Bob Hunter’s response to some of the claims Glen Spain is making about the KBRA and KHSA. Glen Spain’s views on the Klamath Deals are KlamBlog’s 11/16/2009 post and in comments on numerous other posts.]

WaterWatch has worked for well over a decade to protect and restore the incredible natural resources of the Klamath River Basin.  We have deeply rooted and heart felt issues with the KBRA and the KHSA’s linkage to it.  We strongly disagree with Glen’s views on these agreements.  We believe that if the KBRA is ratified and confirmed by Congress and/or if Congress directs federal agencies to sign the agreements and become contractually bound to its provisions for the next 50 years, it will set back important conservation interests in the basin for years to come, as well as set some very bad precedents.

We again feel compelled to respond to Glen’s e-mails, as his assertions as to the error and mistaken statements of others are often either themselves in error, misleading, or based on opinions and interpretations where reasonable people can differ.

First, we strongly disagree with Glen’s assertions that the KBRA does not affect the ESA “in any way”.  One of the major, if not the main purpose of the KBRA, is to give Klamath Project irrigators ESA coverage for the amount of water specified in Appendix E of the KBRA.  That is why Klamath Project irrigators are supporting the agreement.  The intent of the KBRA is to deliver more water to them than they would otherwise receive under current ESA regulation and certainly more water than they would receive if Hardy Phase II was implemented as the best available science.  Glen likes to show a chart that shows how the KBRA limits irrigation diversions below historical irrigation use especially in dry years, but what Glen conveniently fails to show on his chart is that the diversion limitation, which also acts as a water guarantee, is set at a level higher than what irrigators would otherwise receive under current ESA regulation (in place by court order since 2003).  Attached is the same chart, except with the inclusion of water deliveries to the Project irrigators under current ESA regulation also being shown (note water deliveries in years 2003, 2004, 2005, and 2006 are all under the KBRA limitations).  In addition the KBRA increases the water deliveries to Project irrigators by an additional 10,000 acre-feet in dry years, once additional storage is online or once the dams are removed.

Understanding the KBRA – Will the Deal that could lead to removal of four dams also bring a new dam to the Klamath River Basin?

The Promise of Environmental Water

The promise of “environmental water” is a siren call for many salmon managers. So it is not surprising that the idea of a special “environmental water account” (which biologists and other fish managers control and can order released as needed by fish) is a major component of the proposed Water Deal – the Klamath Basin Restoration Agreement (KBRA). Promoters of the Deal – including fisheries biologists who represent the Yurok Tribe – claim that the INCREASE in the amount of Klamath River water which the Deal provides to Klamath Project Irrigators will not damage salmon and the River’s ecosystem because “water managers” will have access to new “environmental water” and will use that water to address any risks resulting from allocating more Klamath River water to irrigation interests.

One problem with this scheme is that – as KlamBlog has previously pointed out – under the KBRA the first 10,000 acre feet of “environmental water” goes not to the environment but to Klamath Project Irrigators to do with as they please. Another problem is that the decrease in the amount of water allocated to River flows would happen as soon as federal legislation authorizing the Deal passes Congress and well before dam removal. But the promised “environmental water” would only come much later and then only if Congress appropriates the money and a sufficient number of the so-called “Off Project Irrigators” (those who do not get water via the federal Klamath Project) agree to sell their water rights to the US Fish & Wildlife Service.

Some scientists who have studied the KBRA fear that additional major fish kills could take place after Klamath Project Irrigators get more water and before the dams come down. This has become known as the “interim period” and what happens during that period to address the annual die-off of juvenile salmon below Iron Gate Dam and to prevent another major adult salmon kill in the River is a major reason the Hoopa Tribe, North Coast Environmental Center and several other organizations have decided that they can not support the Deal.