[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.
While it is true, the KBRA does not waive the application of the ESA, it is equally true that the KBRA is intended to be the basis of regulatory assurances under the ESA that will deliver the amount of water specified in Appendix E to Klamath Project irrigators. We believe the KBRA undermines the administration of the ESA because it requires parties to support regulatory assurances consistent with the diversion limitations/guarantees to irrigators without providing minimum flow protections for fish. (See section 3.1.2, section 21.3, and section 21.3.1 B of the KBRA) The KBRA puts tremendous political pressure on NMFS and USFWS to come up with bi-ops that allow water diversions at the level set forth in Appendix E, and gives them cover to do so as non-federal KBRA parties are required to support those agencies in doing just that. (See Section 21.3.1 A and 21.3.1 B ii a.). The KBRA also invites NMFS and USFWS to rely on actions planned (but not funded) in the KBRA as a reason to conclude fish will need less water than the current biological opinion requires, and also invites them to deliver incidental take coverage based on the diversion limitations/guarantees (See Section 22.2.2 through 22.2.5). In fact this coverage is contemplated to even last beyond the 50 year term of the agreement (See the last sentence of 22.2.1). There is already a strong indication that the federal agencies have been delaying doing another biop until the KBRA is in place, so that the KBRA can be used as a basis to assert fish need less water than they are now receiving under current ESA regulation because of the contemplated benefits of KBRA restoration and dam removal if it actually occurs. Again the lines between science and politics will get blurred with the KBRA in place.
It is interesting that Section 1.3 of the KBRA states that one of the goals of the KBRA is to establish reliable water supplies for agriculture, while there is no parallel goal of a reliable water supply for fish. This highlights another major deficiency in the KBRA when it comes to water for fish. There are no guarantees of any minimum flows or bucket of water for fish in the agreement, and in fact the KBRA makes it clear that the predicted flows are not guaranteed, and the KBRA does not provide any clear trigger or clear path of action under the KBRA if the predicted flows are not showing up. This puts the risk of the KBRA predicted flows being available squarely on the fish. With climate change this risk becomes quite high.
The risk of the predicted flows being enough water for fish is also on the fish and the burden of proof will be back on the fish to show they need more water. The late Ronnie Pierce used to talk about how fish flows historically were determined in the Klamath. She would show every time people got together to determine what fish needed the answer was always fish only needed the amount of water that was left over after other uses got theirs. The KBRA appears to be another point in history where this is again playing out. The predicted flows often do not match Hardy flows which are currently deemed the best available science. If Hardy is considered the best available science, why not manage for Hardy. Flow management under the KBRA will be an experiment where the fish suffer if it is not working out. Unfortunately, because the agreement does not have any clear measurable goals or standards to reopen the diversion limitations there is no clear trigger or clear path of action under the KBRA if it turns out the fish are still doing badly or populations are not recovering. We are very concerned that the irrigation limitations are set too high, leaving too little water left over for fish. In fact the KBRA predicted bucket of water is less than the total bucket of water under Hardy in all years except the very wettest (10% exceedence).
In drought situations no one is disputing that fish will need more water, yet a drought plan is not yet in place (Section 19.2). That means there currently is no means of assessing whether or not an adequate drought plan will be developed before support for the KBRA and legislation will be requested. The KBRA itself may limit the ability to negotiate a plan that will effectively deal with droughts because the KBRA only explicitly allows for changes in the diversion limitations/guarantees in extreme droughts (See Section 19.2B iii. v.). Extreme droughts are defined as conditions that have only occurred twice in the last 40 years so diversion limitations/guarantees would only occur in exceptional circumstances. The predicted flows are less than what is needed for fish in many more years than extreme drought years, yet the KBRA does not even define what other conditions would be covered by a yet to be created drought plan. This is not acceptable. A drought plan should be developed to ensure specified scientifically based minimum flows for fish are met, and should be made available for public review before Congress is asked to confirm, approve, ratify and/or authorize implementation of the KBRA. Glen suggests that we all will get to participate in the development of the drought plan. This is not the case. Section 19.2.1 makes it clear that the plan will be developed by a small subset of the Parties signing the KBRA, and no more than one NGO, and only then, if designated by consensus of the other parties. This does not bode well for a robust drought plan.
The drought plan also allows for waiving of the groundwater standards in an extreme drought, which could adversely affect flows. This also highlights the fact that if the irrigators choose to have significant groundwater development in their water plan to replace the water they will no longer be diverting from the Klamath River, then groundwater may well not be available in an emergency.
One matter that does not get discussed much as the major focus seems to be on the river and salmon, and that is the fact that there is one endangered and one threatened species of sucker in Upper Klamath Lake and that to achieve the predicted river flows and meet the irrigation guarantees, one is trading off lake levels. The risk of there being too little water in the lake is also on the fish. In addition, the predicted lake levels will periodically go low enough to completely drain all 14,000 acres of wetlands in Upper Klamath National Wildlife. (See Appendix E-5.4, 5.6 and 5.8 which show predicted lake levels –when lake levels go below 4140, wetlands around the lake start to dry out and when the lake elevation reaches 4139 all wetlands around the lake will be totally dry.) The point being the limitations on irrigation in the KBRA are not large enough to balance other water demands.
It also needs to be noted that the diversion limitations in the KBRA only limit surface water diversions from the Klamath River, they do not otherwise limit the diversions of the irrigators. The $92.5 million allocated in the KBRA to Project irrigators to develop and implement their own water plan could end up being a plan to just replace reduced surface water diversions from the Klamath River with groundwater. Even with the KBRA monitoring protections to be put in place to attempt to keep ground water impacts limited to 6% this could still take surface water away from the Klamath River. In addition, to the extent increased groundwater extraction affects the Lost River Basin, it might limit return flows through the Klamath Straits Drain, thereby again reducing river flows for fish. Parties to the agreement are agreeing to fund and support the Project irrigator’s water plan even before it is developed. The plan is not subject to public comment or oversight, only a 60 day review by the Bureau of Reclamation.
Second, Glen’s assertions that the KBRA does affect commercial farming on Tule Lake and Lower Klamath National Wildlife Refuges is flat out false. Section 15.4.3 A. on page 100 of the KBRA requires all non-federal parties to support continued commercial farming on 22,000 acres of Tule Lake and Lower Klamath National Wildlife Refuges. The purpose of this provision is to promote the continuation of commercial farming of these important refuge lands and to lock this in for the 50 year term of the agreement. While the Kuchel Act did open up the refuges for commercial farming, the Kuchel Act does not lock in commercial farming. The Kuchel Act only allows leaseland farming that is consistent with waterfowl management. As Glen is aware, at the end of the Clinton administration the refuge manager issued a draft EA that indicated the commercial farming program was incompatible with the refuge purposes at least in dry water years, but the final EA didn’t come out until Bush came into office and the findings of incompatibility were changed. In addition, the National Wildlife System Improvement Act of 1997 requires that all refuges develop a Comprehensive Conservation Plan (CCP), wherein all refuge activities are reviewed for compatibility. Even with the Kuchel Act commercial farming could be ended as incompatible with refuge purposes. The CCP process for Tule Lake and Lower Klamath Refuges is about to begin. If the KBRA becomes effective, then it could be seen as a directive to continue the program and it will put intense pressure on the agency not to make a determination that the commercial farming program is incompatible and the KBRA will give the agencies cover because of the non-federal parties support for continuing commercial farming on the refuges. This harmful practice on two of the nation’s most important national wildlife refuges should be phased out not locked in. Phasing out commercial farming would not only provide additional wildlife habitat, it would reduce irrigation season water demand, allow for natural storage of winter water, and help improve water quality. The project irrigators knew the CCP process was coming, and that is one of the reasons they demanded parties to the KBRA to support continuing commercial farming.
In addition, if commercial farming cannot be ended through the CCP process, legislation is another approach to eliminating the commercial farming on the refuges, which legislation would at least in part repeal the Kuchel Act. Having a large number of groups signed on to the KBRA supporting continuation of commercial farming on the refuges fro 50 years, will certainly make this approach much more difficult, and may even obligate KBRA parties to oppose efforts to end commercial farming on the refuges. With what the Project irrigators are getting in the KBRA (See the attachment on unwarranted and harmful KBRA subsidies), parties should have negotiated for the termination of the commercial farming program, but instead are trying to lock it in because that is one of the many provisions the Project irrigators demanded in exchange for their political support for dam removal.
A number of other provisions in the KBRA also help lock in commercial farming on these important national wildlife refuges by promoting federal agency reliance on commercial farming on the refuges and building a greater constituency for it by changing existing law. Section 15.4.4 B and Appendix A, Section H of the KBRA provide that approximately 60% of the net revenue from leasing refuge land for commercial farming will go to a Reclamation fund and applied to the benefit of Project irrigators, either by covering costs of maintaining and operating Keno and Link River Dams (a cost that should be born by Project irrigators), by reducing future capital costs of the Project or by subsidizing power costs to both on and off Project irrigators. By diverting these funds for these purposes, the KBRA will increase and broaden the political support for continuing commercial farming on these two national wildlife refuges at a time many have begun to question the practice. In addition 20% of the revenues would go to USFWS (the other 20% is to go 10% to Tulelake Irrigation District and 10% to Klamath Drainage District, the two irrigation districts, whose customers commercially farm the refuges). These provisions will create an agency dependence on farming the refuges with both the Bureau of Reclamation and USFWS, which would make it harder to make the changes that are needed on these refuge lands. Parties to the KBRA are required to support federal legislation to implement these KBRA provisions as they are inconsistent with existing law.
The KBRA also provides over $50 million in power subsidies and special contracts which will make it economically possible to keep pumping water off Tule Lake NWR wetlands in order to drain them for commercial farming. This too helps lock in commercial farming on the refuges.
Glen also asserts the KBRA is a good water deal for the refuges. That too is very questionable when one takes a close look at the KBRA and when one considers other alternatives the refuges have to secure its needed water supply. First the KBRA does not affect water deliveries to Tule Lake NWR, only Lower Klamath NWR. Lower Klamath NWR’s water needs based on current refuge management goals are equal to 60,000 acre-feet during the irrigation season and 35,000 acre-feet in the winter. Because the refuge’s water rights for refuge wetlands have a priority date of 1908 and the Klamath Reclamation Project has a 1905 priority date for irrigation, Lower Klamath NWR wetlands have suffered recently, especially in the drier years. Under the KBRA, the irrigation season allocation is 60,000 acre-feet in the wetter years and then is progressively diminished to 48,000 acre-feet as water year types get drier, with a dramatic additional reduction in drought years (see below). Though this may currently put the refuge in a better water situation than it currently is in, this is only because the Klamath Basin water adjudication is not complete and the State of Oregon does not regulate water users that have water rights junior to the refuges. It is also because the US Fish and Wildlife Service (USFWS) does not, as it should, require the 1905 priority dated water rights associated with the refuge lands farmed for commercial agriculture to be delivered to refuge wetlands rather than for irrigating 22,000 acres of refuge land for commercially farming. In fact, by locking in leaseland farming for 50 years, the KBRA would eliminate the best way to give water security to the refuges, which would be to phase out commercial farming on the refuges and use those lands to store winter water, and use the water rights associated with those lands for refuge purposes.
Though the KBRA gives Lower Klamath NWR a water allocation if certain conditions are met, the allocation will not go into affect until at least 2017, if at all (See Section 15.1.2 C, 15.3.1 A, 15.3.8A). Even if it goes into effect, it is not the full amount needed except in wet water years, and the KBRA has language that could be interpreted to limit the ability of Lower Klamath NWR to do better in drier years, or expand its wetlands in wetter years. Section 15.1.2 E iii (e) provides that the allocation to Lower Klamath NWR shall be reduced by any delivery of surface water through Reclamation facilities from other delivery points. This would limit the ability of the refuges to increase their water supplies by developing other water sources by purchase, lease, or storage, if the newly acquired water was delivered through Reclamation facilities. It should be noted that under the KBRA, the Project irrigators guaranteed water from the Klamath River is not reduced if they find or develop alternate sources of water, but the refuges are not allowed to do better by developing or purchasing alternate sources, even though under the National Wildlife Systems Improvement Act the Secretary of Interior is required to secure needed refuge water supplies.
In addition, Sections 18.3.2 B and 15.1.2 E (ii) of the agreement also reduce, if not eliminate, the possibility of storing water on the refuges for increasing refuge water supply. Section 18.3.2 B predetermines how all new storage should be allocated regardless of where it is developed and refuges are not identified as a priority to receive any newly stored water, and Section 15.1.2 E (ii) reduces irrigation season deliveries to Lower Klamath NWR by any amount stored on the refuge in excess of the 35,000 acre-feet wintertime allocation. Section 15.1.2 E (iii) also sets forth other situations that would also reduce the allocation of water to Lower Klamath NWR, including reducing the irrigation season allocation by one-acre foot for each acre placed in walking wetlands, whether the walking wetlands are on refuge or private lands, and regardless of how much water is actually delivered to the walking wetland.
Lower Klamath NWR’s water shortages are typically most acute in the drier years and the KBRA doesn’t change this. In fact the KBRA locks in a drought year response that reduces the refuge’s already low dry year allocation in the KBRA of 48,000 acre-feet down to 24,000 acre-feet and possibly lower (Section 15.1.2 F). (In this regard it should be noted that a prior biological opinion indicated a minimum of 32,000 acre-feet is necessary just to support the waterfowl food base of the approximately 1,000 bald eagles that overwinter in the basin.) These drier year and drought year cutbacks to water delivered to Lower Klamath NWR wetlands are required under the KBRA, without first requiring cutbacks in water delivered to irrigators commercially farming National Wildlife Refuge land. This is most likely in violation of the Kuchel Act and National Wildlife System Improvement Act of 1997. There was a move at the end of the Clinton administration to enforce these laws by first requiring reductions in commercial farming on the refuges to avoid cutting back water deliveries to the refuges. Ironically, Section 15.1.2G (iv) of the KBRA does allow the On-Project Water plan to limit deliveries to these refuge leaselands to meet water needs on private farms, but not to meet refuge needs.
We believe Congressional approval of the KBRA and/or authorization for the Secretary of Interior to sign the KBRA would impede needed management reforms on these important refuges for the next 50 years.
For more detail on impacts of the KBRA on the refuges and for more information on WaterWatch’s concerns about the KBRA and KHSA I have attached more information for those who are interested.
It is unfortunate, that these agreements have caused such deep divisions among historic allies that had in the past worked together on the shared goal of an ecologically healthy and restored basin. The sad thing is that the KBRA is not needed for dam removal. The terms in the KBRA are not important to PacifiCorp. What is needed is a separate deal with PC that is not encumbered by the unrelated, harmful and expensive provisions of the KBRA. I also think it sets a really bad precedent, at least for the conservation community, to trade off important unrelated conservation interests to get political support for dam removal.
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.
While it is true, the KBRA does not waive the application of the ESA, it is equally true that the KBRA is intended to be the basis of regulatory assurances under the ESA that will deliver the amount of water specified in Appendix E to Klamath Project irrigators. We believe the KBRA undermines the administration of the ESA because it requires parties to support regulatory assurances consistent with the diversion limitations/guarantees to irrigators without providing minimum flow protections for fish. (See section 3.1.2, section 21.3, and section 21.3.1 B of the KBRA) The KBRA puts tremendous political pressure on NMFS and USFWS to come up with bi-ops that allow water diversions at the level set forth in Appendix E, and gives them cover to do so as non-federal KBRA parties are required to support those agencies in doing just that. (See Section 21.3.1 A and 21.3.1 B ii a.). The KBRA also invites NMFS and USFWS to rely on actions planned (but not funded) in the KBRA as a reason to conclude fish will need less water than the current biological opinion requires, and also invites them to deliver incidental take coverage based on the diversion limitations/guarantees (See Section 22.2.2 through 22.2.5). In fact this coverage is contemplated to even last beyond the 50 year term of the agreement (See the last sentence of 22.2.1). There is already a strong indication that the federal agencies have been delaying doing another biop until the KBRA is in place, so that the KBRA can be used as a basis to assert fish need less water than they are now receiving under current ESA regulation because of the contemplated benefits of KBRA restoration and dam removal if it actually occurs. Again the lines between science and politics will get blurred with the KBRA in place.
It is interesting that Section 1.3 of the KBRA states that one of the goals of the KBRA is to establish reliable water supplies for agriculture, while there is no parallel goal of a reliable water supply for fish. This highlights another major deficiency in the KBRA when it comes to water for fish. There are no guarantees of any minimum flows or bucket of water for fish in the agreement, and in fact the KBRA makes it clear that the predicted flows are not guaranteed, and the KBRA does not provide any clear trigger or clear path of action under the KBRA if the predicted flows are not showing up. This puts the risk of the KBRA predicted flows being available squarely on the fish. With climate change this risk becomes quite high.
The risk of the predicted flows being enough water for fish is also on the fish and the burden of proof will be back on the fish to show they need more water. The late Ronnie Pierce used to talk about how fish flows historically were determined in the Klamath. She would show every time people got together to determine what fish needed the answer was always fish only needed the amount of water that was left over after other uses got theirs. The KBRA appears to be another point in history where this is again playing out. The predicted flows often do not match Hardy flows which are currently deemed the best available science. If Hardy is considered the best available science, why not manage for Hardy. Flow management under the KBRA will be an experiment where the fish suffer if it is not working out. Unfortunately, because the agreement does not have any clear measurable goals or standards to reopen the diversion limitations there is no clear trigger or clear path of action under the KBRA if it turns out the fish are still doing badly or populations are not recovering. We are very concerned that the irrigation limitations are set too high, leaving too little water left over for fish. In fact the KBRA predicted bucket of water is less than the total bucket of water under Hardy in all years except the very wettest (10% exceedence).
In drought situations no one is disputing that fish will need more water, yet a drought plan is not yet in place (Section 19.2). That means there currently is no means of assessing whether or not an adequate drought plan will be developed before support for the KBRA and legislation will be requested. The KBRA itself may limit the ability to negotiate a plan that will effectively deal with droughts because the KBRA only explicitly allows for changes in the diversion limitations/guarantees in extreme droughts (See Section 19.2B iii. v.). Extreme droughts are defined as conditions that have only occurred twice in the last 40 years so diversion limitations/guarantees would only occur in exceptional circumstances. The predicted flows are less than what is needed for fish in many more years than extreme drought years, yet the KBRA does not even define what other conditions would be covered by a yet to be created drought plan. This is not acceptable. A drought plan should be developed to ensure specified scientifically based minimum flows for fish are met, and should be made available for public review before Congress is asked to confirm, approve, ratify and/or authorize implementation of the KBRA. Glen suggests that we all will get to participate in the development of the drought plan. This is not the case. Section 19.2.1 makes it clear that the plan will be developed by a small subset of the Parties signing the KBRA, and no more than one NGO, and only then, if designated by consensus of the other parties. This does not bode well for a robust drought plan.
The drought plan also allows for waiving of the groundwater standards in an extreme drought, which could adversely affect flows. This also highlights the fact that if the irrigators choose to have significant groundwater development in their water plan to replace the water they will no longer be diverting from the Klamath River, then groundwater may well not be available in an emergency.
One matter that does not get discussed much as the major focus seems to be on the river and salmon, and that is the fact that there is one endangered and one threatened species of sucker in Upper Klamath Lake and that to achieve the predicted river flows and meet the irrigation guarantees, one is trading off lake levels. The risk of there being too little water in the lake is also on the fish. In addition, the predicted lake levels will periodically go low enough to completely drain all 14,000 acres of wetlands in Upper Klamath National Wildlife. (See Appendix E-5.4, 5.6 and 5.8 which show predicted lake levels –when lake levels go below 4140, wetlands around the lake start to dry out and when the lake elevation reaches 4139 all wetlands around the lake will be totally dry.) The point being the limitations on irrigation in the KBRA are not large enough to balance other water demands.
It also needs to be noted that the diversion limitations in the KBRA only limit surface water diversions from the Klamath River, they do not otherwise limit the diversions of the irrigators. The $92.5 million allocated in the KBRA to Project irrigators to develop and implement their own water plan could end up being a plan to just replace reduced surface water diversions from the Klamath River with groundwater. Even with the KBRA monitoring protections to be put in place to attempt to keep ground water impacts limited to 6% this could still take surface water away from the Klamath River. In addition, to the extent increased groundwater extraction affects the Lost River Basin, it might limit return flows through the Klamath Straits Drain, thereby again reducing river flows for fish. Parties to the agreement are agreeing to fund and support the Project irrigator’s water plan even before it is developed. The plan is not subject to public comment or oversight, only a 60 day review by the Bureau of Reclamation.
Second, Glen’s assertions that the KBRA does affect commercial farming on Tule Lake and Lower Klamath National Wildlife Refuges is flat out false. Section 15.4.3 A. on page 100 of the KBRA requires all non-federal parties to support continued commercial farming on 22,000 acres of Tule Lake and Lower Klamath National Wildlife Refuges. The purpose of this provision is to promote the continuation of commercial farming of these important refuge lands and to lock this in for the 50 year term of the agreement. While the Kuchel Act did open up the refuges for commercial farming, the Kuchel Act does not lock in commercial farming. The Kuchel Act only allows leaseland farming that is consistent with waterfowl management. As Glen is aware, at the end of the Clinton administration the refuge manager issued a draft EA that indicated the commercial farming program was incompatible with the refuge purposes at least in dry water years, but the final EA didn’t come out until Bush came into office and the findings of incompatibility were changed. In addition, the National Wildlife System Improvement Act of 1997 requires that all refuges develop a Comprehensive Conservation Plan (CCP), wherein all refuge activities are reviewed for compatibility. Even with the Kuchel Act commercial farming could be ended as incompatible with refuge purposes. The CCP process for Tule Lake and Lower Klamath Refuges is about to begin. If the KBRA becomes effective, then it could be seen as a directive to continue the program and it will put intense pressure on the agency not to make a determination that the commercial farming program is incompatible and the KBRA will give the agencies cover because of the non-federal parties support for continuing commercial farming on the refuges. This harmful practice on two of the nation’s most important national wildlife refuges should be phased out not locked in. Phasing out commercial farming would not only provide additional wildlife habitat, it would reduce irrigation season water demand, allow for natural storage of winter water, and help improve water quality. The project irrigators knew the CCP process was coming, and that is one of the reasons they demanded parties to the KBRA to support continuing commercial farming.
In addition, if commercial farming cannot be ended through the CCP process, legislation is another approach to eliminating the commercial farming on the refuges, which legislation would at least in part repeal the Kuchel Act. Having a large number of groups signed on to the KBRA supporting continuation of commercial farming on the refuges fro 50 years, will certainly make this approach much more difficult, and may even obligate KBRA parties to oppose efforts to end commercial farming on the refuges. With what the Project irrigators are getting in the KBRA (See the attachment on unwarranted and harmful KBRA subsidies), parties should have negotiated for the termination of the commercial farming program, but instead are trying to lock it in because that is one of the many provisions the Project irrigators demanded in exchange for their political support for dam removal.
A number of other provisions in the KBRA also help lock in commercial farming on these important national wildlife refuges by promoting federal agency reliance on commercial farming on the refuges and building a greater constituency for it by changing existing law. Section 15.4.4 B and Appendix A, Section H of the KBRA provide that approximately 60% of the net revenue from leasing refuge land for commercial farming will go to a Reclamation fund and applied to the benefit of Project irrigators, either by covering costs of maintaining and operating Keno and Link River Dams (a cost that should be born by Project irrigators), by reducing future capital costs of the Project or by subsidizing power costs to both on and off Project irrigators. By diverting these funds for these purposes, the KBRA will increase and broaden the political support for continuing commercial farming on these two national wildlife refuges at a time many have begun to question the practice. In addition 20% of the revenues would go to USFWS (the other 20% is to go 10% to Tulelake Irrigation District and 10% to Klamath Drainage District, the two irrigation districts, whose customers commercially farm the refuges). These provisions will create an agency dependence on farming the refuges with both the Bureau of Reclamation and USFWS, which would make it harder to make the changes that are needed on these refuge lands. Parties to the KBRA are required to support federal legislation to implement these KBRA provisions as they are inconsistent with existing law.
The KBRA also provides over $50 million in power subsidies and special contracts which will make it economically possible to keep pumping water off Tule Lake NWR wetlands in order to drain them for commercial farming. This too helps lock in commercial farming on the refuges.
Glen also asserts the KBRA is a good water deal for the refuges. That too is very questionable when one takes a close look at the KBRA and when one considers other alternatives the refuges have to secure its needed water supply. First the KBRA does not affect water deliveries to Tule Lake NWR, only Lower Klamath NWR. Lower Klamath NWR’s water needs based on current refuge management goals are equal to 60,000 acre-feet during the irrigation season and 35,000 acre-feet in the winter. Because the refuge’s water rights for refuge wetlands have a priority date of 1908 and the Klamath Reclamation Project has a 1905 priority date for irrigation, Lower Klamath NWR wetlands have suffered recently, especially in the drier years. Under the KBRA, the irrigation season allocation is 60,000 acre-feet in the wetter years and then is progressively diminished to 48,000 acre-feet as water year types get drier, with a dramatic additional reduction in drought years (see below). Though this may currently put the refuge in a better water situation than it currently is in, this is only because the Klamath Basin water adjudication is not complete and the State of Oregon does not regulate water users that have water rights junior to the refuges. It is also because the US Fish and Wildlife Service (USFWS) does not, as it should, require the 1905 priority dated water rights associated with the refuge lands farmed for commercial agriculture to be delivered to refuge wetlands rather than for irrigating 22,000 acres of refuge land for commercially farming. In fact, by locking in leaseland farming for 50 years, the KBRA would eliminate the best way to give water security to the refuges, which would be to phase out commercial farming on the refuges and use those lands to store winter water, and use the water rights associated with those lands for refuge purposes.
Though the KBRA gives Lower Klamath NWR a water allocation if certain conditions are met, the allocation will not go into affect until at least 2017, if at all (See Section 15.1.2 C, 15.3.1 A, 15.3.8A). Even if it goes into effect, it is not the full amount needed except in wet water years, and the KBRA has language that could be interpreted to limit the ability of Lower Klamath NWR to do better in drier years, or expand its wetlands in wetter years. Section 15.1.2 E iii (e) provides that the allocation to Lower Klamath NWR shall be reduced by any delivery of surface water through Reclamation facilities from other delivery points. This would limit the ability of the refuges to increase their water supplies by developing other water sources by purchase, lease, or storage, if the newly acquired water was delivered through Reclamation facilities. It should be noted that under the KBRA, the Project irrigators guaranteed water from the Klamath River is not reduced if they find or develop alternate sources of water, but the refuges are not allowed to do better by developing or purchasing alternate sources, even though under the National Wildlife Systems Improvement Act the Secretary of Interior is required to secure needed refuge water supplies.
In addition, Sections 18.3.2 B and 15.1.2 E (ii) of the agreement also reduce, if not eliminate, the possibility of storing water on the refuges for increasing refuge water supply. Section 18.3.2 B predetermines how all new storage should be allocated regardless of where it is developed and refuges are not identified as a priority to receive any newly stored water, and Section 15.1.2 E (ii) reduces irrigation season deliveries to Lower Klamath NWR by any amount stored on the refuge in excess of the 35,000 acre-feet wintertime allocation. Section 15.1.2 E (iii) also sets forth other situations that would also reduce the allocation of water to Lower Klamath NWR, including reducing the irrigation season allocation by one-acre foot for each acre placed in walking wetlands, whether the walking wetlands are on refuge or private lands, and regardless of how much water is actually delivered to the walking wetland.
Lower Klamath NWR’s water shortages are typically most acute in the drier years and the KBRA doesn’t change this. In fact the KBRA locks in a drought year response that reduces the refuge’s already low dry year allocation in the KBRA of 48,000 acre-feet down to 24,000 acre-feet and possibly lower (Section 15.1.2 F). (In this regard it should be noted that a prior biological opinion indicated a minimum of 32,000 acre-feet is necessary just to support the waterfowl food base of the approximately 1,000 bald eagles that overwinter in the basin.) These drier year and drought year cutbacks to water delivered to Lower Klamath NWR wetlands are required under the KBRA, without first requiring cutbacks in water delivered to irrigators commercially farming National Wildlife Refuge land. This is most likely in violation of the Kuchel Act and National Wildlife System Improvement Act of 1997. There was a move at the end of the Clinton administration to enforce these laws by first requiring reductions in commercial farming on the refuges to avoid cutting back water deliveries to the refuges. Ironically, Section 15.1.2G (iv) of the KBRA does allow the On-Project Water plan to limit deliveries to these refuge leaselands to meet water needs on private farms, but not to meet refuge needs.
We believe Congressional approval of the KBRA and/or authorization for the Secretary of Interior to sign the KBRA would impede needed management reforms on these important refuges for the next 50 years.
For more detail on impacts of the KBRA on the refuges and for more information on WaterWatch’s concerns about the KBRA and KHSA I have attached more information for those who are interested.
It is unfortunate, that these agreements have caused such deep divisions among historic allies that had in the past worked together on the shared goal of an ecologically healthy and restored basin. The sad thing is that the KBRA is not needed for dam removal. The terms in the KBRA are not important to PacifiCorp. What is needed is a separate deal with PC that is not encumbered by the unrelated, harmful and expensive provisions of the KBRA. I also think it sets a really bad precedent, at least for the conservation community, to trade off important unrelated conservation interests to get political support for dam removal.
1 comment:
The birds need food ! barley and potatoes sustain large numbers of waterfowl - instead of focusing on taking away a food source we need to find a way to flood the areas in place - the Stearns and Orem units are a good place to start - I do not believe the current Ag practice uses enough water to flood all these areas- it seems like a minimal amount would be saved by not farming -and the refuge will still go dry
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