Klamath Legislation Goes To Congress

KlamBlog has learned that legislation intended to implement aspects of the recently completed Klamath Dam and Water Deals has been forwarded to members of Congress. The proposed legislation was drafted by employees of the US Department of Interior which includes the Bureau of Reclamation and the US Fish and Wildlife Service. Beginning during the Bush Administration, Interior officials orchestrated the Klamath Deals and were actively promoting them even before they were completed.  Now it is up to Congress whether or not to accept costly and controversial provisions which require federal legislation.

Three elected tribal governments – those of the Klamath Tribes, Yurok Tribe and Karuk Tribe – support the Deals and claim they are the best path to dam removal. They are joined in that opinion by Trout Unlimited, California Trout and the Pacific Coast Federation of Fishermen’s Association. But environmental groups – including Oregon Wild, Water Watch of Oregon and The Northcoast Environmental Center - which were locked out of the negotiations or dropped out because their issues were ignored, claim the Water Deal shortchanges salmon and wildlife refuges. The Hoopa Tribe, the National Congress of American Indians and others are also concerned because the Interior Department wants Congress to terminate certain rights of Klamath River Basin federal tribes even if those tribes do not agree to termination of those rights.

Although they are linked politically, The Dam Deal (or Klamath Hydroelectric Settlement Agreement) and the Water Deal (or Klamath Basin Restoration Agreement) were negotiated separately. Congress could choose to move the two Deals forward together, separately or not at all. Because the Water Deal includes nearly a billion dollars in federal spending and would require even more taxpayer spending during droughts to provide the water salmon and other fish need, it will have a hard time making it through a Congress which faces huge deficits and a freeze on new discretionary spending.  The Water Deal will also be closely scrutinized because it favors some irrigators – those who are supplied water by the Bureau of Reclamation – over other Klamath River Basin irrigators who are not linked to the federal government.

Since passage of the Reclamation Act in 1902 the federal government has always favored the irrigators to whom it supplies irrigation water. Those favored Klamath River Basin irrigators – which now include schools, a community college, a golf and country club and a hunting lodge - would be allocated more water under the Water Deal than they have received in 8 of the last 10 years. They would be free to sell that water back to the Bureau of Reclamation to meet the in-river flow needs of salmon or to anyone else for whatever purpose. Depending on how Klamath legislation turns out - Klamath Project Water users may even be able to sell the water for export out of the Klamath River Basin.

But even if Congress does not endorse those provisions of the Water Deal which require federal legislation, many aspects of that Deal will nevertheless move forward. That is because most of what is in the Water Deal does not require federal legislation. In fact, many aspects of the Deal are either already well established or have recently been implemented by federal agencies. It is only the most controversial aspects which require federal legislation to move forward because they do not follow established laws and procedures. Only Congress can authorize dispensing with federal laws, regulations and procedures.

Another hurdle for Water Deal implementing legislation is the nearly $1 billion price tag. Half of that cost to federal taxpayers would be new spending. Congressional rules reinstituted by the Democrats mandate that Member of Congress who want new federal spending must propose an equal dollar amount in spending cuts. That means it will be necessary to cut funding already being received by other tribes as well as to cut existing restoration and science efforts both within the Klamath River Basin and in other river basins.

North Coast California Congressman Mike Thompson and Oregon Senator Jeff Merkley – who have expressed interest in sponsoring legislation to authorize and implement the Klamath Deals – may balk at cutting funding now being received by other constituents and interests.  Congressman Thompson has assured constituents that he will not simply do the bidding of Deal promoters but will carefully consider all proposals for fixing the Klamath and removing the dams. Some constituents have called for Thompson to hold hearings in his North Coast district. Other constituents have suggested so-called “clean dam” legislation which would scrap the controversial Water Deal and accelerate the schedule for dam removal.

While the Water Deal’s name – the Klamath Basin Restoration Agreement – implies that funding would be used for restoration, in reality only about 1/4th of the $1 billion taxpayer dollars sought by promoters would be used for restoration.  The rest would pay for new subsidies for those favored federal irrigation interests and the three tribes which signed the Deals. Even the roughly quarter billion dollars scheduled to be used for restoration is controversial, however. Most of that money would be spent in areas favored by Deal promoters while other portions of the Basin would receive little funding. The California State Grange has called for a public restoration planning process in which funds are allocated based on bang for the buck rather than politics.

Portions of the Klamath Deals which do not require federal legislation are also those which enjoy broad support. For example, marsh restoration around Upper Klamath Lake has been ongoing for a decade or more. Since the Dam Deal was signed, the Interior Department has also let contracts for private consultants to assess the costs and benefits of dam removal. Those assessments will be used by Interior Secretary Ken Salizar when he decides whether or not removing four of the five PacifiCorp dams and transferring a fifth dam and reservoir (Keno) to federal ownership is in the public interest.  The Dam Deal requires that decision be made by the end of 2012 but delays actual dam removal until 2020 or later. No federal funding is needed to implement the Dam Deal.

Some Klamath River activists fear that Coho Salmon will be driven to extinction before 2020 and they want the dams removed sooner.  These activists point to the fact that millions of juvenile salmon – including most of the Coho produced in tributaries - are killed every year below the dams as they attempt to make their way to the ocean. Scientific studies have linked those massive die offs to the poor water quality issuing from the upper Klamath River Basin. That lethal water is made much worse when it stagnates behind PacifiCorp’s dams.

The recently completed plan to clean up Klamath River water pollution adopted by the North Coast Water Quality Board (see KlamBlog’s Marsh 18th post)  also delays pollution clean-up and allows PacifiCorp to mitigate its water quality impacts by paying groups like The Nature Conservancy to restore wetlands in the Upper Basin above the dams. However, a decade of marsh restoration in the Upper Basin has not produced measurable improvement in Klamath River water quality. 

Also of concern to activists is the recently-released Biological Opinion detailing how the Bureau of Reclamation must operate its Klamath River water diversions to protect Klamath River Coho Salmon between now and 2020. Klamath Coho are listed as “threatened” under the Endangered Species Act. In reality, however, Coho in the Klamath are on the brink of extinction with only a handful of adults returning to spawn in the River and tributaries in 2 out of every 3 recent years.

Written by the National Marine Fisheries Service, the Coho Biological Opinion – often referred to as the Coho Bi-Op – is also of concern to river and salmon activists because it provides lower river flows in very dry and very wet years as compared to the Bi-Op it replaced. Those Klamath flow cuts are necessary in order to provide more water to federal water users as required by the Water Deal. The new Bi-Op’s flows are nearly identical to flows negotiated in that Deal.

The new Bi-Op changes the way drought conditions are defined. That change makes it possible for the Bureau of Reclamation to transform a dry year into a critically dry year for purposes of Endangered Species compliance. And that in turn translates into less water for fish and a larger share of water for irrigators and other water users. For example, the National Drought Mitigation Center - operated jointly by the USDA and NOAA to monitor drought conditions nation wide - has determined that 2010 will be a dry year in the Klamath River Basin but not a severe drought year. The new Bi-Op’s sleight of hand methodology, however, has transformed the dry year into a “critically dry year.”  Under the new Bi-Op that means a lower share of Klamath water for fish and a larger share for the water users whom the Bureau of Reclamation serves.

Unless corrected, the new Bi-Op’s sleight of hand methodology will severely limit river flows this year, reducing them in August to levels which were in effect when over 60,000 adult salmon sickened and died in the Lower Klamath River in 2002. That die off has been linked by scientists to low flows and poor water quality. In pre-Deal days a legal challenge would have been filed when federal agencies approved fish kill flows. But many past defenders of Klamath Salmon – most notably the Pacific Coast Federation of Fishermen’s Associations and the Yurok Tribe – are now promoters of the Dam and Water Deals. As a result they are likely to be unwilling to do anything which could be viewed as an admission that the Water Deal is not in the interest of Klamath Salmon.

Will the cozy relationship among those who championed Klamath Salmon in the past, the Bureau of Reclamation and the Upper Basin Water Users persuade those former salmon champions to forgo or even oppose a legal challenge to the flawed Bi-Op?  Will the so-called “adaptive management” procedures which Water Deal promoters brag about be used to fix this year’s fish kill flows? Will a wet Spring render the issue moot this year? Or will some group which is not conflicted by the Klamath Deals step forward on behalf of the Coho to challenge the Bi-Op?

Stay tuned – KlamBlog will work hard to keep you informed.