Monday, July 26, 2010

Klamath Confusion: Are Interior and Cal Fish & Game on the same page?

The California Department of Fish & Game and the US Department of Interior are working together to produce an environmental impact report and statement in support of a determination by the Secretary of the Interior on what to do with PacifiCorp’s five hydroelectric dams located on the mainstem of the Klamath River. It is widely believed that Secretary Salazar will decide to remove four of the five dams and transfer a fifth dam and reservoir - Keno - to the US Bureau of Reclamation. Close examination of the official purpose for the environmental review is crystal clear: the review is narrowly focused on whether removal of four dams is in the public interest and will advance restoration of Klamath River Salmon. It must also address what to do about the fifth PacifiCorp dam and reservoir – Keno.

But information provided to the public at scoping meetings - and contained on the federal government web site created for the environmental review - gives the distinct impression that the environmental review will not be limited to the fate of the dams – nor even only to the whole Klamath Hydroelectric Settlement Agreement (KHSA) – but will also analyze the costly and controversial Klamath Basin Restoration Agreement (KBRA). For example, the PowerPoint Presentation found on the web site and used at scoping meetings states that the purpose of the meetings is to:
             Provide you information about the environmental review process for the two connected  Klamath Agreements (KHSA and KBRA) and how you can be involved and informed.

Have NEPA and CEQA already been violated?

The National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) each require that the impacts of a proposed action which could significantly affect the natural and human environment must be analyzed and the impacts disclosed. Other actions which are materially connected to the proposed action must also be analyzed and disclosed.

There are connections between the KHSA (Dam Deal) and the KBRA (Water Deal). The connections, however, are mainly political rather than material. The one substantive issue where there is a connection is Keno Dam and Reservoir. PacifiCorp owns Keno but the Bureau of Reclamation and its water users want the dam and reservoir to stay in place. Keno Reservoir currently has the worst water quality in the entire Klamath River Basin; it kills fish every year. That water quality and Keno Dam are major barriers to the restoration of Klamath Salmon. Both the KHSA and KBRA will impact Keno and its future management and that future management must be addressed in the EIR/EIS. Most of the other issues and decisions in the KBRA, however, are not materially related to the fate of PacifiCorp’s dams.

By providing conflicting information on the scope of the environmental review being undertaken, it is likely that the Department of Interior and Cal Fish & Game have already violated the National Environmental Policy Act (NEPA) and the California Environmental Policy Act (CEQA). While the official statements of purpose are narrowly limited to consideration of dam removal and “connected actions”, the interaction of the agencies with the public has given the impression that the entire KHSA and the entire KBRA are up for review. Statements made by the public at scoping meetings consequently reflect confusion about whether the environmental review is just about dam removal or whether it is about the full scope of the KHSA and KBRA. Interior and Cal Fish and Game are responsible for this confusion.

Why this is important

Dam removal on the Klamath River has many supporters but also significant opponents. It can be confidently assumed that opponents will use any means at their disposal – including lawsuits – to block dam removal. By muddying the NEPA/CEQA waters with conflicting and confusing information, Interior and Cal Fish and Game have handed opponents of dam removal the means to frustrate – or at minimum significantly delay - removal efforts. The KBRA is a heavy anchor that may yet sink dam removal.

If KlamBlog wanted to block dam removal we would now just sit on our hands until the EIR/EIS is complete and then we would challenge the process in court as fatally corrupted because the responsible agencies provided the public with confusing information about the scope of the environmental review.

Opponents of dam removal include groups and governments with close ties to the Pacific Legal Foundation. Lawyer there must be licking their chops at prospects for blocking dam removal using NEPA and CEQA. Responsible federal and state officials have already given them a winning case on a silver platter.

Will they fix it?

What needs to happen now is for the federal Department of Interior and California Department of Fish & Game to decide what this environmental review is really about. If federal and state officials are serious about implementing dam removal they must narrow the focus of the EIS/EIR to the purpose stated in the Federal Register Notice and NOP. This means only considering KBRA impacts where they have a material connection to that EIR/EIS purpose.

Interior and Cal Fish & Game must restart the environmental review process and clearly tell the public what the review is about….as well as what it is not about. If they choose not to restart the process, KlamBlog predicts a successful legal challenge down the line.   
Should the KBRA be considered?

Mangers could choose to analyze the myriad of complex issues and impacts likely if the long, complex and scientifically-controversial KBRA is adopted and implemented. Such an EIS/EIR would likely also provide opponents of dam removal with opportunities to successfully block not only KBRA implementation but also dam removal. That’s the case because the KBRA ignores the best available science on the river flows it seeks to lock in. Recommendations of the second Klamath Report by the National Research Council - Hydrology, Ecology, and Fishes of the Klamath River Basin - are even omitted from the official government web site’s Bibliography of (Klamath) Science Studies.

The KBRA is a legal and political anchor capable of bringing down the KHSA and frustrating the hopes of those who want to restore the Klamath River and its fisheries.

An invitation

Is the EIR/EIS and the decision to be made what to do with PacifiCorp’s Klamath Dams or is it about whether or not to adopt and implement the costly and controversial KBRA? The Department of Interior and Cal Fish & Game appear confused themselves as to the answer. We invite both government agencies to clarify the question on this blog.

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