Friday, November 12, 2010

Implementing the Klamath Agreements - Report #1

Behind the Klamath Curtain:
Managing Water and Endangered Species in the post-KBRA era

The Klamath Basin Restoration Agreement - the Water Deal - and the Klamath Hydroelectric Settlement Agreement - the Dam Deal - are done. Those who were going to sign have signed and those who were not going to sign have not signed. In the Klamath River Basin there has been a rearrangement of sides in what has always been a zero sum water game with winners and losers.

The federal agencies which provided motivation for the deal-making and who funded the effort have begun implementing many portions of the complex schemes which do not require Congressional action. Federal bureaucrats understand that consolidating the new management arrangements will return Klamath River Basin Water Management to their control and will allow them to conduct that management out of the public eye, that is, without interference from publicly elected officials and pesky citizen activists.

Indeed KlamBlog believes that was the federal family's agenda all along. The Klamath Deals are part of a long historical drama which has played out in the West since white Europeans first conquered the region. Because control of water gives the ultimate control in the water-limited western US, western water history has been dominated by the struggle to determine if the federal government, the states or local interests will control water and thereby the West’s destiny.

Congress may yet play a role in The Klamath's destiny. The Deals include plans for subsidies and restoration programs which require Congress to appropriate or redirect over a billion dollars in federal spending. That would be a tall order in these days of record deficits. Will our elected legislators give their blessing to the Deals; will they balance interests by giving both supporters and opponents some but not all of what they want; or will they take no action - leaving it to Obama Administration officials to implement the Deals within existing budgets? Only time will tell; KlamBlog will be watching and will report any indications that Congress is moving toward legislating for the Klamath River Basin.

In the meantime - in order to gain perspective on what the victory by federal agencies will mean on the ground - KlamBlog has been monitoring how water, fish, refuge and endangered species management are being implemented by federal and state agencies in the Basin in the post-Water Deal era. This is our first report on those investigations.

Implementing the ESA in the post-Water Deal Era

The web site created to sell the Klamath Dam and Water Deals boldly proclaims that…

The Klamath Agreements DO NOT affect the Endangered Species Act

The statement is true on its face but recent developments on the Klamath demonstrate that there are ways it is also not true. Those recent developments provide a window by which a careful observer can get an idea of what water and endangered species management will be like in the Klamath River Basin in the post-Water Deal era.

The events discussed below are being spun by federal agency and other spokespersons. Those who report in mainstream media on Klamath issues appear to be buying interpretations spun out by federal bureaucrats and other Water Deal promoters. KlamBlog will attempt to separate spin from reality in order to inform public participation in Klamath River Basin issues and management.

A new Bi-Op

We begin with the new Biological Opinion for operation of the Bureau of Reclamation’s Klamath Water Project. The “Bi-Op” (as it is called) - which issued from the National Marine Fisheries Service (NMFS) in May 2010 - is mandated to assure that operation of the Bureau of Reclamation’s Klamath Project does not jeopardize Coho Salmon. The Coho Bi-Op was due a year ago but was held up to accommodate completion of the Klamath Basin Restoration Agreement – the KBRA – also knows as the Water Deal.

Klamath River flows prescribed in the new Bi-Op reflect water allocations favored by those who negotiated the Water Deal. In order to provide more water to Klamath Project water users than they have received in most recent years, the Deal and the new Bi-Op provide lower Klamath River flows, except during the spring, in both very dry and very wet years.

The new Bi-Op has another big change: It allows the Bureau of Reclamation (the Bureau) to consider the ending elevation of Upper Klamath Lake in determining whether it is an extremely dry, dry, wet or very wet year.  That decision in turn determines how much water will flow in the Klamath River as well as how much will be delivered to the Bureau’s customers. The dryer the year the less water the Bureau must send down river for salmon.

2010 was dry in the Upper Basin but just how dry is under dispute. The US Departments of Agriculture and Commerce – which along with state agencies monitor precipitation, snowpack and run-off to make drought forecasts for all US regions – tell us that, as they predicted, it was a moderately dry year in the Upper Klamath River Basin. But according to the Bureau of Reclamation and the new Bi-Op it was an extremely dry year.

The difference between a dry year and an extremely dry year under the new Coho Bi-Op is a lot of water. In a dry year Iron Gate flows during the first part of August are set at 1005 cubic feet per second; in an extremely dry year only 880 cubic feet per second must be released downriver during that period. Water which is not released downriver or held in Upper Klamath Lake can be provided to the Bureau’s water customers.

Because the Bureau made full irrigation deliveries during a drought last year and drew Upper Klamath Lake down to the minimum, the new method allowed them to define this year as “extremely dry” and thereby to cut Klamath flows for salmon while maximizing the amount of water available for delivery to irrigators and other water customers.

It is a sweet deal for the Bureau and its customers: fish get less water and those who used to challenge such mischief provide cover because they support the Water Deal package which includes these lower flows.

But there was a problem. Inflow to Upper Klamath Lake reflected the predicted moderate drought year. As a result the Lake did not reached the elevation required during spring by the other Klamath Bi-Op – the one which is supposed to protect Kuptu and Tsuam - two Upper Basin sucker species which are listed as “endangered” pursuant to the Endangered Species Act.

This in turn meant that only half of the water which the Bureau’s customers demanded was available for diversion from Upper Klamath Lake. As soon as it became obvious that there would be a short-fall in Bureau water deliveries, declarations of drought were issued. As in the past when there has not been sufficient Klamath River water to meet the demands of Bureau of Reclamation customers, Congress appropriated taxpayer funds for “drought relief” and the Bureau paid irrigators to forgo taking surface water. However, most if not all of those who got paid not to take Klamath River water continued to irrigate by pumping groundwater. 

The scheme devised by the federal agencies apparently met the letter of the law. With the exception of the water elevation in Upper Klamath Lake last spring, minimum ESA requirements were met and the Bureau also met its contractual obligations to its customers.

Meeting the letter of the law, however, does not always provide justice and that was the case this year in the Klamath River Basin. The big losers were salmon, communities in the lower Lost River Basin, Klamath Wildlife Refuges and federal taxpayers. Here’s what was lost:

•    Klamath Salmon should have received Klamath River flows which corresponded to a moderately dry year. Instead – because the Bureau is allowed under the 2010 Bi-Op to manipulate water year types - salmon received the lower flows which they are only supposed to receive in an extremely dry year. Salmon and the Klamath River got less water this year than they would have received under the 2002 Bi-Op and the court injunction on that Bi-Op. The conclusion is inescapable: in 2010 salmon were a big looser in the Water Deal – they got less water than they would have received if the Deal had never been done.

•    Communities in the Lost River Basin were big losers because most of the shortfall in water which the Bureau provided to its customers was made up by pumping groundwater in the Tule Lake Area – the Lower Lost River Basin. The US Geological Service has published a report documenting that this water is being mined – groundwater pumping has doubled since 2000 and is lowering the water table more each year. The base groundwater level has not stabilizing. Under these conditions the two wells which supply drinking water to the town of Merrill went dry and town folk had to bear the cost of deepening the wells. Tulelake, Malin and other communities in the Lower Lost River Basin have all been forced to deepen drinking water wells in recent years. The owners of private domestic wells likely also have been forced to deepen their wells or to haul water during summer.

•    The Refuges were losers because the Bureau’s decision to draw down Upper Klamath Lake to the minimum in 2009 meant that Upper Klamath Refuge was dewatered during much of 2010. Tule Lake and Klamath Refuges got very little water this Fall and were also largely dewatered. Under the Water Deal the refuges are prohibited from securing an independent water supply.

•    Federal taxpayers once again had to pick up the bill for the failure of the Bureau to balance water demand with available supply. Mirroring the position of its influential customers, the Bureau of Reclamation has refused to cancel any of the contracts which obligate it to deliver water to over 200,000 acres of semi-arid desert - including a golf and country club, a hunting lodge and a community college. Because it also has obligations to provide the water which other federal agencies say is needed by the Basin’s threatened and endangered fishes, the Bureau faces a shortage of supply even in moderately dry years like 2010. The Bureau has solved this problem not by reducing demand (canceling contracts) but by mining groundwater…a practice that is unsustainable. But buying water from those who own the pumps costs a lot of money. It is the taxpayers who once again picked up the tab in 2010. The Bureau conveniently hides how much this is costing taxpayers behind mountains of paper and bureaucracy.

Seven of the wells that pump the most water are owned by Tule Lake Irrigation District and are located just south of the Oregon border. The wells, pumps and pipes were all supplied by the State of California courtesy of California taxpayers as part of the 2001 California Budget Deal. These wells and pumps are owned and controlled by Tulelake Irrigation District (TID). TID receives subsidized water from the Bureau with the one hand and sells groundwater back to the Bureau with the other. It is a great deal for the powerful irrigators who control TID but a bad deal for taxpayers.

The up and down sides of real time, adaptive water management

Water management in the Klamath River Basin in 2010 illustrates one of the main features of new, post-KBRA arrangements: real time and adaptive water management. Through the new Coho Bi-Op, Bureau of Reclamation water managers have gained the ability to change Klamath River flows by controlling the year end elevation of Upper Klamath Lake. Promoters of the Water Deal want Congress to give them even more discretion to manipulate Klamath River water based on their professional judgment.

The flexibility to manage water in real time is hailed by promoters as one of the Water Deal’s great strengths. Managers, they say, will be able to change flows and water allocations as needed to avoid bad outcomes like the 2002 fish kill. If Congress goes along, the judgment of  water managers could trump and override Bi-Op flows.

Bureau of Reclamation water managers are already making Klamath River water management decisions behind closed doors and without public oversight. If Water Deal promoters get what they want, those bureaucrats will be joined by others from federal, state and tribal agencies. But whoever is or is not allowed into the back room, these will remain human judgments and they can be good or bad, wise or unwise. The decision to make full irrigation deliveries in the midst of a drought and to draw down Upper Klamath Lake to the minimum last year was unwise and possibly arbitrary and capricious. Will decisions be better if Bureau water managers are joined by bureaucrats from other agencies and tribes?
Like all water managers the new managers proposed in the Water Deal - all federal, state and tribal bureaucrats – relish not having public oversight of their decisions. Whether that arrangement is in the best interest of the River is another question entirely. Discretion in the hands of bureaucrats is dangerous; bureaucratic discretion without oversight is a recipe for mischief and cascading unintended consequences.

Agency Spin

The Bureau of Reclamation’s 2010 Klamath Water Management Plan was spun by federal bureaucrats as designed to avoid a repeat of the 2001 die off of an estimated 68,000 adult salmon in the Lower Klamath River. Reflecting agency press releases, the Eureka Times Standard reported that “flows from lowermost Iron Gate Dam (will be) about 25 percent higher this September than they were in 2002, when 68,000 salmon died in a hot, shallow lower Klamath River.”

Not mentioned was the fact that flows would have been significantly higher this year if the 2002 Bi-Op court injunction were still in effect or if the Bureau had not chosen to make full irrigation deliveries and draw Upper Klamath Lake down to the minimum last year in the face of predictions that 2010 would be a moderate drought year. 

A strategy aimed at new taxpayer-funded water storage

When the complexities of Klamath River Basin water management are boiled down, the bottom line fact remains: there are too many demands in the Basin on too little water. The Water Deal’s approach to that problem is to forbid any reduction in the size of the Bureau of Reclamation’s Klamath Project while calling on water right holders outside the Project to sell their water rights.

Folks who understand water in the western US know that those who sell water rights these days need to have their heads examined. Irrigators in particular are being counseled by the Farm Bureau and others to hold on to water rights which are likely to be much more valuable in the future. At the same time federal tribes are being urged to make deals in which they give up or forebear to exercise water rights in exchange for money for cash-strapped tribal governments.

Because it goes against the self-interest of those who will need to willingly sell water rights, the Water Deal’s proposal to reduce demand by purchasing water rights from willing sellers is really just a ploy to get what promoters of the Deal really want – a new dam and reservoir in the Upper Basin with the Bureau of Reclamation’s Klamath Project getting the first call on that newly stored water.

To view a list of news clips which taken together make it clear that the Water Deal is seen as the means to a new dam and reservoir in the Upper Basin follow this link. The new hoped-for reservoir already has a name; it is to be called Long Lake.

Summing Up

Circling back now to the Endangered Species Act (ESA), we agree with Water Deal promoters that the Deal does not change the letter of the ESA. We have demonstrated, however, that it has already changed how federal bureaucrats are implementing the ESA. Under the new Bi-Op federal bureaucrats have regained substantial discretion to manage Klamath River Water. That discretion has already been used by the Bureau of Reclamation to minimize the amount of water which went to salmon in 2010. Legislating the Water Deal would neither enhance nor constrain that discretion. But it would put tribal, federal and state bureaucrats in the back room with the Bureau folks.

Federal agency bureaucrats have admitted privately that the new method for calculating whether the year is very dry, dry, wet or very wet is “a problem.” What they have not said is whether they intend to fix the problem. Unless the press starts asking tough questions and salmon advocates demand change, KlamBlog does not expect the “problem” to be fixed anytime soon.

Collaborative water management as envisioned by the Water Deal was implemented informally in the Klamath River Basin in 2010. By and large collaborative management is a good thing. But human managers will make "mistakes" which create "problems" as Bureau bureaucrats did last fall when they drew down Upper Klamath Lake to the minimum in the face of continued drought. Drought is predicted again this year; the Bureau could again minimize Klamath River flows next summer by manipulating the year end elevation of Upper Klamath Lake.

Unfortunately, the public will not know whether this has happened until it is too late. That is one among many reasons why Klamath River legislation should provide for oversight of decisions made by unelected bureaucrats. A new Klamath River Compact Commission - appointed by elected officials, empowered to oversee water management and restoration decisions and operating in public – would assure that decisions are transparent and subject to public review. There is nothing like public oversight to forestall bureaucratic mischief. 

The Water Deal can not change the weather or the climate. So long as demand for Klamath River Water exceeds supply, someone will need to decide how to allocate scarce Klamath River water. Congress should require that those decisions are made in public and overseen by elected officials. Stay tuned.

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