Monday, April 11, 2011

Unraveling the Klamath Bureaucratic Knot: What is the KBCC and what is it up to?

On Thursday April 5th KlamBlog correspondent Felice Pace had the opportunity to attend a meeting of the Klamath Basin Coordinating Council (KBCC) – a group called for in the KBRA Water Deal.  That Deal – which has not been signed by any federal government representative – calls for this group to provide public oversight of Upper Klamath River Basin water management and to be in charge fisheries/watershed restoration basin-wide. But, although its agenda deals entirely with Public Trust Resources, participation in the KBCC is tightly controlled. The entry ticket is an organization’s signature on the KBRA Water Deal and the KHSA Dam Deal.

Because neither the KBRA nor the KBCC have been authorized by Congress, the official function of this group at this point is limited to informing the public about those portions of the KBRA Deal which do not require congressional authorization. Aspects of the Water Deal are being implemented both by “Parties” to the KBRA (that is, those tribes and private organizations which have signed it) and those federal agencies - Department of Interior (BOR, BIA, USFWS, BLM) and the Department of Commerce (NOAA/NMFS) - which created it  Felice reports on those “updates” below.

“Parties” which have signed the KBRA include the Klamath Water Users Association (KWUA), Yurok Tribe, Karuk Tribe, Klamath Tribes, Trout Unlimited, American Rivers, Salmon River Restoration Council Humboldt and Klamath County.

 Mouth of the Klamath River - "Parties" to the KBRA Water deal have yet to meet inside the Klamath River Basin

Felice’s Report

What is most interesting about the Klamath Basin Coordinating Council’s (KBCC) Fortuna Meeting is not the meeting itself – which I report on below - but rather what happened the day before the meeting and on its margins.

Wednesday Meeting

The day before the public KBCC meeting, there were unannounced, private meetings of KBRA signatories – those tribes and private interests which identify themselves as “the parties” - with the federal agencies which actually created the KBRA but which have not and cannot sign it without Congressional authorization. Present at that meeting and likely facilitating it was Department of Interior contractor – Ed Sheets.

Federal officials are prohibited from seeking the advice of non-federal parties in private meetings unless an official committee for that purpose is authorized by Congress under the Federal Advisory Committee Act (FACA). On its face, the private meeting of Dam and Water Deal “Parties” with federal and state officials appears to violate FACA and state open meeting laws. But federal and state officials deny a violation. They say the “parties” requested the meeting and therefore there is no violation. KBRA Opponents seem to agree; to date no suit has been filed alleging FACA or open meeting law violations. Violation complaints filed with either a federal inspector general or a state attorney general would not be public unless announced by those filing the complaints. No such announcements have been made.

At Wednesday’s unnoticed meeting of “Parties” with federal and state officials there was a discussion of prospects for seeking Congressional blessing for the KBRA Water Deal and KHSA Dam Deal. That strategy discussion was mentioned in the public KBCC meeting on Thursday but no specifics were provided. Officially, the “Parties” remain “optimistic” that they will receive the authorizations and $1 billion in federal subsidies they seek. In light of the federal deficit, strong opposition within the Basin on both the right and left and the opposition of important House Republicans, however, the “optimism” of “parties” may be more show than real. 

There likely were other discussions at Wednesday’s unnoticed meeting which bear on the Public’s interests in the Klamath River and Klamath Salmon. Questions raised recently by KlamBlog and others about how the Endangered Species Act is being implemented within the Basin were hopefully discussed at length. But no information was offered about the nature of those discussions.

Thursday’s Meeting

Potential FACA violations were a topic of discussion at Thursday’s public meeting.  Concerns are apparently so great that the US Fish and Wildlife Service has offered to bring in their national FACA specialist to advise “parties” and the federal agencies involved. FACA “charters” are being drafted in anticipation of congressional authorization.

Most of the meeting was a series of reports on progress made on Dam and Water Deal work plans. Here are a few highlights:

PacifiCorp’s Tim Hemstreet reported on Dam Deal Work Plan implementation over a phone conference line. A written report was available at the meeting but is not available on line.

Keno: the dam that won’t come out

The most important information in Hermstreet’s report was about the fifth PacifiCorp Klamath River dam – Keno. Under the KHSA Dam Deal Keno Dam and Reservoir will be transferred to the US Bureau of Reclamation (BOR). A draft agreement between PacifiCorp and BOR for the transfer is on track for completion by June 1. It was stated that this agreement will undergo federal environmental review.

Keno Reservoir: Once connected to Lower Klamath Lake, Keno Reservoir receives all Klamath Project agricultural waste water. Consequently Keno has the worst water quality found anywhere within the Klamath River Basin.

Specifics of the Keno Transfer Agreement will be critically important to the future of the Klamath River and Klamath Salmon. Keno Reservoir receives the massive amounts of highly polluted irrigation, livestock and storm waste water generated within the 200,000 acre plus Klamath Project. Consequently Keno has the worst water quality in the entire Basin. The Transfer Plan should include specifics for how the BOR will meet applicable water quality standards.

Klamath water quality cannot be fixed – and Klamath Salmon cannot be restored – unless Keno is fixed. Many scientists and long-time Klamath River activists believe that the key to fixing Keno water quality is restoration of the former Lower Klamath Lake and its marshes.

Algae Bloom in Keno Reservoir: Fish kills - including kills of endangered Kuptu and Tsuam - occur at Keno nearly every year due to polluted discharges which  fuel algal blooms and kills fish.

PacifiCorp’s Coho Mitigation Fund

Hermstreet also reported that PacifiCorp is working with Cal Fish & Game and NMFS to identify projects for funding with the second year of the company’s Coho Mitigation Fund. The fund is part of the KHSA Dam Deal and is intended to mitigate dam impacts between now and dam removal sometime after 2020. KlamBlog and others have criticized the secret process used to allocate these funds and the lack of restoration standards, transparency and accountability within the program. In the first year of operation, for example, PacifiCorp funded yet another fish screen for ranchers in the Scott River Valley. Fish screens protect ranchers from “take” at diversion sites but do little if anything to help Coho recover.   

PacifiCorp appears to be poised to again allocate the Coho Mitigation funds it committed in the KHSA based on politically rather than scientific criteria. This mirrors how the California Department of Fish & Game has allocated salmon restoration funds in the Scott and Shasta River Basins. The dominance of political considerations over restoration science is the #1 reason why salmon restoration has, on balance, been a failure both within the Klamath River Basin and throughout the Northwest and California.

At the KBCC meeting PCFFA’s Glen Spain and SRCC’s Petey Brucker put in a plug for a transparent, public process for allocated Coho Mitigation funding. It is unclear whether these pleas will be heeded by PacifiCorp which controls the process and funding decisions.

Mr. Hemstreet also reported that the various studies needed for a decision on dam removal are on schedule.

Implementing the Water Deal

Ed Sheets – the contractor paid by the Department of Interior to facilitate and staff the KBCC – reported on implementation of the KBRA Water Deal work plan.  Many of the items in the work plan are on hold because they require federal legislation and/or the appropriation of new funding. However, several parts of the complex and controversial Deal which benefit those irrigators who receive water via the Bureau of Reclamation’s Klamath Project are moving forward.

Apparently the Bureau of Reclamation has chosen to fund Klamath Project Irrigators’ Water Deal priorities out of the agencies regular budget. This has not happened to the same extent with portions of the Deal which benefit tribal and environmental priorities. But this is nothing new: the Bureau of Reclamation has always had as a top priority taking care of “its” irrigators. More than 100 years of such preferential treatment - along with generous taxpayer subsidies – is what created the West’s Irrigation Elite.

In the Klamath River Basin the Irrigation Elite is represented by the Klamath Water Users Association (KWUA) and the new public entity they control – The Klamath Water and Power Agency (KWAPA).  The Irrigation Elite is ready to go out to bid on a feasibility study for bringing cheap Bonneville power to the pumps which the Bureau of Reclamation uses to wheel Klamath and Lost River waters. If obtained, that cheap Bonneville power will also power pumps which the Irrigation Elite use to sell water to the federal government. Reduced power costs would translate into increased profits at the expense of taxpayers.

As KlamBlog has pointed out, the Department of Interior has not chosen to balance the excess of demand for Klamath River water over supply by reducing demand. Instead the Bureau of Reclamation pays the same irrigation interests to whom it delivers subsidized Klamath River water for more expensive pumped groundwater. It is a sweet deal for irrigation interests especially because the largest pumps used to sell water to the Feds were given to irrigators free of charge by the State of California. This is the sort of sweetheart deal at taxpayer expense which justifies use of the term Irrigation Elite to describe the very well off Klamath Basin federal irrigators.

KWUA is close to going out to bid on a second Water Deal component – the On Project Plan. According to Deal promoter Glen Spain, this plan will spell out how the Irrigation Elite will work to reduce its use of Klamath River Water. Based on past experience with Klamath EQIP and other irrigator-developed “water conservation” programs, however, we can expect the Irrigation Elite’s On Project Plan to include taxpayer funded investments in irrigation “improvements” without any guarantee that water use will be reduced. In other words, this plan will set the stage for yet another taxpayer fleecing for the benefit of the Irrigation Elite

A plan for Bureaucratic Drought

My cynical expectations for the On Project Plan are based in part on the newly released Draft Drought Plan. Shrouded in dense legal terminology, this document repeats the Water Deal’s approach. Bottom line: If fish need water they will have to lease that water from the Irrigation Elite, i.e. river flows require corresponding money flows. If that approach becomes institutionalized, the Public Trust Doctrine as applied to water will have been effectively nullified within the Klamath River Basin and the Irrigation Elite will have transformed themselves into the Klamath’s Water Tzars.

The Draft Drought Plan contains a paragraph from the KBRA Water Deal which makes it clear that more water goes to the Irrigation Elite if the dams come down even if there is no reduction in water demand and no new water storage is developed. Here’s the key paragraph from KBRA section 15.1.1 repeated in the Draft Drought Plan:
The DIVERSION quantity specified in Appendix E-1 for the irrigation season will increase by 10,000 acre feet in some years effective March 1 after the earlier of: (1) the physical removal of all or part of each of the hydroelectric facilities has occurred and achieved a free-flowing condition and volitional fish passage; (ii) 10,000 acre-feet of new storage has been developed under section 18.3; or (iii) the KBCC, on or after February 1, 2020 and after receipt of recommendations from the TAT, determines the increase is appropriate.

The Drought Plan was discussed briefly at the Fortuna meeting. However, there was no discussion of two key questions left unanswered in the Draft Drought Plan:
  • Why must taxpayers pay irrigation interests for water to which fish have an absolute right pursuant to the Public Trust Doctrine? And,
  • If taxpayer funds to buy the water fish need are not available, how will the excess of supply over demand for Klamath River Water be resolved?

The Draft Drought Plan also advances the Irrigation Elite’s desire to control declarations of “drought” within the Basin. Currently droughts are declared by federal and state governments based on meteorological conditions and the size of the snow pack. If the Draft Drought Plan is institutionalized, however, drought will be declared by the State of Oregon in the Klamath River Basin whenever demand for Klamath River water exceeds supply. If that method for declaring drought is implemented, we will see bureaucratic droughts in the Klamath River Basin ever 4 or 5 years. In contrast, real droughts occur in the Basin on average about once in every 20 years.

Under current ESA management, flows in the Klamath River are cut drastically when a drought is declared. The Draft Drought Plan seeks to institutionalize yet another way that the KBRA Water Deal places the burden for reconciling water supply and demand squarely on the Klamath River and Klamath Salmon.

Because of the Water Deal, the 2010 Bi-Op reduced the amount of water which flows in the Klamath River during many times of year in most years. What will be the impact on Klamath Salmon if the dams come down and another 10,000 acre feet of water is taken away from the River and given to the Irrigation Elite? The Draft Drought Plan does not even ask the question much less answer it.

Can Klamath Salmon survive another 10,000 acre foot reduction in Klamath River flows?

Dam removal studies indicate that water quality in some months will be worse below Iron Gate once the dams are removed. Is that because of the Deal’s 10,000 acre reduction in flow? Whatever the reason, the double whammy of reduced river flow and worse water quality just might render dam removal under the KBRA Water Deal on balance bad for salmon. That’s one among the reasons it is in the interest of the Klamath River and Klamath Salmon to sever the political linkage between the Dam and Water Deals.

Those concerned about the possibility of worse conditions for salmon post dam removal, should insist that the dam removal EIS/EIR fully analyze and disclose the impact of loss of an additional 10,000 acre feet in River flow once the dams are breached.

Summing Up

In light of the federal budget impasse and the existence of powerful Republicans intent on cutting funding to implement the Dam and Water Deals, I found it surprising that there was absolutely no discussion during Thursday’s public meeting of contingency plans should the $1 billion in taxpayer subsidies called for in the Water Deal not be forthcoming from Congress. But then I learned about the secret meeting of the “Parties” with federal and state agencies on Wednesday. Discussion of such an important matter likely took place there away from public view.

I was the only member of the public to attend the Fortuna KBCC meeting which was not well publicized. During public comment at the end of the meeting, I pointed out that the KBCC – which aspires to govern Klamath Water and Restoration – has yet to meet within the Klamath River Basin. I noted that “Parties” justify meeting outside the Basin by claiming that government officials need to fly in. But the Fortuna meeting site is about as far South from Arcata Airport as the town of Klamath, near the River’s mouth, is to the North. I asked the “Parties” why they had chosen to go in the opposite direction. I then urged KBCC members to give thought to how they can empower the citizens of the Basin and encourage citizen involvement. A good start would be to begin meeting within the Basin. Yreka, Klamath and Klamath Falls all have airport access at about the same time-distance as that found in most major cities. 

It appears clear that Thursday's KBCC's Fortuna meeting was a show for the public while the real meat and the real discussions took place the day before at a meeting from which the Public – including those Klamath River interests which did not sign the Dam and Water Deals – were excluded. The message this delivers is that Dam and Water Deal “Parties” have no respect for the Public and no real interest in hearing from us. The KBCC show meeting began at about 9:30 and was wrapped up by noon.

Felice Pace for KlamBlog
April 10, 2011

If you want to know more 

You can keep up with public activities of the KBCC on line. For notice of KBCC public meetings and document releases contact DOI contractor Ed Sheets.  For notice of what KlamBlog can learn about the “Parties” non-public activities subscribe to KlamBlog Notices.  


In the interest of fully informing the public, KlamBlog invites Glen Spain and other Deal “Parties” who were at Wednesday’s and Thursday’s meetings in Fortuna – as well as federal and state officials either officially or anonymously -  to provide their reports or to comment on Felice’s report. Longer submissions should be e-mailed to 


Glen Spain said...

Glen Spain Response PART 1

Dear KlamBlog:

Thanks for the invitation to respond. And thanks for Felice’s report on the KBCC meeting in Fortuna, April 7th. All KBCC documents are now available at:

While Felice’s basic facts about the KBCC meeting are useful, there are, however, numerous inaccuracies, and some baseless accusations, that should be cleared up below. This will have to be done is several parts because of the character limits to this space.

1. NO NEFERIOUS APRIL 6th PLOTS: The April 6 meeting Felice speculated about was of the Technical Coordination Committee (TCC), not a KBCC meeting, nor related to the KBRA. The TCC is nothing more than a forum for regular monthly federal briefings of the Parties by federal scientists and engineers on the progress of the various NEPA and other studies required for the Secretarial Determination as delineated in the Klamath Hydropower Settlement Agreement (KHSA) at Appendix A.

Sorry, there were no discussions of lobbying efforts, no secret strategies, just somewhat dry presentations of the facts on what is currently happening with the studies with some Q&A. It is good federal policy to keep affected stakeholders – in this case as embodied in the Parties to the KHSA – informed on what is being done. But the TCC is not a decision-making body of any sort, nor does it make recommendations to any federal agencies in any form. It is just a standing briefing forum.

Nothing prevents individual Party participants from providing their feedback on these ongoing studies should they so choose, but they do so only as individual groups. NONE OF THIS IS BARRED IN ANY WAY BY FACA.

By the way, the information conveyed at these TCC meetings is pretty much the same information conveyed at the various Public Briefings the same federal experts and Team Leaders give around the basin, only more frequent. If Felice or anyone else wants to see what information these “secret meetings” are conveying, the next Public Briefing is on June 15, in Orleans, CA, (location TBD), 6 to 8PM. All are welcome.

Presentations from the meetings, and from the TCC (usually the same ones) are posted on: for all too see. [CONTINUED]

Glen Spain said...

Glen Spain Response PART 2

2. WHY DO KBCC PARTIES NEED TO KNOW ABOUT FACA?: KBCC Parties are seeking information and a bit of training on how FACA works for a very simple reason. Once the federal FACA Charter is granted for this purpose, most of these same Parties will become members of the separate but related FACA Committee called the Klamath Basin Advisory Committee (KBAC).

It is this KBAC which will, under FACA, provide restoration and water management advice to various federal agencies, not the KBCC whose job is only to coordinate. The Technical Advisory Team (TAT) will also be a charted FACA Committee. See KBRA Appendix D-1 and D-2 that spells all this out.

It only makes sense for people who are going to soon be on a FACA chartered committee to find out what that means and how to serve in that capacity well. Again, no nefarious schemes to circumvent FACA, only reasonable and timely efforts to understand it so as to comply with it fully.

3. CORRECTION: All of PacifiCorp’s periodic KHSA Implementation Reports to the KBCC ARE on the KBCC web site, though part of the whole document package. You stated they were unavailable on the Web. For the April 7 meeting it starts on page 6of the document package for the meeting. Eventually they will have their own URLs.

4. COHO MITIGATION FUND MANAGEMENT: You raise a concern about these funds being guided by political, rather than scientific, concerns. While always of concern, this is much less likely than you portray. Management of project selection is largely in the hands of CDFG and NMFS, which PacifiCorp must work with “in consultation.” See KHSA Appendix C, Interim Measure 2. [CONTINUED]

Glen Spain said...

Glen Spain Response PART 3

5. DROUGHT PLAN: You are quite incorrect in asserting that the Project Irrigators will have control over declaring a “Drought” or “Extreme Drought” under the KBRA Drought Plan or then be able to manipulate that process. Those declarations will be determined solely on the basis of hydrology, as the Draft Drought Plan indicates at Table 1. See:

Far from expecting such a declaration “every 4 of 5 years” as you assert, the two years 1992 and 1994 are used in the KBRA as SPECIFIC examples of “Extreme Drought” years (at Sec.19.2.2.A.i.a to be precise) and thus help define it. Both were at around (or worse than) the 95% exceedence levels for UKL inflow, i.e., the worst year in 20 years.

And of course, nothing in the Drought Plan supersedes, changes or overrides the minimum flow requirements of the Coho BiOp.

6. MISUNDERSTANDING THE NATURE OF THE 10,000 AF INCENTIVE: You are referring to a provision in the KBRA (Sec. 18.3.2.B, referring back to Sec. 15.1.1) by which -- FROM FUTURE STORAGE developed above and beyond the approx. 100,000 acre-feet of additional storage already required to be developed by the KBRA, and then ONLY AFTER FOUR DAM REMOVAL has been completed (2020), and then only with the approval of the Technical Advisory Team (TAT) and the Klamath Basin Coordination Council (KBCC) -- the low end of the "diversion cap" would be increased by 10,000 af up to 340,000 af maximum.

You should realize that even dam removal itself will increase the total amount of water available in the river -- right now about 15,000 af of water/year simply evaporates from the broad, warmed-up reservoirs. If dam removal does occur (a prerequisite to the 10,000 af increase) then some of that 15,000 af of extra water could go to irrigation and the rest to the river, benefiting both.

Likewise this promised increase is an economic incentive for the farmers in the upper basin to help us with finding and developing additional storage, likely by developing additional natural wetlands. They get something out of it too. But the fish would get even more. [CONTINUED]

Glen Spain said...

Glen Spain Response PART 4

7. PAYING TO RETIRE WATER RIGHTS: You raise two great Drought Plan questions which should be addressed:

Q. 1: “Why must taxpayers pay irrigation interests for water to which fish have an absolute right pursuant to the Public Trust Doctrine?”

ANSWER: Unfortunately, there IS no “absolute right” for fish to get water under the Public Trust Doctrine. There are public policies just as strong protecting water rights, most of the water we are talking about is diverted in Oregon, and Oregon water law DOES NOT RECOGNIZE the Public Trust Doctrine as you think of it in California. The Mono Lake Case which imported that ancient doctrine into California water law DOES NOT APPLY in Oregon and does not exist in federal law at all.

To really make sure you have water from senior water right holders in Oregon you have to purchase or lease it. But the fish do not care where it comes from, only that it is there when they need it. If the choice is between fish kills and buying water you buy water.

Q. 2: “If taxpayer funds to buy the water fish need are not available, how will the excess of supply over demand for Klamath River Water be resolved?

ANSWER: To resolve this real problem the Drought Fund that is to compensate Project irrigators for drought economic losses should eventually be fully funded by the Project irrigators themselves.

This is what is actually contemplated, which is why the KBRA Budget federal funding for the Drought Fund (Sec. 19.2) has only an initial $6 million in federal funds to “prime the pump.” The rest of the funds must eventually come from Project irrigators themselves, in annual payments made into this fund in good years to build up reserves for the 1 in 20 Extreme Drought year. Sort of like paying annual premiums on an insurance policy you only need once or twice.

Likewise funds for the Interim Flow and Lake Level Program (KBRA Sec. 20.4.3) is for the first ten years only, with declining needs as the “diversion cap,” off-Project 30,000 af, and 100,000 af extra storage are all brought on line and the water bank phased out.

The plan is decreasing dependence on federal funds, and if possible self-funding, in all of the future water bank programs.

---Glen Spain, for PCFFA

Felice Pace said...

Glen Spain claims in #6 of one of his comments on this post that the Irrigation Elite will only get another 10,000 acre feet of water:

"FROM FUTURE STORAGE developed above and beyond the approx. 100,000 acre-feet of additional storage already required to be developed by the KBRA, and then ONLY AFTER FOUR DAM REMOVAL has been completed (2020), and then only with the approval of the Technical Advisory Team (TAT) and the Klamath Basin Coordination Council (KBCC).."

This is not what the plain language of the KBRA provision says. Glen has missed or ignored the phrase "after the earlier of" in that provision. Here's what it says in whole:

"The DIVERSION quantity specified in Appendix E-1 for the irrigation season will increase by 10,000 acre feet in some years effective March 1 after the earlier of: (1) the physical removal of all or part of each of the hydroelectric facilities has occurred and achieved a free-flowing condition and volitional fish passage; (ii) 10,000 acre-feet of new storage has been developed under section 18.3; or (iii) the KBCC, on or after February 1, 2020 and after receipt of recommendations from the TAT, determines the increase is appropriate."

The 10,000 acre feet can go to the irrigation Elite whether or not new storage is developed and whether or not the dams come out.

Glen, please read the posts carefully before you comment.