Tuesday, December 18, 2012

Critical Sucker Habitat: Another KBRA Pay-Out

On December 11, 2012 the US Fish & Wildlife Service published its final designation of Critical Habitat for Kuptu and Tsuam - two species of sucker fish found only in the Upper Klamath River Basin. Also known as the Shortnose and Lost River suckers, these fish have been listed as “endangered” under the US and California Endangered Species Acts since 1988. Critical Habitat for both species was first proposed by the federal government 18 years ago in 1994.  

While required by court order, the long-delayed designation of Critical Habitat in the Upper Klamath River Basin reflects the desire of the US Bureau of Reclamation and the irrigation interests it serves to be freed from restraints on their management of Klamath River water. The Bureau and irrigation interests want to maximize irrigation water delivery; that requires limiting Klamath River flows as well as the water provided for other fish and wildlife purposes. The Klamath Basin Restoration Agreement or KBRA contains provisions designed to facilitate that objective. Through the KBRA the Bureau and its irrigators hopes to secure the “relief” they desire from the Endangered Species Act and other wildlife protection laws.

Tsuam (C'waam), aka Lost River Sucker, was listed as "endangered" in 1988

Media reports on the recent Critical Habitat designation fail to make the connection between the designation and the KBRA. In typical fashion, reporters and editors present the designation as an isolated act. Below KlamBlog lays out the connections and provides the context which mainstream reporters fail to provide.   

Wildlife management and the KBRA

One of the most insidious aspects of the KBRA is the manner in which the complex and controversial agreement treats wildlife protection laws including the US and California Endangered Species Acts (the ESA and C-ESA), the Migratory Bird Treaty Act, Bald Eagle Protection Act and California's fully protected species laws .  On the one hand, the KBRA affirms that the ESA and these other laws will be upheld throughout the Klamath River Basin; on the other hand, the deal contains provisions which undermine the integrity and effectiveness of these laws within a specific portion of the Klamath River Basin - the roughly 40% of the Basin located above Iron Gate Dam, including most of the Lost River Sub-Basin.

The Lost River Sub-Basin contains most of the 200,000 acres which receive irrigation, industrial, recreation and landscaping water via the US Bureau of Reclamation's Klamath Irrigation Project. It also contains the most valuable farmland in the entire Klamath River Basin – the bed of the former Tule Lake. That farmland is dominated by 8 large growers who, through ownership and lease, control nearly half of the area which receives water deliveries courtesy of the US Bureau of Reclamation.  Because of their political power and the manner in which federal and state agencies attend to their desires, KlamBlog has labeled these 8 growers the Basin's Irrigation Elite.

Tule Lake once covered 156 square miles or over 100,000 acres of open water and marsh. Together with Lower Klamath Lake, the area hosted up to 7 million migrating waterfowl each year – an avian display which observes believed was one of the world's greatest annual wildlife events.  Roughly 90% of the former Tule Lake has been drained, converted to farmland and supplied with federally subsidized irrigation water. These days fewer than 2 million birds pass through the Upper Klamath River Basin each year.

Avian displays at Tule Lake NWR can still be magnificent;
but they are a remnant of what was formerly seen there. 

The KBRA's attack on the integrity of the federal ESA is contained in Section 22; section 23 is designed to provide the Irrigation Elite with “relief” from provisions of the federal Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act. Subsequent sections provide the mechanisms for “relief” from the C-ESA and California fully protected species laws. While the language of these sections is complex, taken as a whole they describe what KlamBlog has called “wink and nod” management by federal and state officials responsible for implementing the ESA, C-ESA and other wildlife protection laws.

If the KBRA is endorsed by Congress and becomes the law of the land, the Irrigation Elite will prepare Habitat Conservation Plans and other documents designed to allow them to “take” (kill, harm or harass) otherwise protected species. Federal and state agencies responsible for protecting wildlife will review these plans and issue the requested permits.

The Feds deliver “relief”

While not official “parties” because federal authorizing legislation has not passed Congress, both the US Fish and Wildlife Services (FWS) and the National Marine Fisheries Services (NMFS) have now indicated through their actions that they will implement federal wildlife laws in a manner consistent with the KBRA, that is, in  a manner which allows the Bureau of Reclamation to maximize irrigation water delivery and minimize the amount of water provided to fish and wildlife. 

Soon after the KBRA was completed and signed, the National Marine Fisheries Service (NMFS) delivered that first installment of “relief” to the Irrigation Elite. The 2010 Biological Opinion for Coho had been delayed by the agency pending completion of the KBRA; when the Opinion did come out it closely reflected Klamath River flows prescribed in that agreement. While the KBRA guarantees water for the federal Irrigation Elite, river flows are not guaranteed. In the Brave New World of KBRA ESA management, Coho get what is left over after the Irrigation Elite get their guaranteed allocation.

The Basin's wildlife refuges have also suffered since the KBRA was completed. Just last spring the Bureau of Reclamation completely cut off water delivery to Lower Klamath National Wildlife Refuge. As KlamBlog reported, the Irrigation Elite heaped honors on federal officials who had done their bidding with respect to Klamath River flows even as an estimated 20,000 birds were dying on Lower Klamath and Tule Lake Refuges. Refuge managers attribute the bird deaths to a disease epidemic brought on by severe overcrowding on refuges that had been substantially dewatered in order to provide full water delivery to the Irrigation Elite.   

A volunteer removes a dead Snow Goose from Lower Klamath NWR in 2012

Last week the US Fish and Wildlife Service delivered a third installment of  ESA “relief” to the Bureau and its irrigators. The Service designated Critical Habitat for the Lost River and Shortnose sucker fish but eliminated from that designation all private land within the Lost River Basin. Essentially the designation (if it stands) substantially relieves the Irrigation Elite from responsibility for protecting Kuptu and Tsuam.

Ironically (and symbolically) the FWS action means that the Lost River sucker will likely be driven to extinction in the very river which gives the species its name.  As KlamBlog pointed out previously, under the KBRA Water Deal the Lost River Watershed is rendered an environmental sacrifice zone in order to provide regulatory “relief” and numerous other benefits to the Klamath's Irrigation Elite. 

California wildlife laws gutted

The KBRA's impact on the California ESA is direct. The Agreement – which California has signed – promises legislation to allow irrigators in the California portion of the Klamath River Basin located above Iron Gate Dam to “take” (kill, harm, harass) certain species which are C-ESA listed and also “fully protected” throughout California. Those species include the Lost River sucker, Shortnose sucker, Golden eagle, Bald eagle, Greater Sandhill crane and Peregrine falcon. 

While California law has not yet been changed pending federal legislation authorizing the KBRA, California wildlife officials have also already delivered installments on the “relief” sought by the Irrigation Elite. These officials looked the other way in 2010 when the Bureau of Reclamation cut off water delivery to the remnant Tule Lake where a group of adult Lost River suckers survive. An attempt to remove these fish from the remnant lake to facilitate dewatering likely involved “take” of what is supposed to be a California fully protected species. As they did previously with respect to Bald eagles, officials from the California Department of Fish and Game simply looked the other way while California law was being violated.  

KBRA provisions gutting California wildlife protection laws are contained in KBRA Section 24. The California irrigators who will benefit most are the handful of very large growers who through ownership and lease control the majority of the most valuable agricultural land in the Klamath River Basin, that is, the former bed of Tule Lake.

If KBRA-friendly agency policies and actions reflected in the 2010 Coho Biological Opinion, Refuge bird deaths and sucker Critical Habitat designation become enshrined in federal and California law, the Irrigation Elite will have succeeded in rendering the ESA, C-ESA and several other wildlife laws toothless within the boundaries of the Klamath Irrigation Project, including most of the Lost River Basin.

The Resighini Rancheria has done an excellent job describing on line how the welfare of Kuptu and Tsuam – the Shortnose and Lost River sucker fish – has been sacrificed to relieve the Irrigation Elite from the burden of having to prevent the fishes' extinction.

Who will challenge?

As of this writing, it is unclear whether elimination of the Lost River and Tule Lake area from Critical Habitat for Kuptu and Tsuam will be challenged in court. The first dose of regulatory relieve for the Irrigation Elite – the 2010 Coho Biological Opinion – was not legally challenged. That was largely due to the intervention of the Pacific Coast Federation of Fishermen's Association (PCFFA) – a salmon fishing industry organization which has signed and now strenuously defends the KBRA.

Along with a host of environmental organizations, PCFFA was a plaintiff in litigation challenging the 2002 Coho Biological Opinion for operation of the Bureau of Reclamation's Klamath Irrigation Project. That put the organization in a position to block Earthjustice – the law firm which successfully challenged the 2002 Biological Opinion – from representing those environmental organizations wanting to challenge the 2010 Opinion. The 2010 Opinion provides less water for Coho as compared to the 2002 Opinion which federal courts found did not provide sufficient river flows to sustain Coho salmon.

Even though it likely violated the Bald Eagle Act and California's fully protected species laws, the cut off of water to Lower Klamath NWR in April of 2012 also passed unchallenged. The environmental coalition which once lead efforts to defend the refuges and restore the Klamath River split over the KBRA; no legal challenges to irrigation-first Klamath River Basin management has been filed since the split.   

A Brave New World

In the novel 1984 (published in 1932), George Orwell portrayed a future society where certain key terms have come to mean their opposites. Thus, Orwell tells us that the “ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary” is at the core of society. Often compared to Aldus Huxley's Brave New World, in the society portrayed in 1984 freedom has been transformed into what is actually bondage.

The KBRA is similar to 1984 in its transformation of language. Thus, while the ESA is prominently upheld in several locations within the KBRA, the actual implementation of that Act is transformed so that protection actually means extirpation. The elimination of the Lost River sucker from the Lost River is symbolic of this transformation.

The transformation of language to serve the needs of society's elites is, of course, not limited to the KBRA. Thus banks offer assistance to mortgage clients in government programs which are supposed to help homeowners stay in their homes but which actually facilitate loss of the homes through foreclosure and short sales. Similarly, agencies which are charged with providing protection for species and preventing their extinction, now actually collude with extirpation of the species from large areas thus facilitating eventual extinction.

Stated in 1984's terms, in the Klamath River Basin and throughout the nation operation of government species protection agencies is presented as white when the reality of how these agencies operate is often quite black.

This is precisely why KlamBlog refers to the period since the KBRA's signing as the Brave New World of Klamath River Basin land, species and water management. For this we apologize to George Orwell. While his novel (1984) most accurately reflects Klamath River Basin water, fish and wildlife management in the KBRA era, we find Huxley's title more descriptive of the situation.  

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