There's a new PacifiCorp-Reclamation Water Deal - will salmon pay the price next spring?

Flows in the Klamath River will likely be lower next spring because of a short-term water agreement between utility PacifiCorp and the US Bureau of Reclamation. Under terms of the deal, PacifiCorp is drawing down its Klamath River reservoirs this fall to meet ESA flow requirements in the Klamath River. Reclamation will return the water to PacifiCorp's reservoirs sometime after November 1st.

Drawing down PacifiCorp's reservoirs to meet minimum river flows will allow Reclamation to divert more water from Upper Klamath Lake to the irrigators it serves in California and Oregon. According to officials at the Tulelake Irrigation District, ninety percent of the highest yielding agricultural lands within the 210,000 acre federal irrigation project - those located within the bed of the former Tule Lake - are receiving full irrigation water delivery this drought year.  

 90% of the former Tule Lake has been drained, diked and converted to agriculture.

High spring flows help juvenile salmon survive poor water quality and predators; consequently more salmon reach the ocean and more return 3 and 4 years later. Klamath fisheries managers also want higher spring flows to flush fish parasites from the river, reducing disease morality. 

Higher spring flows are one of the "bargained for benefits" which helped persuade the Yurok and Karuk Tribes to sign the long-term KBRA Water Deal. However, in spite of the fact that higher spring flows have not materialized, the two tribes continue to support the KBRA.

If a series of big storms come soon to the Upper Klamath River Basin, or if the coming winter's precipitation is well above average, spring flows may not be cut. However, the federal Drought Monitor operated by NOAAⁱ forecasts below average precipitation in the Upper Klamath River Basin through March of 2015. If the forecast turn out to be accurate, spring flows will be cut to the minimum and more young salmon will die before reaching the Pacific Ocean. Once again Klamath Salmon will have been sacrificed in order to maximize water delivery to federal irrigators, the Basin's Irrigation Elite. 

Meanwhile, the self-proclaimed defenders of Klamath Salmon - the Dam Slayersⁱⁱ - have neither condemned nor questioned the deal. One of them, California Trout, even claims on its website that the draw-down of PacifiCorp's reservoirs is being done "to protect" Klamath salmon! KlamBlog can't tell if Cal Trout is naive, confused or intends to mislead visitors to its web site.

Wyden's Klamath Bill: More welfare for the Irrigation Elite

One would have thought that benefits conferred on federal irrigators - and their captured agency, the US Bureau of Reclamation - by the the two Klamath Water Deals (The older KBRA and newer Upper Basin Agreement) would have been enough. After all, not only has Reclamation already used taxpayer funds to implemented many of the costly "benefits" for federal irrigators included in the KBRA, but Congressional backing for the Deals would essentially insulate federal irrigation, the growers it serves and 40% of the total diversions from the Klamath River Basin from tribal water rights claims. Additionally, if Wyden's Bill were to become law, the Klamath Tribes' claim to flows in the Klamath River would be relinquished. That claim is the only practical path to achieving restoration flows in the Klamath River.

Senator Wyden apparently did not believe the Deals benefited the Irrigation Elite quite enough, however. And so he added a new special interest tax break to the legislation he authored. Tacked on at the end of Wyden's Senate Bill 2727, the Klamath Basin Water Recovery and Economic Restoration Act of 2014, is a section titled "MODIFICATION OF TAX EXEMPTION REQUIREMENTS FOR MUTUAL DITCH OR IRRIGATION COMPANIES." That part of the bill would amend Section 501 of the Internal Revenue Code; section 501 is the part of the Code which defines which organizations "shall be exempt from taxation under this subtitle."
Here the substance of the new tax break:
           "In the case of a mutual ditch or irrigation company or of a like organization to a mutual ditch or irrigation company, subparagraph (A) shall be applied without taking into account any income received or accrued (I) from the sale, lease, or exchange of fee or other interests in real property, including interests in water, (II) from the sale or exchange of stock in a mutual ditch or irrigation company (or in a like organization to a mutual ditch or irrigation company) or contract rights for the delivery or use of water, or (III) from the investment of proceeds from sales, leases, or exchanges under subclauses (I) and (II),..."

Klamath Project Irrigators get full water delivery; Klamath Refuges get the shaft...again!

The US Bureau of Reclamation has released its 2014 Drought Plan for the Klamath Irrigation Project. The Plan responds to Upper Basin stream flows projected by the US Geological Service on May 1st at less than 25% of average within the Lost River Basin and at between 25% and 69% of the long-term average for streams discharging into Upper Klamath Lake.

In spite of a third year of drought, however, full irrigation deliveries will be made to irrigators in the Tule Lake Area of the Lost River Basin and some irrigators in the area just North of Lower Klamath National Wildlife Refuges. Other irrigators who receive water via the Bureau's Klamath Project will receive 1 acre foot of water this year which is about 1/3rd of what they would like to receive. Most of those irrigators, however, also have irrigation wells from which they will draw any additional water they need this growing season.

So, one way or another, irrigators within the federal Klamath Project will not experience drought this year; they will be able to farm as if precipitation and snowpack were at normal levels.

Once again, however, Tule Lake and Lower Klamath National Wildlife Refuges - while not mentioned at all in the Bureau's Drought Plan Press Release - will not receive water this summer. Once again permanent and seasonal marshes on these refuges will be bone dry while surrounding fields are green and growing.

Dewatered marshes surrounded by green fields is a common sight

at Tule Lake and Lower Klamath National Wildlife Refuges

(Photos by Brett Cole) 

In a just West, water shortages are shared equitably among users; but in the Klamath River Basin things are different. Within the Bureau-operated Klamath Project, drought has been all but abolished for a select group of irrigators who happen to also be the most wealthy and politically well-connected Klamath Basin irrigators. That is why KlamBlog has dubbed those folks The Irrigation Elite. 

Through a complex web of family corporations, trusts and leases, irrigators 

 like John Crawford control thousands of acres in the bed of  the former Tule 

Lake. The political influence of the Klamath Basin Irrigation Elite is also large.

Greasing the Irrigation Gears

Full irrigation water delivery for the Irrigation Elite in the face of a third year of drought is possible because the KBRA Water Deal has provided corrupt "wink and nod" implementation of the ESA within the Klamath River Basin. Post-KBRA ESA consultations ignore the findings and recommendations of two independent science panels established by the National Research Council which is part of the nation's highest science body. Independent NRC scientists found that there was no scientific justification for maintaining high water levels in Upper Klamath Lake in order to provide for the ESA-endangered Kuptu and Tsuam (aka Lost River and Shortnose suckers). In fact, the science panel pointed out that years when reproduction of these endangered fishes was relatively good corresponded to lower - not higher - Upper Klamath Lake water levels.

Nevertheless, high lake levels continue to be prescribed as an ESA measure by the US Fish and Wildlife Service. The real reason this continues to be done has nothing to do with the ESA. High Upper Klamath Lake levels result in maximum irrigation deliveries to federal irrigators. Former US Fish & Wildlife officials responsible for continuing ESA measures which result in maximum irrigation deliveries have been rewarded by the Irrigation Elite; one former official has been awarded a place on the Klamath Water Users Association (KWUA) Board of Directors. KWUA is a tool of the Irrigation Elite.

In similar fashion, the National Marine Fisheries Service continues to ignore recommendations of the second NRC independent science panel. Those scientists said that the methodology used to determine Klamath River flow needs for ESA-listed Coho salmon had been misapplied. They called for a "basin-wide" flow assessment in order to properly determine Coho flow needs. That was back in 2008; but NMFS has taken no action to implement the needed study. Instead Klamath flows have been set at the bare minimum which will prevent "jeopardy". That all but guarantees Klamath River salmon stocks will not recover but will remain perpetually on lists of threatened, endangered and at-risk species.

Tribes are no help

It is settled law that, where they hold treaty or reserved rights related to fisheries, federal Native American tribes have a right to sufficient water to keep the fish to which they have a right in a condition in which those fish can provide a "moderate living" to tribal members. That amount of water is well in excess of what can be obtained for fish via the ESA. The ESA can prevent "jeopardy" for listed species but it cannot provide for recovery of ESA-listed species. Federal ESA Recovery Plans are voluntary; they have no regulatory force. Treaty and reserved tribal rights, on the other hand, have the full force of law; compliance with those rights can be compelled via federal courts.

That means those Klamath River Basin Tribes which have treaty or reserved rights and which have signed the KBRAⁱ have traded away their rights to the amount of water needed for recovery of Coho salmon, Kuptu and Tsuam for other considerations, including funding for tribal government programs and for fish "restoration". Leaders of these tribes have been persuaded that - when it comes to fish recovery - money for "restoration" can be substituted for water flowing in our rivers and streams.

Both the KBRA and the more recent Upper Basin Water Agreement project substantial decreases in demand for irrigation water. Both deals call for relying on federal funding to retire water rights above Upper Klamath Lake through purchase from "willing sellers". Promoters of the deals speak as if those demand reductions had already been achieved. KlamBlog believes, however, that willing sellers will not materialize; who in their right mind would sell their water rights in today's West? A much better strategy is to hold onto the water rights and lease them to other farmers or for in-stream flows as is currently taking place in the Scott River Basin and in other places in California. Demand reduction under the KBRA and Upper Basin Agreement is pie-in-the-sky.

Those who know Klamath and Pacific Salmon issues are familiar with the statement that for so-and-so tribe "salmon is everything". When viewed in light of the actual deals struck by these tribes, however, it can be seen that the statement is political rhetoric detached from on-the-ground reality. As for any government entity, the first priority of a tribal government is to maintain funding for government operations. Since most tribes are dependent on the federal government to fund their government's operations, the tribes are in a weak and compromised position going into negotiations with the feds.

KlamBlog believes the basic power dynamic in relations between tribes and the federal government explains why western federal tribes have, for the most part, agreed to water deals which trade water rights - or the ability to exercise those rights - worth billions of dollars for the modern equivalent of a handful of beads. Historians will not look kindly upon these water settlements whereby, in most cases, the Native Americans are again being taken to the cleaners with the responsible tribal leaders either clueless or in collusion. 

No solution

The Klamath Water Deals seek to resolve the Basin's water conflicts by persuading Congress to balance water supply and demand on the backs of the Klamath's wildlife refuges, through corrupt ESA administration and by pie-in-the-sky water demand reduction. If the architects of those deals get their way, drought will remain abolished for the Irrigation Elite and will be perpetuated for the Klamath Wildlife refuges. In KlamBlog's view that is not just or balanced. A solution that is not just and balanced can only deepen conflicts, not resolve them.  

___________________________________

i    The only Klamath River Basin Tribe with treaty rights is the Klamath Tribes (one federal tribal government made up of three district tribal ethnicities). The Hoopa, Yurok, Resighini and Quartz Valley Tribes have reservations and, as a result, have potential reserved rights to fish and the water needed to keep those fisheries in good condition. The Karuk Tribe has no reservation and therefore no reserved rights. The Klamath, Yurok and Karuk Tribes have signed the KBRA and Upper Basin Agreements; the Hoopa, Quartz Valley and Resighini Tribes have rejected those deals.

Dwinnell Lawsuit Settlement and the future of Shasta River Salmon

On December 20th the Karuk Tribe and Klamath Riverkeeper issued a joint press release announcing settlement of a lawsuit they filed in federal court in 2012 challenging the legality of Dwinnell Dam and Reservoir. Dwinnell Dam is located on the Shasta River, a major Klamath River tributary. The dam and associated facilities are owned and operated by the Montague Water Conservation District (MWCD).

 Dwinnell Dam and Reservoir from the air

Press reports on the settlement where universally positive, mirroring claims and quotes from the press release. The article reporting on the Settlement in the ECONEWS was written by Craig Tucker, the Karuk Tribe's Klamath River Coordinator, one of the principle architects of the Settlement. Only the Two Rivers Tribune suggested that there might be another view; it quoted from an e-mail by KlamBlog editor Felice Pace which called the Settlement a sell-out. In a letter to the TRT Pace has since apologized for using the term "sell-out" while continuing to question whether the Settlement is in the interest of Klamath Salmon.

In this post KlamBlog provides readers with information on the Settlement, and how settling parties have characterized it, as well as information on the impact of Dwinnell Dam, Dwinnell Reservoir (also known as Lake Shastina) and associated operations on Shasta River water quality, aquatic habitat and salmon. 

Whenever possible this post quotes directly from reports prepared by experts for the Karuk Tribe and Klamath Riverkeeper. In accordance with KlamBlog's mission, the aim is to provide KlamBlog readers with the information and analysis needed for them to reach their own conclusions about the settlement and whether it is in the best interest of Klamath Salmon.

Here are the major reports relied upon in this post, including on-line links to them:

• "Removal of Dwinnell Dam and Alternatives", Prepared by Thomas Cannon for the Karuk Tribe, December 2011. The report is available at this link. 

• "Effects of Dwinnell Dam on Shasta River Salmon and Consideration for Prioritizing Recovery Actions", Prepared by Larry Lestelle for the Karuk Tribe, March 2012. The report is available at this link.
  
  
• "Request for Recognition of Shasta River as Flow Impaired and Addition to the 2012 California 303d List", prepared by Patrick Higgins for Klamath Riverkeeper, Institute for Fisheries Resources, Pacific Coast Federation of Fisherman Associations, the Environmental Protection Information Center and the Klamath Forest Alliance, August 2010. The report is available at this link.

The Transformation of Restoration

KlamBlog Editor's Note: 

In response to an e-mail reacting to one of his posts, Tom Stokely (the editor of "env-trinity digest") - recently invited KlamBlog's editor and chief writer Felice Pace to share an article he wrote some time ago about the failure of watershed and fisheries restoration to accomplish their stated objectives, that is, to actually restore water quality and fisheries. That article - "Humility or Hubris - Restoration at the Crossroads" - and another on the same topic - "The End of Restoration?" - are now available to e-v digest and KlamBlog followers on the web courtesy of Dropbox at the following link. The articles explore why over 30 years of watershed and fisheries "restoration" has created a "restoration economy" but has not been effective in accomplishing restoration goals. 

Since Felice wrote those articles, however, the transformation of restoration programs and projects from voluntary activities independent of regulatory issues into a substitute for regulation limiting water pollution has progressed. The federal Environmental Protection Agency and the state agencies charged with implementing the Clean Water Act - including both Oregon and California - are now poised to approve the use of restoration projects as "offsets" to polluted discharges, thereby substituting restoration projects for strict Clean Water Act compliance. In the article below, Felice updates his analysis of the ongoing transformation of watershed and fisheries restoration programs and projects. 

When restoration projects are used as a substitute for controlling or eliminating the discharge of pollution, they are called "offsets". Felice examines the use of "offsets" as a substitute for requiring those discharging pollution to control, reduce or eliminate it. And he asks whether "offset" schemes will be effective in restoring our rivers and streams. 

Felice's update on "The Transformation of Restoration" is timely. The North Coast Regional Water Quality Control Board (NCRWQCB) has begun work on a Clean Water Act permit for the Tule Lake Irrigation District (TID). Industrial Agriculture in the Tule Lake Area is responsible for roughly 25% of the pollution impairing Klamath River water quality and fisheries. 

TID's polluted wastewater is pumped into Tule Lake, then to Lower Klamath 

National Wildlife Refuge, the Klamath Straits and into the Klamath River

Delivered to the Klamath River just north of the California-Oregon border via the Klamath Straits, agricultural pollution feeds and exacerbates toxic algae production in PacifiCorp's Klamath River reservoirs and kills tens of thousands of juvenile salmon every year.  State water quality officials could try to substitute taxpayer-funded restoration above Upper Klamath Lake for requiring TID to control and limit polluted discharges to the Klamath River.

In KlamBlog's view, substituting taxpayer funded restoration for Clean Water Act compliance will result in the Klamath River remaining polluted and Klamath Salmon remaining at risk. Therefore, we urge readers to contact North Coast Water Board Executive officer Matt Saint John (matt.st.john@waterboards.ca.gov). Urge Mr. St. John not to substitute taxpayer funded restoration for control of polluted discharges. Tell him that TID's pollution needs to be controlled at its source in order to meet water quality standards in Tule Lake, the Klamath Straits and the Klamath River.

                                 <<<<<<<<<>>>>>>>>            

                    The Transformation of Restoration
                                  by Felice Pace               

Pollution trading - the use of "offsets" as a substitute for directly controlling or eliminating pollution - has been around for decades with respect to air pollution and especially as a response to climate change inducing atmospheric carbon. In the classic example, a power plant or industrial air polluter chooses to "offset" the discharge of carbon dioxide through its smokestack with a project in a different location which removes an equivalent amount of carbon from the air. The owners of a power plant in the Los Angeles Metropolitan Area might, for example, pay to protect a forest in West Africa (or in the Sierra Nevada Mountains) which would otherwise be cut down. The carbon stored in the protected forest "offsets" the power plant's carbon emissions and the plant is considered to be in compliance with air pollution control laws even while it continues to put the same amount of carbon into the LA air.

Urban communities - often communities of color with high rates of poverty - have long protested pollution trading and other "offset" schemes which leave their communities subject to unhealthy levels of air pollution. More importantly, rigorous studies of "offset" and other air pollution trading schemes have found the approach to be vulnerable to gaming and corruption. One such study "Pollution trading and environmental injustice: Los Angeles’ failed experiment in air quality policy" is available on-line at this link.

The California Air Resources Board recently approved a pollution trading "offset" approach as part of implementing California’s climate change response. The California ARB's  "Compliance Offset Program" can be reviewed on line.   

In a 2012 Fact Sheet also available on line, the group Food and Water Watch questions whether "offset" and other market-based schemes should be substituted for traditional regulatory approaches to reducing pollution:     
               "If we let market fundamentalists and industry-funded nonprofits tout market-based mechanisms and a “green economy” as innovative solutions to our resource problems, we ignore proven methods of reducing pollution. Instead, we are simply speculating on nature. These schemes are a smokescreen, giving the appearance of regulation and action while at the same time giving industries carte blanche to continue using and abusing our common resources — and letting the finance sector profit from it." 

Proclaiming the "need to protect common resources, not profits", Food and Water Watch urges us to reject turning Public Trust resources into commodities:
                "We cannot afford to bet the health of the environment or our access to water on the Wall Street casino. Instead of gambling with financial actors and markets in nature-based assets, we should rely on regulation of activities that harm the environment and contribute to climate change. Instead of pushing the expansion, integration and financialization of water markets, we should implement and enforce regulations that preserve our essential resources and promote policies that acknowledge water as a human right."

Pollution trading comes to the Klamath River Basin

In spite of problems encountered in pollution trading "offset" schemes implemented to reduce air pollution and address climate change, the EPA and state agencies have moved forward with plans to use the same market-based approach for Clean Water Act compliance. One of the first examples in California and Oregon is being developed in the Upper Klamath River Basin and is intended to constitute compliance with the Clean Water Act at the point where the Klamath River flows from Oregon into California. 

Approved by the North Coast Regional Water Quality Control Board in March 2010, the "Action Plan for the Klamath River Total Maximum Daily Loads (TMDLs) addressing temperature, DO, nutrient, and microcystin impairments in the Klamath River" and the "Implementation plan for the Klamath and Lost River Basins" authorize a program that would "calculates credit towards meeting regulatory requirements through offsite mitigation."

In order to implement the authorized "offset" program, the NCRWQCB is developing the "Klamath Basin water quality improvement tracking and accounting program."  That program will be used to calculate "offset" credits which will then be used in permits developed for polluters. Once in place, these polluters will be able to legally continue discharging unlawful levels of pollutants into the Klamath River in violation of water quality standards because that pollution would be "offset" by "restoration" elsewhere in the basin.  

We are likely to first see the Klamath's pollution trading "offset" scheme applied in discharge permits for City of Klamath Falls sewage treatment plants and for the Tule Lake Irrigation District (TID).

Located just south of the California-Oregon border, Tulelake Irrigation District (shown 

in yellow on this map) is part of the Bureau of Reclamation's Klamath Irrigation Project

The City of Klamath Falls has protested phosphorous discharge limitations imposed by the State of Oregon; the city could avoid the cost of reducing its phosphorous discharges by funding wetland restoration as an "offset". 

In the case of Tule Lake Irrigation District (TID), we could see taxpayer-funded restoration above Upper Klamath Lake proposed as an "offset" for the highly polluted run-off which TID pumps from the Lost River Basin and discharges into the Keno Reach of the Klamath River, just upriver of the California-Oregon border, via the Klamath Straits. At times that discharge has been so polluted that pure ammonia - a substance toxic to all life forms - has been discharged into the Klamath River.

Poor water quality leads to toxic algae blooms and fish kills in Keno Reservoir.

Currently owned by PacifiCorp, Keno Dam and Reservoir is not proposed for removal.

Under the KHSA Dam Deal, Keno would be transfered to the Bureau of Reclamation

A permit which substitutes taxpayer-funded restoration above Upper Klamath Lake for pollution control by and on the Tulelake Irrigation District would allow TID to continue to discharge pollution into three natural water bodies - Tule Lake, a federal wildlife refuge, the Klamath Straits, a natural stream used as the discharge drain for much of the Klamath Irrigation Project, and the Klamath River. 

TID farming operations are among the largest and most profitable agricultural operations in the entire Klamath River Basin; they are also among the most polluting operations in the Basin. It would be ironic if well-to-do TID farmers become the first in the Klamath River Basin granted "relief" from the Clean Water Act at the expense of US taxpayers and Klamath Salmon. 

The legality of "offset" schemes which allow discharge of pollution into natural water bodies to continue is yet to be tested in court. The one federal case filed so far - which challenged a water pollution trading and "offset" scheme for Chesapeake Bay - was dismissed on procedural grounds. Attempting to use "off-sets" above Upper Klamath Lake to permit discharge of polluted agricultural wastewater into Tule Lake, the Klamath Straits and the Klamath River could also prompt a federal court challenge. 
 
In theory, pollution "offset" schemes can be effective both economically and environmentally. As the US EPA asserts with respect to water pollution "Where watershed circumstances favor trading, it can be a powerful tool for achieving pollutant reductions faster and at lower cost." In the real world, however, pollution "offset" schemes have had mixed results; most often, activities used as "offsets" have only shifted the impacts of pollution from one location and community to another location and another community. In other words, "offset" schemes have produced winners and losers. Water bodies and communities where the "offsets" (restoration) take place are among the winners; lower income folks, which are often communities of color, and areas where pollution continues unabated have often been the losers.

In the Klamath River Basin pollution "offset" schemes are likely to benefit Upper Basin interests at the expense of lower income and Native American communities along the Mid and Lower Klamath River.

Will "offset" and other market-based schemes work?

The essential question is whether the substitution of restoration project "offsets" for actually controlling polluted discharges will lead to achievement of water quality objectives and, thereby, to restoration of fisheries and other beneficial uses of water. While the devil will be in the details of the individual programs and permits implementing "offset" schemes, it is unlikely that there will be sufficient new funding from government or the private sector to "offset" the massive agricultural and urban stormwater pollution which are now the top reasons rivers and estuaries across the US do not meet established water quality standards.  Under these circumstances, existing levels of restoration used as "offsets" would result in compliance with the Clean Water Act on paper but would not lead to restoration of water quality and beneficial uses.

In the final analysis, finishing the job of cleaning up our rivers and estuaries will most likely not be achieved through "offsets" but rather will require directly controlling non-point pollution - especially agricultural pollution and urban stormwater run-off.  The reticence of the EPA and state Clean Water Act implementing agencies to effectively regulate agricultural pollution is not a good sign. Unless these agencies develop the will to effectively regulate non-point pollution from agriculture, urban run-off and other non-point sources, our streams, rivers, estuaries and the fisheries and other beneficial uses of water which depend on clean water will not be restored.


Felice Pace is editor and chief writer for KlamBlog. He has lived in the Klamath River Basin since 1976 and has been advocating for fisheries, clean water and watershed restoration since 1986.