The Klamath's Irrigation Elite is busted!

KlamBlog has for years exposed the cozy relationship between the Klamath Water Users Association (KWUA) and the Klamath Water and Power Agency which KWUA created with the US Bureau of Reclamation. We've pointed out that the organization is dominated by a handful of very large growers who own or lease thousands of acres of farmland receiving taxpayer subsidized water from the US Bureau of Reclamation's sprawling, 200,000 acre plus, Klamath Irrigation Project.

These large dominant growers exploit older, smaller farmers by paying very low lease rates to farm the smallholders' land. And they work through KWUA to prevent any reduction in the amount of land that is under irrigation with federal, subsidized Klamath River water in order to keep farmland lease rates low. Of course these large, dominant growers also receive millions in direct taxpayer subsidies each year. Those are just some of  the reasons KlamBlog calls these fellows The Irrigation Elite.  

Thanks to federal employee whistleblowers and the PEER organization which supports them, the Bureau of Reclamation's illegal activities in the Klamath River Basin, including diversion of wildlife funds to benefit the Irrigation Elite, have been exposed.  And now the Department of Interior's Inspector General has backed up some of those whitleblower claims.

Below you will find PEER's press release on that new development. This is just the tip of the iceberg, however. The Interior and Department of Commerce Inspector Generals need to also look into the corrupt 2013 Biological Opinion for the Klamath Project and the US Fish & Wildlife Service's decision to eliminate critical habitat for endangered Kuptu and C'waam (Shortnose and Lost River suckers) from the Lost River Basin where the Irrigation Elite controls much of the land and water. The USFWS official who engineered that gift to the Irrigation Elite is Curt Mullis. Mullis subsequently retired and was placed on the KWUA Board of Directors.  He's still a board member.

For more on the corruption of the ESA to serve the interests of federal irrigators see the KlamBlog post at this link.

Anderson Rose Dam largely dewaters the Lower Lost River in order to maximize 

irrigation. The Lower Lost River should be critical habitat for Kuptu and C'waam.

The Federal Trustee and Water Rights Negotiations

Federal watchdogs, including the Inspector Generals, should also look into whether the federal government has properly discharged its duty to protect and advance the interests of federal tribes while those tribes are negotiating water rights settlements. There is substantial evidence that in the Klamath River Basin, as in other parts of the American West, federal officials have intentionally worked to keep water to which the tribes have a right with mostly-white federal irrigators.

Those tribes and the members of those tribes would clearly be better off if the tribes retained the water rights and leased water back to irrigators on a yearly basis. That would create an income stream sorely needed by tribes and their members. But instead the feds entice tribal government leaders with promises of federal funding for cash strapped tribal departments. The lure of jobs and funding usually persuades tribal leaders to act in ways that are not in the interest of their members or of the streams in which those same tribes have in-stream water rights.

In the Klamath River Basin the feds exploit the long-standing desire of the Klamath Tribes' leaders to regain a portion of the land base they lost when their reservation was "terminated" by the Eisenhower Administration. In the Upper Basin Comprehensive Agreement those leaders agreed to give up their right to flows in the Klamath River if they can get funding to reestablish the tribal land base.

But would the Klamath Tribes and its members be better off retaining their water rights and leasing water annually to irrigators? That question, of course, only the members of the Tribes can answer. But the question raised here is different: Regardless of what tribal members ultimately decide, are federal officials looking out for the welfare of those members during tribal water rights negotiations or is their agenda to keep water with mostly white federal irrigators? 

Peer's Press Release

For Immediate Release:  Thursday, October 13, 2016
Contact:  Kirsten Stade (240) 247-0296

http://www.peer.org/news/news-releases/klamath-irrigators-illegal-piggy-bank-broken-up.html
 

         KLAMATH IRRIGATORS ILLEGAL PIGGY BANK BROKEN UP
           Auditors Find Reclamation “Wasted” Millions in Drought & Wildlife Relief Funds    

Washington, DC — A federal water agency misspent millions of dollars intended for fish and wildlife and drought relief in the Klamath Basin on irrigator subsidies, according to new audit report which confirms charges leveled last year by Public Employees for Environmental Responsibility (PEER).  The federal agency, the U.S. Bureau of Reclamation, disputes these findings and, while the payments have ended, it refuses to change its practices to prevent future abuse or to recoup moneys illegally spent.

   

In an audit report dated October 11, 2016, the Office of Inspector General (IG) for the Interior Department found that Reclamation improperly siphoned millions of dollars over several years to an irrigator’s group called the Klamath Water and Power Agency (KWAPA), which taps federal water projects in northern California and southern Oregon.  In recent years, the Klamath watershed has been crippled by a series of droughts.  The IG report details how Reclamation diverted $32 million in federal funds intended for drought contingency planning and helping struggling fish populations –

• In a “waste of funds” wholly lacking in any legal authority; 
• Paying for KWAPA salaries, fringe benefits, rent, travel and other expenses whose benefits flowed “primarily to irrigator contractors rather than fish and wildlife,” including $4.2 million for uses that could not be supported with documentation or were outright “unallowable”; and
• By modifying the KWAPA contract “19 times to expand the scope of activities” and extend the original payment program from 2008 through September 30, 2015.

Due to complaints filed by PEER, the payments ended last year and KWAPA ceased operations on March 31, 2016. However, Reclamation rejects the IG findings. So, the IG is kicking this intra-agency dispute upstairs in Interior to “the Assistant Secretary for Policy, Management and Budget for resolution.”

“Basically, the Bureau of Reclamation became an illicit ATM for favored special interests,” stated PEER Senior Counsel Paula Dinerstein, noting that these illegal payments would be continuing if Reclamation employees had not blown the whistle. “To add injury to insult, these improper subsidies were used to aggravate environmental damage by draining shrinking groundwater supplies to benefit irrigators.” 

The whistleblower complaint from two Bureau biologists filed through PEER induced the U.S. Office of Special Counsel to order the Secretary of Interior to address the illegal diversion of funds and how her agency would remedy identified violations.  That answer to the Special Counsel was due back in August of 2015 but Reclamation, on the Secretary’s behalf, has obtained extensions totaling 15 months.  

“Reclamation is circling its wagons to defend the potentially criminal conduct by its own managers,” added Dinerstein, pointing to the Anti-Deficiency Act, which forbids expenditures not authorized by any appropriation and is enforced by criminal fines and/or imprisonment for up to two years.  “We will keep pressing for some accountability to taxpayers from Reclamation’s multi-year, multi-million dollar illegal money-laundering operation.”

###

Read the IG audit report

Look at still pending probe from the Office of Special Counsel 

 

Derrik Jensen interviews KlamBlog writer/editor Felice Pace on Resistence Radio

On Sunday August 7th at 3 PM Pacific Time the Resistance Radio Network will broadcast an interview of KlamBlog's editor and principle writer, Felice Pace. The pre-recorded interview was conducted by author Derrick Jensen.  Jensen has been called the poet-philosopher of the ecological movement.

Derrick Jensen interviewed Felice about the Klamath River and Klamath Salmon. About 24 hours later, the interview will be available in Resistance Radio's audio archives.

When do we have a red alert?

The interview airs at an important time for the Klamath River. Even in this year of average precipitation, government, tribal and university scientists, working together as the Klamath Fish Health Assessment Team (KFHAT), are finding high incidence of two salmon diseases among juvenile salmon migrating down the Klamath, Scott and Shasta Rivers. These are natural diseases that scientists say have become epidemic in the Klamath River as a result of very poor water quality, especially exceedingly high water temperature, and inadequate spring-time river flows. 

Diseased juvenile salmon collected from the Klamath River

 

Sentinel fish studies indicate that up to 90% of juvenile Coho and Chinook Salmon, which must migrating down the Klamath, are dying before they can reach the Pacific Ocean. High juvenile salmon mortality is a major reason fish managers predict the second lowest number of salmon since the mid-1990s will return to the Klamath River this fall.

Already this year, up to 100% of juvenile salmon sampled in the Klamath River between where the Salmon and the Trinity enter the main Klamath have been infected with one of two salmon diseases which are epidemic in the Klamath River. Many juvenile salmon are infected with both Ceratonova shasta and Parvicapsula minibicornis. Nevertheless, the fish kill alert level is "yellow" rather than "red", indicating that no massive fish kill is immanent. California Fish & Wildlife officials stress the economic importance of sport fishing and tend to downplay the Klamath's disease epidemic because they don't want to close down sport fishing for Klamath Chinook Salmon.    

Challenging low springtime river flows

Meanwhile the Hoopa Valley Tribe has filed a lawsuit challenging the 2013 Biological Opinion on operation of the Bureau of Reclamation's Klamath Irrigation Project. The 2013 "Bi-Op" allows Reclamation to starve the Klamath River of the high springtime flows scientists say are needed to flush disease organisms from river gravel. 

By studying rivers around the globe, scientists have learned that the health of a river is tied to its natural hydrograph. In other words, in order to be healthy a river needs the full range of flows under which the river's ecosystem evolved. High flows, including floods, are just as important to a river's health as are adequate minimum flows. 

Most river studies have found that, in order to remain healthy, a river needs about 50% of its natural flow, distributed to mirror the natural hydrograph, to remain in stream. In the American West today, 70 to 90 percent of natural baseflows are diverted from streams to irrigated agriculture. The amount of water currently diverted from western rivers is incompatible with river health. 

As KlamBlog has pointed out previously, rather than reallocate water from irrigated agriculture to in-stream use, the feds want to substitute funding for "restoration" projects for the amount of water a river needs. Because many western tribes and river organizations have become dependent on federal restoration funding, they have tended to go along with the feds. The failure of society to reallocate water from irrigated agriculture in order to restore healthy rivers is driving the ongoing loss of native western fish and fisheries. 

Better late than never: Water deal supporters may finally sue to aid Klamath Coho

The Earthjustice press release stated it precisely: "Commercial Fishing & Conservation Groups Join Native American Tribes’ Legal Action to Protect Klamath Salmon and Fishing Communities." After nearly three years of urging by scientists, activists, Native youth and KlamBlog, the Klamath River tribes and fishing organizations which have long claimed leadership in defending and restoring Klamath Salmon have finally taken action to challenge federal policies which starve the Klamath of water flows and which, in recent years, killed most juvenile salmon before they could reach the Pacific Ocean. 

It has been something like the breaching of a dam: first the Hoopa Tribe, then the Karuk and Yurok Tribes, and finally the Pacific Coast Federation of Fishermens' Associations (PCFFA) and Klamath Riverkeeper have declared their intention to legally challenge the 2013 Biological Opinion which allowed the US Bureau of Reclamation to starve the Klamath River of flushing spring flows so essential to the health of the River and Klamath Salmon.

While we question why it took them this long, KlamBlog hopes that tribes and fishing groups, which had grown bleary eyed and docile through sitting in the back rooms for too long with too many white lawyers, have finally regained clear vision and courage. But before we get too hopeful, let's look more closely at the crisis which prompted the notice that a legal challenge may be coming.

Secret Klamath Water Negotiations set to resume

KlamBlog has it from a reliable source that Klamath water settlement negotiations are starting up again with the Interior Department's John Bezdek inviting "settlement parties" to an "exploratory" meeting in Medford on July 7th. Bezdek says the meeting is covered by prior "confidentiality agreements".

Since we are now talking about a public river (the Klamath) and not privately held dams, all those who have a stake in the Klamath River should questions why negotiations over the fate of our River should be entirely confidential. Why not have "public witnesses" present who don't talk but record the proceedings for posterity? At minimum, those who are sponsoring and driving this settlement, the US Interior Department, ought to issue substantive public reports to citizens each time a negotiation session takes place and when major proposals are laid on the table.

The fate of the Klamath River and a lot more is riding on negotiations set to begin July 7th

in Medford Oregon. For example, could this recovering riverfront land near 

Happy Camp become part of a Karuk Reservation via such a deal?

People of the Klamath, let's demand that they - Interior - do it the right way this time. I hope someone at that Medford meeting questions the need for strict "confidentiality" in these negotiations on behalf of the people.

It would be great to have an adequate and therefore durable settlement of the waters; a settlement that also protected the integrity of fish and wildlife laws we have seen abused since the KBRA Water Deal was signed. That sort of agreement will be more likely if a more open process is followed where river and all communities are informed and somewhat involved. In particular, those individuals and organizations who have invested their time in restoration and protection of our river should, by right of their sweat, have a voice in deciding the fate of the River. Ideally, our tribes and our Fish & Wildlife Departments in Oregon and California will involve both communities and our community organizations.

At minimum, this time I hope the People of the Klamath will demand that River leaders come back to the communities for consultation when key settlement proposals are on the table and for a thorough vetting once we have a proposed settlement to discuss.

What say you?


(KlamBlog is written by me, Felice Pace: unofelice@gmail.com)

Hoopa Tribe Sues Federal Government over Inadequate Protections for Juvenile Salmon

Below is the Hoopa Valley Tribe's Press Release announcing that they have formally notified agencies of the federal government of their intent to sue them to enforce provisions of the Endangered Species Act (ESA). The notice is required to give federal agencies 60-days to remedy or settle potential ESA lawsuits. The Tribe says it will sue the US Bureau of Reclamation and the National Marine Fisheries Service over the failure of those agencies to protect ESA-listed Klamath Coho Salmon.

As a member of the environmental community, I find it embarrassing that the Hoopa Tribe had to file this notice alone. In the "old days" (before the Water Deals) the environmental community and the Pacific Coast Federation of Fishermen's Association (PCFFA) filed the lawsuits on behalf of Klamath Salmon. The tribes intervened and their biologists served as expert witnesses.  That saved the tribes and the environmental plaintiffs a lot of money. We all worked together for the River and Klamath Salmon. But ever since they signed on to the KBRA Water Deal, PCFFA has blocked Earthjustice lawyers from suing on behalf of Klamath Coho.

I know this is a true fact because I was instrumental in organizing the earlier Coho lawsuits and because I asked Earthjustice to challenge the 2008 Biological Opinion on my behalf as a Klamath River resident. Earthjustice declined and told me that was because the lead plaintiff on those earlier lawsuits, PCFFA, would not allow them to take on a challenge to federal management of Klamath River Coho salmon.

And what about the other Klamath River Basin Tribes? Would it not be right and proper for the leaders of tribes whose people depend on the Klamath River and Klamath Salmon to join the Hoopa Valley Tribe in challenging Coho management that is killing most of the juvenile Coho, and the juvenile Chinook as well, before they can reach the ocean? I'll bet my boots members of those tribes want their tribal governments to get more water for the River and the Coho.

KlamBlog encourages Yurok Chairman Tommy O'Rourke, Karuk Chairman Buster Attebery, and Klamath Tribes Chairman Don Gentry to lead their tribes to a decision. Please join with the Hoopa Valley Tribe in demanding that federal agencies obey the law and provide adequately for Klamath Salmon.

This blog offers all tribes of the Klamath River Basin the opportunity to use space here to explain their tribal positions to all the people of the Klamath River Basin. Open exchange will lead to understanding; understanding will result in unity; and unity will best serve the River we all love and want to restore.  

                                                                     Felice Pace, KlamBlog editor

_________________________________________________________________________

  PRESS RELEASE

Hoopa Valley Tribe

17 May 2016

Contacts

Chairman Ryan Jackson (530.249.8653)

Mike Orcutt (707.499.6143)

Tom Schlosser (206.386.5200)

Hoopa Tribe Sues Federal Government over Inadequate Protections for Juvenile Salmon

The Hoopa Valley Tribe has filed a 60-day notice of intent to sue the Bureau of Reclamation (BOR) and NOAA Fisheries for violating the Endangered Species Act (ESA).  Failure by these federal agencies to reinitiate consultation on the flawed 2013 Klamath Project Biological Opinion (BiOp) will simply add to the millions of sick and dead juvenile salmon already lost due to the Klamath Irrigation Project.  High infection prevalence of the deadly salmon parasite Ceratomyxa nova has been directly linked to the Project and its effect upon natural flows in the river.

“The juvenile fish kills in 2014 and 2015, while not as noticeable to the naked eye as dead adults on the banks, are as devastating to Hupa people as the 2002 adult fish kill” said Ryan Jackson, Chairman, Hoopa Valley Tribe.  

The BiOp limited the number of fish that could be harmed or killed by the Project.  This threshold was knowingly violated in 2014 and 2015, with nearly 100% infection rates of juvenile salmon in those years.  "Tribal and non-tribal fisheries will be substantially depressed as adult salmon which out-migrated in 2014 return in record low numbers this year and next" said Mike Orcutt, Hoopa Fisheries Director.  BOR and NMFS have refused to take appropriate actions to make sure this does not happen again and have clearly violated the ESA by not reinitiating consultation.  Continued catastrophic losses of salmon can be expected in the Klamath Basin given this inaction by the agencies.  “Despite numerous attempts to make this right with the agencies, their lack of action has required us to take legal action to protect our fishery and way of life" said Jackson.



The Hoopa Valley Tribe inhabits the largest reservation in California and is one of only two tribes in the state with federally reserved fishing rights, entitling the tribes to 50% of the allowable harvest of Klamath River fish.   "Since time immemorial, Klamath Basin has been the lifeblood of the Hupa people.  We will continue to stand up for the fish of the Klamath Basin” concluded Jackson.

______________

New Deals signed at Requa: What's in them that's not being discussed and what happens now

Report and Commentary by Felice Pace 

There was a big “news” event at Requa on the Lower Klamath River last week. On an absolutely gorgeous, bright-blue morning, a host of dignitaries, a couple of dozen reporters and camera operators and an estimated 150 others gathered to listen to speeches and watch the dignitaries sign not one but two agreements – the amended Klamath Hydroelectric Settlement Agreement (KHSA) and the entirely new 2016 Klamath Power and Facilities Agreement (KPFA).

Northcoast Congressman Jared Huffman honored the tribal

maidens and celebrated the Klamath Estuary by describing the 

wildlife on display, including sealions, an eagle and thousands of seabirds

For the second time, Berkshire Hathaway's PacifiCorp, the Secretary of Interior, the governors of California and Oregon and three of the Klamath River Basin's six federally-recognized tribesⁱⁱ signed an agreement to take out four Klamath River dams owned by PacifiCorp and to transfer a fifth dam to the US Bureau of Reclamation. This time the plan is to achieve dam removal through the normal process by which federal power dams are decommissioned and removed: a settlement overseen by the Federal Energy Regulatory Commission (FERC). 

But while the news coverage was extensive, most media outlets failed to mention the fifth PacifiCorp dam and reservoir, Keno, which is to be transferred to the US Bureau of Reclamation. Keno Dam and its reservoir are located near where the Klamath River exits the Upper Basin and enters the canyon through the Cascades where the four PacifiCorp dams slated for removal now stand. The Associated Press report on the signing ceremony did mention the transfer; but mistakenly reported that two dams would be transferred to Reclamation. While PacifiCorp will transfer hydroelectric generating facilities at Link River Dam, the federal agency already owns that dam which is at the outlet of Upper Klamath Lake. 

This US Bureau of Reclamation Klamath River Basin map shows the 

location of all major dams. Keno is the unlabeled one above J.C.Boyle Dam 

With Jes Burns reporting, Jefferson Public Radio and Oregon Public Broadcasting had the most complete and accurate coverage of the new agreements; but even they missed important facts, including new federal irrigator subsidies in legislation already introduced into Congress that those who signed the KPFA are committed to “support and defend”. 

Keno is the key 

The transfer of Keno Dam and Reservoir to the US Bureau of Reclamation is important because that reservoir receives all the highly polluted agricultural waste water generated by roughly 200,000 acres of irrigated agriculture within Reclamation's Klamath Irrigation Project. Super-concentrated nutrients in that wastewater are primarily responsible for high concentrations of algae in the reservoir.

Available scientific information indicates that blue green algae species dominate Keno Reservoir (>80%) to a much greater extent than within the PacifiCorp reservoirs which will be removed with the four dams. Of the four reservoirs slated for removal, Iron Gate and Copco 1 have the largest blue-green algae blooms. Blue-green algae in those reservoirs is only 50% of total algae biomass as compared to over 80% for Keno Reservoir.ⁱ However, Keno apparently produces less toxic algae and more of the non-toxic variety of blue green algae; while Iron Gate and Copco produce more toxic algae.

During most recent summers, toxins from Blue Green algae have extended from Iron Gate Dam all the way to the Klamath River estuary, a distance of over 190 miles.  That will likely continue at reduced concentrations after the four dams are removed until Keno water quality improves to the point where toxic algae production in that reservoir ends. Keno is 43 river miles above Iron Gate.

Removing the four dams and their reservoirs should lower the temperature of Klamath River water somewhat, but the high nutrient levels and water temperatures harmful to salmon originate on the Upper Basin's agricultural lands and will continue after the four dams and reservoirs are removed.

Highly polluted agricultural waste water from the Bureau of Reclamation's sprawling Klamath Irrigation Project enters Keno Reservoir most significantly via the Klamath Straits. The Klamath Straits is a natural stream which once flowed through a sea of tules (a large bulrush) to link the Klamath River and Lower Klamath Lake but which has been transformed into an agricultural drain. Water quality in the Straits is so bad that at times it is chemically transformed into pure ammonium, a substance directly toxic to marine life.

.

Highly polluted agricultural wastewater from 200,000 acres of

federal irrigation are delivered to Keno Reservoir and the Klamath River 

Keno Reservoir experiences fish kills on a nearly annual basis. The fish killed regularly include Kuptu and C'wam, two species of sucker fish that are listed as endangered under the Endangered Species Act. The US Fish Wildlife Service has never cited either federal irrigators or the Bureau of Reclamation for their role in killing those ESA-listed fish in Keno Reservoir or anywhere else for that matter.^iv

I was among those who encouraged the three tribes supporting the Klamath Dam and Water Deals – the Yurok, Karuk and Klamath Tribes – to insist that the amended KHSA include a firm commitment by the US Bureau of Reclamation, which is part of the Interior Department, to clean up Keno Reservoir. Unless and until nuisance nutrients in Keno are cleaned up and the temperature of water released from Keno is considerably lower, removing four PacifiCorp dams and reservoirs will mitigate but will not solve the Klamath River's water quality problems. Unfortunately, the amended KHSA does not include a federal commitment to clean up Keno Reservoir. 

Consequences 

Along with insufficient spring flows, abysmally bad water quality also fuels the Klamath's salmon disease epidemic. In recent years the epidemic killed most juvenile salmon hatched in the Basin before they could reach the Pacific Ocean. The US Bureau of Reclamation controls Klamath River flows, therefore dam removal will not significantly improve river flows. Because dam removal will not resolve the Klamath River's water quality nor produce winter and spring flows sufficient to flush disease organisms from river gravels, dam removal is unlikely to solve the Klamath's disease epidemic unless and until the quality of water flowing from Keno Dam and Reservoir improves dramatically.

The Klamath's salmon disease epidemic is one of the major reasons commercial salmon fishing in the ocean and tribal subsistence salmon fishing in the River will be severely constrained this year. The loss of healthy salmon in their diet will have negative health consequences for Yurok, Hoopa and Karuk river residents who depend on these fish. Dan removal will not end those negative health consequences. Cleaning up Keno Reservoir remains the key to ending the Klamath's salmon disease epidemic and to restoring Klamath Salmon.

Yurok subsistence fishing where the River meets the Pacific Ocean.

The health & welfare of Yurok fishing families will be damaged by

fishing restrictions related in part to the salmon disease epidemic

Last week at Requa Interior Secretary Sally Jewel heralded “the largest river restoration effort in history”. Someone needs to tell Secretary Jewell that effort will fail unless and until Keno Reservoir is cleaned up. 

The other agreement

Artificiality connected to the amended KHSA is the 2016Klamath Power and Facilities Agreement (KPFA). That agreement represents a successful step in efforts by Upper Klamath River Basin irrigation interests to salvage what they had gained in two water deals – the Klamath Basin Restoration Agreement (KBRA) and the Upper Basin Comprehensive Agreement (UBCA). In exchange for their support for dam removal and a restored land base for the Klamath Tribes, those deals kept most irrigation water with federal and private irrigators. The deals also made adequate Klamath River flows dependent on the federal government finding private irrigation interests above Upper Klamath Lake willing to sell their water rights. Congress would have to fund purchasing those water rights over the course of a decade or two.

By making irrigation much more feasible, the UBCA rendered it highly unlikely that a sufficient number of willing water right sellers could be found above Upper Klamath Lake. Obtaining sustained funding from Congress to purchase and retire water rights is also problematic. For that reason, the UBCA made the benefits for the River promised in the KBRA very unlikely.

Even though they had gone along with everything the federal government had asked of them, the Karuk and Yurok Tribes were excluded from negotiations which resulted in the UBCA. That was undoubtedly a factor in the Yurok Tribe withdrawing from the KBRA. According to Yurok Tribe press statements, the tribal government withdrew from the KBRA because that agreement's “bargained for benefits” were “no longer attainable”. According to one member of the Yurok Tribal Council, the Yurok tribal Government has not signed the KPFA. 

The KPFA's objectives are stated in its opening “Recitals”: 
          State and federal and other Parties are committed to realization of processes and benefits contemplated under the two agreements (KBRA and KHSA), recognizing that certain outcomes were not guaranteed or are more uncertain than others and recognizing also that certain measures have independent merit; and, under the circumstances presented, the Parties recognize the need to both re-affirm and re-orient their approach in certain respects, while moving forward to continue to address important issues appropriately. 

This means elements of the KBRA and UBCA will be renegotiated. Hopefully, the Yurok, Karuk and Klamath Tribes will do a little better job this time protecting the interests of those species which they claim to care so much about, the Kuptu, C'wam and C'iyaal (salmon) of which the Klamath Tribes' Chairman Don Gentry spoke so eloquently at the Requa signing event. 

The Klamath Tribes' Chairman Don Gentry spoke eloquently at Requa to folks 

wearing cowboy hats and Indian hats about what Kuptu, C'wam and C'iyaal mean 

to him and his people. Now he and other tribal leaders must match their fine words 

with firm negotiating to provide the water and habitat these fish need to recover.   

The duty to support and defend 

The new KPFA is mentioned in one small, section of the amended KHSA:
          The States, the Federal Parties, and other entities are concurrently entering into the 2016 Klamath Power and Facilities Agreement. Each Party, other than PacifiCorp, shall support and defend the 2016 Klamath Power and Facilities Agreement and its objectives in each applicable venue or forum, including any administrative or judicial action in which it participates. For purposes of this Section 1.9 only, the terms “support and defend” mean that the Party will advocate for the 2016 Klamath Power and Facilities Agreement or refrain from taking any action or making any statement in opposition to the 2016 Klamath Power and Facilities Agreement. More broadly, the Parties are committed to engage in good faith efforts to develop and enter into a subsequent agreement or agreements pertaining to other water, fisheries, land, agriculture, refuge and economic sustainability issues in the Klamath Basin with the goal to complete such agreement or agreements within the next year. 

One must turn to the KPFA itself to learn what those who signed the KHSA have agreed to “support and defend.” Here's a link to the Agreement. If you read it you may be surprised to learn that the “support and defend” provision includes an amendment to Senate Bill 2012, the Energy Policy Modernization Act, which has already been introduced in the US Senate. Amendment 3288 by Oregon Senators Jeff Merkley and Ron Wyden is intended to secure cheap federal power for operating the numerous pumps which move irrigation water, agricultural wastewater and extract groundwater within the federal Klamath Irrigation Project, as well as for certain non-federal irrigators. However, the amendment also includes give aways to certain Klamath Project irrigation districts to pay the costs of reconstructing parts of the aging irrigation infrastructure. Under current law, the Bureau of Reclamation would fund the reconstruction but those irrigators benefiting would repay the cost over time. If the amendment becomes law, the Merkley-Wyden give-aways to federal irrigators will be paid for by each and every US Taxpayer. 

One of six massive pumps gifted to the Tulelake Irrigation District courtesy of 

taxpayers as part of the 2002 California Budget Deal. Cheap Bonneville power will 

facilitate the extraction and marketing of groundwater in the Upper Basin. The US 

Geological Service determined that current extraction levels are not sustainable.  

What should happen now 

The water deals will now be renegotiated. What should emerge is a single vision for how to balance the waters of the Upper Klamath River Basin that is fair to all communities and ecologically sound. Aspects of the KBRA and UBCA which sacrificed the health of the River and the welfare of Klamath Salmon in order to avoid reducing the amount of irrigation in the Upper Basin must go. Achieving that will require that tribal and fishing leaders who are in the negotiations^v unite to resist the predictable push by irrigation interests and the Department of Interior to bring into the new agreement those aspects of the KBRA and UBCA which damage the River, extend the salmon disease epidemic and prevent recovery of Klamath Salmon. Above all else, the flows the River needs to end the salmon disease epidemic must be guaranteed and not put off to some uncertain future time. 

Another aspect of the old water deals that clearly must be discarded is the KBRA's 19 pages of “Regulatory Assurances”^vi. Federal and state efforts to provide “relief” for federal irrigators from the “burden” of the ESA, California ESA and other species protection laws has already killed too many Kuptu, C'wam and C'iyaal; for the details see the KlamBlog posts at this link and also here. If the love for and connection to these species which the Yurok, Karuk and Klamath Tribes' leaders proclaimed at Requa are more than just fine words, their negotiators will insist that everyone, including federal irrigators, must play a real role in ending the threats abysmal water quality and inadequate river and stream flows pose for the Basin's most at-risk fellow creatures. 

“Relief” for one interest, federal irrigators, from a share of responsibility for recovering those species our collective management of water and rivers have imperiled is also not fair to those who must then shoulder more of the burden, including private irrigators above Upper Klamath Lake and in the Shasta and Scott Valleys. Not only the letter of our species protection laws, but also their spirit, deserves respect in all water agreements.
 
As we move forward into new negotiations, many of us will be watching to see whether rank and file members of the tribes sitting at the negotiating table and the public at large will once again be locked out of critical decisions about the future of our River and our communities. When it comes to tribal members, the UN Declaration on the Rights of Indigenous Peoples asserts that the people themselves must give their “free prior and informed consent” before any rights are relinquished. The right to informed consent, which goes beyond simply holding an election without explaining to members what is in draft agreements, has not been honored in the Klamath River Basin so far; the feds and the tribes should fix that this time around.

As for the PUBLIC, should we not also be consulted and informed when Public Trust Resources are on the line? There is nothing that prevents the Department of Interior, the government entity that created the negotiations and which has a team of negotiators and facilitators working to achieve an agreement, from keeping the people who have most at stake informed and involved. And shouldn't those federal and state officials who are charged with protecting the Public Interest also consult with the interested public on how well draft agreements fulfill that responsibility?

History teaches that Public Trust Resources are honored best when decisions about them are made in public. Confidentiality agreements may have been appropriate in dam negotiations because the dams are privately owned. When it comes to negotiations over the fate of the River, however, those negotiating on behalf of the Public Trust must be free to inform and consult the public.

Tribal representatives must also be free to consult with their members, and not just at the end with an up/down vote. In the upcoming negotiations there should be no confidentiality agreements. 

I see this as a positive time. As a river basin and as a society, we have an opportunity to fix water deals that would have proven disastrous for the Klamath River and Klamath Salmon and which, for that reason, would have created more, not less, conflict. And we have an opportunity to learn from past efforts and do a better job this time.

The Kintpuash Prayer Pole at Captain Jack's Stronghold overlooks Tule 

Lake and much of Reclamation's Klamath Irrigation Project. KlamBlog 

will be keeping watch too, looking for an outcome that is fair & balanced.   

My hunch is that success from the River's standpoint will depend on how much unity and coordination those who care most deeply about the River and Klamath Salmon can achieve. I'll be working to encourage that unity while keeping watch and letting you, the KlamBlog readers, know what I observe. 

Stay Tuned.

__________________

Endnotes: 

ii    The three federal tribes which signed the amended KHSA are the Yurok, Karuk and Klamath Tribes. The Hoopa, Resighini and Quartz Valley tribal governments are not signatories. The Resighini Rancheria and the Quartz Valley Indian Reservation tribal governments have been excluded from all Klamath dam and water negotiations.

iii   Stillwater Sciences. 2009. Dam Removal and Klamath River Water Quality: A Synthesis of the Current Conceptual Understanding and an Assessment of Data Gaps. Technical report. Prepared for State Coastal Conservancy, 1330 Broadway, 13 th Floor, Oakland, CA 94612, 86 pages, February. http://www.stillwatersci.com/resources/2009klamathWQsynthesis.pdf

iv   Water quality related die-offs of Kuptu and C'wam also occur regularly in the Lost River and that river's terminus, Tule Lake. In order to provide “regulatory relief” to federal irrigators, the US Fish & Wildlife Service failed to designate any portion of the Lost River Basin as critical habitat for the two imperiled sucker fish. The action doomed one of only two viable populations of these species. Curt Mulis was the federal administrator who delivered that “regulatory relief” to federal irrigators. He then retired and took a seat on the board of the Klamath Water Users Association which is comprised of federal irrigation interests.

v   One of the problems with Klamath water deal negotiations is that there are no genuine or local environmental organizations included. American Rivers, Trout Unlimited and California Trout are river and fishing organizations respectively and thus are special interests, not true environmental organizations. The true environmental organizations in the negotiations either were kicked out (Oregon Wild and Water Watch of Oregon) or did not sign on to the KBRA (Klamath Forest Alliance).

vi   Here's the link to a Dropbox document which contains the 19 pages of “Regulatory Assurances” that are part of the KBRA. Those who truly care about these fishes must insist that these 19 pages do not appear in a new agreement. Through that new agreement, federal irrigators should agree to play a positive and appropriate role in providing for the recovery of Kuptu, C'wam and C'iyaal.