Felice Pace: Why the Klamath Deals failed and what ought to happen now

Below KlamBlog presents the views of its editor, Felice Pace. on why the Klamath Dam and Water Deals failed to secure the endorsement of Congress. Felice argues that understanding why Klamath legislation failed in Congress is essential to crafting a successful path to dam removal and restoration of the Klamath River, its salmon and aquatic ecosystems. Read on to find out why the longest serving Klamath River activist believes legislation is not needed to get the dams out and restore the River. 

Why the Klamath Deals failed and what ought to happen now

Felice Pace

For those who would craft a successful way forward toward dam removal and restoration of the Klamath River and Klamath Salmon understanding why the Klamath Dam and Water Deals failed is essential information. This article presents actual and unreported reasons the deals failed to be endorsed and funded by Congress in 2015, additional congressional hurdles legislation to authorize and fund the deals faced, and why the tribes which supported the deals (the Yurok, Karuk and Klamath Tribes) have apparently decided not to continue hoping for a better result in a future Congress. Finally, this article suggests a way forward toward dam removal, water balance and river restoration that I believe offers the best chance of success and the least vulnerability to legal challenges.

Why Klamath Legislation failed in the 114th Congress

There can be no doubt that the #1 reason legislation to authorize and fund the Klamath Dam and Water Agreements failed to become law was opposition by Republican members of the US House of Representatives to removal of PacifiCorp's Klamath River Dams. While that opposition has an ideological component, opposition to both the KHSA Dam Deal and the KBRA Water Deal by Klamath County Commissioners in Oregon and opposition by Siskiyou County California Supervisors to the KHSA Dam Deal is what convinced Oregon Congressman Walden and California Congressman La Malfa to oppose any legislation that would have resulted in removal of any Klamath River dam.

Opposition to the Dam and Water Deals convinced House Republicans to oppose S 133 

However, opposition to dam removal in the US House does not explain why a bill supported by both senators from Oregon and both Senators from California not only failed to pass the Senate but even failed to get a hearing in the committee which had to pass the bill before it could get a vote by the full Senate. So why did S 133, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, fail to get a hearing in the Senate Committee on Energy and Natural Resources? The answer is Alaska Senator Lisa Murkowski.

Lisa Murkowski chairs the Senate Committee on Energy and Natural Resources. She also chairs the Appropriations subcommittee which governs funding for the Department of Interior. And Lisa Murkowski sits on the Senate's Indian Affairs Committee. Murkowski was thus in a position to block Wyden's bill. But why would she block a bill supported by all four senators from the affected states?

Senator Murkowski denied Wyden's Klamath bill a hearing because of opposition from regional and national tribal organizations which include tribes from Murkowski's home state of Alaska. Both the National Congress of American Indians and the Affiliated Tribes of Northwest Indians opposed S 133 because of provisions in the KBRA Water Deal which would have terminated the federal government's responsibility to protect the rights of federal tribes with respect to nearly half of all irrigation conducted in the entire Klamath River Basin.

In essence, S 133 would have insulated the US Bureau of Reclamation's sprawling Klamath Irrigation Project, and the Irrigation Elite that benefit from that Project's wide-ranging subsidies, from tribal water rights, rendering those rights ineffective. As Hoopa Tribal Chairman Ryan Jackson pointed out in a recent letter to the New York Times, termination of the federal trust responsibility without the consent of the tribes whose rights were being terminated would have set a national precedent and, in effect if not in law, would have amounted to "the forced relinquishment of Indian water rights."

Alaska's tribes wield considerable political power; when they oppose legislation Alaska's senior senator takes notice. Insiders say Murkowski promised the Alaska Tribes that S 133 would get a hearing in the Indian Affairs Committee before it could reach the Senate floor. In fact, Chairperson Murkowski saw to it that Wyden's Klamath Bill never got a hearing in the committee of original jurisdiction, the Committee on Energy and Natural Resources, which she chairs.

The conclusion is inescapable: Even without opposition from House Republican's, legislation to authorize and implement the Klamath Dam and Water Deals would not have passed Congress this year and would be unlikely to pass Congress anytime in the near future.

An additional congressional hurdle

Even if S 133 had been able to overcome opposition by federal tribes across the US as well as local opposition to dam removal, Wyden's Klamath legislation would have had to overcome an additional hurdle, Congress's own PAYGO Rule.

According to the Tax Policy Center, "PAYGO, which stands for 'pay-as-you-go,' is a budget rule requiring that, relative to current law, any tax cuts or entitlement and other mandatory spending increases must be paid for by a tax increase or a cut in mandatory spending." Applying PAYGO to the Klamath River Agreements meant that, in order to provide the $40 million in new funding and up to $1 billion in reallocated funding needed for subsidies, water demand reduction and restoration authorized by S 133, Congress would have had to either raise taxes or cut $40 million from other federal budgets. In addition, federal agencies responsible for implementing the water deals would have had to reprogram up to an addition $1 billion over the course of 15 years. Funds would have been taken from other accounts, possibly including the budget for Trinity River restoration.

It is not clear that Congress would have agreed to provide the funding needed to implement the Klamath Agreements even if S 133 had become the law of the land. While S 133 would have authorized the new expenditures and budget transfers, they would have had to be included in annual appropriations bills for each of the next 15 years. In fact, the federal government has struggled to meet the funding commitments it has already made in over 30 tribal water rights deals already approved by Congress. Whether the year is 1860 or 1960, 1915 or 2015, the trail of broken promises made to the Indigenous Natives of what is now the USA continues. As applied to tribal water agreements already authorized by Congress, PAYGO is simply the latest chapter in the long history of federal bad faith.

PAYGO was also behind one of the reasons the Hoopa Tribe would not sign the KBRA Water Deal. The Tribe did not want funding for the KBRA to diminish funding for Trinity River restoration which the Hoopa Tribe had fought hard to establish; but federal agencies would not agree to shield Trinity River restoration funding from the budget transfers necessary to implement the Klamath Agreements.

The fate of the Klamath Deals

KlamBlog previously pointed out that the federal government is already implementing most aspects of the KBRA Water Deal which did not require Congressional authorization. We can expect that to continue. It is also likely that the feds will continue to push for Congressional authorization of both the KBRA and the newer Upper Basin Comprehensive Agreement (UBCA). That's because, as they have in over 30 tribal water deals already authorized by Congress, the feds agenda is to keep the bulk of the water with (mostly) white irrigators. In the face of extensive but unimplemented tribal water rights, keeping water in the hands of irrigators requires Congressional authorization and funding to tribal governments in exchange for relinquishing, or agreeing not to exercise, senior tribal water rights.

Given these realities, we can expect to see an attempt during the next Congress to authorize and fund the KBRA and UBCA. And you can bet federal agency folks will be pressuring tribal leaders to endorse Klamath legislation from which any mention of dam removal has been expunged.

I hope tribal leaders will remain strong and united in opposition to the KBRA and UBCA. Both of those deals should be opposed by all who care about the Klamath River because they provide water "certainty" to irrigators while guaranteeing uncertainty for the Klamath River and Klamath Salmon.

Any deal which does not provide the river flows needed to end the salmon disease epidemic up front ought to be opposed by tribes, fishing and environmental organizations. Hopefully that old coalition will be renewed and the leaders will have learned a lesson: When its advocates are divided, the River, its salmon and its ecosystems suffer. Above all else, those who care about the Klamath River and Klamath Salmon must maintain a united front.

While attempts to revive the Klamath Water Deals can be expected, it appears certain that the KHSA Dam Deal is dead. That does not, however, mean that a negotiated settlement with PacifiCorp to remove four of the company's five Klamath River dams and transfer a fifth dam, Keno, to the US Bureau of Reclamation is impossible. A settlement within the normal Federal Energy Regulatory Commission (FERC) process is not only possible but likely. I explain why in the next section.

A way forward on dam removal

It is unclear whether PacifiCorp's dams can secure the required permits certifying that they are in compliance with the Clean Water Act (CWA). Without those certifications, FERC can not relicense the dams and they will be removed. CWA certification is in the hands of the California and Oregon governments. In California, the State Water Resources Control Board has already scheduled initial hearings on the Klamath River dams for mid-January. Those who favor dam removal and, I suspect, those opposed to dam removal, are organizing to pack those hearings which will take place in Sacramento on January 14th, in Arcata on the evening of January 25th, in Orleans on the morning of January 26th, and in Yreka on the evening of January 26th.

Even if PacifiCorp is able to secure the required CWA permits for its Klamath River dams and powerhouses, according to the EIS produced by FERC to consider the future of the dams, the company's relicensed Klamath Hydroelectric Project would loose an estimated $20 million each and every year. That is not in the interest of PacifiCorp customers.

Both the California and Oregon Public Utilities Commissions took note of the annual losses when they found that dam removal under the KHSA was in the interest of ratepayers (another name for customers). The Commissions can and should make the same finding for dam removal within the FERC process. Advocates for dam removal and ratepayer advocates must request that the PUC's make that new finding.

I believe the dams should and will come down via a settlement within that FERC process. Removal under FERC is superior in several respects to dam removal under the KHSA. Rather than a dam removal fiasco by the bumbling Army Corp of Engineers, a settlement overseen by FERC will have PacifiCorp responsible for removing the company's dams, powerhouses and any toxic legacies remaining around those old facilities. The State of California can still contribute toward dam removal and limited liability protection for PacifiCorp can be provided within a settlement overseen by FERC that removes the four dams.

   PacifiCorp's Copco 2 Powerhouse on the Klamath River. Unassessed toxic 

  legacies, including PCPs, may be in and around PacifiCorp's powerhouses.

It was always a bad idea to pursue dam removal outside FERC and to link the fate of the dams to a water deal that provides "certainty" and many other benefits to irrigators but relies on future willing sellers to provide the water salmon and the River need.

Toward better water agreements

As noted above, attempts by the feds to revive the KBRA and KHSA are likely. For the reasons outlined above, those agreements ought to be opposed because they do not provide a real and durable solution to overallocation of Klamath River water. In the face of climate change, water "certainty" is an illusion. But the Klamath Water Deals ignore that fact and try to provide "certainty" to irrigators at the expense of the River.

Rejection of the KBRA and KHSA, however, does not mean that there can not be future agreements that balance water supply and demand basin-wide. Those who care about the Klamath River and Klamath Salmon should always be ready to sit down and seek agreement with all water users. A durable and effective water agreement will not, however, sacrifice the River's health to provide a measure of "certainty" to irrigators. Instead any Klamath Water Pact to which tribal, fishing and environmental coalition can agree must contain certain key provisions which are essential to successful restoration of the Klamath River and Klamath Salmon. Peace on the River can be obtained via an agreement which:

• Immediately provides the Klamath River flows needed to end the salmon disease epidemic and begin the task of restoring Klamath Salmon.
  
• Reduces water demand basin-wide through purchase and retirement of water rights from willing sellers. This includes demand reduction above Upper Klamath Lake, within the federal Klamath Irrigation Project and in the Shasta and Scott River Valleys. Water gained through demand reduction should be split 50-50 between the environmental water account and irrigation water supply.
  
• Provides a measure of water security for the Klamath Wildlife Refuges by committing the US Bureau of Reclamation to treat the refuges as Class A water users. In that way, shortages of water supply within the federal Klamath Project would be shared equitably and proportionately by refuges and irrigators. There is nothing preventing the US Bureau of Reclamation from providing a fair share of available water to the world-class Klamath Refuges. The Obama Administration and Interior Secretary Sally Jewell should order that change immediately.
  
• Mandates a new Biological Opinion on operation of Reclamation's Klamath Project. The existing Opinion's prioritization of filling Upper Klamath Lake over the needs of Klamath Salmon must end and the flushing spring flows needed to control the salmon disease epidemic must be provided.
  

Of course I would prefer a solution which turns over management of the Klamath Irrigation Project to the Klamath River Indian Fish and Water Commission, comprised of the Basin's six federal tribes. That would secure true and meaningful "local control" and I have no doubt that the tribes would manage the Project in a more balanced and responsible manner as compared to the US Bureau of Reclamation. However, in the spirit of compromise, I will support a water pact which is fair, balanced and provides the water our River needs. 

Don't wait for agreements

Because Klamath Salmon are experiencing a flow-related disease epidemic right now, tribes, fishing and environmental groups should not wait on a new water deal. The old coalition should unite to demand a new Biological Opinion now and sue the feds if they won't provide it.

Contrary to the spurious claims of the cheerleading media, no water deal has or will totally end conflict over water in the Klamath River Basin or anywhere in the American West. But good water agreements do substantially reduce conflict over water. In the KBRA and UBCA Agreements we had bad deals (especially for the River), tons of subsidies for federal irrigation interests, termination of tribal rights without the agreement of some tribes, and significant interests capable of blocking the deal were excluded. Such deals were always a long shot because those who would benefit the most, the federal Irrigation Elite, overreached.

While balanced and appropriate water agreements remain possible, no deal is preferable to a deal that is not in the interest of the River and Klamath Salmon. Proper application of existing law and existing funding, and completion of the court challenge stage of Oregon's Klamath Water Rights Adjudication, can provide the River flows salmon and the ecosystem need and bring water supply and water demand into balance. The Klamath Tribes can regain their homeland by annually leasing a portion of their first in time water rights above Upper Klamath Lake to irrigators and purchasing the landbase they desire with the proceeds. If we remain united, those who care about the River, the Refuges, Klamath Salmon and justice for the Klamath Tribes can get the job done. Federal legislation is not needed.