Thursday, April 14, 2016

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. 


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 negotiationsv 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.



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.

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.