Felice Pace: It's another court victory for Klamath Salmon but disease flushing flows are not assured

The Hoopa Valley Tribe, with a strong assist from a coalition led by the Yurok Tribe, won an important victory for Coho salmon and the Klamath River recently. If faithfully and properly implemented, the order issued by federal Judge William H. Orrick will provide larger river flows during winter, springtime and, if needed, early summer. Those flows won't heal the Klamath River's ills; but they will mitigate them and help Klamath Salmon survive.

Unfortunately, initial actions taken by the US Bureau of Reclamation, which controls flows from the Upper Klamath River Basin, raises concerns that Reclamation's irrigation bias may already be impacting how much help the River will actually get. The judge's order, why the flushing flows are needed, the roll of tribal fish biologists, ESA corruption and concerns about Reclamation's good faith implementation are explored and explained below.

The Order and River flows

Judge Orrick's order comes after two devastating years during which epidemic salmon diseases killed most of the young salmon produced in the Klamath River Basin before they could reach the ocean. It also comes when the Klamath has experienced the lowest spawning run since modern counting methods began in 1978.

The 2016 Chinook Salmon run was the smallest since modern counting began in 1978 

The Court's order results from a challenge to the 2013 Biological Opinion defining what would be required of the federal Klamath Irrigation Project in order to comply with the Endangered Species Act with respect to Coho Salmon in the lower Klamath River Basin and two endangered sucker fish, Kuptu and C'wamⁱ, in the upper basin. 

In his ruling Judge Orrick found that by ignoring the Klamath's salmon disease epidemic, the US Bureau of Reclamation violated the Endangered Species Act. He ordered Reclamation to supply the Klamath River with the river flows scientists say are needed to mitigate the salmon disease disaster. Here's an excerpt from the judge's order:

With regard to the motions for summary judgment, I conclude that the federal defendants violated 50 C.F.R. 402.16 because they delayed two years before reinitiating formal consultation after the incidental take trigger was exceeded in 2014. Preliminary injunctive relief, pending completion of formal consultation, is an appropriate remedy for this substantial procedural violation. In general, plaintiffs’ requested injunctive relief is supported by the best available science and plaintiffs’ proposal that the parties’ technical experts confer on the precise timing, duration, volume, and manner of any potential injunctive flows will allow the parties to address the Bureau’s needs to maintain sufficient water for the sucker fish (two species of endangered fish also impacted by the Klamath Project), comply with various regulations, and manage safety concerns. Plaintiffs’ motions for summary judgment on Claim I are GRANTED.

The order instructs the US Bureau or Reclamation to provide two types of Klamath River flows:

          “(1) winter-spring flushing flows designed to dislodge and flush out polychaete worms that host C. shasta and (2) emergency dilution flows...between April and June 15.”

Judge Orrick also ordered Reclamation to work with “tribal experts” on the precise amount, timing and duration of increased river flows to alleviate the disease epidemic. Some of those experts, Hoopa, Yurok and Karuk tribal fish biologists, produced a “Guidance Document” specifying what the best available science indicates are target flows sufficient to mitigate the epidemic. Judge Orrick's order reflects the Guidance Document's recommendations.

In order to mobilize the riverbed and flush out disease organisms between Iron Gate Dam and the Shasta River, the Guidance Document calls for Reclamation to:

          “Provide a daily average flow of at least 11,250 cfs as measured in a 24 hour period in the Klamath River at Iron Gate Dam. This should be done at least once during the period of February 15 to May 31 in 2017.” (Guidance Document, page 10)

The best available science indicates that 11,250 cfs below Iron Gate Dam is the minimum amount of water necessary to mobilize the river bed and, therefore, the minimum flows needed to flush out disease organisms and reduce juvenile salmon losses.

Reclamation acts quickly

One day after the Court's order issued, the US Bureau of Reclamation announced it would increase flows from Iron Gate Dam to 9600 cubic feet per second “to reduce the risk of disease for Coho salmon in the Klamath River”. In its press release announcing the flow increase, Reclamation emphasized that providing court-required flows in February would “reduce potential impacts to the overall water supply.” That's a coded message to federal irrigators: Providing court ordered flows now will mean a lower likelihood that the agency will need to reduce irrigation water deliveries this summer to comply with the Court's order.

Reclamation increased Klamath River flows immediately; on February 10th flows below Iron Gate Dam reached 10,000 cfs. Officials from the Yurok Tribe praised the agency's action and press coverage was positive, reflecting both Reclamation's press releases and the Tribe's support for the action.

The press did not notice that Reclamation never planned to provide the 11,250 cfs which tribal specialists and the Court's order called for. Nor did they question why Reclamation would schedule increased flows when most of the Basin's watersheds were at or approaching flood stage. Were Reclamation's increased flows “for Coho salmon in the Klamath River” actually a prudent and necessary action to avoid flooding? Apparently, the question did not occur to reporters.

Whether or not they were planned for fish or to avoid flooding the City of Klamath Falls, the flows Reclamation announced it would release were, according to the best available science, inadequate to flush disease organisms from the River's bed. That unreported fact should cause everyone who cares about the River and Klamath Salmon concern.

Will Reclamation provide the 1125 cfs flushing flows which scientists and specialists say are needed before the end of May? And come spring will the agency again play the old bait and switch game, denying the River the water young salmon need during migration, claiming the water must be denied in order to help endangered suckers? Recent history provides hints and indications of what can be expected.

Klamath Corruption

I began calling for a legal challenge to the 2013 Biological Opinion soon after it was adopted. I did that because the Opinion was the result of corruption at the US Fish & Wildlife Services and National Marine Fisheries Services. While claiming to provide what Coho, Kuptu and C'wam need, the corrupt 2013 Biological Opinion actually prioritized federal irrigation over the needs of the three fishes.

The official most responsible for that Biological Opinion, Curt Mullis, retired from federal employment soon after the opinion became final. He was promptly awarded a seat on the Board of the Klamath Water Users Association (KWUA), the political arm of the Klamath's federal irrigators. Those irrigators have opposed adequate river flows at every turn.

Because it prioritized irrigation over the needs of threatened and endangered fishes, the 2013 Biological Opinion was illegal when it was adopted. Nevertheless, it was not challenged for over three years. Tribes and fishing organizations had recently signed the KBRA Water Deal with its 19 pages of “regulatory assurances” designed to relieve federal irrigators of the burden of complying with federal endangered species and state wildlife laws. They were willing, at that point, to support a corrupt Biological Opinion in return for the “benefits” they expected for the River and themselves if the KBRA were endorsed and funded by Congress.

These are, of course, inconvenient truths. Nevertheless, they must not be swept under the rug and forgotten. Secret water deal negotiations are once again taking place. While we all hope those in the back room have learned lessons from the KBRA debacle, one never knows. So long as the Klamath River Basin's tribal governments are dependent on the US Bureau of Reclamation to fund their fisheries and restoration departments, they will remain vulnerable to manipulation by the feds on behalf of the Irrigation Elite, the small group of fat-cat growers who control the majority of irrigation within the 200,000 acre plus federal Klamath Irrigation Project.

Finally the Hoopa Valley Tribe, which never accepted the KBRA Water deal, stepped up to the plate and informed the feds that in 60 days they would be sued for not complying with the Endangered Species Act with respect to Coho salmon. A couple of weeks later, the chief promoters of the KBRA, the Yurok Tribe and PCFFA, along with others, followed the Hoopa Tribe's lead. That's a good sign. Hopefully the tribal and fishing organizations which produced the KBRA Water Deal have awakened, at least partially, from the back room induced trance state they've been in for far too long.

What Kuptu and C'wam really need

Because of the recent court victory, a new Biological Opinion delineating what the US Bureau of Reclamation's Klamath Irrigation Project must do to avoid further endangering Coho, Kuptu and C'wam will be developed. That presents an opportunity to finally get the conservation science right for all three fishes. Stronger protections are needed not only for Coho Salmon but also for Kuptu and C'wam.

The 2013 Biological Opinion claimed that keeping Upper Klamath Lake full to the brim in spring must be the #1 priority in order to provide for the survival of juvenile Kuptu and C'wam. However, as the second independent Klamath science report by the National Research Council pointed out, there is no evidence that keeping Upper Klamath Lake full at that time of year actually helps the two endangered sucker species.

More recent research by US Geological Survey scientists confirms that fact: while high springtime lake levels have been provided faithfully by Reclamation for over a decade, very few endangered juvenile Kuptu and C'wam in Upper Klamath Lake have survived beyond their first year. Scientists do not know why juveniles are not surviving in Upper Klamath Lake; they are working hard to uncover the causes. One thing is clear, however, keeping Upper Klamath Lake full to the brim in the spring has not resulted in more juvenile Kuptu and C'wam surviving.

While it does not appear to help the endangered suckers, keeping Upper Klamath Lake full in spring does accomplish one sure thing: it maximizes the amount of water that can be supplied to federal irrigators during summer. And that, I believe, is the real reason the corrupt 2013 Biological Opinion prioritized keeping Upper Klamath Lake full in springtime even when that dooms most of the young Coho and Chinook salmon before they can reach the Pacific Ocean.

Recent science from the USGS gives a clear indication of what actually is most important to the survival of Kuptu and C'wam. The only lake in the entire Klamath and Lost River Basins where significant numbers of juveniles of both species have survived to breeding age is Clear Lake, high in the Lost River Basin.

Clear Lake, a natural waterbody, is used by Reclamation as an irrigation water source. The same corrupt US Fish & Wildlife official who delivered the 2013 Biological Opinion also removed Critical Habitat ESA protection from the Lake. That in turn has allowed Reclamation to draw down Clear Lake to the point where adult Kuptu and C'wam can't get to their spawning grounds in Willow Creek. A new Biological Opinion must reverse that corrupt action: Kuptu and C'wam in Clear Lake must not be further endangered by Reclamation's Irrigation First agenda.

Map showing potential Kuptu and C'wam extinctions expected to result 

from the elimination of ESA Critical Habitat from the Lost River Basin

The ESA is the real hero: 
 

Once again, the federal Endangered Species Act has proven a powerful tool, not only for salmon but also for the people who depend on salmon. While tribal biologists played a key roll in the victory, as did the lawyers at Earthjustice and the Hoopa Valley Tribe's lawyer, Tom Schlosser, to date, the federal Endangered Species Act is the only thing that has ever put more water for salmon into the Klamath River.

While all who care about the River and Klamath Salmon appreciate what tribal salmon specialists and lawyers have done, the ESA is clearly the real hero: a protector not only of birds, mammals and fish but also of the Hoopa, Yurok and Karuk people who depend on the River and its salmon. Perhaps rather than Salmon Festivals we should be having ESA Appreciation Festivals!

A call for citizen vigilance

If implemented properly, The Court's order will give our sick Klamath River what it most needs: more water. The water will let the River flow in a more natural rhythm; one which mimics, to the extent practicable and safe, the River's natural flow variations, what California Department of Water Resources calls “unimpaired flows”.

Low flows in the Klamath near Kapel Creek below the Trinity-Klamath confluence

But, as explained above, proper implementation of the Court's order is not guaranteed. Early implementation by the US Bureau of Reclamation raises important questions to which the people of the Klamath River deserve answers. Will Reclamation provide the 11,250 cfs flow below Iron Gate Dam which experts tell us is the minimum needed to mobilize the River's bed and flush out salmon disease organisms? And will the agency reserve water to augment summer flows if needed?

I called the Bureau of Reclamation's Klamath Falls manager seeking answers to those questions. The receptionist told me their “Public Affairs” specialist would get back to me.

The eleven decade history of the Klamath Irrigation Project teaches that, when it comes to fish, whether salmon or suckers, the good faith of the US Bureau of Reclamation can not be relied upon. The KBRA fiasco is part of that history. It showed that Klamath River citizens can not always trust tribal governments and fishing organizations to assure that the needs of our River and Klamath Salmon are not compromised.

Hopefully the tribes' specialists, who have been empowered by the judge, know enough not to be fooled by Reclamation's games and false claims. In light of Reclamation's recent actions and history of duplicity, however, tribal and other citizens would do well to remain vigilant and engaged. Citizen activists must assure that politics does not once again deny our River the water salmon, and the aquatic ecosystems on which salmon depend, need.

KlamBlog WILL remain vigilant and engaged. Will you? 
____________________

i. Kuptu (often written Qapdo) is the Klamath People's word for the Lost River Sucker; C'wam is the Klamath People's word for the Shortnose Sucker.