KlamBlog

KlamBlog Report: The Brave New World of Klamath Water and Endangered Species Management

2012-01-21T15:34:00.000-08:00

The KlamBlog Report which followswas written by Felice Pace. It is not casual reading. In the report, Felicefocuses on what he calls "the federal agenda" in the Klamath RiverBasin and the water deal that agenda spawned - the Klamath Basin RestorationAgreement or KBRA. Because the companion dam removal deal (the KlamathHydroelectric Settlement Agreement) has captured so much public attention, the KBRA Water Deal has remained largely inthe shadows - a status its architects likely intended.

Felice argues that implications of the KBRA for the future of the Klamath River and Klamath Salmon may be far greater than the more popular Dam Deal. By insulating the federal Klamath Irrigation Project and the irrigation interests it serves from "calls" for leaving more water in the Klamath River, the KBRA will focus efforts to increase salmon flows on private irrigators in the Upper Basin, Shasta and Scott Rivers. This stark political development has not been appreciated by reporters covering Klamath Water issues nor apparently by local politicians.

The romance of Salmon, Traditional Native People, Dam Removal and "Peace on the River"

has captured the public imagination obscuring implications of the complex KBRA Water Deal

Our report delves deep into the relationships from which the KBRA emerged: the relationship between the federal government and irrigators on federally developed and subsidized irrigation projects; and the realtionship between federal Indian tribes and federal government agencies.It places those relationships within broader national and west-wide contexts. KBRA-type water deals have been done or are being negotiated in western river basins from Arizona to Montana. Felice explains why these high stakes water deals are happening and speculates on how historians of the future might view them.

The report also explores the sensitive subject of how federal funding within the Basin - and the dependence of tribes on federal funding - intersects with tribal reaction to federal water policy. Some tribes may not appreciate seeing details of their federal funding dependence revealed in the report. This aspect is sure to stir up controversy and motivate comment.

Using PCFFA's Glen Spain as a foible and the words of the Irrigation Elite as his illustration, Felice proceeds to describe how the KBRA will impact tribal water rights and the federal trust relationship with the Basin's six federal tribes. He points out that altering federal trusteeship responsibilities is one among several aspects of the KBRA which can only proceed if federal legislation to authorize and fund the Deal passes Congress and is signed into law.

While some aspects await legislation, the report analyzes how the KBRA is already having a "corrupting influence" on how the Endangered Species Act is being implemented in the Klamath River Basin. Finally, Felice draws two lessons which he suggests can be learned from the report's facts and analysis.

In The Brave New World of Klamath Water and Endangered Species Management long-time Klamath River activist Felice Pace looks deeply into the meaning and implications of the KBRA Water Deal. The report attempts to demystify a complex and convoluted document written by water lawyers. The objective is to make clear what is at stake, who stands to benefit and who stands to lose out. If Felice is correct, the KBRA could make it virtually impossible to restore salmon abundance to the Klamath River Basin. The Report explains why he thinks that's the case. We hope you'll read it.

A KlamBlog Report

The Brave New World of Klamath Water and Endangered Species Management

by Felice Pace

This report is an attempt to demystify a long, complex and convoluted legal agreement - the Klamath Basin Restoration Agreement or KBRA. I want to boil it down to what really matters: what it changes, who wins, who loses, what is at stake; how the River, the Salmon and the Basin's various communities and interests could be impacted.

The Agreement, which I'll usually call the KBRA or Water Deal, is intentionally complex and obtuse. I believe it's authors intended that. Because it profoundly changes the water management rules in a manner that advantages some interests and communities over other interests and communities, those to whom the KBRA would bestow advantages don't want that known. These architects would prefer the KBRA is seen as a "restoration program" - hence the name. But at heart the KBRA is a political water deal. It changes the balance of political power in the Basin in ways that - if it is authorized and funded via the Merkeley-Thompson legislation already pending in Congress - will profoundly alter the future of Klamath River Salmon, Klamath River Basin communities and the River itself. This Deal is no mere restoration plan.

The public - and even a good many of those who were part of the "negotiations" which created the KBRA - have only vague and generalized ideas about what the KBRA does and how it will change the future if it is endored and funded by Congress and signed into law by the President. Below you'll find my analysis of the KBRA; my arguments with it and about it; and why I think key aspects are dangerous, damaging, corrupting and need to be brought down.

Let's get started.

Understanding the Context

While it has unique aspects, theKlamath Basin Restoration Agreement – the KBRAWater Deal – is not an isolated phenomenon. Instead it is one among aseries of tribal water rights settlements which the federal government has beennegotiating in the American West since the Western Governors' Association andthe Native American Rights Fund in the late 1980s convinced Congress to fund aconcerted multi-decade effort to negotiate settlements to all pending andpotential tribal water rights claims. The amount of water involved west-wide ishuge but unquantified. There is no doubt, however, that if tribal claims had beenasserted and developed, cities and whole states would have lost substantialamounts of water and many federal irrigation projects would have either driedup or come under tribal ownership.

KlamBlog has looked at several ofthese negotiated settlements. While there are variations, in essence thesettlements all involve tribes giving up substantial water rights in exchangefor money from the federal government. In some cases the funds are used todevelop real (wet) water for tribal communities; in other cases the money isused to fund jobs in restoration, fisheries and other parts of the tribalgovernment bureaucracy. In all cases I’ve investigated, tribes are trading awaywater rights – or the ability to exercise those rights - for pennies, orfractions of pennies, on the dollar.

Klamath Irrigation Project Pumps

If tribal water rights were honored most federal irrigation projects would dry up or come into tribal ownership

While I understand whycash-strapped tribes dependent on federal funding would make such settlements,I wonder whether the jobs are worth what is being given up. I suspect historians will look back at this water settlement period as the second greatrip-off of Indigenous Native Americans at the hands of the US government: firstthey took the land and tried to exterminate Indigenous peoples; this time theyare taking the water. Ironically, it is primarily white lawyers who arenegotiating away these tribal rights; we suspect historians will have somethingto say about that as well.

TheFederal Agenda

In spite of its name, the KlamathBasin Restoration Agreement (KBRA) is a classic federal water deal. As such it illustrateshow the feds work...particularly in those river basin's where there is afederal irrigation project. In all western river basins – including theKlamath- the feds are working to extinguish, settle or buy off tribal water rightsso that there will be no tribal "call" for water to protect tribaltrust resources. In the case of the Klamath, the responsibility for maintainingtribal trust resources which the feds want off their backs is directly relatedto Klamath Salmon.

The feds know that tribal rights take priority - that is settled law. They fearhaving to meet Klamath River flows sufficient to restore the good fish runs towhich downstream tribes have a right. The amount of water needed to restoreKlamath Salmon is unknown but federal bureaucrats and fisheries biologists knowit is much beyond the amount of water the Endangered Species Act (ESA) requires.As defined by the federal courts, tribal trust requires that the federal government restore abundance; the ESA isbarely able to prevention "jeopardy".

Tribal trust flows in the Klamath Riverwould most likely mean that at least 50% of all Klamath River water wouldremain in the River at all times of year. That is no problem during winter when the issue is often how to deal with flood flows. Summer and early fall, however, is a different story Currently irrigation consumes up to 90%of Klamath River water during the annual dry period. That means implementingtribal trust would reallocate 30% of summer base flows from agriculture tosalmon - something the Bureau of Reclamation and the Irrigation Elite which the Bureau serves want desperately toprevent. The KBRA Water deal is their prevention tool.

Three Klamath River Basin tribes are going along with the federal effort tojettison federal trust responsibilities with respect to Klamath Salmon; threeother tribes are not going along. Klamath legislation introduced by OregonSenator Jeff Merkley and California Congressman Mike Thompson would terminatethe federal trust responsibility for all six tribes.

While the prospect of involuntarytermination of the federal trust obligation to tribes has ignited nation-wideopposition, the tribes which signed the KBRA point out that the termination islimited. Only the federal Klamath Irrigation Project would be shielded fromtribal trust water “calls” for salmon. While the Klamath Project represents 40%of Klamath River Basin irrigation, all six federal Klamath River Basin tribeswould still have a federal trustee required to go after the other 60% if thatwater was needed to restore salmon runs.

Sovereigntyand Dependence

The three tribes which signed theKBRA did so as “sovereign” nations. But the sort of sovereignty the USGovernment allows federal tribes is limited. It was the US Supreme Court whichfirst defined the “dependent sovereign” status of federally recognized tribesof Indigenous Natives; today federal courts continue to hear cases working outwhat that juxtaposition of apparently contradictory terms means inpractice. The courts have long held that the "dependent' status of tribes renders the federal government their trustee. Federal case law has defined the nature and extent of federal trustee responsibility with respect to tribes; some aspects are still being litigated today.

Below I explore tribal “sovereignty”and “dependence” as they are playing out in and through the KBRA Water Deal. For those whowant to read more about the concept and practice of tribes’ “dependentsovereign” status here’s a link to an excellent article by law professor PhilipJ. Prygoski. Readers who want background ontribal sovereignty as it applies specifically to water and fishing rights canfind a general discussion at this link and an excellentlonger exposition published by the Congressional Research Service atthis link.

TribalTrust and Federal Irrigation

The assertion of tribal water rightsin the Klamath River Basin created a dilemma for federal bureaucrats andadministrations. While the feds wanted to prioritize delivery of water to irrigatorsand other entities which receive subsidizedwater from the Bureau of Reclamation’s Klamath Project (including a Golf andCountry Club and a Hunting Lodge), the feds knew that the law and thecourts require that as trustee for thetribes the top federal priority had to be helping the tribes get the waterto which they have a right. Federal bureaucrats also knew there are only two ways theycould get out of the trust responsibility:

1. They could “persuade" the sixfederal tribes to “voluntarily” let the feds out of their trustresponsibilities with respect to Klamath River water, or

2. They could persuade Congress toinvoluntarily terminate the federal trust responsibility with respect toKlamath River Water.

In fact, the feds are employing bothstrategies on the Klamath. Three tribes – the Yurok, Karuk and Klamath Tribes – have placed theirsignatures on the KBRA Water Deal and thereby have agreed to voluntarily letthe feds prioritize irrigation deliveries over tribal water rights; three tribes –the Hoopa, Quarts Valley and Resighini Tribes - have not agreed but will havetheir trust rights with respect to water diverted by the BOR's Klamath Irrigation Project terminated without theirconsent if legislation recently introduced by Senator Jeff Merkley of Oregon andCongressman Mike Thompson of California passes Congress and is signed byPresident Obama.

In exchange for signing the KBRA - thatis, for letting the federal trustee out of its trust responsibility withrespect to Klamath water - the Yurok, Karuk and Klamath Tribes are already receivingtangible benefits; if the Merkley-Thompson legislation becomes law they standto get more.

In the case of the Klamath Tribes,they want land in exchange for agreeing not to make a “water call” on theKlamath Irrigation Project. It has long been the Klamath Tribe’s goal torecover the tribal land base which the feds extinguished in the 1960s, creatingthe Winema National Forest from the former reservation. The Yurok and KarukTribes don’t get land in exchange for letting the feds out of the trustobligation – instead they get money.

Prior to termination, the old growth pine stands of the Klamath Tribes' reservation

provided tribal members with regular employment and a moderate income

While only the three KBRA signatorytribes expect to get benefits from the KBRA Deal, all six Klamath River Basin federaltribes are dependent on the federal government to a greater or lesser degree formoney to run their government and to provide their people with services. Onlythe Hoopa Tribe has substantial revenues from tribal enterprises sufficient tosignificantly lower dependence on federal funding.

For the Yurok and Karuk Tribes, tribalfisheries and restoration programs were once funded directly by Congress andthe State of California. That money dried up a decade ago. Now these importanttribal programs are heavily dependent on discretionary grants from the Bureauof Reclamation, the US Fish & Wildlife Service and other federal agencies. Thekey word is discretionary: federal agencies can grant or withhold fundsbased on whether or not tribal governments go along with the federal agenda. TheYurok Tribe and the Karuk Tribe need to keep federal funds flowing so that theycan continue to do the restoration, fisheries and monitoring work which translateinto much needed jobs. This gives thefeds considerable leverage with respect to “sovereign” tribal decisions.

Turwar Creek restoration project on the Yurok Reservation:

Restoration funding provides much needed employment for tribal members

The “influence” with respect to tribalgovernment decisions which funding dependence has provided to the Bureau ofReclamation, other federal agencies and the Obama Administration promptsquestions:

What role did promises of federal funding play in the decision of the Yurok, Karuk and Klamath Tribes to sign the KBRA Water Deal?
Is dependence on federal agency funding decisions the reason the Yurok, Karuk and Klamath Tribes now remain silent even as the Bureau of Reclamation cuts Klamath flows to levels which these same tribes previously claimed in federal court would result in “jeopardy” for Klamath Coho Salmon?

To put these questions in perspective let’sfirst get a better idea of the amount of money involved.The discretionary grant funded projects described below are not a complete list but they are notable examples of federal grants received by tribes which signed the KBRA Water Deal in 2008.

The "pull" of federal funding

In a 2009 report the Yurok Tribe revealed that it received closeto $1/2 million from the Bureau of Reclamation in the previous year; they alsoreported having another $157,000 in proposals pending for BOR funding.

This past July, Secretary of Interior KenSalazar announced a grant of $1,944,000 for “ongoing cooperation and participation of federal,tribal, state and local governments along with fishing, environmental and otherorganizations.” The funds will be used to “collaboratively develop a basin-wideperspective on the climate change-related risks for supply and demand that mayaffect agriculture, anadramous and resident fish, recreation, municipal anddomestic water supplies, hydropower and flood control facilities.”

Youcan bet that the tribes which signed the KBRA will receive a substantial amountof this funding; tribes which have not signed the KBRA will either not receivefunds or will more likely be given lesser or token amounts. The Bureau of Reclamation (BOR) is providingabout half the federal funds. The BOR will closely control whogets what and how the funds are spent.

Aspart of the recent EIS/EIR process, the Klamath Tribes published a document projecting benefitswhich they say will come to the Tribe if the KBRA is authorized, implementedand funded. In addition to providing funds to reestablish a land base inexchange for not asserting tribal water rights, it is clear that tribal leadersare also counting on other federal funds to flow to them under the KBRA. In theKlamath Tribes’ own words:

“Tribal members anticipate that the KBRA TribalProgram could provide some employment opportunities…some express enthusiasm forthe suggestion that the tribal members mightassist in many of these habitat restoration tasks, especially those requiringconstruction and other forms of labor that might provide work for underemployedtribal members while also improving the health of the tribal homeland andculturally significant species….Beginning soon after 2012, KBRA activities andTribal funding and participation would directly and possibly indirectly improveTribal employment and incomes.”

As with the other tribes whichhave signed the KBRA, the Klamath Tribes have already received increased federalfunding which appears to be a reward for signing the KBRA. For example, in September 2010 the Departmentof Interior announced it would give the Klamath Tribes $1.6 million “to develop new approaches for managingwater and a contingency drought plan for irrigation and fish and wildlifemanagement in the Klamath Off-Project area.”

The Trust forPublic Land has assisted the Klamath Tribes negotiate a land deal which TPL “isconfident” the federal government will fund as part of the KBRA Water Deal.According to TPL: “TheKlamath River Restoration Agreement includes $500,000 each year for the nextten years to enable the Klamath Tribes to develop the internal capacity tomanage their own forestlands and public lands, as well as any affiliatedbusinesses such as the proposed biomass facility.”

These examples are not a complete list and are meant to give readers an idea of the amount and nature of new federal discretionary funding that is flowing to the three tribes which signed the KBRA. I am not arguing that only the signatory tribes are receiving funding; however, I think it is clear that tribes which signed the KBRA Water Deal are receiving substantially more new federal discretionary funding as compared to tribes which did not sign the Deal.

Taken as awhole, the evidence confirms that all six of the Klamath River Basin’s federal tribes aredependent on discretionary federal funding to support key aspects of their governmentstructures. Dependence on federal agencies – especially those like the Bureauof Reclamation which have deep pockets – has grown dramatically over the pastdecade. The amount of money which flows from the feds appears to depend on howsovereign tribes choose to behave. Considerably more funding has been delivered and promisedto tribes which go along with the federal government’s Klamath Agenda, i.e. insulating the BOR’s Klamath Irrigation Projectand the Irrigation Elite from tribaltrust water claims. This is indeed a dependentform of sovereignty.

Tribal leaders invoketheir tribes’ sovereignty on aregular basis; rarely do these leaders talk openly about the dependency that applies legally - as definedby federal courts – and in fact as a result of dependence on federal funding.

Did the feds buy silence?

The chart belowcompares Klamath River flow plans for three months of the year - December, January and February. The chart makes clear that flows thrown out by afederal court as inadequate to prevent “jeopardy” to Coho Salmon - are nowbeing implemented by the Bureau of Reclamation.

Klamath River Flow Plan	Dec	Jan	Feb
2010: Coho Biological Opinion: These are the flows which the National Marine Fisheries Service said in the 2010 Biological Opinion were necessary to prevent “jeopardy” to Klamath Coho.	1300	1245	1300
2011-12: BOR’S Winter Flow Plan: Approved by NMFS in late 2011, these flows will allow the BOR to fill Klamath Lake as quickly as possible in order to maximize irrigation deliveries later in 2012	1000	1000	1000
2002: Flows proposed by BOR: Klamath Basin tribes, PCFFA and others told a federal court these flows would not protect tribal trust and would result in “jeopardy” for Klamath Coho	929	1011	637
Tribal Trust Flows: The studies needed to define Klamath River flows needed to restore salmon abundance have not been done)	?	?	?

Comparisonof Klamath River Flow Plans in the chart above prompts important questions:

Why is PCFFA - the Pacific Federation of Fishermen’s Associations - not back in court as they were as lead plaintiff in 2002 challenging the BOR’s reduced flows? Why are flows which PCFFA said then would threaten Coho survival now OK?
Why are the three KBRA signatory tribes silent today when in 2002through 2005 they claimed in federal court that these same flow levels wouldresult in "jeopardy" for Coho?
Why are the governments of two of the Klamath River Basin’s salmon tribes willing to accept flows which will not restore the salmon abundance which is the reserved right of their peoples?
Why have the studies needed to scientifically define Salmon Trust Recovery Flows – that is, the flows necessary to restore salmon to abundance in order to provide tribal people with a “moderate income”- never been done? Is not that in itself a breach of the federal government’s tribal trust responsibility?

How muchdoes federal funding dependence explain the silence of the Yurok, Karuk andKlamath Tribal governments? Coho biology has not changed, no new flow studies have been completed, nor have the basic scientific findings on the needs of salmon changed. What has changed is that the KBRA Water Deal is now final and has been signed by these three tribes. The amount of discretionary federal funding flowing to signatory tribes has also grown dramatically as has the gap in funding levels between tribes which signed the KBRA and those insisting on preserving their tribal trust rights.

What else except these changes can explain the silence of tribes which were once ready to take to the streets and go to court on behalf of Klamath Salmon?

Is the KBRA a “good deal” for KlamathSalmon?

Tribalapologists and that KBRA Water Deals #1 apologist – PCFFA’s Glen Spain – claimthat cuts to Klamath River flows which the BOR decided to make in November,December and January are not a big deal. Having been forced to abandon thesilly argument that the Water Deal isneeded to get the Irrigation Elite’ssupport for the Dam Deal, Spain and other KBRA promoters now claim the Deal isnecessary to set a limit on the Bureau of Reclamation’s Klamath Riverdiversions. Spain claims that in the absence of the KBRA the BOR and Irrigation Elite would face no limit tothe amount of water they could divert from the Klamath River.

The argument is absurd. Unless KBRAlegislation preempts it, the amount of Klamath River water which the BOR candivert for the Irrigation Elite willbe set by Oregon's Klamath Adjudication – an adjudication which is nearingcompletion. In the Oregon Adjudication the Klamath Tribes hold the trump card –a Supreme Court decision that they have water rights sufficient to supporthunting and fishing on the prior reservation. That means flows and lake levelswhich will not only prevent extinction of Klamath River Salmon but which willrestore all tribal trust species to abundance. Furthermore, the Supreme Court gave theKlamath Tribes a water right priority of “time immemorial” which is to say, thebest water right in the Basin.

Unlesspreempted by Klamath legislation introduced by Oregon Senator Jeff Merkley andCalifornia Congressman Mike Thompson - the Oregon adjudication will set a “cap”on the BOR/Irrigation Elite Klamath River diversions which will be well below the"cap" contained in the KBRA. That’s why the Irrigation Elite cut the Deal – they get more water under the KBRAthan they will get if the Adjudication is allowed to run its course.

In fact, if they get theMerkley-Thompson legislation, the Irrigation Elite will control so much waterthat they will sell some of it back to the federal government in drought years.That will be necessary because it is the only way during droughts to meet KBRA riverflows while also diverting the amount of Klamath River water the Deal allows theIrrigation Elite to control. Underthe KBRA, the Irrigation Elite will receive subsidized water courtesy of theBureau of Reclamation and sell it back to the Bureau at the full market price.That is indeed a sweet deal for these elite water users.

In a little noticed action, the Interior Department recently gave the Irrigation Elite another gift - funding to buy new pumps that will facilitate selling water to the feds during droughts. The feds gave the irrigators these new pumps even in the face of findings by its own US Geological Service that groundwater pumping by the Irrigation Elite is unsustainably lowering the water table and drying up drinking water wells in nearby towns.

The Bureau of Reclamation and the Irrigation Elite are hoping legislationauthorizing, implementing and funding the KBRA will pass Congress and becomelaw before the Oregon Adjudication is complete. That is likely why they put adeadline on KBRA legislative approval. The deadline is December 31, 2012 – alittle more than 11 months from now. After November there will be a lame duckCongress and possibly a lame duck president. That is when federal bureaucrats andthe Irrigation Elite will push forpassage of the Merkley-Thompson legislation.

Whathas happened to the Defenders of Klamath Salmon?

This leaves the three tribespromoting the KBRA – and other promoters like PCFFA’s Glen Spain - in a strangeposition. In 2005 the Ninth Circuit Court of Appeals found that flowssignificantly higher than those we are seeing today in the Klamath River didnot provide adequately for Klamath Coho Salmon. How does one claim that the KBRAwill be good for the River when the feds just keep cutting the River’s flow tomaximize irrigation deliveries?

Tribal leaders who once went overseas to protest on behalf of Klamath River Salmon

are now in the back room with the feds and the Irrigation Elite

Faced with the reality of what theirsignatures on the KBRA really mean, the response today is silence. Tribes andorganizations which were formerly among the most vocal and active defenders ofKlamath Salmon are not saying a word even as the Bureau of Reclamation cuts Klamath River flows. The former defenders are apparentlynot even brave enough to use the KBRA-KHSA “dispute resolution process” toquestion the cutting of Klamath River flows in order to maximize irrigation.These former salmon defenders have become toothless and compliant. So long asthe Bureau keeps funds flowing, these job starved tribes will likely remaincompliant with the Bureau of Reclamation’s priority – maximizing irrigationdeliveries at the expense of Klamath Salmon.

Muddying the Waters of Understanding

The Pacific Coast Federation of Fishermen's Associations' Glen Spain has emerged as the #1apologist for the KBRA Water Deal. He seems to have also taken on the specifictask of challenging KlamBlog. In spite of evidence drawn directly from the KBRAitself, Spain denies that the Deal has any affect on tribal water rights, ignoresthe importance of tribal trust as a means to recover Klamath Salmon abundance, andinsists that the ESA and all other laws are “preserved” by the Deal.

KlamBlog previously debunked Spain’s tribal water rights/tribal trust arguments by directlyreferencing the “trust termination” language in the KBRA (see KBRA section15.3.9 at this link).

KlamBlog alsopointed out in detail in a post howthe KBRA corrupts Endangered Species Act implementation even as it claims topreserve the Act’s applicability.

In spite of these efforts topromote understanding of what is in the KBRA, Glen Spain keeps muddying thewater by ignoring the evidence and repeating the same spurious claims over andover. The man definitely has chutzpah! Spain is implementingan old publicity trick used by those who lack cogent arguments: if one repeats something often enough folks will cometo believe it is true whether or not the facts support that conclusion.

In an attempt to clear up theconfusion Glen Spain has created, I turn to Spain’s new Klamath River Basinpartners – the Irrigation Elite – who,in a published Q&A written by their main organization for their own skeptical members, describehow the KBRA does what Spain insists on denying.

The Irrigation Elite's Klamath Water Users Association on whether the KBRA affects tribal water rights:

…The KBRA would only resolve questions related to: whether or to what extent tribes can make a call against, or demand water from, the Klamath Project.
…Quantification of the Klamath Tribes’ rights would be decided in the state adjudication. The state adjudication is in progress.
…Beginning on the effective date of the KBRA, the Klamath Tribes would agree not to assert any tribal demands against ANY use of water in the Klamath Project.
…In other words, there will either be a final settlement or the parties will revert to their current positions, but in the meantime, tribal claims could not be asserted against the Project. (Section 15.3.9.C.)

The final bullet isparticularly interesting. By their signature on the KBRA, have the Yurok, Karukand Klamath Tribes and PCFFA surrendered their ability to raise objections whenthe Bureau of Reclamation cuts Klamath River flows to maximize water deliveriesto the Irrigation Elite?

Glen Spain also claims that the KBRAhas absolutely no impact on the Endangered Species Act. Here’s what KWUA’sQ&A says about the Deal’s impact on how federal agencies implement the ESA:

The KBRA does not guarantee that there will be no impacts from the ESA. To have an absolute guarantee would require repeal, or at least major amendment, of the ESA, which is extremely improbable. The KBRA does, however, contain numerous provisions to ensure the greatest possible protection under existing law from ESA and other regulatory impacts, in order to make a considerable reduction in risk. Among other things, these provisions are designed to move away from the approach of looking to the Klamath Project to solve species concerns; support stable and long-term regulatory mechanisms to reduce risk; and reduce exposure to, and adverse consequences of any potential litigation. These provisions include sections 3.2.4, 5.4, 6.4, 20.3, 21.1.3, and 21.2.

GlenSpain should explain how these statements from the Irrigation Elite square with his claim that the ESA is “notaffected in any way” by the KBRA. Spain has made this claim on behalf of PCFFA numeroustimes in comments on KlamBlog and elsewhere; how does he square those claims with what the Irrigation Elite has published?

Why termination of federal tribaltrust responsibilities matters

The keything to understand about tribal treaty and reserved rights as they apply to KlamathSalmon is that they are not limited to the amount of water needed to prevent tribal trust species (salmon) from going extinct. Instead tribal trust river flows and water quality must besufficient to restore salmon to levels which will allow tribal members to maintain a "moderate" income.

The federal government is the tribe’s trustee. Like any trustee the feds mustlook out for the welfare of the tribes. Settled law and court precedent definesthe welfare of salmon tribes as a moderate income based on harvest, use andsale of salmon. If through Merkley-Thompson legislation the federal governmentis no longer responsible for helping tribes secure their rights toKlamath River water adequate to support recovery of abundance, Klamath River Salmoncould be doomed to bare survival.

The ESAcan prevent jeopardy; it cannot provide for recovery of abundance. Tribal trustrights, on the other hand, are not limited to survival; only tribal trust cankeep recovery of salmon abundance in the Klamath’s future.

Lessons

There arelessons to be learned from all of this:

Lesson #1: Beware of water agreements with thefeds...particularly when the Bureau of Reclamation is involved! All tribalwater settlements we’ve seen involve either:

Tribes giving up water rights which – once asserted and perfected with the assistance of the federal government trustee - would be worth billions. These rights have been exchanged for a pittance in federal funding, or
Tribes losing the legal right to force the federal government to fulfill its trust responsibility by asserting and defending tribal water rights against all other users, including federal irrigation interests.

Lesson #2: The Endangered Species Act will not be attacked directlybecause the Act’s opponents and federal bureaucrats have learned that they losethose fights. Instead, the core intent of the ESA - species protection - willbe rendered toothless via agreements like the KBRA which – in the words of the Irrigation Elite - “ensure thegreatest possible protection under existing law from ESA and other regulatoryimpacts.”

The Lost River Basin should be a focus for endangered fish restoration;

Instead it is a KBRA sacrifice zone controlled by the Irrigation Elite

If the current legislation to authorize, implement and fund the KBRAbecomes law, the Bureau of Reclamation and its “customers” - the IrrigationElite - will be in an enviable position. While it will appear that the ESA isfully in effect, the Elite will enjoy not only “the greatest possibleprotection under existing law from (the) ESA” but also “the adverseconsequences of any potential litigation will have been significantly reduced.”

Kudos go to the Irrigation Elite and the feds, they negotiated aKBRA Water Deal very advantageous to their interests.

If the Merley-Thompson legislation becomes law, we will indeed bedelivered into a Brave New World where less will be presented as more, tribeswill be compliant with the desires of federal bureaucrats, and the ESA will bein place but toothless. Under these circumstances, those who seek real SalmonRecovery on the Klamath will of necessity be forced to focus their efforts on non-federalirrigators in the Upper Basin, Shasta River and Scott River because those will be the onlywater diversions still subject to the federal government’s tribal trustresponsibilities.

How do you like the Brave NewWorld of the KBRA Klamath? Leave your comment below.

Hoopa Leader Haley Hutt: Klamath Deals/Legislation have an Indigenous historical context

2012-01-03T11:35:00.000-08:00

In an Op_Ed published in the Two Rivers Tribune, Hoopa Tribal Council member Haley Hutt has - for the first time we know of - placed the Klamath Deals and the Merkley-Thompson Bill that would authorize, implement and fund them - into an Indigenous historical perspective.

Hutt speaks of her recent visit to Washington DC where - among other things - she got to meet President Obama. Here are a couple of key quotes from Ms. Hutt's editorial:

If the Klamath Bill becomes law, the United States will successfully terminate its trustee obligation to the Hoopa Valley Tribe for senior water and fishing rights on the Klamath River forever. For the first time in the 21st Century, termination of tribal trust rights will occur without Tribal consent.

The DOI (Department of Interior) has become comfortable with offering up its Trustee Obligation as a bargaining chip as they reach settlements with corporations, states, and tribes under the pretense that it is in the best interest of the Tribe. Nothing could be more dangerous to tribal sovereignty than the Trustee, once again, deciding they know what’s best for Indians against the will of the Indians. The United States is chipping away at its trust obligations one deal at a time which is a slow termination and slow death to tribal sovereignty. Tribes, however, desperate to restore or protect a natural resource, or desperate to receive benefits they have been denied, often take a “the best deal they can get” even though what’s offered is not fair in the long run.

The highlight of my trip was meeting the President. I believe that President Obama is unaware and would not support a termination bill. Although the moment was brief, as he passed through the crowd, I did get to shake his hand and say “The Hoopa Tribe loves you!” He laughed. In his speech, he said “I’ve got your back.” I was impressed by his sincerity, and I take him for his word.

Hoopa Councilperson Haley Hutt meets President Barak Obama

(photo courtesy of Two Rivers Tribune)

KlamBlog thanks the Two River Tribune for publishing Councilmember Hutt's opinion. We republish it below and we urge other news outlets to republish it as well. Because it puts the Klamath Deals and legislation to make them legally binding into a larger historical perspective we believe the editorial advances the healthy debate ongoing among the people of the Klamath River Basin concerning the Deals and the Legislation to make them legally binding.

Some promoters of the Klamath Deals will no doubt attack this editorial by suggesting that the Two Rivers Tribune is funded and controlled by the Hoopa Tribal Council. TRT is, in fact, partially funded by the Hoopa Tribal Council. It is, however, editorially independent. While Chairman Leonard Masten has at times called in the editor to listen and respond to his concerns, neither he not any member of the Council has attempted to censor or editorially control the publication.

The independence of the TRT contrasts sharply with the newspapers/newsletters published by other Klamath River Basin Tribes including the Klamath Tribes' Klamath News, the Karuk Tribe's Karuk Tribal Newsmagazine and the Yurok Tribe's Yurok Today. The smaller Quartz Valley Indian Reservation and Resighini Rancheria do not publish newspapers or newsletters.

These other tribal newspapers/newsletters are not editorially independent; content is closely controlled by tribal bureaucrats under the direction of the respective tribal councils. KlamBlog thanks and applauds the Hoopa Tribe and congratulates the Hoopa People on being confident enough to support and fund an editorially independent newspaper. We believe editorial independence best serves the Hoopa People, the River, and Klamath Salmon.

Termination Era Not Over Yet

Haley Hutt, Member , Hoopa Tribal Council

In early November, right after the Klamath Bill was introduced by Senator Merkley (Ore.), Hoopa Tribal Council Member Augustine Montgomery and I traveled to Washington, D.C. Our mission was two-fold, to represent the Hoopa Valley Tribe as a fast-moving, formidable opposition to the bill and to find out the facts. We met in-person with Senator Merkley and Congressman Thompson. We also met with several Senate and Congress staffers, The Committee on Energy and Natural Resources and the Senate Committee on Indian Affairs. It was a packed, productive, and successful week.

I had the opportunity to attend the White House Tribal Leaders Conference, and share Hoopa’s deep concern about the termination language in the Klamath Bill. If the Klamath Bill becomes law, the United States will successfully terminate its trustee obligation to the Hoopa Valley Tribe for senior water and fishing rights on the Klamath River forever. For the first time in the 21st Century, termination of tribal trust rights will occur without Tribal consent.

In addition to the White House Conference and White House Briefing and Listening Session, The National Congress of American Indians (NCAI) held an all-day Tribal Leader Preparatory Meeting and meetings by Region. At every opportunity I shared our message, that the United States should not adopt language or legislation that would diminish, limit, waive or terminate the Trustee’s obligations for a specific natural resource against the will of the tribe.

There are numerous reason’s to oppose the Klamath Bill. The Hoopa Valley Tribe opposes the Bill because it fails to safeguard salmon and, in fact, will jeopardize endangered species by reducing flows in drought years. I spoke to the President’s top federal officials, and to the other tribal leaders present, about the threat of termination of Trust Obligations for specific natural resources. President Obama made clear that he continues to promote strengthening the government-to-government relationship, but I came away from a meeting with high ranking staffers realizing that deception is a common practice within the Department of the Interior (DOI).

The DOI has become comfortable with offering up its Trustee Obligation as a bargaining chip as they reach settlements with corporations, states, and tribes under the pretence that it is in the best interest of the Tribe. Nothing could be more dangerous to tribal sovereignty than the Trustee, once again, deciding they know what’s best for Indians against the will of the Indians. The United States is chipping away at its trust obligations one deal at a time which is a slow termination and slow death to tribal sovereignty. Tribes, however, desperate to restore or protect a natural resource, or desperate to receive benefits they have been denied, often take a “the best deal they can get” even though what’s offered is not fair in the long run.

Should this termination of trust responsibility pass, the Hoopa Valley Tribe will lose its ability to sue to defend its water and fishing rights. A Tribe does not have a right if they cannot defend it. Our neighbors need to think about this. Tribal rights are the only legal obstacle standing in the way of the Federal Government, Oregon, and PacifiCorp from making their own deal and doing whatever they want. If Congress can pass the Klamath Bill then no Tribe is safe from the United States taking what they want. Tribes should be alarmed and vehemently oppose this proposed legislation.

Assistant Secretary Larry Echohawk was on the panel during the White House Briefing and Listening Session last week. I learned that he is recused from discussing the Klamath Bill with Hoopa because of a conflict of interest. Also, Deputy Secretary David Hayes has a conflict of interest regarding the Klamath Bill. These are the two top federal officials in the BIA. What was the conflict of interest? In other words, who did they work for before they were appointed at the BIA, and are they still being influenced by them? These are questions that need answers.

After being told that Assistant Secretary Echohawk could not discuss the Klamath Bill, I had to change my comments and stated that the Hoopa Valley Tribe opposes termination of trust obligations against the will of any tribe. I asked for a Government to Government Consultation with Secretary Salazar himself because all other decision-makers cannot meet with us. I followed up with a formal letter from our Chairman requesting this consultation. No response has been received so far.

The Department of Interior is not acting in the Tribe’s interest to have proposed language that will terminate the U.S. trust duty to defend our rights, and destroy our standing to sue to defend our rights. This language was drafted during the Bush administration. If the Klamath Bill is passed into law and the U.S. doesn’t pass a billion dollar appropriations bill to implement all the provisions of the bill it will be an unfunded mandate, and the dams will not be removed. Or, if the U.S. decides that dam removal is not in the best interest of the public, the dams will not be removed. The Bill does not state that dams have to be removed, ever. Pacific-Corp will continue to profit and will not answer to the environmental violations, the irrigators will continue to receive their guaranteed and increased water allocations. The salmon, sacred to our culture, will be in grave danger and all the tribes, whether they signed on or not, will have no rights whatsoever to water for the fish. Our biologists and numerous peer reviews validate the very real threat to salmon that exists with this Bill. The DOI and the Justice Department will defend the irrigators’ right to water but not the Tribes’.

The battle that stands before the Hoopa Valley Tribe is very real and calls for our complete dedication. As American Indians we have a deep rooted spiritual obligation to defend our natural resources for their continuation, because it is the right thing to do. We must defend our rivers and the salmon for the continuation of our culture, and for our children. I am hopeful that Tribal Leaders will join our campaign to defend their trust relationship with the United States by objecting to this historic threat of termination of rights.

The highlight of my trip was meeting the President. I believe that President Obama is unaware and would not support a termination bill. Although the moment was brief, as he passed through the crowd, I did get to shake his hand and say “The Hoopa Tribe loves you!” He laughed. In his speech, he said “I’ve got your back.” I was impressed by his sincerity, and I take him for his word.

Siskiyou County declares jurisdiction over Scott River water

2011-12-16T14:11:00.000-08:00

It was buried deep below the lead, but on December 7th, 2011 the Yreka-based Siskiyou Daily News broke what could become a big story.

The front page news item by John Bowman reported on the Siskiyou County Board of Supervisor’s decision not to participate in a California Department of Fish & Games Scot River flow study. But several paragraphs in, Bowman reported Supervisor Marcia Armstrong declaring that Siskiyou County – not the State – has jurisdiction over Scott River Basin water. Here’s what Armstrong said:

“as the County Flood Control and Water Conservation District, we have jurisdiction over flows, not [the DFG].”

In recent decades Scott River has been dewatered as a result of illegal, year-around irrigation and unlimited groundwater pumping for irrigation. The Forest Service right to flows for fish in Scott River is now not met every year

Now we all know that talk is cheap. In spite of the fact that the Siskiyou County Supervisors have diverted money from services to citizens in order to beef up the county counsel’s office - and in spite of the considerable sound and fury they unleash on federal and state officials whenever they have the opportunity - so far the majority faction we call “the Four Stuporvisors of the Imaginary Kingdom of Siskiyou” have yet to file even one lawsuit backing up their claims of jurisdiction.

Will they put their lawyers where their mouth is?

So which is it: are the Four Stuporvisors just blowing hot air or are they willing to put that new stable of lawyers to work? KlamBlog offers each of them – Jim Cook, Grace Bennett, Michael Kobseff and Marcia Armstrong - all the space on KlamBlog they desire in order to explain themselves to the people.

KlamBlog will offer a prediction: Should the Four Stuporvisors actually believe what they are spouting and should they have sufficient courage to pursue those beliefs in court (which we doubt), their case claiming jurisdiction over Scott River water would be thrown out at the first hearing. It would also be the occasion for uproars of laughter in every law firm specializing in water law from here to Alaska and back down to Southern Arizona.

Here’s why we can predict with absolute confidence that such a case would quickly land in the court’s dustbin:

Counties are a subservient jurisdiction of the state and county supervisors depend on the state for the authority they have. Ownership of water and jurisdiction over how it is managed rest with the people and the state respectively. That authority has not been devolved from the legislature to the counties.

The relevant sections of the California Constitution pertaining to ownership of water are reprinted at the end of this blog entry. There are also several guides to California Water Law available on line. Here's a link to one of those guides.

One would have thought the Four Stuporvisors would have gained a basic understanding of these things during their orientation and training…or at least that one of those lawyers they have hired would have told them. But maybe they were asleep or looking out the window during that briefing.

So, to paraphrase a famous poet, the Four Stupervisors’ bluster amounts to a shrill and odiferous passing of air signifying nothing other than the character of those sounding off….and maybe what they ate for lunch.

There has been one very real effect of all that wind, however. Now state and federal agencies send mid-level bureaucrats when the Four Stuporvisors call. KlamBlog suspects that this is the way state and federal government officials punish underlings who mess up.

There actually is a real water grab going on in California – one about which the Four Stuporvisors appear to be totally ignorant. The real California Water grab is explained very well in a 2010 article from the Redding Record Searchlight titled “Who Owns California Water”.

Costales Rebuffed

In the case of the DFG flow study, the Four Stuporvisors rejected the recommendation of their own natural resource specialist – Ric Costales. An ex back-to-the-land homesteader and timber faller, Costales is one of the originators of the Bucket Brigade and a fellow who can not only organize but also verbally lambast a federal or state official in the best right-wing tradition. These days, however, the Four Stuporvisors are making Ric look downright mellow. I guess the lesson here is to beware of reason when dealing with these four. The fifth supervisor – Ed Valensuela - tries in vain to interject a modicum of reason into the deliberations. We sympathize with Mr. Valenzuela; what a frustrating job it must be trying to talk reason to that bunch!

It is said that people get the sort of elected representatives whom they deserve. With the Four Stuporvisors Siskiyou County citizens got folks who are willing to sustain an atmosphere of mean spirit strong enough to drive away any modern dynamic business which might be contemplating locating in the county. I guess they are trying to make their crazy idea that wealth only derives from logging, mining, farming and ranching into a local reality.

Maybe we can get Congress to declare Siskiyou County a national monument. After all, it already is a monument to the spirit of Knownothingism:
                       Don’t bother me with the facts;
                       just pass the ammunition.
                           _____________________

CALIFORNIA CONSTITUTION ON WATER
ARTICLE 10

SECTION 1. The right of eminent domain is hereby declared to exist
in the State to all frontages on the navigable waters of this State.

SEC. 2. It is hereby declared that because of the conditions
prevailing in this State the general welfare requires that the water
resources of the State be put to beneficial use to the fullest extent
of which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the
conservation of such waters is to be exercised with a view to the
reasonable and beneficial use thereof in the interest of the people
and for the public welfare. The right to water or to the use or flow
of water in or from any natural stream or water course in this State
is and shall be limited to such water as shall be reasonably
required for the beneficial use to be served, and such right does not
and shall not extend to the waste or unreasonable use or
unreasonable method of use or unreasonable method of diversion of
water. Riparian rights in a stream or water course attach to, but to
no more than so much of the flow thereof as may be required or used
consistently with this section, for the purposes for which such lands
are, or may be made adaptable, in view of such reasonable and
beneficial uses; provided, however, that nothing herein contained
shall be construed as depriving any riparian owner of the reasonable
use of water of the stream to which the owner's land is riparian
under reasonable methods of diversion and use, or as depriving any
appropriator of water to which the appropriator is lawfully entitled.
This section shall be self-executing, and the Legislature may also
enact laws in the furtherance of the policy in this section
contained.

SEC. 3. All tidelands within two miles of any incorporated city,
city and county, or town in this State, and fronting on the water of
any harbor, estuary, bay, or inlet used for the purposes of
navigation, shall be withheld from grant or sale to private persons,
partnerships, or corporations; provided, however, that any such
tidelands, reserved to the State solely for street purposes, which
the Legislature finds and declares are not used for navigation
purposes and are not necessary for such purposes may be sold to any
town, city, county, city and county, municipal corporations, private
persons, partnerships or corporations subject to such conditions as
the Legislature determines are necessary to be imposed in connection
with any such sales in order to protect the public interest.

SEC. 4. No individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be permitted
to exclude the right of way to such water whenever it is required for
any public purpose, nor to destroy or obstruct the free navigation
of such water; and the Legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to
the navigable waters of this State shall be always attainable for the
people thereof.

SEC. 5. The use of all water now appropriated, or that may
hereafter be appropriated, for sale, rental, or distribution, is
hereby declared to be a public use, and subject to the regulation and
control of the State, in the manner to be prescribed by law.

SEC. 6. The right to collect rates or compensation for the use of
water supplied to any county, city and county, or town, or the
inhabitants thereof, is a franchise, and cannot be exercised except
by authority of and in the manner prescribed by law.

SEC. 7. Whenever any agency of government, local, state, or
federal, hereafter acquires any interest in real property in this
State, the acceptance of the interest shall constitute an agreement
by the agency to conform to the laws of California as to the
acquisition, control, use, and distribution of water with respect to
the land so acquired.

Politics gone wild…and two rays of light.

2011-12-08T13:57:00.001-08:00

Recently Mike Tbompson and Jeff Merkley introduced legislation in the US Congress to authorize and fund the Klamath Dam and Water Deals. That prompted a new eruption of verbiage from the usual cast of Klamath Deal promoters and detractors who have been all over the media competing to spin public opinion.

We won’t publish any of those editorials and web postings because they do little more than repeat the same tired arguments residents of the Basin have been hearing for far too long now. KlamBlog wishes these spinmeisters could come up with some new arguments – or at least some new and more entertaining ways to present their propaganda.

What we do publish in this post are recent statements by the two Congresspersons who currently represent the vast majority of California’s Klamath River Basin residents – Wally Herger and Mike Thompson. We also comment on the two men’s statements.

Then, from the “rays of light” department, we publish and comment on what we believe are notable exceptions to an increasingly dark outlook for resolution one way or the other of the impasse over the costly and controversial KBRA and KHSA – the Klamath Dam and Water Deals.

The first ray of light is an announcement from the Klamath Tribes that their treaty water rights – which have been affirmed by the Supreme Court - have been quantified in Oregon’s Upper Basin Adjudication.

Along the Wood River above Upper Klamath Lake

Most of the Klamath Tribes' water rights are located above Upper Klamath Lake

The second is an editorial by Bill Cross of Ashland, Oregon. Bill represents the group American Whitewater in the Klamath River Basin. He is an avid whitewater enthusiast and instructor who has spent a lot of time on the Klamath River. Bill is an unpaid volunteer for the river advocacy group which, so far, has steered clear of Klamath deal-making. You can find more information on AW’s Klamath Restoration Project at this link.

There is an additional piece of news to which we call KlamBlog readers’ attention because it illustrates the depths to which some promoters of the Deals will go to advance their agenda.

Recently the web page of the Arcata-based Northcoast Environmental Center (NEC) was commandeered by pro-Deal individuals. Those individuals put up an Action Alert on the Deals which is at odds with the adopted position of NEC’s Board of Directors. That alert has been subsequently referred to by deal promoters in two guest editorials – one in the Mckinleyville Press and another in the Eureka Times-Standard.

Several NEC members have asked that the inaccurate alert be corrected or taken down as well as for an explanation of how the web site take-over succeeded. These members want the NEC to put in place procedures to assure that in the future the organization’s web site cannot be commandeered by board factions or outside interests.

So far NEC Board President Larry Glass has stonewalled. In e-mails to protesting members Glass stated that the alert does not represent the NEC’s position on the Deals; but he has refusing to take it down or modify it to conform to that position. The concerned members have not backed down either - citing the need to assure that this sort of debacle does not occur again. KlamBlog will monitor the situation and will inform readers of related developments at the NEC.

Wally Herger on the Deals

Below is Herger’s Guest Opinion published in the Siskiyou Daily News on December 1st followed by KlamBlog’s comments interpreting Herger’s words and the likely motivations behind them.

Herger's view of the Klamath dams controversy

By Wally Herger
Siskiyou Daily News

Redding, Calif. — I have always been – and continue to be – a fervent supporter of dams. I believe we need more dams, not fewer. They are invaluable because of their many benefits, including as a source of abundant and cheap electricity, protection from flooding, and recreational opportunities (including the economic benefits they create) for local communities. Unfortunately, decades of increasing environmental regulation have created skyrocketing costs and potential liabilities for existing dam owners. It’s a problem we are seeing play out across the West and indeed right here in our own backyard as four dams on the Klamath River are currently being considered for removal because the environmental costs and risks of continued operation have become so high. The debate over these four Klamath River dams has become a big issue in our area. Constituents I have known and worked with for many years are sharply divided on it.

Farmers in Tulelake in Siskiyou County have been fighting regulatory battles like these for years. Indeed, in 2001 their area was ground zero for a national battle over the inflexible Endangered Species Act (ESA), as farmers there had all of their irrigation water abruptly shut off in a decision that was later determined to be not justified by science. It is these same farmers who have been working to take the best advantage of a settlement agreement that they fervently hope will provide them the regulatory certainty they need to survive. They are hardly cheerleaders for dam removal. But they have concluded that giving up certain dams that create hydropower but do not store agricultural water is a trade-off they are willing to make in exchange for what they hope will stop the endless regulatory and court battles over their water supplies. If I were in their position, I would be advocating for the same settlement agreement to have a more secure economic future.

There is a wider community sentiment that strongly opposes dam removal. This was reflected in a lopsided but legally nonbinding referendum. This emotionally charged issue is further complicated by the fact that, at its core, dam removal in this case involves a private property right. PacifiCorp, the owner of the dams, has reluctantly made a tentative business decision to remove their dams. They indicated to me that they did not reach this decision lightly. But, to be blunt, the company had a regulatory gun pointed at its head.

It is not that the dams are structurally deficient; the problem is that they cannot meet current state and federal laws and regulations. As PacifiCorp moved through the relicensing process, they realized they would be required to spend hundreds of millions of dollars for fish ladders and other mitigation, and yet it was still unclear whether they would receive a vital permit required under the Clean Water Act.
Faced with this prospect, PacifiCorp decided to cut its losses. (The negotiated settlement allows them to cap their costs at $200 million. Seeking to relicense the dams would far more than double that cost which, under current law, would be passed on to ratepayers.)

That said, dam removal is by no means a “done deal.” The agreement requires a $250 million contribution from the State of California. Given the acute fiscal crisis facing California, such funding is by no means assured.

Furthermore, the Klamath River Expert Panel (a scientific “peer review” panel convened by the Department of Interior) recently concluded that current studies are deficient in addressing a host of subjects. A June story in the Los Angeles Times was headlined: “Scientists find holes in Klamath River dam removal plan.” The opening sentence bluntly noted, “A $1.4-billion project to remove four hydroelectric dams and restore habitat to return Chinook salmon to the upper reaches of the Klamath River amounts to an experiment with no guarantee of success, an independent science review has concluded.”

Bear in mind that the Department of Interior asked for this review. I contacted Interior Secretary Salazar in late August and asked him to respond to the Expert Panel’s scathing criticisms, but I have still received no reply. Before the Secretary renders a decision on dam removal, and before the Congress is asked to expend roughly a billion dollars to implement a “restoration” program, it might be a good idea to make sure that the plan will not be a colossal failure.

If the science does not justify the proposal to remove the dams, or if the cost/benefit ratio is so out-of-kilter that it does not pass the straight face test, then PacifiCorp should be owed the opportunity to seek a new license that contains reasonable and affordable conditions. But the bottom line is we must continue working to reform the environmental laws that are making life so difficult and costly for farmers and energy producers alike.

KlamBlog on Herger’s position

The Klamath’s Irrigation Elite is that small group of privileged irrigators who through extensive leasing and ownership control most of the land which is actually farmed within the Bureau of Reclamation’s Klamath Project. As KlamBlog has pointed out in the past, the BOR’s federal irrigation project also delivers water to a golf and country club, a hunting lodge, a community college, a wood products manufacturing plant, urban redevelopment land in the City of Klamath Falls and other non-ag water users. The BOR’s Klamath Project diverts approximately 40% of total water taken from the Klamath River. The Irrigation Elite receive this subsidized water and other benefits courtesy of US Taxpayers and the US Bureau of Reclamation. Individual members of the Irrigation Elite are regular contributors to Wally Herger’s campaign war chest.

If the KBRA Water Deal is authorized by Congress and becomes law this golf course is

among the water users which will have priority over salmon for Klamath River water

In this editorial, Herger is at pains to justify the Elite’s participation in the Klamath Dam and Water Deals. He is likely doing this to prepare his Siskiyou County constituents for the day when he will abandon his stated principles by supporting Klamath Deals Legislation which the Irrigation Elite favors. That day may or may not come but Herger is obviously keen to protect his political rear end if Congressional Democrats and Republicans cut a deal to give PacifiCorp its golden parachute and the KBRA gets to go along for the ride. Herger’s editorial is a signal that such a deal is possible. When big money - like PacifiCorp’s Berkshire Hathaway owners - is in the game, a Democratic and Republican accommodation is always possible. After all, both the D’s and the R’s serve big money interests more than they serve the voters.

It is interesting that Herger justifies the Irrigation Elite’s adoption of the Deals as motivated by a desire for “regulatory certainty.” He says, “If I were in their position, I would be advocating for the same settlement agreement to have a more secure economic future”. This justification conflicts with oft-repeated statements of Deal supporters - including Craig Tucker and PCFFA’s Glen Spain. They claim the Deals will have no impact on the federal or California Endangered Species Acts or on other laws which protect fish, wildlife resources and water quality.

KlamBlog agrees with Herger. While the deal makers were not so stupid as to seek an outright exemption from the federal and California ESA’s, the KBRA and the KHSA contain provisions which, if authorized by Congress, will severely limit – and with respect to Bald Eagles and some other wildlife – will demolish the effectiveness of the ESAs and other laws to protect at risk fish and wildlife in the Upper Klamath River Basin. KlamBlog has previously discussed these provisions in detail in our November 12, 2010 post.

Readers will also notice that Herger does not advocate for a return to the FERC process. That is because he knows that process would lead to dam removal without the burdens on taxpayers, the River and Klamath Salmon which the Deals impose in order to provide a golden parachute for PacifiCorp, “regulatory certainty” and new subsidies for the Irrigation Elite. The KHSA allows PacifiCorp to walk away from dams which they own clear of all responsibility – and liability - not only for dam removal but for toxic legacies which are likely lurking around 100 year old powerhouses.

KlamBlog expects that one of the most toxic classes of chemicals known - PCPs - will be discovered in soil around those powerhouses. However, if dealmakers and the federal bureaucrats who engineered the Deals have their way, those toxic chemicals will not be “discovered” until PacifiCorp is down the road and no longer responsible for them.

If the KHSA Dam Deal is accepted by Congress, responsibility for cleaning up PCPs and PacifiCorp’s other toxic legacies will be removed from the corporation’s stockholders and placed on American Taxpayers. This is an all-American trick well known to residents of timber country: In recent decades numerous timber corporations have "given" their old, unwanted mill sites to local towns for a dollar while the fine print absolved the company from all future liability.

That is what happened to the City of Mt. Shasta. City officials accepted an old mill site from Roseburg Corporation in exchange for a dollar and the liability waiver fine print. The City is now seeking a six figure federal grant to clean-up toxic pollution on that site. The highly toxic contamination – which is typical of wood products mill sites – must be cleaned up before the property can be safely used by people.

Mike Thompson on Thompson-Merkley Deal Legislation:

Below we present a Q & A with Congressman Thompson conducted recently by John Bowman for the Siskiyou Daily News followed by our comments on Mr. Thompson’s position.

Q&A with Rep. Mike Thompson

By John Bowman
Dec 05, 2011

Siskiyou County — On Nov. 10, Rep. Mike Thompson of California’s First Congressional District and Oregon Sen. Jeff Merkley introduced the Klamath Basin Economic Restoration Act in the House and Senate.

If approved, the bill would pave the way for Secretary of the Interior Ken Salazar to make a final determination on dam removal and establishes authority to manage funds for the process. It would also provide federal authorization to approve and implement the Klamath Basin Restoration Agreement (KBRA) and Klamath Hydroelectric Settlement Agreement (KHSA), thereby initiating the dam removal process, if that determination is made.

“The agreements that are in place represent the best way forward for the Klamath River Basin and its communities – now it is time for Congress to put these agreements into action,” a recent press release issued by Thompson stated.

Recently, the Daily News asked Thompson a series of questions regarding the act and its impact on Siskiyou County and Northern California communities.

Q: What prompted you to introduce this bill?

A: I introduced this bill because it's the right thing to do. The removal of the dams represents the best way forward for all of our river basin communities. It will put people to work, improve the economy for fishers and farmers, and allow wildlife and the environment to be restored.

Q: How do you feel about the odds of the Klamath Basin Economic Restoration Act passing both the House and Senate? How do you plan to overcome opposition in Congress from people like Congressman Tom McClintock, who has been a vocal opponent of dam removal?

A: I introduced this bill with the intention of it passing this Congress and being signed into law, and I am going to work hard to make sure that happens. If it doesn't pass this Congress I will keep introducing it every Congress until it does pass. Tom McClintock is against restoring the Klamath River and is content with these inefficient dams that hurt our fisheries. I doubt that will change. However, it is important for your readers to know that this bill would restore salmon habitats, help farmers and create more than 4,600 jobs. We can't sit by while some folks in Congress try to keep us from doing what's right.

Q: What would you say to Siskiyou County residents and county government officials who believe that Klamath dam removal is part of a larger government effort to limit property rights and eventually eliminate natural resource industries from the region?

A: This legislation is about improving the health of all communities in the basin. The reason it is supported by many farmers in the upper basin – especially those who rely on the federal irrigation project – is because they know that the status quo is not sustainable. Far from trying to eliminate natural resource economies, this bill would protect farming into the future while also protecting commercial, sport and tribal fishing. This bill is all about improving resource economies, not stifling them.

Q: How do your constituents in Northern California's coastal counties feel about Klamath dam removal?

A: The Northern California coastal community is united in its desire to see the Klamath River dams removed. The community is tired of seeing the damage to fisheries done by marginally productive dams, as well as their effects on water quality. For a community with spiritual, recreational or commercial ties to salmon, dams like these are outdated and no longer beneficial. It should be noted that despite the dams' negative effects on salmon, they provide no benefit to tribes in the lower basin. In fact, some areas of the Yurok Reservation do not even have power decades after the dams were built.

Q: What is your position on the importance of restored Klamath River salmon runs to Northern California’s economies and communities?

A: The restored salmon runs will have a hugely positive impact on Northern California's economies and communities. Scientific analysis shows that with removal of the dams, coho would reclaim 68 miles of historical habitat, Steelhead – the Klamath River's most popular sport fishery – would regain 420 miles of historical habitat, and commercially harvested Chinook salmon production would increase by more than 80 percent. And Siskiyou County would benefit from restored salmon runs. Folks would come to fish, stay in motels, buy food, buy gas and buy tackle. Sport fishing is a huge industry in California, and Siskiyou will see the benefits of all this. Altogether, 11 coastal counties in Oregon and California would see gains of more than 400 jobs as a result of improved fishing conditions.

The deadline for the U.S. Department of the Interior’s decision on Klamath facilities removal is March 31, 2012.

KlamBlog on Thompson’s position

After November Mike Thompson will no longer represent any portion of the Klamath River Basin. That gives him a political free ride on Klamath issues and explains why he is so obviously unconcerned about what Klamath River Basin voters may think about his sponsorship of legislation to authorize and fund the costly and controversial Klamath Dam and Water Deals.

When it comes to Congressional politics, Mike Thompson is an extreme partisan. The fact that the Klamath Deals have become a venue for inter-party warfare is not good for the River but it is what Mike Thompson thrives on. Within his new district the congressman will retain Napa and other counties with strong Agribusiness interests. Thompson has always been Big Ag’s guy and he was no doubt eager to carry water for the Irrigation Elite with whom he is known to socialize and hunt ducks.

Rays of light

Now for the Rays of Light which we promised:

Klamath Tribes Press Release: Important Victory in the Klamath Tribes Water Rights Adjudication

Chiloquin, OR- Today was a milestone in the lengthy Klamath Basin Water Rights Adjudication. The judge hearing the part of the Adjudication that deals with the claims of the Klamath Tribes issues six Proposed Orders quantifying the Tribes’ water rights. In each case he ruled largely in favor of the Tribes’ claims.

“The Proposed Orders give everyone in the Basin plenty to think about,” said Jeff Mitchell who leads the Klamath Tribes’ Negotiating Team. “These rulings highlight the role that the Klamath Basin Restoration Agreement can play in resolving Basin water issues. The Tribes will be evaluating the rulings and discussing them with others in the Basin to determine the best path from here on.”
Some interests in the Basin advised people that the Tribes’ water rights are minimal, but those interests have been proven wrong. People who followed that advice have obviously been misled in a situation where they are risking a lot.

The rulings encompass the Williamson, Sycan, Sprague, and Wood Rivers along with many of their tributaries, as well as the Klamath Marsh and springs scattered throughout the former Klamath Reservation. Cases involving Upper Klamath Lake and the Klamath River are expected to have decisions handed down in April.

“These rulings emphasize the need for Basin water interests to work together to find ways to share the water, share the pain of drought, and share the bounty of our waterways,” said Tribal Vice-Chairman Don Gentry. “The Tribes are committed to restoring fisheries and water bodies in the Basin, and we believe that agricultural and other water dependent communities can be restored at the same time. That is what the KBRA can do,” he said.

The ruling is welcomed by the Tribes who have fought for their treaty rights for many decades, and are prepared to fight many more. The Tribes’ commitment to the Adjudication reflects their commitment to restoring the health of Basin fisheries and water bodies. “Our commitment to these bounties provided by the Creator will never end,” said Mitchell.

KlamBlog on the Klamath Tribe’s Water Right

The Klamath Tribes are to be congratulated on their extraordinary perseverance. In order to get their treaty water rights recognized, they had to fight all the way to the Supreme Court and then all the way back down to get the State of Oregon to quantify those rights properly. Now, after over 30 years, the Klamath Tribes (one federal tribe comprised of three Indigenous peoples) are very close to being in the driver’s seat when it comes to Klamath River water allocation.

The proposed water right settlement included in the KBRA Water Deal would “subordinate” some of the Tribes’ water rights in exchange for federal funding to reestablish a Klamath Tribal Homeland. During the 1950s the federal government terminated the treaty-established Klamath Reservation, turned it into the Winema National Forest and proceeded to log it as fast as they could get the timber sales out the door. Timber companies – including Upper Basin-based Jeld-Wen Corporation - were the main beneficiaries. Like many of the 50s-era tribal terminations, the Klamath Tribes’ termination was later overturned…but the land was not returned.

We can understand why the Klamath Tribes want to trade some of their top priority water rights for land. We will, however, venture the opinion that the tribe could likely purchase the land they want outright in a few years just by leasing water to the Bureau of Reclamation and to irrigators who have a lower water right priority. However, the Klamath Tribes have decided to cast their fate – and the fate of Klamath Salmon – with the costly and controversial Klamath Dam and Water Deals.

If the KBRA Water Deal fails, the tribe might be persuaded to use some of its water to achieve flows in the Klamath River which would facilitate the recovery of Klamath River salmon. Those recovery flows would be a far cry from KBRA flows which, at best, will only prevention jeopardy to ESA listed Klamath Salmon. The difference between jeopardy flows and flows that would provide the salmon abundance that signals recovery is unknown. Federal bureaucrats and Klamath Deal “parties” refuse to do the studies needed to quantify the flows necessary for recovery. Logic and experience elsewhere suggests that the difference would be substantial.

The fact that Klamath River water remains over-allocated and is likely to stay over-allocated for the foreseeable future means that the Klamath Tribes’ water rights are worth a lot of money. In our view, the KBRA Water Deal undervalues those water rights. That undervaluation is the difference between flows barely adequate to prevent jeopardy and flows which will lead to recovery. We’d like to see the Klamath Tribes get full value for their water – and for Kuptu, Tsuam and Tsi’als to get real benefit from the Klamath Tribes’ water rights.

We call on the US Fish & Wildlife Service and the National Marine Fisheries Service to quantify recovery flows using the best available science as part of recovery planning for the Klamath River Basin’s threatened and endangered fishes. And we challenge Deal “parties” and the Basin’s scientific community to support that quantification.

A dam bit of difference: the Klamath debate

By Bill Cross
Siskiyou Daily News
Nov 28, 2011

Siskiyou County — Not all dams are created equal. Each is endowed by its creators with certain abilities: Some provide flood control, some store irrigation water, some generate hydroelectricity and many – like the one at Lost Creek Reservoir on the Rogue River – are engineering compromises that do a bit of all these things.

If we’re going to debate whether to remove a dam, we need to know precisely what it does. Right now the nation’s hottest dam removal debate centers on whether to dismantle four PacifiCorp dams on the Upper Klamath River. Yet many people don’t understand what these dams can – and cannot – do. The fact that the dams are owned by PacifiCorp, an electric power company, should be a big clue. PacifiCorp is not in the business of providing flood control or storing irrigation water for farmers. PacifiCorp generates and sells electricity, and making electricity is the only thing their Upper Klamath dams were designed to do.

This surprises most people. They assume that all dams reduce flooding in winter and boost the river’s flow during the long, dry summer. But to do those things, a dam must be able to store and release large amounts of water by raising and lowering the reservoir behind the dam. At Lost Creek Reservoir on the Rogue, the Army Corps of Engineers releases extra water every summer, lowering the reservoir dramatically, then uses that excess space to capture high flows during winter and spring, refilling the reservoir in time for the next summer dry season.

Not so with PacifiCorp’s Klamath dams. Seasonal raising and lowering is inefficient for generating hydropower, and PacifiCorp knows a thing or two about efficiency. The Upper Klamath reservoirs were designed to maintain a near-constant level, with no ability to store excess water in one season for release at a later time.

These dams are what engineers call “run of river” facilities, designed to release essentially the same amount of water that flows into the reservoir. They can alter flows only very briefly – on a 24-hour cycle in the case of J.C. Boyle and Copco dams – storing up the river’s flow overnight in order to release it in an oversized pulse the following day. This allows PacifiCorp to produce power when demand is highest in the middle of the day. But the dams simply cannot store enough water to reduce winter floods or release extra water in the summer.

Let’s look at the numbers. Lost Creek can be raised and lowered by 121 feet every year, allowing it to store – or release – 315,000 acre-feet of water. That’s enough to cover an area the size of Medford in 23 feet of water. Iron Gate Reservoir, the biggest of the four PacifiCorp reservoirs, can be raised or lowered by a mere 4 feet, allowing it to store only 3,790 acre-feet – enough to cover Medford in just over 3 inches of water. So although the Rogue and Klamath are similar sized rivers, Lost Creek can store 80 times as much water. Iron Gate can store just over a day’s worth of the Klamath’s average flow, while Lost Creek can store a whopping 84 days’ worth of the Rogue’s average. That’s the difference between a single-purpose hydro dam like Iron Gate and a multi-purpose dam like Lost Creek.

But these numbers are all theoretical anyway because the PacifiCorp dams never have been, and never will be, operated for flood control or water storage. PacifiCorp isn’t required to do those things, and, given the dams’ design, it couldn’t if it wanted to. The only dam on the Klamath that provides flood control and water storage is Link River Dam, located far upstream at the outlet of Upper Klamath Lake. That dam is run by the U.S. Bureau of Reclamation – not PacifiCorp – and no one is suggesting that it be removed.

So let’s be clear, and let’s be fair: The only thing the PacifiCorp dams were designed to do is generate electricity, and that’s all they will ever do.

What we should be debating, then, is whether the merits of power production outweigh the environmental costs of keeping these dams in place. That’s a fair question to debate. The organization I represent, American Whitewater, believes the modest amount of electricity these dams produce (about 1/400th of California’s total demand) pales when compared with the tremendous harm they cause by blocking migrating fish, brewing toxic algae and flooding or dewatering almost two dozen miles of one of the West’s greatest recreational rivers.
____________________

What more is there to say? KlamBlog can only add our voice to that of Bill Cross: let’s be clear, and let’s be fair.

Racism and Genocide Denial in the Klamath River Basin

2011-11-23T15:27:00.001-08:00

As it has before during times of tension over water management and environmental needs, racism has once again surfaced in the Klamath River Basin. The occasion this time was a series of formal public hearings to take testimony on the draft Klamath Facilities Removal EIS/EIR. That environmental review is intended to inform a decision by Secretary of Interior Ken Salizar. Salizar is scheduled to decide whether or not to implement the controversial Klamath Dam and Water Deals which were developed during years of closed-door negotiations.

The Deals have split long-time Klamath River allies and exposed fault lines in Klamath River Basin communities. Among the Basin’s federal tribes, three tribal councils -those representing the Yurok, Karuk and Klamath Tribes - have signed the deals and are among their chief promoters; three tribal councils - those of the Hoopa, Quartz Valley and Resighini Rancheria tribes – have rejected the deals.

Prayer Pole at the stronghold where Kientpus and other Modoc's held off the US Army.

They only wanted to be left alone to live in their ancestral territory.

The environmental community is also split with several national groups in support while local and regional groups are on both sides of the split. Other regional groups support the Deals in principle but want changes to address what they see as major deal flaws. A table listing the positions environmental organizations have taken on the Dam and Water Deals can be found at the end of this post.

Vocal Basin residents who oppose dam removal, however, do not recognize these distinctions. As is typical of racialized attitudes, Indigenous natives and environmentalists are homogenized and objectified. In the eyes of the Klamath River Basin racist all “Indians” want to destroy “our” dams and all “environmentalists” are “radical” and want to destroy “our way of life.”

Denial is a common feature of today’s racism. In the Klamath River Basin denial of contemporary anti-Indigenous racism and denial of the historical genocides visited upon Indigenous natives during the conquest era are both evident. The proper response to racism is non-acceptance; the proper response to the denial that racism exists is disclosure.

This post reports on contemporary racism in the Klamath River Basin and chronicles the denial of historical genocides with evidence drawn from contemporary and historic sources. We then suggest what is needed to deal with racism in the Basin and who we believe should be leading that effort.

Contemporary Racism Surfaces in 2001

When sociologists from Oregon State University interviewed a sample of Upper Klamath Basin residents in the wake of the 2001 “Water Crisis” they reported an “undercurrent of racism” pervading Upper Basin white communities. The researchers reported an “undercurrent” because racism was and is explicitly denied by many of those who exhibit racist attitudes and behavior.

It wasn’t long before the “undercurrent” surfaced. In early December 2002 three white men in a pick-up truck decided to terrorize Chiloquin Oregon - home to the Klamath Tribes’ government. The majority of Chiloquin residents are members of the Klamath Tribes.

Resident Perry Chock-toot reported that “three guys drove by yelling ‘Sucker lovers, come out and fight!’ and put a shotgun blast into a portable outhouse across the street.” The news report describes what happened next:
The pickup drove around this town of about 500 that is headquarters for the Klamath Tribes, firing at signs and buildings, and stopped for a while behind a school bus, where the men asked kids headed for a basketball game whether they were Indians.

Klamath River Basin white farmers and ranchers were incensed by accusations of racism and responded with denial. Dan Keppen - who as executive director of the Klamath Water Users Association was the main spokesperson for the Basin’s Irrigation Elite - accused those advocating for river flows needed to restore Klamath River Salmon, of “playing the race card.” According to Mr. Keppen “it's not race - it's a simple matter of having no water and seeing the family farms slip away from them.”

Anderson-Rose Dam - a federal irrigation facility - was built on top of a natural volcanic bridge over Lost River which became part of the Applegate Trail. The Modoc People's main village was located nearby; The Modocs were "removed" so that they would not trouble passing wagon trains.

In a little reported follow-up the three men who terrorized Chiloquin were found not only to be guilty of lawbreaking but also to be racist:
          Klamath County Circuit Judge Roger Isaacson went even further than the text of the apology, denouncing the Bonanza men as racists, symptomatic of a deeper racial problem in the Klamath Basin. "The same might be said of white guys in the 1950s who put sheets on and intimidated black people," the judge said. "Your actions aren't any different than what they did".

Racism and the Klamath Deals

As evidenced by more recent reports, some Klamath River Basin residents did not heed Judge Isaacson’s admonitions. In 2010 two officials of the Klamath Tribes published an editorial in which they complain about a political ad which they identify as racist:
          Can anyone doubt the motive for singling out the Klamath Tribes in this manner, and for grossly distorting the facts around the land acquisition? Is the Klamath Conservative Voters PAC the most recent face on local racism? We are sick and tired of the unrelenting hatred and opposition poured out towards the Klamath Tribes by groups like the PAC, Klamath Basin Alliance and several others.

It wasn’t long before a denial letter was published in response.

A more direct expression of racist attitudes occurred in connection with formal hearings on the environmental review of the Dam and Water Deals and alternatives. At the first of six hearings on the Draft environmental review racism became explicit:
          An elderly man approached Jeff Mitchell, a Klamath Tribes member….Mitchell said the man told him “all of us Indians needed to be rounded up and put on a train and shipped back to Oklahoma again. ‘It's not the first time, unfortunately, that this has happened,’ Mitchell said.

The reference to shipping folks to Oklahoma on the railroad was not lost on Jeff Mitchell. Like every other contemporary Indigenous native, Mitchell knows that it was not long ago that “Indian troublemakers” – those who protested the expropriation of their land and the ill treatment of their people - were rounded up by the Army, loaded onto railroad cars and shipped to Oklahoma. At that time Oklahoma was – like the Gaza Strip today – a large open-air prison to which Indigenous natives were shipped to clear the way for white settlers.

The Redding Record Searchlight has not used the term “racism” to describe social relations in the Basin but it has reported on what it calls “mounting tensions” in the Klamath River Basin over the proposed Dam and Water Deals and the role Siskiyou County Sheriff John Lopey and the Scott Valley Tea Party have played in stirring up tension:
Just a few quiet miles off Interstate 5 in northern Siskiyou County it's hard to imagine deep ideological divisions and political demagoguery threaten to turn a dispute over fish habitat, dam removal and farmers' water rights into a battleground.

Racism is a major contributor to the “tension” as is evident in on-line comments on the Record Searchlight report. Here are two examples:
           For God's sake folks let the Indians go buy some damned fish; they have taken most of the white man's money already with a casino on every street corner. I'll bet if you surveyed them they would tell you they are tired of eating fish after all these years anyway
           Why can't they just buy fish at the market like most people do? After all, they have been living off government handouts for as long as I can remember.

“Tension” in Basin - which we take as a euphemism for racism – is reinforced at least once a week when the Siskiyou Daily News’ “Scott Valley View” is published. The “View” includes regular columns by the Tea Party’s Liz Bowen and Siskiyou County Supervisor Marcia Armstrong. Both regularly attack the Karuk Tribe and other federal tribes. Recently Ms. Armstrong accused the tribes (along with the federal government) of destroying the county’s tax base. Armstrong’s assertions were challenged by long-time Klamath River activist Felice Pace.

An example of Siskiyou County style genocide denial surfaced in 2009 as part of a conflict over recreational (sic) gold dredging:

The Karuk Tribe played a major role in the California legislature ending the practice of vacuuming river bottoms in hopes of finding gold – a practice scientists say often negatively impacts salmon. Dave McCracken – a local entrepreneur who heads the “New Forty-niners” recreational mining enterprise – wrote in an editorial in the now defunct Pioneer Press that all claims made by Karuk Leader Leaf Hillman in a Sacramento Bee editorial were a “distortion of reality.” He then became specific:
          Let me bring the fresh air of truth into this discussion, beginning where Hillman began with a slanderous claim that the gold miners of the 19th century were guilty of, in his words, "attempted genocide" of his Karuk tribe. That is an absurd and ugly charge. Hillman knows there is not a shred of historical evidence to support his claim.

As is typical of such denials, McCracken offered no historical or other references to back up his claim. But of greater interest is the fact that there were no subsequent letters to the editor pointing out McCracken’s error by referencing the well documented genocides. The lack of protest response indicates that McCracken’s genocide denial was accepted as factual by most Pioneer Press readers.

Roots of Klamath River Basin Racism

The roots of contemporary Klamath River Basin racism can be found in the Basin’s history and in denial about aspects of that history.

Historians report that between 1850 and 1870 80% of the Indigenous Native Americans living in Siskiyou County were killed; most of them were murdered.

Some of the murderers were rogue miners like a fellow called Wooley who operated near the mouth of Salmon River and who boasted about killing every Indian he encountered. A creek in Siskiyou County still bears the murderer’s name. But there were also campaigns of “extermination” organized to prevent establishment of a reservation which – according to Siskiyou County leaders - would take up too much “good mineral land.” (see Little White Father by Ray Raphael, Humboldt County Historical Society, 1993).

The attempted genocides during this period were not limited to Siskiyou County. In fact a campaign of “extermination” was the official policy of the new State of California:
    In his January 1851 message to the California legislature, California Governor Peter H. Burnett promised "a war of extermination will continue to be waged between the two races until the Indian race becomes extinct".

While racism was rampant across the new state, Siskiyou County – and the town of Yreka in particular - was noted for its Indian haters and Indian hunters:
     In 1853 the Yreka Herald called on the government to provide aid to "enable the citizens of the north to carry on a war of extermination until the last redskin of these tribes has been killed. Extermination is no longer a question of time--the time has arrived, the work has commenced and let the first man who says treaty or peace be regarded as a traitor".

Further documentation of Northern California’s late 19th century genocides is available on line at these links:

http://revcom.us/a/v21/1030-039/1039/gold1.htm

http://www.1849.org/ggg/treaties.html

http://www.csus.edu/indiv/t/tumminia/memorial.htm

http://nativeamericannetroots.net/diary/488/genocide-in-northern-california

http://www.1849.org/ggg/massacres.html

Among Northern California Counties, the Klamath River Basin's Siskiyou County continues to stand out in one respect: It is the county where denial of the late 19th century genocides perpetrated by Northern California’s white settlers appears strongest today. That denial can be seen most clearly in the failure of local historians and contemporary Siskiyou County white society to admit that genocide against the Indigenous natives was not only practiced but was officially sanctioned and encouraged.

Here’s how author Paul Harris described Siskiyou County denial of racism in 1997:
Reading pamphlets and brochures from the Yreka Chamber of Commerce, one would hardly know of the history or the present day existence of Siskiyou County’s original peoples. There are only two references to Indians. The first is one line stating that the name “Yreka” is a Shasta Indian word for Mt. Shasta. The second is a description of “Indian Peggy” as one of the town’s “famous personalities” who “is considered the savior of Yreka for warning the whites of an impending attack in the ‘50s.

Denial of genocide and contemporary racism is also evident in a book published by the Siskiyou County Historical Society. In “Western Siskiyou County: Gold and Dreams,” authors Gail Fiorini-Jenner and Monica Hall admit that bad things were done by white pioneers to local Indigenous natives. However, they present these as aberrations - not as the organized and officially sanctioned campaigns which they were.

Even the contemporary memory of a feast to which the Indigenous Shasta Indians were invited only to afterward fall sick and die is soft peddled. Fiorini-Jenner and Hall state that the meat fed to the Indians was tainted but that it is unknown “whether from spoilage or poison.” In their book the term “racism” is reserved for attitudes toward Chinese folks who came in to work the gold. Referring to racism with respect to native-white relations is apparently verboten. Remarkably, one of the authors is, in part, descended from Shasta Indians.

The history of racism in the Klamath River Basin is not limited to anti-Indigenous racism. It has also been documented with respect to black workers who came in the 1920s to work in the lumber mills
and against Italians who dared to strike at a McCloud Mill after having agreed to emigrate in order to work for what turned out to be poor wages and miserable living conditions. In early 20th century America, Italians were considered “non-white.”

Summary

The record is clear: racism has been a major feature of politics and social relations in the Klamath River Basin from the time the area was first invaded by white gold miners right down to the present day. The record is also clear that organized genocides against Indigenous nations took place in the Basin between 1850 and 1870. These genocides were practiced, condoned and officially promoted by some of the area’s most revered pioneers. Finally we have shown that racism and genocide denial are prominent features of contemporary Klamath River Basin society and that these attitudes are condoned and encouraged by some current political leaders.

Racism and denial are not just present in the minds and hearts of individuals, however. Racism and genocide also become institutionalized. In a study of the contemporary and traditional diet of the Karuk People, sociologist Kari Norgaard documented institutional racism in the denial of access to traditional foods via the Fish & Game Codes and in the foods available to contemporary Karuks. Here’s a link to the Klamath Environmental Justice Research and the Klamath Field Institute web page where you can download Ms. Norgaard's fascinating study and learn more about the work of the Institute

The last known lynching in California took place in Siskiyou County on January 10th 1947. A black butcher from Weed was accused of rustling a steer and was strung up in the town of Callahan in the Scott River Valley. In typical Siskiyou County fashion, the lynching was covered up. However, those enrolled in Callahan's public school saw the strung up corps. If alive, those school children would be in their 60s and 70s today.

Modern medicine has discovered that denial on the personal level breeds disease. The same is true for communities, counties and, for that matter, countries. Unless and until the Klamath River Basin’s racist and genocidal past is brought into the light of day, discussed and accepted, that past will continue to haunt present social and political relations. There can be no peace without reconciliation.

As the feast of Thanksgiving approaches, where are the Christian churches? Where are their leaders? Who is going to lead Klamath River Basin communities to honestly confront and accept their racist past in order to build a more just and peaceful tomorrow?

Tales from two meetings

2011-10-31T18:49:00.000-07:00

The team of federal and state officials charged with hearing testimony on the Klamath Facilities Removal Draft environmental report wrapped up their assignment last Thursday evening in Klamath, California near the mouth of the River. The Klamath Public Hearing followed others held in Klamath Falls, Yreka, Orleans and Arcata and upon a teach-in on the environmental report in Eureka sponsored by the North Group Redwood Chapter Sierra Club and other organizations. Links to media reports on hearings in Klamath Falls, Yreka and Arcata are included at the end of this post.

Members of the Hoopa Tribe express their sentiment

The Klamath Public Hearing

Located near the mouth of the Klamath River, Klamath is an diverse community and that was reflected at the hearing. The event was held at the Yurok Tribe’s administrative facility which is right across the River from another of the six federally-recognized tribes located within the Klamath River Basin. The members of the Resighini Rancheria are all Yurok Indians and The Rancheria's government predates the Yurok Tribal Government. Officials and members of both tribes – the Yurok Tribe and the Resighini Rancheria – dominated the hearing.

To give folks a sense of the hearing we present below quotes and paraphrases from those testifying at the Klamath hearing. Here’s what individuals and those representing organizations had to say about the environmental report and about the Dam and Water Deals – the KHSA and KBRA – which the report claims to assess.

Thomas O’Rourke, Chairman, Yurok Tribe:

Native people have been caretakers of the River for uncounted generations.
Water Quality is the River’s most significant problem.
Working together we can be successful at restoring the River.

David Gensaw, Council Member, Yurok Tribe:

He reminded folks that Klamath River Indigenous Natives had to fight the attempted termination of their fishing rights. In the 1970s those fishing traditionally faced arrests and beatings.
We need the dams out to restore the salmon. We’ll fight for that and won’t settle for less.
Our salmon refugia have been destroyed by irresponsible logging and irrigation/farming.

Sunshine Watkins, Treasurer, Resighini Rancheria:

We were excluded from Klamath negotiations; if the KBRA is endorsed by Congress our rights will be terminated. Under the KBRA we will be on the outside for 50 years.
The dams should come out before the 2020 date proposed in the KHSA.
The best way to get the dams out is to return to the FERC process; the State of California 401 Clean Water Act certification process will result in timely dam removal.
We need Ecological Restoration which the KBRA does not provide.

Ray Mattz:

When he was young in the days of massive logging the eddies in the river were filled with bark.
The Candlefish – a mainstay of traditional Yurok diet – are gone. The Trinity Dam was built and within 7 years the Candlefish were gone.
“We should be proud that (unlike other rivers) we still have wild fish."

Sammy Gensaw , member, Yurok Tribe:

“I come here to represent the youth of the reservation.”
We’re living in a food dessert; we need a thriving river in order to maintain our culture.
We’re part of the ecosystem.

Mike Belchik, fish biologist in the employ of the Yurok Tribe:

Supports the KBRA and KHSA which will provide salmon with access to refugia above the dams that have stable sources of cold groundwater.
He believes dam removal and the KBRA are the keys to restoring Spring Chinook Salmon.

Josh Norris, member of the Yurok Tribe:

“I’ll be here for the long haul.”

Josh Norris: "I'll be here for the long haul."

Georgianna Myers:

“Our river is sick and we feel its pain.”

Josh Strange, fisheries biologist who has worked for the Yurok Tribe:

Risk associated with the ‘no action’ alternative are not properly appreciated or addressed in the environmental document.
Klamath River fish disease problems cannot be fixed if the dams are not removed.
Global warming is a new threat that has not been assessed.

Patrick Higgins, fish biologist in the employ of Resighini Rancheria:

The environmental document does not analyze the impacts of the KBRA; this sort of deferral of environmental analysis violates NEPA and CEQA.
The environmental document lacks an ecologically based alternative; ecological restoration is the only way to restore the River.
Because the KBRA will not employ ecological restoration in the Upper Basin terrible water quality due to agricultural pollution will continue. The fish diseases will simply migrate upstream once the dams are removed.
The environmental document fails to address pesticide use in the Upper Basin. Commercial agriculture on the Tule Lake and Lower Klamath National Wildlife Refuges has the largest rate of pesticide use in all of Siskiyou County.

James Dunlap, Yurok Indian and manager of www.YurokVoices.com

As a Yurok I have an innate distrust of the federal government.
Waiving of tribal rights in any manner is not acceptable. We don’t endorse any agreement that gives away or waives any of our rights.

Merk Oliver, member, Yurok Tribe

The dams are no good for anyone; they are poisoning the fish and the people.

Felice Pace, KlamBlog

The issue is not dam removal – the dams will come down because if relicensed they would lose money. It is not in the interest of the owner – PacifiCorp – to keep operating them therefore – one way or another – they will come out.
What remains to be decided is: 1. when the dams will come down, 2. who will pay for removal, and 3. what other provisions for good or ill will catch a ride on the dam removal train.
The environmental document makes numerous unsubstantiated claims not backed up by data or analysis. For example, the environmental document claims the KBRA will achieve water pollution clean-up goals more quickly than if it was not implemented. Yet there is no analysis in the environmental document or elsewhere to back up that claim.
The proposed alternative would relieve PacifiCorp of responsibility for toxic legacies which may be lurking around100 year old powerhouses. The taxpayers should not be saddled with cleaning up PacifiCorp’s toxic legacies.

Robert Jackson, Yurok

We need to focus on having water for the fish; we need water too.
It is disgusting how they waste water up there (in the Upper Klamath River Basin).
We need to manage the nutrients (coming from agriculture)
In no way should we relinquish any of our water rights.

Klamath Teach-In

On October 19th a group of North Coast environmental organizations that strongly support dam removal but do not support or have reservations about aspects of the KBRA Water Deal, presented a teach-in on the draft environmental document intended to inform the Secretary of Interior’s decision on whether or not to implement the Klamath Dam and Water Deals in Eureka.

The teach-in was well covered in the press; a video of the event is available for viewing on Access Humboldt.

One member of the audience challenged the presentations. Peter Pennycamp said he had come to hear all sides of the issues but was disappointed that promoters of the Dam and Water Deals were not on the agenda. One of the presenters – fisheries biologist Pat Higgins – pointed out to Peter that the government is making the case for the Dam and Water Deals in 6 sessions around the region and that the teach-in is intended to provide a forum for those whose views are not being promoted by federal and state government officials and agencies.

Higgins represents the Resighini Rancheria - one of the three federal tribes located in the Basin which were excluded from negotiations that resulted in the Dam and Water Deals. He offered to debate promoters of the Deals anytime and anywhere.

This small controversy mirrors a debate going on in society generally: Are media outlets obligated to provide “balance” by providing all sides of an issue with equal time? Alternatively, is there a place for advocacy journalism, i.e. journalism which comes from a certain position other than feigned “neutrality” and/or which seeks to balance voices in the public arena by giving voice to those interests and individuals who are marginalized or not considered at all by major media outlets?

One of the promoters of the Dam and Water Deals – Craig Tucker who works for the Karuk Tribe – was very active at the teach-in even though he was not a presenter. Tucker repeatedly interrupted and challenged both the presenters and those members of the public commenting after the presentations. Tucker has been known to “lose his cool” before; on this particular night he was in rare form, suggesting among other things that everything that had been presented was wrong or misinformed.

Tucker also took credit personally and organizationally for getting PacifiCorp to agree to the Dam Deal. He ignored the efforts of many tribal biologists and environmental activists who painstakingly built the case for dam removal for years before Tucker came to the basin. In KlamBlog’s view it is those biologists and activists who sealed the fate of the dams by getting an administrative law judge to order that fish ladders must be installed if the dams were to be relicensed. The cost of those fish ladders alone – not to mention the cost of mitigating the dams’ water quality violations – is what really doomed the dams.

In spite of the irascible Tucker, the presenters and audience for the most part remained calm and maintained an atmosphere of respect for the opinions of others.

Once it was clear that the relicensed dams would lose money annually, their fate was sealed. Dam owner PacifiCorp has since that time negotiated to get the best deal for shareholders. The KHSA or Dam Deal represents their complete success. If the Dam Deal is endorsed by Congress, PacifiCorp shareholders will be able to walk away from the Klamath Hydroelectric Project which they own and will be absolved from all liability not just for dam removal but also for all toxic legacies which may be lurking around the company’s 100 year old powerhouses.

Here are links to media coverage that reported what people said at Klamath Facilities Removal Draft EIS/EIR hearings:

The Two Rivers Tribune had excellent coverage of several of the hearings as well but at the time of this posting they were not available on the TRT web site.

Klamath Justice Coalition Pro Dam Removal protest outside the Yreka Hearing

(photo courtesy of the Two Rivers Tribune)

Forum to Discuss Federal Dam Removal Process on Klamath River

2011-10-13T18:14:00.000-07:00

source: http://www.wildcalifornia.org/blog/forum-to-discuss-federal-dam-removal-process-on-klamath-river/

ARCATA, CA -- Environmental organizations from Northwest California and Oregon are organizing a panel presentation to discuss the federal and State environmental impact reports on the proposed Klamath Hydroelectric Project dam removal. The event will be held at the Wharfinger Building in Eureka from 6:30-8:30 PM on Wednesday, October 19. Four speakers will present on various aspects of the draft environmental impact documents and explain their origins and relationship to the Klamath Basin Hydropower Agreement (KHSA) and the Klamath Basin Restoration Agreement (KBRA).

Keno Dam: Uppermost of 5 Klamath River dams owned by PacifiCorp. Four dams are proposed for removal; ownership of this one is proposed for transfer to the federal Bureau of Reclamation. Come to the panel presentation and find out why!

The Draft Environmental Impact Report (DEIR) for Facilities Removal on the Klamath River was released on Sept 22, 2011. The 60-day public comment period began with the release of the DEIR, and will close in mid-November. A series of public hearings to describe the DEIR and receive public comments will be hosted by the United States Department of the Interior, including a hearing in Arcata from 4:30 – 8:30 on October 26 at the Arcata Community Center. See the documents that are currently available for public review as well as information about the public hearings at the government website www.klamathrestoration.gov.

The Klamath In The Balance forum at the Wharfinger Building on October 19 is intended to motivate the public to make informed comments and to actively engage on this globally relevant environmental issue.

The panel will feature Bob Hunter, a representative of Water Watch of Oregon who has studied the Upper Klamath Basin for over 30 years. He will briefly characterize the historic hydrology of the Klamath Basin and then describe water allocation under the agreement and implications for the National Wildlife Refuges. Also speaking on the panel is Andrew Orahoske, the conservation director for the Environmental Protection Information Center, who will discuss the legal framework for dam removal, and the requirements for recovering salmon and other native species in the basin.

Patrick Higgins is a fisheries biologist with an intimate knowledge of the Klamath River who will describe the need for ecological restoration to solve water quality problems. Higgins will also discuss the ecological imperative to recover endangered suckerfish of the Upper Basin, as well as salmon. Hayley Hutt, a Hoopa Valley Tribal Council member, will elaborate on concerns about the ramifications of the federal process for Indian Tribes that did not sign the KHSA and KBRA; Hutt will also discuss Hoopa perspectives on the federal legislation that would authorize and fund the agreements. A trained facilitator will moderate a question and answer period with the presenters assembled as a panel.

Co-sponsors of the forum include the Northcoast Environmental Center (NEC), the Environmental Protection Information Center (EPIC), the North Group and the Redwood Chapter of the Sierra Club, Redwood Region Audubon Society, Water Watch of Oregon, and Ancient Forest International (AFI). The event will run from 6:30 PM to 8:30 PM, Wednesday, October 19. The Wharfinger Building is located at 1 Marina Way along the waterfront in Eureka. There is no cost for admission, and refreshments will be served. For more information about the event, call the NEC at 707-822-6918, or EPIC at 707-822-7711.

Background websites:

Water Watch of Oregon-- http://waterwatch.org/programs/restoring-the-klamath/klamathprogram/

Official Federal and State Government website-- http://www.klamathrestoration.gov/

Karuk, Yurok, and Klamath Tribes website-- http://www.klamathrestoration.org/

Resighini Rancheria-- http://resighin.ipower.com/

Independent perspective on Klamath Issues-- http://www.klamblog.blogspot.com/

The Facilities Removal EIS/EIR: Key Issues, Proposed Actions, Realistic Alternatives

2011-10-05T13:19:00.000-07:00

The most important thing to understand about the EIS/EIR, the decision of Interior Secretary Salazar it is meant to inform and the federal legislation needed to implement the Interior Department’s proposed Klamath Dam and Water Settlements is that it is not about whether or not 4 dams will be removed. That decision has already been made. Four dams owned by PacifiCorp – Iron Gate, Copco 1, Copco 2 and J.C.Boyle – will come down and a fifth dam - Keno - will be transferred to the Bureau of Reclamation because required fisheries and water quality mitigation requirements render them uneconomical. If PacifiCorp’s Klamath Hydroelectric Project were relicensed, the company would lose an estimated $20 million each year.

For PacifiCorp’s electric customers and shareholders the obvious decision is to decommission the project and remove the dams. When the political noise is stripped away the dams will come down for economic reasons. The only real questions which remain are:

Who will pay for removing PacifiCorp’s aging dams and powerhouses? and

What other decisions and provisions will catch a ride on the popular dam removal train?

Copco Dam: The Klamath Dams are old, obsolete and will loose money if relicensed

Who will pay for dam removal?

If I own a billboard which must be removed from the roadside I must pay for the removal. One would think it would be the same if I owned a power dam. But that is not the case. For a utility like PacifiCorp, there is the option of getting electric customers to foot the bill for dam and powerhouse removal…that is, if the governing Public Utilities Commission agrees. There is also the option of getting taxpayers to foot the bill…if the state or federal governments agree.

The normal process for either relicensing or decommissioning a hydroelectric project on a public river is via the Federal Energy Regulatory Commission (FERC). If PacifiCorp had gone that route to deal with its money-losing Klamath River dams, however, it is likely that PacifiCorp shareholders – primarily the Berkshire-Hathaway investment firm and its principle shareholder Warren Buffett – would have been required to bear part of the cost of dam and powerhouse removal.

PacifiCorp decided not to go the FERC route. Instead the company negotiated a deal with the federal government, the states of Oregon and California and other parties. Known as the Klamath Hydroelectric Settlement Agreement or KHSA, that deal guarantees that PacifiCorp can continue to operate its antiquated Klamath River dams and powerhouses until 2020 without making substantial changes in operations to benefit fisheries and water quality. The Dam Deal also guarantees that Warren Buffet and other shareholders will not bear any of the cost for removing the dams and that they will not be liable for toxic legacies which may be lurking around century-old powerhouses. It’s a great Deal for PacifiCorp shareholders: they get to operate the dams without modern mitigation requirements for another ten years and then walk away from a non-performing asset without paying a cent.

The KHSA Deal might actually get four dams down quicker than the normal FERC route...but not necessarily. In order for the deal to work, Congress must agree; only Congress can absolve PacifiCorp and its shareholders from all responsibility for dam and powerhouse removal and for toxic legacy liability. If Congress does not pass the required legislation, PacifiCorp will be forced to proceed via the FERC process. With thousands of aging dams across the country coming up for relicensing, how the Klamath’s dams are dealt with will set an important precedent. If PacifiCorp gets Congress to go along with the sweetheart deal its managers negotiated, other power companies will expect the feds to make sure their investors do not bear any of the cost for facilities removal as well. That in turn will make it more difficult to actually get dams removed.

On the Dam Removal Train

Some of the Klamath’s federal and tribal bureaucrats and irrigation interests recognized more than a decade ago that the dams would likely be removed and that dam removal would be wildly popular. They decided then to attempt to hitch the things they most want onto the dam removal train. The first step was a propaganda effort to convince the public that “peace” had come to the Klamath. Well-healed and dominant irrigators who receive subsidized water courtesy of US taxpayers and tribal leaders were suddenly seen on TV declaring a newfound appreciation for each other. Formal negotiations followed and a complex water deal was negotiated. Those who did not see the deal as in their interests were kicked out of negotiations or marginalized within them.

The result was a complex, controversial and costly agreement known as the Klamath Basin Restoration Agreement or KBRA. Because it favors certain irrigation, tribal and environmental interests over other irrigation, tribal and environmental interests, the KBRA Deal’s only real chance for approval and funding is to catch a ride on Klamath dam removal legislation.

KBRA analysis is provided below in order to demystify what those who created the KBRA have shrouded in complexity, technical legal language and media spin. In order to get their deal, KBRA “parties” (the term being used for those who have signed onto the dam and water deals) need Congress to authorize it and provide close to $1 billion over ten years to implement the deal’s provisions.

The dealmakers must now come out of the back rooms from which the public has been excluded. This is the opportunity for citizens both within and beyond the basin to weigh in and to make a difference. But to participate effectively citizens must know and understand the implications of these deals for the future of the Klamath River and Klamath Salmon.

The KBRA Deal is chock full of complex legal requirements. That appears to be a recipe for endless litigation to interpret its obscure language and complex, interrelated provisions. Below I explain those KBRA provisions which could most significantly affect public interests and Public Trust Resources like water, wildlife and salmon. For each major KBRA provision, I explain what is proposed, provide a pro and con discussion and describe alternatives to what the deal proposes.

The KBRA Deal includes substantial subsidies for “Project Irrigators” (those who receive subsidized water courtesy of the US government) and tribes. Subsidies are an important public issue since they would come from federal taxpayers and would have to be funded through cuts in the budgets of other agencies, programs and tribes. However, the subsidy issues are straightforward and are not discussed below.

Issue #1: Allocating Klamath River Water

What is proposed

The KBRA Deal proposes a settlement to conflict over how much Klamath River water will be diverted for irrigation and other purposes in the Upper Basin, and how much will be allowed to flow down river to sustain the River’s salmon, ecosystems and communities. Included is a water rights settlement between the Klamath Tribes and Project Irrigators. Essentially the deal:

Caps the amount of Klamath water which the Bureau of Reclamation can divert during any year for irrigation and other purposes.

Establishes flows in the Klamath River which the “parties” claim are better for salmon than flows obtained via the ESA and litigation.

Puts the Bureau of Reclamation and the Project Irrigators it serves first in line for water ahead of fish and senior water right holders elsewhere in the Upper Basin, Scott and Shasta Basins.

Provides for development of “new” water through conservation, buying water rights to reduce demand and additional storage which could mean new dams. Water right retirement is limited to “off-project irrigators”; retirement of water rights within the Klamath Project is prohibited.

Allocates “new’ water first to the Bureau of Reclamation and Project Irrigator and then to flows for the River.

Terminates the federal government’s trust responsibility to protect the water rights of all six Klamath River Basin federal tribes whether or not those tribes hold referendums on termination or whether or not Tribal Councils agree to termination.

Water Allocation Pros and Cons

While capping the amount of water the federal Klamath Project and its irrigators can divert is a plus, critics point out that the capped amount is more than the Bureau of Reclamation has been allowed to divert in most recent. They also point out that a cap on Bureau diversions would have occurred anyway via the Upper Basin Water Rights Adjudication. Critics also question providing the Bureau of Reclamation’s privileged irrigators with the first “new” water which is developed via conservation, water right purchase/retirement and new storage.

The KBRA Deal would restore federal water managers and the Project Irrigators they serve to dominance in the Basin. Even though their rights are junior to some non-federal irrigators, they would be first in line for water ahead of fish and those senior right holders. Critics say this is unfair to non-federal irrigators in the Upper Basin, Shasta and Scott. If the deal goes through and it turns out higher river flows are needed or that less water is available as a result of climate change, non-federal irrigators and fish will compete for scarce supplies while the Bureau and its irrigators get a guaranteed allocation. It might then be necessary during dry years for the federal government to lease water from irrigators in order to provide the flows salmon need.

Critics also question the river flows which were negotiated in the KBRA Deal. Those flows would be locked in if legislation authorizing the deal becomes law. KBRA flows are higher in some months and year types and lower in other months and year types as compared to court ordered river flows. Most importantly, the “parties” ignored recommendations of independent National Research Council scientists who have stated that river flows should not be set until a flow assessment that includes major tributaries like the Shasta and Scott is completed. The “parties” apparently oppose such a study and if their deal becomes law that study will most likely not take place.

The deal’s proposed termination of the federal government’s duty to protect tribal water rights is opposed by the Affiliated Tribes of Northwest Indians and the National Congress of American Indians – the nation’s top inter-tribal political association.

Water Allocation Alternatives

Those promoting the KBRA Deal say the only alternative is a return to endless conflict and litigation over water. Critics point out, however, that the 30-year long Upper Basin water rights adjudication is nearly complete; they say that is the place for settlements to be worked out…not behind closed doors. Furthermore, the KBRA Deal itself is already creating escalating conflict. There has reportedly been shouting and fist fights at irrigation district meetings, legislation seeking to block the agreements has already being attempted and lawsuits to block the deals are planned.

Others believe that it is bad practice and bad precedent to provide irrigation interests with the first right to water ahead of fish. They point out that the ancient doctrine of the Public Trust, as codified in US and California law, provides salmon and river ecosystems with an absolute first right to the river flows needed to maintain salmon stocks and river ecosystems in good condition. They claim that the KBRA Deal seeks to undermine Public Trust law and precedent.

A realistic and scientifically preferable process to allocate Klamath River water would include:
•   Priority completion of the full-basin flow assessment recommended by the National Academy of Science and setting river flows for fish based on that assessment.
•   Faithful adherence to western water law, a prompt completion of the Upper Basin Adjudication and an open, public process for all water allocation decisions.
•   A plan to reduce demand for Klamath River water by purchasing and retiring water rights from willing sellers throughout the basin including within the boundaries of the federal Klamath Project.
•   Restricting the Bureau of Reclamation’s Klamath Project to providing water only for agricultural and wildlife refuge purposes. Currently the Bureau provides water to a golf and country club, a community college, a wood products mill, a hunting lodge, redeveloped industrial land and suburban developments.

Issue #2: Salmon Restoration and Recovery

What is proposed

The KBRA Deal establishes a salmon restoration program including an active program to reintroduce salmon into the Upper Klamath River Basin once the dams are removed or breached. The deal allocates roughly a quarter million dollars to restoration over ten years. It also determines where in the basin those funds can be spent. Upper Basin restoration is prioritized while the Shasta, Scott and Salmon Rivers would be a lower priority and receive less funding.

Salmon Restoration and Recovery Pros and Cons

“Parties” and other KBRA promoters point out that the deal will reestablish a basin-wide restoration program which has been missing in the Basin since 2006. They argue that a unified, basin-wide restoration program will be more effective than the piecemeal approach currently being followed.

Under the KBRA Deal, however, allocation of restoration funds is pre-determined and favors those “parties” who made the deal. Congressional authorization of the deal would create first and second class citizens and sub-basins in the restoration arena.

The deal asserts that the Endangered Species Act and the Clean Water Act will be followed. Under it, however, salmon that are actively reintroduced to the Upper Basin will not enjoy full ESA protection but will be an “experimental population” which could be removed by bureaucrats or a future federal administration at any time and for any reason. The alternative is passive restoration – taking down the dams and waiting a while to see if salmon repopulate the Upper Basin on their own. If ESA listed salmon find their own way back to the Upper Basin they will receive full ESA protection.

Critics also point out that, while the Clean Water Act may be technically unaffected, the deals limit both what PacifiCorp must do to restore water quality and options for cleaning up agricultural pollution within more than 200,000 acres located within the federal Klamath Project. Within the Klamath Project all planning, compliance and restoration would be controlled by irrigation interests.

Salmon Restoration and Recovery Alternative

The alternative to the political allocation of restoration funds is ecological restoration: an approach which prioritizes restoration needs and allocates funding using best available restoration science. A critical aspect of ecosystem restoration is independent evaluations of all restoration projects to inform future restoration efforts.

In the Klamath River Basin and elsewhere, restoration funds are too often diverted to benefit landowners, governments and organizations at the expense of what salmon most need to survive and thrive. Ecological restoration using the best available science and with mandated project evaluation would end the boondoggles which have become commonplace in Klamath River Basin restoration.

Klamath fishreies and watershed restoration funds have often been diverted to benefit irrigators. For example, as on this Scott Valley farm, many irrigators received expensive new center pivot irrigation systems without being required to forebear use of surface diversions.

The alternative to active salmon reintroduction, i.e. to humans moving salmon, raising them in pens, etc., is passive restoration - allowing the salmon to find their own way home. Where dams have been removed on salmon rivers, salmonids have recolonized the newly available habitat quickly. The passive approach should be followed in the Klamath River Basin because it is cheaper and because naturally recolonizing ESA-listed salmon would enjoy full ESA protection. Active restoration remains an option if the passive approach fails to deliver results.

Along with inadequate stream flow, the number one factor limiting salmon restoration and recovery basin-wide is poor water quality related to agricultural pollution. PacifiCorp’s dams make poor quality water coming down from agriculture in the Upper Basin even worse. The alternative to the deals’ limitations on how water quality is restored is full implementation of Klamath River Basin TMDL Clean Up Plans. Under those plans, PacifiCorp would have to do more to improve water quality while the dams still stand and ecological restoration of Lower Klamath Lake – the single most effective approach to fixing the Upper Basin’s poor water quality – would be possible. The KBRA Deal effectively prevents ecological restoration of Lower Klamath Lake by giving planning and land use control to federal irrigation interests. Those interests want to limit marsh restoration in order to maximize agricultural use of former wetlands and lakebeds.

Some salmon advocates want PacifiCorp to do more to clean up the highly polluted water it discharges from its reservoirs

Issue #3: National Wildlife Refuges

What is proposed

The five national wildlife refuges located in the Upper Basin – Tule Lake NWR, Lower Klamath NWR, Bear Valley NWR, Upper Klamath NWR and Klamath Marsh NWR – host 80% of Pacific Flyway Birds during migration, wintering or breeding. Before the Upper Basin’s marshes were drained for agriculture, up to 7 million birds visited these marshes each year providing what explorers and naturalists described as one of the major wildlife displays occurring in North America. Even now after 70% of the marshes have been drained, the refuges still host up to 3 million birds per year.

The Lower Klamath and Tule Lake Refuges currently depend on the Bureau of Reclamation for water. When water has been short the Bureau has cut refuge water deliveries dewatering the marshes while full irrigation water delivery continued. This prompted some refuge managers to plan for an independent water supply. The KBRA Deal prohibits development of an independent refuge water supply. If Congress endorses the deal, Lower Klamath and Tule Lake NWRs will remain under the control of the Bureau of Reclamation and Project Irrigators.

The Klamath Refuges play a key role in the Pacific Flyway which extends from the Arctic to Central America

National Wildlife Refuges Pros and Cons

If Congress authorizes the KBRA, Tule Lake and Lower Klamath NWRs become an official “purpose” of the Klamath Project along with agriculture. Tule Lake and Lower Klamath are also assigned a specific water allocation which appears to be adequate for refuge needs. Under the deal, however, refuge water rights are subject to complex limitations which render them junior to irrigation water users. In times of shortage, Tule Lake and Lower Klamath NWRs could still be dewatered.

KBRA ratification by Congress would also lock-in commercial farming on refuge lands and give those irrigators with commercial operations on the refuges water priority over wildlife. Ratification would lock-in the rotation of on-refuge commercial agriculture with seasonal marshes. This is an improvement over the practice of allowing refuge land to be used year after year for commercial agriculture. However, commercial agriculture even with wetland rotation does not deliver wildlife benefits comparable to those which would be realized if refuge lands were not farmed commercially. Critics of the deal say wildlife – not commercial agriculture – should have priority on refuge land.

National Wildlife Refuges Alternative

In addition to making them a purpose of the Project, Klamath legislation should clearly designate the refuges as equal to commercial agriculture in water allocation priority within the Klamath Project. That is the only way to assure that these refuges will not be sacrificed in order to maintain irrigation deliveries as they have been sacrificed so often in the past.

An alternative to the KBRA would encourage refuge managers to develop an independent water supply for those years when available Klamath River water is not sufficient to meet all needs. Klamath legislation should end commercial farming on the refuges. As is the case with all other US wildlife refuges, Tule Lake and Lower Klamath NWRs should be managed for the full benefit of wildlife.

Klamath legislation should authorize and fund a feasibility study for ecological restoration of Lower Klamath Lake. In addition to obvious wildlife benefits, ecological restoration of Lower Klamath would provide better flood protection for Klamath River Communities, major additional water storage without new dams and improved Klamath River water quality. Lower Klamath Lake marshes have been shown to be effective at sequestering phosphorus – the top nutrient polluting the Klamath River.

Issue #4: Water and Restoration Governance

What is proposed

The KBRA seeks to establish structures and procedures for the ongoing management of water and restoration for the entire Klamath River Basin. The complex governance structure it establishes includes both closed-door inter-governmental bodies and public committees which would be established pursuant to the Federal Advisory Committee Act.

Governance Pros and Cons

There is currently no committee or other body coordinating Klamath River Water management. The same is true for restoration. KBRA adoption by Congress would change that. However, the proposed KBRA structures are problematic. For one thing, while water is a Public Trust Resource consultations and decisions about how to manage that public good will take place behind closed doors with the public excluded. The advantage to this approach is that water will be managed by professionals; the disadvantage is that those professionals will all be agency and tribal bureaucrats working without effective public oversight. If history is any indication, that is a recipe for mischief.

Restoration could clearly benefit from basin-wide coordination as proposed in the KBRA. However, the KBRA also pre-establishes priorities and allocates restoration funds to benefit “parties” at the expense of non-parties. Essentially KBRA promoters seek to recreate the Klamath Fisheries Restoration Program which operated for 20 years in the basin pursuant to the 1986 Klamath Act. That restoration program, however, was plagued by political deals. As a result and in spite of expenditure of $40 million dollars, the #1 restoration target species – Klamath River Chinook Salmon – continued to decline. The KBRA would establish a restoration program with the same approaches and problems which rendered the previous Klamath Fisheries Restoration Program a failure.

The Klamath Task Force's 20 year fisheries restoration program failed to stem the decline of Klamath Salmon because political deals - not restoration science - determined where and how taxpayer funds were expended.

Governance Alternatives

The alternative to closed-door management by government bureaucrats is open, democratic management as is fitting when the resource to be managed is water – a Public Trust Resource. The way this has been traditionally done in the American West is through irrigation districts at the local level and river compacts at the river basin level.

A river compact is the law of the river for rivers that flow through more than one state. Water compacts must be ratified by Congress and the states through which the river passes. No state or other entity gives up authority; compacts harmonize water management under existing legal authorities.

A river compact could also be used to manage restoration. Legislation establishing the compact could mandate the use of best restoration science to prioritize restoration projects and evaluate results. Under a compact all decisions about public resources are made in public and with public participation.

The Klamath River has a compact but that compact is obsolete, unfunded and ineffective; it also does not provide a voice for federal tribes or for counties which in California have authority to manage groundwater. A new compact for the Klamath River would provide seats not only for Oregon, California and the federal government but also for the Basin’s six federal tribes and six counties. It would be mandated to coordinate and harmonize water management under existing authorities and to manage restoration programs using the best restoration science. A compact of this type would bring Klamath water management into the light of day - a good way to forestall bureaucratic mischief.

Conclusion

The Klamath Dam and Water Deals – the Klamath Hydroelectric Settlement Agreement or KHSA and the Klamath Basin Restoration Agreement or KBRA – are the result of a major effort to bring competing interests together to forge a way forward which will lead to less conflict over water, restoration of the Klamath River and recovery for Klamath Salmon. The effort has produced complex, costly and controversial plans with implications which cannot be projected with assurance.

The convoluted legal language in these plans may well provide fodder - unrecognized at this point - for future conflict and lawsuits. That is inevitable with an approach which aims to settle all issues up front. The alternative is to establish an effective process which does not attempt to pre-decide all issues but which provides an effective means to manage conflict and forge compromises in the future.

Complex prescriptive deals like the KHSA and the KBRA inevitably have winners and losers. In the case of the Klamath deals, the winners are those who are promoting the deals and the losers are those who oppose them. Now it is up to Congress to decide if they will back the winners or try to level the playing field. Congress must also decide whether it wants to lock in future management by endorsing the KBRA or establish a good process for handling water conflicts which arise in the future.

The KHSA and KBRA have dedicated promoters and others who are equally dedicated to scuttling them. Always tuned to conflict, the media presents the issue as two sided – us v them. There are many in and outside the basin, however, who are not on either of these sides. Those in the middle want the dams down; they want water management coordination and basin-wide restoration. But they also believe there are major flaws in these deals which – unless fixed by Congress – will lead to more conflict and preclude restoration of the Klamath River and full recovery of Klamath Salmon.

For those in the middle the most critical flaws are keyed to the four issues discussed above - Water Allocation, Salmon Restoration and Recovery, National Wildlife Refuges and Governance. Working to fix those flaws as Klamath legislation moves through Congress could spell the difference between restoration success and failure, more rather than less conflict and democratic rather than bureaucratic water governance.

As the focus shifts to Washington, DC and legislation, KlamBlog will continue to inform interested citizens about what is being proposed. We will measure developments in terms of core principles:

Equity for all interests and individuals.
The Health and Recovery of river ecosystems, salmon fisheries, refuges and river communities.
Open and Democratic water and restoration governance.

These three principles are the key to real “Peace on the River”. If they are honored by Congress and prevail, the way forward in the Klamath River Basin will be less competitive and more cooperative. That could only lead to a healthier river and a healthier river basin society going forward.

War of Words #1: Congressman McClintock and the Karuk Tribe on the "Klamath Facilities Removal Draft EIS/EIR"

2011-09-23T12:28:00.000-07:00

This is the first in a series. In the weeks ahead we will publish statements about the Dam and Water Deal EIS/EIR from a wide variety of sources and perspectives. KlamBlog invites you to submit an opinion as well. Submissions should be sent to Unofelice@gmail.com.

Map of the Klamath River Basin showing location of dams slated for removal; a fifth PacifiCorp dam - Keno - (not labeled) would not be removed. Under the proposed Secretarial Decision, Keno would be transferred to the US Bureau of Reclamation and operated to serve irrigation interests.

from RedState ~

House Floor Remarks

Congressman Tom McClintock

September 22, 2011

Mr. Speaker:

This generation is facing spiraling electricity prices and increasingly scarce supplies. Californians have had to cut back to the point that their per capita electricity consumption is now lower than that of Guam, Luxembourg and Aruba.

What is the administration’s solution?

Interior Secretary Ken Salazar announced yesterday that the administration is moving forward with a plan to destroy four perfectly good hydroelectric dams on the Klamath River capable of producing 155,000 megawatts of the cleanest and cheapest electricity on the planet – enough for 155,000 homes.
Why would the administration pursue such a ludicrous policy?

They say it’s is necessary to help increase the salmon population. We did that a long time ago by building the Iron Gate Fish Hatchery. The Iron Gate Fish Hatchery produces five million salmon smolts each year – 17,000 of which return annually as fully grown adults to spawn. The problem is, they don’t include them in the population count!

And to add insult to insanity, when they tear down the Iron Gate Dam, we will lose the Iron Gate Fish Hatchery and the five million salmon smolts it produces every year.

Declining salmon runs are not unique to the Klamath. We have seen them up and down the Northwest Pacific Coast over the last ten years as the result of the naturally occurring Pacific Decadal Oscillation – cold water currents that fluctuate over a ten year cycle between the Pacific Northwest and Alaska. During the same decade that salmon runs have declined in the Pacific Northwest, they have exploded in Alaska. We’re at the end of that cycle.

The cost of this madness is currently pegged at a staggering $290 million – all at the expense of ratepayers and taxpayers. But that’s just the cost of removing the dams. Consumers will face permanently higher prices for replacement power, which, we’re told, will be wind and solar.
Not only are wind and solar some three times more expensive, but wind and solar require equal amounts of reliable stand-by power – which is precisely what the dams provide.

We’re told that yes, this is expensive, but it will cost less than retro-fitting the dams to meet cost-prohibitive environmental requirements. If that is the case, then maybe we should re-think those requirements, not squander more than a quarter billion dollars to destroy existing hydro-electric dams. Or here’s a modest suggestion to address the salmon population: count the hatchery fish!

We’re told this is the result of a local agreement between farmers and other stakeholders. Mr. Speaker, everybody knows that the Klamath Agreement was the result of local farmers succumbing to extortion by environmental groups that threatened lawsuits to shut off their water. And obviously the so-called stakeholders don’t include the ratepayers and taxpayers who would pay dearly for the loss of these dams. Indeed, local voters have repeatedly and overwhelmingly repudiated the agreement and the politicians responsible it. The locally-elected Siskiyou Board of Supervisors vigorously opposes it.

Finally, the administration boasts of 1,400 short-term jobs that will be created to tear down these dams. Just imagine how many jobs we could create if we tore down the Hoover Dam. Or Duluth, Minnesota.

Mr. Speaker, amidst a spending spree that threatens to bankrupt this nation, amidst spiraling electricity prices and chronic electricity shortages – to tear down four perfectly good hydro-electric dams at enormous cost is insane. And to claim that this is good for the economy gives us chilling insight into the breathtakingly bad judgment that is misguiding our nation from the White House.

The President was right about one thing when he spoke here several weeks ago. Fourteen months is a long time to wait to correct the problem.

Fortunately, the President will need congressional approval to move forward with this lunacy, and that will require action by this House. Earlier this year, the House voted to put a stop to this nonsense. I trust it will exercise that same good judgment as this administration proceeds with its folly.

# # #

Iron Gate - one of four PacifiCorp dams slated for removal

from YubaNet ~

Klamath Stakeholders Seize Momentum on Heels of Salazar Comments, Study Results
Restoration plans jumpstarts major economic benefits adding 4600 jobs to regional economy
Published on Sep 22, 2011 - 7:34:23 AM

By: Karuk Tribe

SACRAMENTO, Sept. 21, 2011 - Today, a diverse group of organizations working to balance water use in the Klamath River basin reacted to the positive findings in a Draft Environmental Impact Statement (DEIS) released by the Department of Interior, and to comments made earlier this week by Interior Secretary Salazar. The Secretary will use this DEIS to make his final determination in March of 2012 as to whether or not removal of four Klamath River dams in accordance with the Klamath Restoration Agreements are in the public interest.

"This news comes on top of recent official findings by both the Oregon and California Public Utility Commissions (PUCs) that dam removal under the Klamath Settlement Agreement is not only in the public interest but far less costly for utility customers than relicensing. Implementing the Settlement Agreement is the obvious next step in building a sound recovery for both the Klamath agricultural and fisheries based economies and restoring thousands of regional jobs," said Glen Spain of Pacific Coast Federation of Fishermen's Associations (PCFFA).

In a thorough review comparing the impacts of river restoration to current conditions, the DEIS shows that implementation of the Agreements would provide significant economic, environmental, social and cultural benefits to Northern California and Southern Oregon. One of the key findings stakeholders applauded is that the projected cost of removing four dams on the Klamath River falls well within the range of the budget agreed to by Tribes, irrigators, fishermen, and dam owner PacifiCorp.

"It's important to understand that this is about more than dam removal. This effort will restore fisheries while creating and protecting thousands of jobs in both fishing and agricultural communities. We have the diverse grassroots support that should spur congress to act," said Jeff Mitchell, Councilman for the Klamath Tribes.

The Klamath Agreements were signed in February 2010 by over 40 stakeholder organizations from a broad-based coalition that includes irrigators, Tribes, fishermen, conservation groups, state and local governments – all groups seek to get beyond the endless litigation and fighting that preceded the Settlement Agreements.

Key features of the Agreements include reintroducing salmon to over 400 miles of historic habitat, increasing water storage and flood control by expanding Upper Klamath Lake, and improved water security for 1400 farm families on the Klamath Irrigation Project.

"What interests us most is that Basin agriculture will receive increased certainty of water deliveries, which helps protect an industry that is vital to all of the local communities in the Klamath Basin, " said Klamath basin farmer Steve Kandra. "We believe that implementing these Agreements will benefit agriculture even more than the federal studies indicate. Our research shows that agricultural production in Klamath County and Tulelake Irrigation District contributes more than $600 million to the Klamath economy annually and 4,890 direct and indirect jobs are supported each year in Oregon and California. These jobs will be at risk if the Agreements fall through."

The DEIS makes several key findings that proponents of the Agreements hope will prompt Congress to pass the legislation necessary for implementation. Stakeholders emphasize the economic and health benefits, cost savings, and jobs creation that the restoration plan includes:

The most probable estimate for dam removal and associated mitigations is $290 million (in 2020 dollars). Partial removal would cost $247 million, this assumes leaving some structures in place such as old powerhouses and selected abutment structures. Note that $200 million would come from ratepayers (who would otherwise foot the $500 million plus price tag for dam relicensing) and the balance would come from California.

The one-year dam removal project is estimated to result in 1,400 jobs during the year of construction.

Commercial fishing jobs were estimated in five Management Zones. Estimated jobs stemming from improved fishing conditions range from 11 average annual jobs in the KMZ-OR Management Area to 218 average annual jobs in the San Francisco Management Area.

- Dam removal would immediately alleviate massive blooms of toxic algae that plague the river each summer and pose health risks

Salmon dependent Tribes would benefit from increased abundance of salmon and improved water quality.

Klamath Basin National Wildlife Refuges would receive additional water and for the first time in more than 100 years, receive a certainty of water delivery. This water supply could improve hunting and wildlife viewing, which could attract more visitors to the refuges. There would be an estimated additional 193,830 fall waterfowl and 3,634 hunting trips over the 50-year period of analysis.

Combined, the Settlement Agreements invest over $700 million in the Klamath Basin over the next 15 years, and proponents stress that the restoration plan protects and enhance a regional natural resources economy that is worth over $750 million each year when healthy.

Notes:

For more on the most recent federal and state dam removal environmental analysis and federal and state decision-making process, see: www.klamathrestoration.gov

All the four Klamath hydropower dams combined have generated only a very small amount of power – only about 82 Megawatts (MW) on average over the past fifty years. According to estimates by the Federal Energy Regulatory Commission (FERC), the federal agency that licenses dams, after expensive retrofitting to meet modern standards, these dams would then only generate about 62 MW of power on average, or about 27% less than they do today. FERC itself estimated in its 2007 Final Environmental Impact Statement (FEIS) on relicensing that even if fully FERC relicensed, the required retrofitting would be so expensive that these dams would then operate at more than a $20 million/year net loss (see FERC FEIS, Table 4-3 on pg. 4-2). The November 2007 FERC Final EIS is available online at:

http://elibrary.ferc.gov/idmws/File_list.asp?document_id=13555784

It can also be found by a FERC docket search at www.ferc.gov through their eLibrary, Docket No. P-2082-027 posted November 16, 2007, Doc. No. 20071116-4001.

# # #

Who's being robbed? - The proposed Secretarial Decision will place private irrigators who get subsidized water courtesy of US Taxpayers first in line for Klamath River water ahead of salmon and the majority of Klamath River Basin irrigators who get shafted in the proposed Secretarial Decision.

KlamBlog's Comments:

KlamBlog agrees that relicensed PacifiCorp dams would be money losers: "FERC itself estimated in its 2007 Final Environmental Impact Statement (FEIS) on relicensing that even if fully FERC relicensed, the required retrofitting would be so expensive that these dams would then operate at more than a $20 million/year net loss (see FERC FEIS, Table 4-3 on pg. 4-2)." That means the dams will be removed one way or another; that's a done thing . The two big questions which will be answered in the weeks and months ahead are:

Who will pay for dam removal? We don;t agree with the Karuk Tribe that the ratepayers (PacifiCorp electricity customers) would bear the full cost if dam removal were pursued through FERC. We think it is likely that the PUC would order that PacifiCorp shareholders would have to come up with some of the facilities removal funds. After all, those shareholders have been pocketing profits from operating those facilities for many, many years.

What other subsidies, benefits and other provisions will get a ride on a dam removal train that will lead to dam removal? Federal Agencies, the Irrigation Elite and those federal tribes which have signed the agreement - the Yurok, Karuk and Klamath Tribes - all stand to gain if the KBRA Water Deal is included - as is - in Klamath Dam Removal Legislation and the Secretarial Decision. Those who stand to stand to lose include the majority of private Klamath River Basin irrigators, the Hoopa, Quartz Valley and Resighini Tribes and - we would argue - prospects for restoration of the Klamath River and the recovery of Klamath Salmon.

Before the storm – Behind the scenes

2011-09-19T15:24:00.000-07:00

The Coming Storm

In Klamath Country the late summer lull is about to end. As light wanes and nights become chill the Klamath River – and its controversial Dam and Water Deals - are about to be in the national headlines again. Soon after the Fall Equinox the environmental report needed to “inform” a decision on the Deals by Secretary of Interior Ken Salizar will come out in draft form. That will kick off a round of review, hearings, teach-ins, newspaper reports and attempts by promoters, opponents and those who favor key improvements to promote their different views on the Klamath Dam and Water Deals.

For these extraordinary and perhaps unprecedented* Deals to work, however, and before the Secretary makes his decision, Congress must pass a bill authorizing the unusual Deals. According to at least one of the tribe’s promoting them (the Klamath Tribes), Congress will have to come up with the full price tag for the KBRA or Water Deal. That price tag is nearly $1 billion dollars over ten years.

It is hard to imagine that legislation with a billion dollar price tag could make it through a divided and cash strapped Congress even if powerful forces were not opposed. And powerful forces are opposed including Northern California congressman Tom McClintock (R), the Hoopa Tribe, the basin’s Tea Party groups and (presumably) other federal tribes across the nation whose budgets would be raided to provide the tribal share of the ten-year price tag.

Strange things can happen in Congress, however, when powerful interests stand to gain. In the Klamath case the big winners in the Deals are members of not one but three of the West’s most powerful interests:
   --    A Power Utility and its major investors
   --    Large private irrigation interests receiving taxpayer subsidized water from federal agencies
   --    Federal Land and Resource Agencies

Warren Buffet: his investment company – Berkshire-Hathaway – owns PacifiCorp and five Klamath River Dams.

When someone with the power and influence of a Warren Buffet want legislation to go through the US Congress, many obstacles can be overcome. Buffet’s Berkshire Hathaway owns PacifiCorp which owns the Klamath Dams. Compliance with all laws would make the dams a money loser and going the formal route to dam removal would cost investors/shareholders. The Dam Deal is a much cheaper alternative for PacifiCorp, Berkshire Hathaway and Buffet. All that means the Dam Deal – under which PacifiCorp’s customers and taxpayers will foot the total bill for dam removal – has a good chance of making it through Congress one way or another.

Klamath Irrigators got what they wanted in the Water Deal. If the deal is memorialized in federal legislation these irrigators will be first in line for Klamath Water ahead of at risk salmon and other private irrigators

Whether the Water Deal remains part of the final legislative package is another story. Due to its cost and the controversy it has generated, prospects for it to be enacted as negotiated appear slim. The Bureau of Reclamation and the Irrigation Elite they serve will have a hard time holding on to the first-in-line-for-Klamath-water provisions they negotiated; the damage to non-federal irrigators is just too great.

Even if some Water Deal provisions manage to remain in final Klamath dam removal legislation, however, there is a good chance Congress will make changes to those provisions. Those who want to fix the Water Deal, not kill it, have a good chance for success if they are organized, determined and can find champions in Congress for those changes. For example, a better guarantee of water for the Klamath Refuges and the basin-wide flow study recommended by the National Research Council in order to properly set in-river flows could become part of what emerges from Congress.

Lower Klamath and Tule Lake NWRs - and the 80% of Pacific Flyway birds which rely upon them - are dependent on the Bureau of Reclamation and the Irrigation Elite for water supply

The dewatered Scott River near Fort Jones on October 2, 2009. A basin-wide flow assessment would encompass major tributaries including the Scott, Shasta and Trinity.

KlamBlog previously pointed out that the federal land and resource management agencies– the Bureaus of Reclamation and Land Management and the Forest , National Marine and National Wildlife Services - collectively known these days as the “Federal Family” - are the real architects of the Klamath Deals. Key federal bureaucrats recognized years ago that the likelihood of dam removal (money loosing dams can’t survive relicensing) presented an opportunity to get back control of Klamath River Basin water management from the courts acting on behalf of salmon, fishermen and the federal tribes.

The bureaucrats decided then to try to hitch a Water Deal which suited them to what would likely be a popular dam removal deal. Without changes, legislation implementing the Water Deal will provide federal bureaucrats with what they most desire – the authority to manage water, land and resources professionally - that is, undemocratically - and out of the public eye. Whether Congress will go along with undemocratic Water Deal governance provisions, however, is not clear.

Since the opening of the American West, federal bureaucrats have competed with locals for control of land, water and resources

Historically, these federal agencies – the Bureaus of Reclamation and Land Management and the Forest, National Marine and National Wildlife Services - have competed with westerners for control of water, land and resource management. As KlamBlog has pointed out before, The Water Deal provides for renewed federal dominance in Klamath water management. Under it decisions on how water is managed would be made by federal and tribal bureaucrats meeting behind closed doors.

The alternative to federal back room management is the democratic basin-governance model which was originally championed by scientist and western explorer John Wesley Powell. We see the democratic model in operation today in traditional irrigation districts and in those river basins which have empowered and effective, all-party river commissions. The closest thing we have seen to that model proposed so far in the Klamath River Basin is Siskiyou County’s call for an open process to develop a basin-wide restoration plan.

Behind the Scenes

In advance of the coming legislative battle those who are promoting the Deals, those who oppose them, and those who want to fix what they consider fatal flaws are all active.

The Two Rivers Tribune recently reported that draft legislation to implement the Dam and Water Deals is “circulating in secret". The Hoopa Tribe is upset that the feds have not shared the draft bill with them and all other federal tribes which will be affected by it. Only those tribes and private parties which signed the Deals have been invited to review and comment on the draft; the Hoopa and Quartz Valley Tribes and the Resighini Rancheria have been denied the opportunity to review and comment.

Oregon Senator Jeff Merkley and California Congressman Mike Thompson have reportedly agreed to sponsor the legislation. Key environmental constituents who have supported Mike Thompson in the past, have asked him to fix what they consider fatal flaws in the Deals in any legislation he sponsors. There is no indication, however, that Thompson is consulting with these supporters.

On the opposition side, Siskiyou County’s supervisors are in the midst of a major effort to get the federal agencies to “consult” with them about Klamath River and all other land and resource management issues. Four deluded supervisors out of five apparently believe that federal managers must defer to their local radical right, anti-tribe sentiment. So far the county supervisors get lip service from the Forest Service which dutifully appears when called but the National Marine Fisheries Service recently refused a similar demand for them to appear.

Siskiyou County’s radical right supervisors appear convinced that Siskiyou voters will back their efforts to get the feds to defer to them on water, land and resource management. In the midst of cuts to most county services, they recently voted to pay lawyer Fred Kelly Grant $250 per hour to act as their “coordination counsel”.

A criminal lawyer by profession, in recent years Grant has worked for the property rights group Stewards of the Range which has now become American Stewards of Liberty. His current effort is promoted by an organization calling itself Trademark America. For an introduction to the network of interconnected property rights organizations see this link.

While Grant forcefully presents legal arguments for a federal coordination requirement, he does not site nor has he apparently been involved with a single court case upholding a requirement that federal officials defer to county land and resource management plans and policies. Instead, Grant and the American Stewards of Liberty of which he is a part appear to be attempting to ride the Tea Party wave into a new era of county-level political resistance to state and federal authority.

Meanwhile those who see much good in the Klamath Deals but also fatal flaws are organizing to secure the changes they say are needed. For these folks the devil is in critical details which they would like to see all affected citizens understand. The Redwood Chapter Sierra Club, the Environmental Protection Information Center, Northcoast Environmental Center and Redwood Chapter of the Audubon Society are sponsoring a teach-in on the Secretarial Determination Process, the Draft EIS/EIR to inform that decision and the issues which will arise when Klamath legislation is introduced in Congress. The teach-in will take place on Wednesday October 19th at the Warfinger Building in Eureka. Other educational efforts are also being planned.

Informed Consent is a process which Indigenous Karuk-Yurok leader Chris Peters has stressed is missing from Dam and Water Deal processes. According to Peters - who is a member of the Yurok Tribe - when Indigenous water and other rights are involved, all tribal members should be fully informed and a majority of members should give their consent before the tribal governing body signs on. Oregon’s Klamath Tribes is the only tribal government to yet hold a referendum on the Deals. That tribe’s members voted to support the Deals which would provide them with the means to regain a land and resource base.

Into the light

KlamBlog has pointed out many times how and why secret and back room dealing has come to dominate Klamath River water, land, resource and restoration management and decision making. We have not hidden the fact that we see that dominance as morally, socially and environmentally wrong. Undemocratic, backroom management by any collection of entities is not in the interest of the Klamath River or Klamath Salmon.

KlamBlog is a strong advocate for open, democratic and science-driven water management and restoration because it is the People’s right to see how public water and public resources are being managed. While back room dealing will no doubt continue, once the Draft EIS/EIR is released and Klamath Legislation is introduced into Congress essential decisions will have to be made in public.
Finally, all those with an interest in the Klamath River will have an opportunity to understand what is at stake and the trade-offs their leaders have accepted. All citizens who have a stake will have the opportunity to weigh in as is their right; the Klamath is – after all is said and done – a public river.

As public deliberations replace back room shenanigans KlamBlog will be there enthusiastically pushing for full disclosure, continuing to publicize what others seek to keep hidden and thereby seeking to empower citizens to get involved and to make a difference.

It is likely to be a wild ride.
___________________________
         * The unprecedented nature of the Dam and Water Deals may be the combination of a tribal water rights settlement (Klamath Tribes) with a dam removal deal. Tribal water rights settlements have been going on in the West since the 80s; for the most part, tribes have traded vast unperfected water rights for money and other considerations. History will not look kindly on this second great swindle of America’s Indigenous peoples. The proposed termination of the federal trust responsibility with respect to the rights of all six of the Basin’s federally recognized tribes – whether or not they agree to that termination – also appears to be unprecedented.

Whales, Worms and Water - A month on the Klamath

2011-09-01T17:13:00.000-07:00

For much of August a female Gray Whale nicknamed Momma took up residence in the Lower Klamath River. Staying in the vicinity of the Highway 101 bridge, the behemoth became such a tourist attraction that CalTrans had to put up signs warning of pedestrians on the two lane bridge. The bridge provides limited space for a single pedestrian, much less the crowds that sought a glimpse of the creature. The whale has now passed away and, after being studied by scientists, has been respectfully buried on land.

"Momma" the gray whale in the Lower Klamath River

As reported in the Two Rivers Tribune, Indigenous natives consider such unusual behavior to be a warning to humans. Yurok ceremonial leader Chris Peters summarized the traditional view:

           This is perhaps a message of something still more foreboding yet to come. A signpost in time—when the ocean is polluted with human waste and the sonar sounds of US Navy testing invade the oceans,” he said. “As I think about the spiritual significance of such a large mammal—a very close relative—choosing to give her life in the Klamath River, I can only assume that it’s a sign—a very important sign that we all need to take note of and prepare for change to come.

While it would be tempting to interpret the message as a judgment on how the Klamath River is being managed, no one has apparently made that claim. That’s a sign the respect Momma received in life continues after her passing.

Worms and Water

Flows in the lower Klamath River remain more substantial than those we’ve seen in many summers. Thanks go to the Hoopa Tribe which fought the long fight for more water in the Trinity and to the weather gods which favored us with the best Klamath Mountains snowpack in decades. The higher flows are expected to decrease the prevalence of fish disease in the Klamath River. Epidemic levels of disease related to poor water quality in the Klamath, Shasta and Scott Rivers have been responsible for an annual, mass die-off of juvenile Coho and Chinook salmon and Steelhead on their way to the ocean. This year’s higher flows are expected to reduce the worm-like stage of one of the parasitic diseases which annually destroy young Klamath Salmon en route to the ocean. For more on Klamath fish diseases and what is being done to combat them see this link.

Meanwhile PacifiCorp has used the KHSA’s dispute resolution process to negotiate a deal with the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (Reclamation) which will allow the company and Reclamation to cut Klamath River flows below “minimum” flows set out in the 2010 Biological Opinion. The decision to further lower minimum flows - which were already cut in the 2010 Biological Opinion in order to conform to the KBRA Water Deal - is hidden in the body of letters exchanged by PacifiCorp, Reclamation and MNFS.

In its February 4th letter to NMFS and Interior/Reclamation PacifiCorp states:
           Reclamation will request written concurrence from NMFS that compliance with minimum flows specified in MNFS’ 2010 Biological Opinion for Reclamation’s operation of the Klamath Irrigation Project may be accomplished with actual flows falling within a reasonable range above or below the target minimum flow. The reasonable range and target minimum flow will be established by NMFS after further consultation among PacifiCorp, Reclamation and NMFS.

On February 7th NMFS responded to PacifiCorp. The wording is (intentionally?) confusing but the effect is to authorize lower flows than those contained in the 2010 Biological Opinion:
           NMFS anticipates some deviation from the proposed ramp down rates may occur due to PacifiCorp’s operational constraints…

While the letters quoted above have been published, the actual setting of “target minimum flow” was deferred. That critical step has likely now been completed in closed door meetings. This is the sort of mischief which occurs when backroom dealing becomes the norm as it has on the Klamath under the Dam and Water Deals.

KlamBlog challenges NMFS leaders to publish on the Klamath Restoration website a comparison of the new target minimum flow they’ve set with PacifiCorp and Reclamation, the target minimum flow from the 2010 Bi-Op and the target minimum flow from the 2002 Bi-Op. We believe that comparison will make it clear that promoters of the KHSA and KBRA continue to use backroom dealing to cut the amount of water available for Klamath River Salmon.

A different species of water

The Two Rivers Tribune recently reported that Oregon Senator Jeff Markley is prepared to “carry water” for PacifiCorp and other Klamath Deal “parties” in order to implement the Klamath Dam and Water Deals. Markley has circulated draft legislation to Deal “parties” - those who have signed on to the KHSA and KBRA) for comment. Because they deviate from normal government procedures, the Dam Deal and key aspects of the Water Deal cannot be implemented without federal legislation.

It is widely believed that legislation to implement the Deals will face a tough road in the House of Representatives where California Congressman Tom McClintock has signaled strong opposition. McClintock was recently able to get a provision blocking funding for studies related to the Deals through the House. However, his funding prohibition did not survive in the final legislation.

Recently Oregon Wild circulated a letter to Senator Markley which dealt exclusively with the impact of the Deals on the complex of Klamath Wildlife Refuges. That has fueled speculation that the Oregon group is willing to accept other Water Deal provisions if it can get what it wants for the refuges.

Fall on Tule Lake NWR.

The complex of Klamath Refuges hosts 80% of Pacific Flyway birds during migration.

Many environmental groups oppose commercial farming on the Klamath Refuges

Oregon Wild’s action is one indication that environmental groups which oppose aspects of the Dam and Water Deals have not coalesced into a coalition or offered coherent, comprehensive alternatives to the Dam and Water Deals. Those groups include Oregon Wild and Water Watch in Oregon, the Northcoast Environmental Center, EPIC and Friends of the River in California and the Sierra Club in both states.

Less Water

As this KlamBlog is being published the last patches of snow are melting in the mountains above the Scott River Valley. When those patches are gone, flows in the national forest streams feeding Scott River will drop dramatically. There will not be sufficient flow to maintain hundreds of stream diversions, keep groundwater levels high and still provide wet habitat for young Coho, Chinook and Steelhead living in Scott River and major tributaries in the Scott River Valley.

It remains to be seen whether Scott River itself – which this year is full of young salmon – will go dry this fall or whether there will be sufficient flow when adult Chinook spawners begin arriving in late September. But the fact that some streams have already dried up does not bode well for salmon and steelhead.

Meanwhile the California Department of Fish and Game (CDFG) was in Scott Valley a week ago asking irrigators to voluntarily put water into Scott Valley streams to keep Coho, Chinook and Steelhead from dying as the streams go dry. The meeting provided an opportunity for more government bashing by Tea Party folks. The actual irrigators in attendance appeared unwilling to lend a helping hand to Coho. As KlamBlog has pointed out, CDFG would not need to beg for water if it were willing to enforce provisions of the California Constitution which provide fish with a first right to streamflow sufficient to keep them “in good condition”.

Siskiyou County is a special place

2011-08-23T13:34:00.000-07:00

Browbeating the feds

Fresh from having browbeaten two national forest supervisors into presumed submission, the Siskiyou County Board of Supervisors set their sights on the National Marine Fisheries Service last week. Backed by right wing consultants and middle-level timber company executives, a dominant faction on the board- professes to believe that the federal government must “co-ordinate” its policies with county policy as defined by the supervisors. They appear to believe that in the case of policy conflicts, county policy must prevail.

Flood Irrigation, Scott River Valley, October 30th, 2007

By law irrigation is supposed to end on October 15th

Out-of-season irrigation is a common, illegal practice in the Scott River Valley

In the case of the National Marine Fisheries Service what these supervisors want is likely something akin to the “special” treatment they got in the California State Coho Recovery Plan. In a move which infuriated other stakeholders, the California Fish and Game Commission designated Siskiyou County’s Scott and Shasta Valley a recovery “Pilot Project” where the “voluntary approach” to compliance with California environmental laws favored by farmers and ranchers will be followed. So far that “voluntary approach” has facilitated the progressive dewatering of these valleys, hidden “take” at diversions via bogus “fish rescue” and tried to justify it all with special valley-wide ”take” permits which California courts quickly threw out because they don’t follow the very laws state officials swear to uphold.

California state government’s rancher-dictated approach to salmon recovery in the Scott and Shasta River Valleys amounts to using taxpayer money to lease the water fish need to survive. Now that taxpayer dollars have become scarce, the Department of Fish & Game (CDFG) has resorted to begging for a little water. KlamBlog was on hand last week in Fort Jones to witness DFG’s pleas on behalf of the fish.

Many salmon advocates oppose paying for the water they say fish have a right to under California law. The plain language of Fish and Game Code 5937 appears to back them up.

As for the national forests, the supervisors’ strategy appears to be to keep the pressure on federal decision makers to tow the county line on forest transportation decisions and logging projects while working for legislation that would give the county direct management control. The legislative scheme – along with other strategies – is detailed in the recently-adopted Siskiyou County National Forest Accountability Project – which was cooked up with the help of a couple of timber companies. Supervisor Michael Kobseff will lead an effort to enlist Senator Diane Feinstein and Congressman Wally Herger to sponsor legislation giving the county management control of the entire Klamath and portions of the Shasta National Forests.

A special history

When it comes to county chutzpa there are few counties in the USA which can compare with the Klamath River Basin’s Siskiyou County. Usually counties concern themselves with issues like crime and whether to let that new box store in. But most Siskiyou County politicians appear to be obsessed with what other government are doing and with the idea that they have the right to dictate policy to those other governments. In essence, Siskiyou County attempts to stand the government pyramid you learned about in civics class on its head. As they see it, they are closest to the people and so should tell other governments what to do.

The Siskiyou County obsession with control goes back to the days just before and after statehood. When Federal Agent Redick McKee tried to provide the Indigenous Shasta inhabitants with a treaty and a reservation stretching from Scott Valley to the Oregon border, white miners, ranchers and politicians protested loudly and whittled it down to a fraction that size. When McKee left the area they immediately began demanding that the treaties not be ratified by the Senate. As in other places in California, a campaign was organized to “exterminate” the Indians. These white citizens figured that if there were no Indians there could not be a reservation. While some looked the other way or even protested, the public campaign to "exterminate" all remaining Indigenous inhabitants dominated and nearly succeeded.

Most California counties have moved beyond the sort of racism that led to campaigns of extermination; some have undertaken truth and reconciliation processes. In Humboldt County, for example, the renaming and return of the island where a bloody massacre of native women and children occurred was not too long ago the occasion for healing and reconciliation. But Siskiyou County seems stuck in a sordid past which is officially denied but which haunts county politics and social relations. Hostility toward the two tribes based in the county – the Karuk Tribe and the Quartz Valley Indian Reservation – and toward Indigenous natives generally is never far from the surface in this rural county and sometimes finds open expression.

Appeasement

Over the past 15 years, Siskiyou County boards have adopted several documents mandating federal and state coordination with county policies. And while it would be tempting to dismiss the documents as rhetorical political statements without force of law, they would not be replicated if they had not proven effective at some level. The success in getting the “special” treatment they believe they deserve via California’s Coho “Pilot Project” has apparently encouraged the Siskiyou Supervisors to pursue the same sort of approach in other venues.

A long line of Siskiyou County supervisors – not to mention school superintendents, DAs and sheriffs - have been rewarded for demanding that other governments and their officials tow the local line. KlamBlog previously documented how California CDFG officials kowtow to county policy on fish, water and stream access issues. Appeasing such bullying simply encourages more demands.

The dominant faction among Siskiyou County Supervisors (Ed Valenzuela who represents the Mt. Shasta-Dunsmuir area does not appear to approve) have now set their sights on the federal recovery plan for Southern Oregon Northern California Coast Coho (SONCC Coho). The SONCC Coho “evolutionary significant unit” or ESU spans two states and all or parts of three counties in Oregon and five counties in California. The Siskiyou Supervisors’ faction has not indicated how it intends to "coordinate" with these other governments.

Will Siskiyou County again be recognized as “special” in the federal Coho Recovery Plan?

Stay tuned.

Cal Fish and Game goes to the Scott River Valley...with its hand out

2011-08-13T14:59:00.000-07:00

Officials from the California Department of Fish and Game have scheduled a meeting next Tuesday evening at Fort Jones in Siskiyou County. At that meeting CDFG officials will ask Scott River Valley irrigators to please let some water past the dams and diversions they operate so that young Coho and Chinook salmon and Steelhead trout will not be stranded and die. Even in this wet year - one of the best water years on record - irrigators who divert streams and also pump groundwater from numerous wells near the river are collectively dewatering key Scott River tributaries. In average and dry years, Chinook and Coho salmon have trouble accessing any of their spawning grounds in or above the 30 mile long agricultural Scott River Valley.

The dewatered Scott River near Fort Jones, October 2, 2009

The irony is that the State of California has the right – clearly stated in its constitution - to flows below those dams and diversions that are adequate for fish. As a matter of policy, however, CDFG managers have decided that the State’s right to keep rivers alive should not be exercised in the Scott River Valley….or in the Shasta River Valley….or in just about any other stream in California. The decision to allow irrigators to dewater streams below dams and diversions is arguably an abrogation of CDFG managers’ sworn duty. It is also one key reason Klamath River Coho – and so many other salmon stocks in California - remain on the brink of extinction.

But don’t take KlamBlog's word for it. Read the Fish and Game Code section 5937 which is part of California’s Constitution. And then read the SF Chronicle article at this link which is also reprinted below. The Chronicle report by veteran reporters Glen Martin and Tom Steinstra details CDFG’s (mis)management policy on the Scott and Shasta Rivers. These two Klamath River tributaries should be the production breadbasket for Klamath River Salmon, but they have instead become salmon basket cases. Diversion of salmon restoration funds to benefit irrigators and willful refusal of government officials to champion the species they are sworn to protect are key reasons the Scott River and its salmon are dying.

Twenty-eight years ago when the famous Mono Lake Decision issued from California’s Supreme Court, salmon advocates thought the future would be different. Armed with a decision strongly affirming the ancient Public Trust Doctrine, salmon folks expected the California Department of Fish & Game to use the Mono Lake precedent to keep irrigation interests from dewatering our salmon streams.

We have been bitterly disappointed. Instead of using the Public Trust Doctrine to protect salmon streams, the California Department of Fish & Game is standing by while irrigation interests dewater our streams and destroy the salmon. The best this corrupt department can muster is to politely request that irrigators let a little water pass the dams and diversions so that the streams don’t completely dry up.

It is unlikely Scott River Valley irrigators will budge; why should they when CDFG has for so long been a paper tiger threatening regulatory action but never taking a violation there to court? Even when an irrigator killed hundreds of thousands of salmon and steelhead a few years back by dewatering a section of the Upper Scott River, CDFG did not prosecute.

Bogus restoration project on the Scott River. This is where hundreds of thousands of fish died a few years back when the Farmer's Irrigation Ditch was turned on dewatering the River.

There is, however, new leadership in Sacramento. In the governor’s office; down the street at the Resources Agency and across the street at the Department of Fish & Game there are new leaders who are to this point untainted by the deep-rooted malfeasance which has infected CDFG management for far too long.

Governor Brown, Resource Secretary Laird and CDFG Director McCamman have an opportunity to make a new start. They should begin with the Klamath. For the sake of Klamath River Salmon, they should sweep the stables clean - providing new leadership and new policy direction at the Northern Regional Office.

If they are going to survive, Klamath River Salmon need CDFG managers who will enforce the laws which should protect the Scott and Shasta Rivers from dewatering. Politely asking irrigators who for years have been dewatering rivers to please change course will not work; when laws are being systematically and intentionally disregarded, law enforcement is the only effective way forward.

An Irrigation Ditch in the Scott River Valley on December 25, 2009. Several Scott River ranchers run diversion ditches full year around. The practice is illegal but CDFG and State Watermasters refuse to end the practice .

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Young fish die as water laws go unenforced: Ranchers' cooperation threatened

SF Chronicle
Glen Martin, Tom Stienstra, Chronicle Staff Writers
Friday, June 22, 2001

Irrigation by ranchers is decimating salmon and steelhead populations on California's second biggest river system, and Department of Fish and Game officials acknowledge they are not implementing a tough state law that could stop the diversions.

Ranchers have diverted most of the flow of the Scott and Shasta Rivers in Siskiyou County to irrigate alfalfa fields and pastures, leaving thousands of young salmon and steelhead without enough water and facing imminent death.

State game wardens generally are disposed to citing the diverters under Fish and Game Code 5937, which requires dam owners to maintain water in state streambeds sufficient to keep fish healthy.

But agency officials say they are being told not to cite offenders out of concern that cooperative restoration projects between the state and ranchers on the Scott and Shasta Rivers would end instantly if the law were enforced.

The controversy points out difficulties with cooperative programs between government agencies and private parties.

Though such agreements can help resolve thorny environmental problems, they may also inhibit agencies from cracking down on private sector partners.

Warden Renie Cleland said he was told to back off from citing ranchers on the Scott and Shasta rivers.

"This has gone all the way to Sacramento," said Cleland. "It's extremely politically sensitive. I was told to take no enforcement action on it. These fish are dying. We've got five or six thousand steelhead trout dead on the Scott, and (dead juvenile steelhead) everywhere on the Shasta."

MAJOR KLAMATH TRIBUTARIES

The Scott and Shasta are major tributaries of the Klamath River, which is second only to the Sacramento River in its dimensions and the number of fish it supports.

The Klamath and its tributaries once supported hundreds of thousands of chinook salmon, coho salmon and steelhead trout. Their numbers began declining in the mid-20th century from dams, agricultural irrigation and timber harvesting. By the mid-1980s, only a few thousand fish were left -- mostly on the Scott and Shasta.

During the past decade, efforts to screen agricultural pump intakes, reduce soil erosion, restore riparian forests and transport fish trapped in "dewatered" streambeds have bolstered the fish populations somewhat.

WATER RIGHTS FROM THE 1930S

But conflict between environmentalists and ranchers over diversions has simmered for years. Ranchers exercising water rights adjudicated in the 1930s typically lower the rivers through irrigation during the summer.

This year, a severe local drought has greatly increased the degree of the problem. The Scott has been sucked dry, and the Shasta reduced to a trickle at its juncture with the Klamath.

Temperatures in the river have reached or exceeded the level considered lethal for salmon species, which favor cold water. Thousands of fish have died, and thousands of others face imminent death, making the pumping a clear violation of Code 5937.

"Everything has died," said Fish and Game Captain Chuck Konvalin of the Scott River. "The system has been dried up."

Konvalin, who heads a team of wardens who operate in the north state, says their superiors are reigning them in.

"This thing is out of whack," said Konvalin. "I get my orders."

Gary Stacey, a fisheries program director for Fish and Game who oversees projects in the Klamath area, said enforcing Code 5937 would "slam the door" on meaningful restoration programs along the Scott and Shasta, which cost $25 million a year.

"All our current programs depend on landowner cooperation," he said. "That would all stop immediately if we pulled the trigger. And the process involved in filing and prosecuting a case like this could take years -- years the fish don't have.

"By taking strong law enforcement action, we could simply be assuring that the (fish) populations would wink out."

COOPERATIVE EFFORTS

Ranchers confirm they would scrap all cooperative ventures with the state if they were cited by game wardens, and say they are guaranteed diversion rights by court rulings made decades ago.

Gary Black, who diverts Scott River water to irrigate alfalfa and wheat on his 240-acre farm, said ranchers would respond to voluntary incentives to improve fish populations but would resist government fiat.

"We're looking for win-win situations," said Black, who helps direct a local resource conservation district that promotes fish-friendly agricultural methods. "I've worked with more than half the farmers in the Scott Valley.

Everyone is willing to do their part for fishery protection -- the question becomes how far is too far."

Still, "flows remain the number one issue, and this is a good time to sit down and talk," Black said. "That will work better around here than getting out the citation book."

©2001 San Francisco Chronicle

Klamath Propaganda: Who do you believe?

2011-08-01T12:04:00.000-07:00

Across the US, July and August are notoriously slow months for news. So too on the Klamath – with the exception of the whale visit (What could that mama be trying to tell us?), there is a dearth of Klamath River news.

Behind the scenes, of course, those who have “access” to federal and state “decision makers” are busy jockeying for position. They want scientific views which they favor to hold sway in the EIS/EIR being prepared to “inform” a decision on whether the Klamath Dam and Water Deals are in “the public interest” and will restore salmon runs. The Public Draft EIS/EIR is scheduled for release in September.

The EIS/EIR is intended to inform a decision by the Secretary of Interior on the fate of both the Klamath Dam Deal (the KBRA) and the Klamath Water Deal (or KBRA) . KlamBlog is taking the opportunity presented by the lull to reflect on the war of words being waged in the region’s opinion pages concerning these Deals. Depending on who you choose to believe, the Deals are either the best thing to come along since penicillin or a threat to local “custom and culture” which will flood riverfront property and destroy the local economy. All sides claim their science is “good” and the other guy’s science is hogwash. This post is an opportunity to learn who is writing the commentaries and the claims they are making.

But first a word about our decision to label these commentaries and opinions “propaganda”: The word “propaganda” is popularly taken to mean deliberate falsification in order to influence public opinion. The dictionary definition , however, recognizes that propagandists may use either facts or falsehoods - or a combination of both - as suites their purpose. Even when no falsehoods are stated, most propaganda presents facts selectively. This is sometimes referred to as “lying by omission”. What distinguishes propaganda from other communication is intent - propagandists seek to influence those receiving the information to act or believe a certain way.

Immediately below is a list of those who have published recent Klamath commentaries or editorials. Their commentaries/editorials follow in that order.

     John Spencer is a retired lawman and an avid fisherman. For many years John lived on the Shasta River where he angled for Steelhead and worried over poor water quality and low flows. He now lives in Anderson, California and writes a fishing column for the Redding Record Searchlight.

     Mark Baird is a Scott River Valley hobby rancher and a leader of the Siskiyou County Tea Party. He recently purchased a radio station in Yreka.

     Craig Tucker runs the Karuk Tribe’s Klamath River Campaign. Tucker previously worked for Friends of the River and Green Corp.

     Ani Kame'enui is Washington, D.C., legislative coordinator for Oregon Wild. Alexandra Borack is conservation advocate for Friends of the River.

     Dean Brockbank is vice president and general counsel for PacifiCorp Energy – owner of the Klamath Hydroelectric Project. PacifiCorp is owned by Warren Buffett’s Berkshire Hathaway Investment Company.

     John Menke is a retired range professor who with his wife owns and operates a ranch in the Scott River Valley. The Menkes have adopted the practice of running their irrigation ditches full year around even though their irrigation rights are limited to only a portion of the year.

     Patrick Higgins is a Northcoast fisheries biologist who has been working on Klamath science and restoration since 1986. These days he represents the Resighini Rancheria on Klamath River issues.

While it probably does not qualify as “propaganda” we should mention a scholarly article published recently in the Washington Journal of Environmental Law & Policy. Dewatering Trust Responsibilities: The New Klamath River Hydroelectric and Restoration Agreements is by Thomas Schlosser – an attorney who represents the Hoopa Tribe. "The article argues that the agreements prioritize the water rights of non-Indian irrigation districts and utility customers over first-in-time Indian water and fishing rights.”

KlamBlog wants to know your opinion on the veracity of these individuals and the worth of their opinions. Read the seven commentaries-editorials reprinted below and then leave a comment.

Please remember to be honest and respectful.

http://www.redding.com/news/2011/may/14/dams-may-be-removed/?print=1

John Spencer: Dams on Klamath may be removed to aid salmon

Saturday, May 14, 2011

On a small back page news clipping I read "PUC endorses removal of dams." On May 5, the California Public Utilities Commission endorsed removing four hydroelectric dams on the Klamath River to help salmon.

During the meeting in San Francisco, the commission granted Portland-based dam owner PacifiCorp a 2 percent rate increase for its 45,000 customers in California to help pay for removing the dams. There was no indication when the company would proceed in the actual demolition of the dams or which one would go first.

To better understand the issue of removing the dams, I researched some of the history about the Klamath water and power projects on the river. Unlike the Trinity River sub-basin, the Klamath River does not suffer from the effects of major river diversion projects exporting water out of the basin.
The water-impounding dams in the Klamath were first built in the 1850s for supplying water to mining and farming operations. Around 1926 a Copco (California-Oregon Power Co.) dam was constructed. Anglers and biologists were not happy with the operations of the dam as no minimum flows were required of the operator.

The U.S. Bureau of Fisheries recommended in 1935 that an equalizing dam be constructed below the Copco power plant to regulate the releases to a steady flow. In 1945, the state Legislature finally requested the Public Utilities Commission to study the effects of the artificial fluctuation and recommended a solution. The 1947 report recommended that a regulating dam below Copco #2 be installed and operated by the company.

After plenty of haggling and ratification of the Klamath River Basin Compact by Oregon and California, Congress in 1957 approved the building of Iron Gate Dam. In 1958 Big Bend Dam (now John C. Boyle) and power plant were approved to be built upstream in Oregon.

Historically, the Klamath River was once the third most productive salmon river system in the United States, after the Columbia and the Sacramento rivers. Eutrophic conditions and raised water temperatures induced by the construction of the dams created worsening conditions for migrating salmon. The upper basin water, along with the almost-total diversion of the Trinity River, as well as irrigation projects on the Shasta and Scott River tributaries, have all lowered the total river flow supporting salmon.

In 2005, PacifiCorp applied to the federal government to relicense its four hydroelectric dams on the Klamath for up to 50 years. Fishermen and environmentalists opposed the relicensing, arguing that they should be removed to reopen the upper Klamath to salmon. On Feb. 18, 2009, an agreement was signed after two years of closed-door negotiations. This resulted in an unprecedented and conditional agreement to work toward a comprehensive settlement of the Klamath water usage.

The proposal calls for the removal of four hydroelectric dams now operating along 300 miles of the Klamath River in southern Oregon and Northern California, as well as restoration projects.
A nonbinding agreement in principle involving PacifiCorp, the federal government, California and Oregon was announced on Nov. 13, 2008. This was apparently the initial phase of a process, which could see the removal of Iron Gate Dam, Copco Dams Nos. 1 and 2, and John C. Boyle Dam, beginning by 2020.

PacifiCorp ratepayers would fund part of the plan and the state of California would fund much of the remaining projected cost.

The agreement requires the federal government to scientifically assess the costs and benefits of the dam removals, and to make final determination by March 31, 2012, as to whether the benefits of the project will justify the costs. Then, federal congressional and California electorate approval will be required.
The impacts of removal of the dams will be reported at a later time.

© 2011 Scripps Newspaper Group — Online

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http://www.siskiyoudaily.com/opinions/columnists/x795261684/What-a-crock

What a crock!
Don’t give in

By Mark Baird
Siskiyou Daily News
Posted Jun 08, 2011 @ 11:50 AM

John Spencer writes in the Redding Searchlight that the dams must come out to save the fish and to save water quality in the Klamath River. What a crock! John quotes some history about dam construction and leaves the most valuable information out.

The dams did not create the entropic conditions. The Klamath basin is a naturally warm-water, high-phosphorus tule marsh. John Fremont’s journal cites the water in the upper basin as so foul that the horses would not drink it. The Keno reef, a natural geographic barrier, prevented the migration of salmon to the upper basin, not the dams.

The hatchery at Iron Gate was built to mitigate the loss of 30 or so miles of habitat. John fails to point out that the water is cleaner below the dams than it is above. The Klamath is called an upside-down river because it is naturally dirty in the basin and becomes cleaner as it heads toward the ocean. This is the exact opposite of the vast majority of rivers. The dams act as phosphorus sinks which help to clean the water.

Why does Mr. Spencer fail to note that the science foundation report says dam removal will do little or nothing for the coho salmon? Why does John fail to point out that there are 100 million cubic yards of naturally polluted, high-phosphorus, high-nitrogen sediment trapped behind the dams? Sediment which, if released by dam removal, will kill the fisheries for decades if not permanently?

Why does John fail to mention that ocean conditions drive “returning spawners,” and not dams? Why does John fail to mention that the Pacific decadal cycle drives the ocean conditions that send cold-water fish north to the Gulf of Alaska?

The commercial catch of salmon is 400 percent of what it was 10 years ago. These environmental communists will even go so far as to suggest that the 8 million perfectly good hatchery fish, sent down the Klamath to the ocean every year, are genetically inferior to so-called “wild fish.” I would love to see the genetic data demonstrating that the egg from a wild mother becomes something else when it is hatched artificially.

John, how is a dam at fault when 8 million fish leave a river and only a small percentage can or will come back after three or four years in the ocean? What a crock!

Why is the environmental left so bent on dam removal over the objections of the voters in the affected area? Follow the money! A couple of billion dollars in the pockets of special interest groups who claim they represent the Klamath basin.

We the people of Siskiyou County have voted and almost 80 percent of us want OUR dams to stay.
I have an idea, Mr. Spencer: why don’t you start a campaign to remove Shasta and Whiskytown dams and see how far you get? Better yet – why not pull out all the dams? According to dam removal experts like Mr. Spencer, that will magically give all of us more water (yes, folks, the dam removal people are saying that removing Klamath dams will give everyone more water), as well as magically heal the “environment.”

Yes, the environmental left, bent upon destroying agriculture and the human environment in rural California, has a crock full of stories about environmental justice and environmental water and equal rights for “Mother Earth” – what a crock!

Wake up, California; this state is broke and dam removal on the Klamath River will do none of the above. What it will do is to remove flood control from the Lower Klamath River and destroy some perfectly good, clean-energy-producing facilities that serve 75,000 customers in California.
The environmentalist lie is that dam removal has not been decided upon yet. Why did the PUC just approve a rate increase for PacificCorp in to help mitigate the cost of dam removal?

Can you afford to give in to this type of environmental blackmail?

I cannot and I will not!

– Mark Baird of Scott Valley is vice president of Scott Valley Protect Our Water and the new owner of KSYC Radio.

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http://www.siskiyoudaily.com/opinions/columnists/x1388109812/Rebuttal-to-Mark-Baird-Klamath-myths-undermine-issue

Rebuttal to Mark Baird: Klamath myths undermine issue

By Craig Tucker
Siskiyou Daily News
Posted Jun 13, 2011 @ 09:23 AM

Several self-appointed “experts” have written several articles recently arguing against the removal of Klamath dams. Obviously dam removal is a controversial issue, but the public deserves to be presented with the actual facts of the matter when considering the fate of the dams.

Most recently, Mark Baird wrote a column that appeared in the Siskiyou Daily as well as on several websites. Since this piece perpetuates many of the myths contrived by dam huggers, it serves as an excellent starting point for setting the record straight.

Myth No. 1: Baird’s piece states that the “dams did not create the entropic conditions. The Klamath basin is a naturally warm-water, high-phosphorus tule marsh.”

First off, I think the term Baird is grasping for is “eutrophic,” not “entropic.” Entropy has to do with the Second Law of Thermodynamics. Eutrophic refers to the concentration of nutrients in the reservoirs. So much for scientific credibility!

Indeed the Klamath is a eutrophic system due in large part to the geology of the upper basin, but that does not mean that dams serve as a cleaning system. In fact, the dams and reservoirs degrade water quality by creating ideal conditions for massive blooms of toxic algae in the summer. When the algae die, the material settles to the bottom of the reservoirs, which are oxygen-deprived. This results in the breakdown of algae and the release of concentrated nutrients in the summer and fall, increasing total nitrogen and phosphorous in the river.

Myth No. 2: The Keno reef, a natural geographic barrier, prevented the migration of salmon to the upper basin, not the dams.

Not so. In fact there are photos of people holding salmon that they fished out of Link River near Klamath Falls! The writings of early naturalists in the area describe Chinook runs above Upper Klamath Lake in the Williamson, Sprague and Wood rivers. For a peer-reviewed analysis of the historic range of salmon in the Klamath Basin (and pictures) see: www.klamathriverrestoration.org/images/stories/pdfs/AFS_Kamath_Salmon_article.pdf.

Myth No. 3: There are 100 million cubic yards of naturally polluted, high-phosphorus, high-nitrogen sediment trapped behind the dams … which, if released by dam removal, will kill the fisheries for decades if not permanently.

According to sediment modeling by the Department of Interior, dam removal would release 5.4-8.6 million cubic yards of non-toxic sediment. All agree that in the months following dam removal, this release of sediment would have a negative impact on fish. However, in the long term, models show that the river can bear the sediment load out to sea and there would be no long-term negative effects.

Myth No. 4: Ocean conditions drive “returning spawners,” and not dams … the Pacific decadal cycle drives the ocean conditions that send cold-water fish north to the Gulf of Alaska …

It’s true that salmon success is driven in part by ocean conditions and in part by river conditions.
However, data suggests that the greatest factor affecting returns is escapement of juveniles out to the sea. In the Klamath, degraded habitat conditions, poor water quality caused by dams, and the fish-disease hot zone below Iron Gate dams conspire to kill up to 80 percent of our juvenile fish before they reach the ocean.

Myth No. 5: We can just rely on hatchery fish. When habitat is degraded and limited, just dumping in more fish won’t solve the problem. Baird quips that, “I would love to see the genetic data demonstrating that the egg from a wild mother becomes something else when it is hatched artificially.” OK, try this for starters: Genetic changes from artificial propagation of Pacific salmon affect the productivity and viability of supplemented populations, Reisenbichler et al. http://icesjms.oxfordjournals.org/content/56/4/459.short). About 30 seconds on Google will lead you to much more.

Myth No. 6: The voters can elect to keep the dams. Baird states that “We the people of Siskiyou County have voted and almost 80 percent of us want OUR dams to stay.”

Turns out, they’re not “OUR” dams – they’re PacifiCorp’s. They’re what most Americans call private property and it will be up to the owners of that private property to decide what to do about them. PacifiCorp has decided that it’s cheaper to remove them than relicense them. In other words, they made a business decision that is no business of Mr. Baird’s.

Myth No. 7: Dam removal will remove flood control from the Lower Klamath River. Actually the dam removal agreement is connected to the KBRA, which contains plans to increase water storage in the basin by enlarging Upper Klamath Lake. In fact, after these agreements are implemented, we will have over 86,000 acre feet MORE ACTIVE WATER STORAGE in the Klamath Basin than we do today, which will help meet the water needs of agriculture and fish as well as increase flood control.
There are more myths to debunk that these. For more information, explore www.klamathrestoration.org.

Craig Tucker is the Klamath Coordinator for the Karuk Tribe. He represented the Karuk Tribe in negotiations which led to the Klamath Restoration Agreements. He has a Ph.D. in biochemistry from Vanderbilt University Medical School.

Copyright 2011 Siskiyou Daily News. Some rights reserved

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http://www.redding.com/news/2011/jun/13/water-quality-suffers-as-congress-dithers/

Water quality suffers as Congress dithers

Ani Kame'enui and Alexandra Borack
Monday, June 13, 2011

The Klamath River will soon flow with warm water and toxic green algae, as it does every summer. Klamath River dam operator PacifiCorp has continually violated water-quality standards on the river, while reaping profits from its antiquated hydropower dams that block over 300 miles of native salmon habitat. Every year noxious agricultural runoff collects behind these dams and results in algae blooms that can exceed World Health Organization safety standards by a factor of 3,000.
Meanwhile, fishing seasons have been closed as dwindling populations of salmon continue to suffer in the toxic water running downstream. So why won't state water quality regulators in Oregon and California do anything about it?

Ironically, the fine print in a deal sold as "the path to dam removal" is preventing the Klamath from running clear and free.

The Klamath Hydroelectric Settlement Agreement (KHSA) was born when PacifiCorp — faced with the reality of its aging dams and slim hopes of receiving necessary Clean Water Act approvals permits — helped craft a deal to send the dams and their problems to Congress for resolution. In order for the KHSA to work, it needs congressional approval to change laws and move the process forward. Moreover, it's linked to the Klamath Basin Restoration Agreement (KBRA), a controversial partner deal with a $1 billion price tag. In a gridlocked Congress with some representatives hostile toward the deals and to dam removal in general, the prospects for passing the KBRA and KHSA are slim.

As signatories to the KHSA, Oregon and California have deferred their responsibility on water quality in the Klamath, waiting for someone else to fix the problem. They wait — and will continue to wait. The KHSA has put the future of clean water for the Klamath in limbo. Buried deep within the KHSA is a provision that allows PacifiCorp to withdraw from the deal should the states move forward with their independent process to protect and restore water quality. This provision forces the states' water-quality regulators to either turn a blind eye towards the Klamath, along with the fish, wildlife and human communities that depend on its clean water, or risk being labeled opponents of dam removal.

Oregon's Department of Environmental Quality has silently avoided the issue (as a signatory to the KHSA, it is "encouraged" to back off on enforcing water quality), while California's State Water Resources Control Board had provided the settlement parties with the opportunity to prove the KHSA can deliver on its promises. Although some supporters have suggested that federal legislation will be introduced soon, the process has stalled under tight budgets, conservation opposition, and political objection. More directly, the KHSA continues to miss important deadlines, notably those set forth by California's Water Board.

Not only has the KHSA failed to deliver the promised congressional legislation, but the deal still requires California to promise an extra $250 million in funding. As California faces a record budget deficit, it is inconceivable to assume this money will come from the state's empty coffers, further affecting education and public safety, or from taxpayers themselves to clean up PacifiCorp's legacy. Dam removal is essential to restore the Klamath, as is clean water. Unfortunately, a "sure path for dam removal" does not exist under the KHSA, and with continued deferral from the states, prospects for improvement in the river's water quality are even dimmer. If the settlement parties are committed to a restored Klamath River, why are they waiting for Congress to do what the states can do now?

The Klamath River cannot wait to see if the politics improve, and clean water must not be caught in never-ending political delay. In the absence of any feasible alternative, we must return to the existing water-quality framework. The Clean Water Act certification process is the only opportunity currently available to fix water quality, restore salmon runs for commercial fishing, and return a healthy river to all who use it.

Ani Kame'enui is Washington, D.C., legislative coordinator for Oregon Wild. Alexandra Borack is conservation advocate for Friends of the River.

© 2011 Scripps Newspaper Group — Online

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http://www.redding.com/news/2011/jun/27/dean-brockbank-klamath-deals-already-producing/

Dean Brockbank: Klamath deals already producing results

Dean Brockbank is vice president and general counsel for PacifiCorp Energy.
Monday, June 27, 2011

The June 13 "Speak Your Piece" "Water quality suffers as Congress dithers" ignores the facts on the ground and in the water to make several alarming claims of governmental malfeasance and corporate indifference. Fortunately, the dire picture painted by the authors does not exist. In fact, to make their points, the authors simply ignored the many active steps PacifiCorp and other stakeholders are taking right now to implement elements of the landmark Klamath agreements, including actions to improve Klamath River water quality, aquatic habitat and the chances that the fishery will be more abundant.
For example, to date PacifiCorp has provided more than $1.5 million to a coho enhancement fund administered in cooperation with the National Marine Fisheries Service and the California Department of Fish and Game to support the survival and recovery of coho salmon in the Upper Klamath River basin. Under the Klamath Hydroelectric Settlement Agreement (KHSA), PacifiCorp will continue to contribute more than $500,000 annually until the three Klamath dams in California are decommissioned. Measures to enhance tributary cold water flows critical for salmon, keep key coho streams connected to larger tributaries and limit the impact of livestock on river habitat are among many activities directly supported by the fund.

In addition to this funding, PacifiCorp is making changes to operations and flow releases to improve conditions for salmon, supporting research on fish disease that will aid in the development of management strategies to combat this problem, and funding improvements to hatchery operations that will benefit coho salmon.

Many other activities to improve water quality in the Klamath watershed are well under way and will continue both before and after Congress acts to approve and implement the agreements. These current water-quality improvements include pilot projects and studies of measures to reduce nutrient levels in the river and improve water quality throughout the watershed, which have already begun. If the interior secretary issues an affirmative decision to proceed with dam removal, more than $6 million is committed to fully fund significant water-quality improvements.

In coordination with various state and federal agencies and the Karuk and Yurok tribes, parties to the KHSA are now actively monitoring water quality over approximately 250 miles of the Klamath River from the Link River dam in Klamath Falls to the Pacific Ocean. This unique monitoring effort is supported by $500,000 in annual funding from PacifiCorp and will continue each year until the dams are removed.

Significant progress is being made on other fronts as well. PacifiCorp has received approval in both California and Oregon to begin collecting surcharges to cover the company's share of dam removal costs in 2020 and has already transferred all of its internal engineering and other operational information to the appropriate federal agencies crafting a detailed plan to remove the dams.

Like everyone else, PacifiCorp is waiting for the interior secretary's decision on whether to proceed with dam removal and a full and fair debate in Congress, but a lot has been accomplished since the agreements were signed last year and that work will continue. It is important to remember that the improvements described above are being implemented now as a result of the KHSA and would not be required in the absence of the agreements. This is a testament to the efforts of the involved parties to craft solutions to these complex resource issues that avoid the alternative of continued litigation and the deferral of water quality and habitat improvements that are happening now.

© 2011 Scripps Newspaper Group — Online

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http://www.redding.com/news/2011/jun/13/dam-removal-will-do-more-harm-than-good/?partner=RSS

Dam removal will do more harm than good

John W. Menke
Monday, June 13, 2011

Removal of four Klamath River dams as proposed in the Klamath Hydroelectric Settlement Agreement and and the Klamath Basin Restoration Agreement likely will result in undesirable and unintended consequences that collectively add up to negative cost-benefit outcomes using scientific, engineering, economic, and Native American cultural criteria. Surprisingly, the fishery faces the greatest risk of all, and the agencies responsible for promoting dam removal do not appear to care.

First and foremost, the dams provide flood protection (minimum 9-hour peak-flood delay) for small communities, residences, businesses, agency offices, bridges and other structures along the Klamath River downstream from Iron Gate Dam to the ocean. Additionally, the reservoirs provide local water supplies to helicopters used in fighting wildland fires. Reservoirs also provide sufficient water in the mainstem Klamath to support the fall run of chinook salmon. Property values adjacent to dam reservoirs have declined precipitously, and property tax reductions will reduce funds for Siskiyou County programs.

Second: In the case of the short-nosed sucker fish in Upper Klamath Lake, the agencies used a flawed biological opinion based on one naive model analysis to cut off irrigation water to farmers, when the sucker was not limited by lake levels according to vast amounts of empirical data. It is premature to remove dams and hope that this action might help.

Third: The NOAA Fisheries component (ocean effects) of agency responsibility is never discussed. We all know ocean temperatures and recent record harvest of chinook salmon in Alaskan waters show ocean currents, temperature and food availability have a major effect on local fish populations.

Fourth: No dynamic simulation models have been developed to allow holistic evaluation of likely limiting factors to salmonid productivity. The 2008 National Research Council study "Hydrology, Ecology, and Fishes of the Klamath River Basin" stated that this process should precede any adaptive management program.

Fifth: The 20-year (1986-2006), $40,000,000 Klamath Act and the Natural Resources Conservation Service's Environmental Quality Incentives Program efforts resulted in no improvement in salmon and steelhead numbers.

Sixth: The greatest risk to the Klamath River fishery resulting from dam removal is the release of natural, high-phosphorus sediments, and possibly toxic materials. This problem has developed over many years since dam construction while the dams have actively trapped the majority of such sediments and toxins, reducing risk to salmonids. Allowing flushing down river of the apparent 21 million cubic yards of such sediments and toxics could destroy an otherwise fine fishery.

Seventh: Agency plans for replacing more and more farmland with more wetlands in the Upper Klamath Basin is a very bad idea. Agriculture is the only natural means for use of excess phosphorus since it is taken up by crops and exported with food.

Eighth: Shasta Nation Native Americans expect to challenge disturbance of their burial grounds, which will happen if dam removal occurs.

Lastly, explorers noted when first visiting the Upper Klamath Basin that water quality was so undesirable that even their riding horses and pack animals would not drink.

Dr. John W. Menke, an ecologist, lives in Scott Valley.

© 2011 Scripps Newspaper Group — Online

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http://www.tworiverstribune.com/2011/07/opinions-patrick-higgins-mckinleyville-calif/

Opinions (Patrick Higgins-McKinleyville, Calif)

Dear Two Rivers Tribune,

Thanks to the Two Rivers Tribune for coverage of the Klamath Basin Hydropower Settlement Agreement (KHSA) and Klamath Basin Restoration Agreement (KBRA) meeting held in Orleans in mid-June. The tense mood of the meeting was well captured but there were some important points made that I thought were overlooked.

The complaint I lodged with regard to Indian people being excluded from the KHSA/KBRA process was primarily on behalf of the Resighini Rancheria, who have retained me as a fisheries and watershed consultant to deal with the environmental review of this large and complex program. Although they are a federally recognized Tribe, they were excluded from discussions as was the Quartz Valley Indian Reservation. The Hoopa Valley Tribe were allowed to participate in Settlement talks but refused to sign the agreements because they force Tribes to give up water rights and legal redress to sue over water pollution for 50 years, if the deals are authorized and funded.

The KBRA within Section 15.3 clearly states what the Yurok, Karuk and Klamath Tribes of Oregon will give up under the deal: “All claims resulting from (1) water management decisions, including the failure to act, or (2) the failure to protect, or to prevent interference with, the Tribes’ water or water rights…… (including damages, losses, or injuries to hunting, fishing, gathering rights or other activities due to loss of water or water rights).” The Secretary of Interior will essentially terminate the rights of other Klamath River Tribes that are not “Parties” to the deal (KBRA 15.3.9).

DOI lawyer John Bezdek’s claim that all KHSA/KBRA processes are open is simply incorrect. All committees and processes are open only to those who have signed the agreements. Critical documents like the Drought Plan are crafted behind closed doors by Parties and then the non-Party Tribes and the public can comment, but there is no assurance that appropriate changes will be made. Thus, the KBRA sets up a class system on the Klamath River for decision making that would perpetuate social injustice for 50 years.

Program leader Dennis Lynch’s summary of the Expert Panel reports mis-stated their findings. The coho-steelhead Expert Panel concluded that the dangerous algae blooms that are causing waves of fish diseases on the Klamath River would not be prevented: “Thus, it would be premature to conclude that any problems caused by these blooms, including low dissolved oxygen, will be substantially reduced by KBRA.”

The Chinook Experts state that “the Panel has strong reservations that the KBRA will be implemented with sufficient effectiveness to achieve its stated goals” and “Without solving the water quality problems, a fully self-sustaining run of Chinook salmon to the upper basin is unlikely.” The best science clearly establishes that the Klamath River is dying of nutrient pollution and the KBRA actually blocks restoring enough marsh and shallow lake habitat to sufficiently regain ecosystem processes that would clean up the water.

The KBRA is terminally flawed, unlikely to be funded and should be abandoned. Both the Resighini Rancheria and Hoopa Valley Tribe want to see speedy dam removal but believe that the best way to achieve that end is to return to the Federal Energy Regulatory Commission (FERC) process. Fish ladders required under FERC relicensing by the National Marine Fisheries Service would cost $200 million and make the project uneconomic forcing dam owner PacifiCorp into decommissioning. In addition the State of California has found that the pollution generated by the Klamath dams cannot be solved and would not issue a Clean Water Act 401 certification, which also would force abandonment and decommissioning.

The public will have an opportunity to comment on environmental documents for the KHSA/KBRA in September. Become informed and weigh in before it is too late.
Patrick Higgins, McKinleyville, Calif.

Science, Secrecy and Salmon Restoration

2011-07-21T11:38:00.000-07:00

News that an independent panel of scientists has serious reservations about prospects for successful salmon restoration to the upper Klamath River Basin once four Klamath River Dams are removed was broken by the LA Times in late June and spread like wildfire across the Basin.

The concerns of the scientists focused on the KBRA or Klamath Water Deal which has been politically connected to dam removal. They pointed out that large, politically brokered restoration programs have a consistent record of failure. Whether we consider Chesapeake Bay, the Everglades, the Great Lakes, the Columbia River or the Klamath River Basin, large scale restoration projects have not achieved what the politicians, advocates and bureaucrats who brokered them promised.

In 2006 a national team of scientists led by the University of Maryland’s Margaret Palmer examined thousands of restoration programs across the US and found widespread failure. The scientists pegged ineffective restoration to failure to apply restoration science resulting in projects which do not address key factors degrading rivers and lakes. The scientists also noted that less than 15% of the projects reviewed had been evaluation to determine their effectiveness. Palmer subsequently identified the specific ways in which restoration practice has failed to correctly apply restoration science.

Lack of restoration standards and accountability is a key defect of the Klamath Water Deal. Like salmon restoration under the 1986 Klamath Act before it, the KBRA would divide restoration funds based on political considerations. During the 20-year Klamath Act Restoration Program, wild Klamath-Trinity Chinook Salmon – the focus of that restoration effort – continued to decline. If that trend continues, extirpation/extinction will occur during this century. Restoration under the KBRA will be similarly ineffective; addressing several key factors limiting wild salmon production is specifically precluded by Water Deal provisions.

The independent salmon scientists focused on water quality in the Upper Basin as the main impediment to successful Chinook restoration there and throughout the Basin. In particular, they singled out a fifth PacifiCorp dam and reservoir – Keno – as a major barrier to migrating salmon. Keno has the worst water quality found anywhere in the Basin and regular fish kills occur there during summer. Under the Dam and Water Deals, however, Keno Dam and Reservoir would not be removed; instead they would be transferred from PacifiCorp to the US Bureau of Reclamation.

Soft censorship on the Klamath

Federal and tribal bureaucrats did not like the Draft Report from the independent scientists because it criticized aspects of the KBRA Water Deal in strong terms. As they have in the past, displeased KBRA promoters worked hard to convince the independent scientists to change their report. This can be seen in comments submitted on the panel’s draft summarized in Appendix C of the final report .

Comments from the Yurok Tribe, the Pacific Federation of Fishermens’ Associations and several agency scientists closely associated with the Dam and Water Deals focus on challenging the reviewers’ statements about the Water Deal. They were only partially successful. While the language used to discuss the KBRA was toned down in the final report, it is still obvious that the scientists have severe reservations that the KBRA will deliver the benefits it promises and which its supporters regularly trumpet as if they had already been accomplished. The result is a strong but cautious final report: The scientists held their ground, expressing the same reservations in mild, sugar-coated words.

One of those commenting on the draft was not a long-time Klamath scientists or advocate but rather the individual assigned to supervise preparation of reports and studies to inform the Secretarial Determination and the accompanying EIS/EIR. The comments of Dennis Lynch appear to KlamBlog to be aimed at reducing the strength of findings that can be read as negative with regard to the KBRA. KlamBlog does not believe such advocacy is appropriate for someone who is supposed to oversee an impartial investigation of the costs and benefits of removing four dams, transferring Keno Dam and Reservoir to the Bureau of Reclamation and implementing the KBRA Water Deal.

In subsequent public meetings and in press statements Mr. Lynch has downplayed the Chinook Panel’s concerns about the Water Deal. We can expect further dilution of those concerns in a summary report Lynch and his team will release later this summer.

KlamBlog has compared the original Draft Report and the Final Report to determine how it has changed in response to the barrage of comments by KBRA promoters expressing displeasure with the independent scientists’ judgments about the KBRA. Here’s one example of how the panel toned down its findings in response to the concerted effort by KBRA promoters:

Draft Report:

           The Proposed Action appears to be a major step forward in conserving target fish populations compared with decades of vigorous disagreements, obvious fish passage barriers, and continued ecological degradation. The Panel concluded that a modest increase in Chinook salmon is likely in the reach between Iron Gate Dam and Keno Dam if some of the conditions listed below are met. An increase in Chinook salmon upstream of Keno Dam is less certain because of the difficulties in satisfying all the conditions described below. The Panel has strong reservations that KBRA, even if fully implemented, will address all these conditions to the extent required to meet the goals of the program. (emphasis added)

Final Report:

           The principal uncertainties fall into four classes: the wide range of variability in salmon runs in near-pristine systems, lack of detail and specificity about KBRA, uncertainty about an institutional framework for implementing KBRA in an adaptive fashion, and outstanding ecological uncertainties in the Klamath system that appear not to have been resolved by the available studies to date. (emphasis added)

The panel then appears to address unhappy KBRA promoters in an attempt to smooth ruffled feathers:

           Most reports and presentations received by the Panel predicted very optimistic results for Chinook salmon from the Proposed Action. The Panel is equally hopeful, but notes several factors that temper its enthusiasm. Those factors and its position, therefore, may seem pessimistic to some readers of this report. But the Panel sees its charge as listing concerns in the spirit of scientific openness and as research challenges and opportunities that if resolved successfully will increase the likelihood of success resulting from the Proposed Action.

KBRA promoters have a consistent track record but openness to fresh perspectives that don’t conform to their long-held beliefs is not part of it. Whether we consider KBRA promoters reactions to two independent reviews of Klamath Science prepared by the National Research Council, NEC-sponsored science reviews by Bill Trush and Greg Kammen or the report of the independent scientists, KBRA promoters have consistently sought to pressure, cajole and persuade dissenting scientists to recant and adopt the promoters’ sanguine views on the Water Deal. Secret meetings of Deal “parties” and federal bureaucrats continue to be used to coordinate efforts to deny and downplay concerns about the controversial and costly Water Deal. KlamBlog believes these meetings violate federal open meeting laws and we wonder why KBRA opponents have not filed suit to block them.

The KBRA and Keno

The independent Chinook scientists were right to question whether Keno clean-up can occur under the Water Deal. When the KBRA’s obfuscating legal language is decoded, it becomes clear that under it Keno Dam and Reservoir (along with the Lower Klamath Lake Area and the entire Lost River Basin) would be firmly under the control of the Basin’s Irrigation Elite - the group of 20-30 agricultural enterprises which controls vast acreage supplied with cheap federal irrigation water . And since Klamath Project agriculture is the source of most Keno pollution, the Irrigation Elite have no interest in cleaning it up. In fact, their interest is to frustrate and prevent Keno clean-up as they have for many years.

Here are a few of many KBRA provisions which taken together give essential control of Keno, Lower Klamath and the Lost River Basin to the Irrigation Elite:

Agricultural operations complying with agricultural water quality area management plans and rules administered by the Oregon Department of Agriculture, and with rule amendments, if any, adopted to implement the Fisheries Program, shall not be subject to further water quality requirements under Oregon Revised Statutes chapter 468B or 568, if any, arising solely from reintroduction and the designation or presence of new fish beneficial uses.

The Parties shall support all reasonably available alternative or additional water quality measures before considering any action for the purpose of water quality compliance that would reduce water supplies beyond the limitations provided in this Agreement.

Following transfer of the Keno Facility from PacifiCorp pursuant to the Hydroelectric Settlement, Reclamation shall operate such facility to maintain water levels upstream of Keno Dam to provide for diversion and canal maintenance consistent with Contract No. 14-06-200-3579A executed on January 4, 1968 between Reclamation and PacifiCorp (then Copco) and historic practice and subject to Applicable Law. Klamath Reclamation Project contractors shall not bear any cost associated with the Keno Facility, including any responsibilities to landowners upstream of Keno Dam, whether cost of construction, operations, maintenance, rehabilitation, betterment, liabilities of any kind, or otherwise.

The Parties commit to take every reasonable and legally-permissible step to avoid or minimize any adverse impact, in the form of new regulation or other legal or funding obligation that might occur to users of water or land upstream of Iron Gate Dam from introduction or reintroduction of aquatic Species to currently unoccupied habitats or areas.

The Parties further acknowledge the potential for changes in regulatory programs and potential uncertainties as to the precise mechanisms by which the basic commitments stated herein will be achieved. If unforeseen changes in regulatory programs occur or uncertainties result as to the precise mechanisms by which the basic commitments stated herein will be achieved during the course of this Agreement the Parties agree to meet and confer in light of these commitments to determine any necessary future actions, including, but not limited to, consideration of whether narrowly tailored regulations or legislation is necessary to ensure the realization of these commitments.

The limitations related to Klamath Reclamation Project diversions identified in Section15.3.1.A and provided in Appendix E-1, and any other applicable provisions of this Agreement, are intended in part to ensure durable and effective compliance with the Endangered Species Act or other Applicable Law related to the quantity of water for diversion, use and reuse in the Klamath Reclamation Project. Therefore, the Parties agree that they shall not seek further limitations on the quantity of water diverted, used or reused in the Klamath Reclamation Project beyond these limitations.

A Party other than Federal and State Public Agency Parties shall not seek to enforce Applicable Law to impose further limitations on the water quantity for diversion, use, and reuse in the Klamath Reclamation Project, beyond the limitations that result from the application of Appendix E-1

While some of these provisions are couched in terms of additional responsibilities related to salmon reintroduction, and while elsewhere in the KBRA there are statements about compliance with existing laws and TMDLs, the combined effect is to provide a presumption that the Irrigation Elite will not have to make any changes not specified called for in the KBRA.

The panel of independent reviewing scientists identified Keno as a barrier to salmon migration which could frustrate efforts to restore salmon to the Upper Klamath River Basin. Any attempt to clean-up Keno will be interpreted by the Irrigation Elite as related to reintroduction (what else has changed?) and therefore subject to KBRA limitations on actions that impacts water deliveries to those irrigators. But water quality and flows are closely related. It is therefore likely that the combined effect of KBRA provisions will be to further delay - and perhaps frustrate - clean-up of Keno Reservoir.

Keno is the Key

As the independent Chinook scientists noted, Keno Reservoir has the worst water quality in the Klamath River Basin. Sometimes Keno water gets so bad that pure ammonia – a substance directly toxic to all life - is produced. Like the four dams slated for removal, Keno is part of PacifiCorp’s Klamath Hydroelectric Project. If that Project had been relicensed by the Federal Energy Regulatory Commission clean water certification from California and Oregon would have been required. That certification could not have been obtained unless PacifiCorp developed and committed to clean-up Keno and its other reservoirs in order to meet water quality standards.

KBRA promoters like PCFFA’s Glen Spain point to the Oregon TMDL as a means to Keno clean-up. In agricultural areas, however, TMDL implementation in Oregon is under the direction of the Oregon Department of Agriculture. ODA relies on farm and ranch plans which – like the KBRA itself – are devoid of standards and accountability. Those like Spain who count on the State of Oregon to clean-up Keno will have a long, long wait!

If PacifiCorp is allowed to walk away from Keno Reservoir and its water quality problems, Keno clean-up will at best be delayed and may never be fully implemented. As the independent scientists pointed out, the payoff for dam removal – restoration of salmon to the Upper Klamath River Basin – might also fail. Furthermore, even if clean-up occurs, taxpayers will be saddled with the cost.

Federal legislation needed to facilitate removal of four Klamath River dams should include provisions to assure that Keno Reservoir is cleaned up expeditiously and that democratic processes are used to manage the River and its public resources. Like all our rivers, the Klamath is a People’s river; it is not owned and no part of the River should be controlled by PacifiCorp, the Irrigation Elite, KBRA “parties” or any other special interest. More than anything, the Klamath needs an open, democratic process for managing the People’s Klamath River and the Klamath’s public resources.

Now that the truth about flaws in the Klamath Dam and Water Deals is finally coming out, river and salmon advocates must insist that what is needed to restore the Klamath River and Klamath Salmon – including clean-up of Keno Reservoir pollution - is assured before PacifiCorp is allowed to walk away from its Klamath responsibilities. In the months ahead we will see where folks stand. Those who prioritize the Klamath River and Klamath Salmon will push to assure Keno clean-up via federal legislation needed for dam removal. Those who prioritize their own and their organizations’ power and access via the KBRA will oppose those efforts.

KlamBlog will let you know where folks stand. Stay tuned.

Diana Hartel: An artist/writer tackles Klamath Restoration

2011-06-20T10:26:00.000-07:00

For the second time High Country News - whose motto is "for those who care about the West" - has done a major feature on the Klamath River. The new article is by the multi-talented - Diana Hartel - who spent her youth in the Klamath River Basin, built a career in New York City and now lives in Ashland, Oregon. Hartel provides a fresh perspective linking the current conflict over water, dams, agriculture and fisheries to local and US history, including her personal family history, as well as to the diabetes epidemic affecting Indigenous Native communities in the Klamath River Basin and nation-wide. Here are three excerpts:

      ...My relatives and their neighbors were against dam removal. Their arguments had a lot to do with settler pride of place, how we took this wild river and made it useful -- building cheap hydropower, irrigating onions, growing potatoes for Frito-Lay, watering livestock. My family's arrival in California in 1870 was an oft-told tale that gave us our rightful place in the West. But the land had changed since then. In summer, the river was too warm, its color a neon yellow-green. In some years, stretches of the Shasta and Scott tributaries dried up...

     ...By the 1870s, when my great-grandmother came to California, the indigenous population on the Klamath had already declined by 75 percent. A century later, diabetes, once virtually unknown in the tribes, stalked the descendants of the survivors...

     ...Much as all Westerners, Native and non-Native, might wish this history away, we have to face it together. We live in one watershed. In these times, we are easily disconnected from life rhythms millions of years old. And once disconnected, we can wreak havoc on everything around us.The diabetes epidemic that robs us of vitality, making us crave hollow substitutes for the true sweetness of life, is an indiscriminate killer. On the tribal elder's scored war staff, we need to include the uncounted lives lost to diseases in our disrupted landscape.....

The full article is well worth the read.

And here's one of Diana's paintings:

Klamath Cove Dawn

Hartel's hope is that the Dam and Water Deals will provide impetus to the impulse for restoration in the Klamath River Basin. That may or may not pan out. But whatever becomes of the KBRA and KHSA, she has pointed to aspects of Basin society which need attention. Hartel speaks of the connections between personal, social and ecosystem health and of the history of this Basin. Her approach suggests that - if the goal is restoration - we have a lot more work to do and not just on the River. As a river basin society we have yet to come to terms with our history and that failure continues to poisons inter-group relations - and restoration - today.

Diana Hartel is a major force behind Madrona Arts which "is an Oregon-based nonprofit dedicated to ecological awareness through art. The organization was founded in 2008 by Diana with a group of artists participating in a community multi-arts project called Inner Geography that began in 2004." A current project - Freeing the Klamath River - includes interviews with individuals active in Klamath River Basin issues as part of the Over the River Oral History Project.

The idea that the Klamath River is one of the few major rivers in America that can still be substantially restored has captured the imagination of activists, writers, politicians and artists. Each has in the past and will in the future play a role in whether the idea of restoration becomes a reality. Diana Hartel's work is proof that integrating art and activism is possible and can be an effective tool to promote ecological awareness and restoration of the natural world.

The Feds come to Orleans: focus shifts to Keno Dam and Reservoir

2011-06-17T12:51:00.000-07:00

The federal team coordinating studies, assessments and environmental reviews to inform the upcoming Secretarial Determination on the fate of PacifiCorp’s five Klamath River dams was in Orleans on June 16th to share their findings so far and to receive input from one of the communities which will be most affected by the decision.

The meeting came on the heels of public release of new studies and reports by panels of scientists asked to assess likely impacts of removing four of the dams and transferring a fifth PacifiCorp dam and reservoir – Keno – to the Bureau of Reclamation. Those reports and other completed assessments have focused attention on Keno Reservoir which currently has the worst water quality found anywhere in the Klamath River Basin.

Keno Reservoir receives polluted wastewater from over 200,000 acres of irrigated agriculture. The reservoir is so polluted that ammonia, which is directly toxic to all aquatic life, is sometimes produced

Why did the Orleans meeting focus not on the four PacifiCorp dams proposed for removal but rather on the one dam and reservoir which would stay in place? For one thing, removing the four dams but leaving Keno as is will mean that water quality in the Klamath River below will remain poor. In some months Klamath River water quality would be worse than it is now with the four other dams in place. Furthermore, a panel of independent fisheries scientists do not believe salmon restoration in the Upper Klamath River Basin will be successful unless the severe water quality problems in Keno Reservoir and Upper Klamath Lake are effectively addressed.

If Keno Dam and Reservoir were relicensed by the Federal Energy Regulatory Commission – that is, if PacifiCorp had decided to retain ownership - the company would have had to obtain 401water quality certification from the State of Oregon. That in turn would require that PacifiCorp develop and commit to a plan to clean-up pollution in the Reservoir. If Keno is transferred to the Bureau of Reclamation, however, no 401 certification is planned. Furthermore, the KBRA Water Deal would put dealing with water quality in Keno Reservoir in the hands of the Basin’s Irrigation Elite. But it will be difficult to get the Irrigation Elite to take the action needed to clean up Keno pollution. That’s because clean-up would likely require restoring some current farmland to marshes; the Irrigation Elite has adamantly opposed marsh restoration in the area.

Klamath River advocates and organizations who are not bought into the KBRA Water Deal insist that Keno clean-up must be assured before any deal on the Klamath River dams receives legislative backing. The Resighini Rancheria – a small federal tribe located wholly within the external boundaries of the Yurok Reservation – was among those who focused on clean-up of Keno pollution at the Orleans meeting. Rancheria representatives appear to understand that failure to secure a commitment to Keno clean-up as part of a larger dam removal deal will at best delay Klamath River restoration and could frustrate salmon recovery.

Tribal, fishing and environmental interests who are “parties” to the KBRA claim they are for Klamath River restoration; there is no reason to doubt them since restoration is where their interests lie. With the new studies and opinions focused on problems at Keno, these “parties” should now recognize that Keno clean-up must be hard wired as part of a larger dam agreement and legislation to implement such an agreement. However, their KBRA Deal with the Irrigation Elite could prevent these “parties” from taking a strong position on Keno clean-up.

On the other hand, Keno clean-up could be the issue which reunites those traditional Klamath River partners who have been divided by the KBRA Water Deal. Will KBRA environmental, tribal and fishing “parties” follow their own interests and support hard-wired Keno clean-up or will they defer to the Irrigation Elite and support legislation which facilities removal of four PacifiCorp dams but transfers Keno to the Bureau of Reclamation without assuring that the polluted reservoir will be cleaned-up?

Stay tuned.

Learn about Klamath Dam Removal Studies in Orleans on June 15th

2011-06-01T14:50:00.000-07:00

The federal government is well along the way to completing studies and assessments which will inform the Secretary of Interior's decision on whether or not removal of four PacifiCorp dams and transfer of a fifth dam to the federal government would be in the public interest. An affirmative finding is necessary in order for the federal government to justify implementing an alternative to the normal, legally prescribed method for hydroelectric project decommissioning which is via the Federal Energy Regulatory Commission - FERC. The alternative method being considered is the Klamath Hydroelectric Settlement Agreement (KHSA) which - among other things - would:

Remove PacifiCorp from liability for toxic legacies that have accumulated over 100 years of industrial power generation on the Klamath River,

Tie dam removal to the costly and controversial KBRA Water Deal.

The KHSA is one path to dam removal - a path which many but not all Basin interests supporting dam removal think is the best path. In KlamBlog's opinion, now that both the Oregon and California PUCs have found that it is in the interest of PacifiCorp's electric customers that Klamath Hydroelectric Project be decommissioned there is no turning back from dam removal. Whether the KHSA is the shortest and best path to dam removal has been debated on this Blog. It is a matter of speculation, i.e. essentially unknowable.

The Orleans meeting is an opportunity to learn about what those looking at a variety of dam removal issues are learning. Whatever the final process for dam removal turns out to be the studies and assessments being done now will inform that process. The meeting also provides an opportunity to learn about how the KBRA Water Deal is being evaluated as part of the Secretarial Determination process.

Keno is the key

The KHSA calls for removal of four dams and transfer of PacifiCorp's fifth Klamath River dam and reservoir - Keno - to the Bureau of Reclamation. Keno has the worst water quality in the Basin and neither the KHSA not the KBRA provide assurance that pollution at Keno will be cleaned up. In KlamBlog's opinion, those who want the Klamath River restored should insist that an agreement to transfer Keno to the Bureau of Reclamation includes specific and detailed provisions and time-lines for cleaning up severely polluted Keno Reservoir.

Like dam removal, Keno ownership transfer must pass muster under the National Environmental Policy Act.

Keno Reservoir receives all agricultural wastewater generated within the Bureau of Reclamation's 200,000 acre Klamath Project. As a result, water quality at Keno is worst than anywhere else in the Basin. Nutrient pollution is so bad in the Klamath Project's wastewater that ammonia - which is directly toxic to all life - is sometimes produced. Fish kills caused by the severe pollution occur nearly every year in Keno Reservoir.

KlamBlog will be at the Orleans meeting and will be sure to ask about how the proposed Keno transfer is being studied and evaluated. We will report on what transpires.

Below you'll find the official meeting announcement from the Department of Interior:

http://klamathrestoration.gov/keep-me-informed/events/event/informational-meeting-on-klamath-dam-removal-studies-for-the-secretarial-determination?site_locale=en

Informational Meeting on Klamath Dam Removal Studies for the Secretarial Determination

Host	Dept. of the Interior
Location	Karuk Tribe Community Room, 39051 Highway 96, Orleans, CA
Date	Jun 15, 2011
Time	04:00 pm - 06:00 pm
	The Department of the Interior will be hosting a public meeting to provide an update on the Secretarial Determination process for Klamath River dam removal as part of its commitment to hold periodic public meetings in different parts of the Klamath Basin. In this meeting, the Department will share with the public general updates about the determination process, provide specific information about various technical studies being undertaken as part of the process, and provide an opportunity to obtain feedback from the public and to answer questions. The Klamath Hydroelectric Settlement Agreement (KHSA) requires the Secretary of the Interior to make a determination as to whether, in his judgment, removal of four privately owned dams on the Klamath River: 1) Will advance restoration of salmonid fisheries in the Klamath Basin; and 2) Is in the public interest, which includes but is not limited to consideration of potential effects on local communities and tribes. The KHSA requires the Secretary to make this determination by March 31, 2012. The Secretary’s determination will be informed by a thorough technical analysis of the potential effects of dam removal (monetary and non-monetary) on fisheries and communities, as well as an analysis of the potential environmental effects of dam removal under the National Environmental Policy Act (NEPA). As a point of clarity, these meetings are in addition to, and separate from, public meetings specifically associated with the National Environmental Policy Act process. Presentations and additional information from this meeting will be available at KlamathRestoration.gov.

Who’s taking Coho in the Scott River Valley? It’s not just farmers and ranchers.

2011-05-09T12:54:00.000-07:00

The public has an interest in knowing what – and who - is killing Coho Salmon in the Scott River Valley and why that take - the legal term for killing - can’t be avoided. That’s one message from a recent ruling by a California court which found permits authorizing incidental killing of Coho Salmon in the Scott and Shasta River Valleys did not comply with applicable California law and must be redone or abandoned. Among other deficiencies, Judge Ernest Goldsmith found that the programmatic permits did not specify the amount of Coho take which would occur and therefore whether Coho could survive the permits.

April’s decision was the latest in a string of court rebuffs to the manner in which the California Department of Fish & Game (CDFG) – the agency charged with protecting the public interest in fish and wildlife and their habitats – is discharging its duties in the Klamath River Basin. As presented to the public by CDFG officials and reported by the press, the permits were developed to remove the threat of prosecution from farmers and ranchers who divert water for irrigation and livestock from the Scott and Shasta Rivers and key tributaries. As you will learn below, however, CDFG managers had another reason they wanted those permits in place. That other reason is not secret but neither is it known to the public. KlamBlog remedies the omission with this post.

Background

The Scott River Valley once was – and could again be – heaven for Coho salmon. The low gradient mid-elevation valley is fed by dozens of small streams – just the sort Coho prefer. And the river itself is – or should be – kept cool by numerous springs. But Coho are not doing well in the Scott River Valley and the way water is used by agriculture there is a prime reason.

For well over a century hundreds of thousands and perhaps millions of young Coho Salmon have died each spring in Shasta and Scott River stream sections suddenly dewatered when streams – or portions of streams - are diverted into irrigation ditches. In recent decades many of the stream diversions have been screened to prevent fish from getting trapped in the ditch and killed. But many more fish are killed when the diversions dewater stream sections below.

A typical CDFG fish screen in the Scott River Valley. Screens prevent fish entrainment in irrigation ditches but do not prevent stream dewatering

Even when Coho were listed under the federal Endangered Species Act, the killing continued unabated. For example, soon after Coho were federally ESA listed over 200,000 Coho, Chinook and Steelhead were killed when the second largest stream diversion on Scott River – the Farmer’s Ditch on the east side of Scott Valley – was opened. The public never heard about the massive fish kill. Instead, like most agricultural violations of environmental laws, this one was handled privately between the DA, CDFG and the irrigation district. The employee who killed the fish got off with a reprimand.

This is the section of Scott River dewatered in most years by the Farmer's Ditch. The photo shows a bogus "restoration" project which was done to protect a nearby home from the River. Using watershed and fisheries restoration funds to benefit landowners instead of fish is a common practice in the Scott Valley.

Under California law all owners of dams and stream diversions must allow enough water to pass to keep fish living below the diversion in good condition. But Fish & Game Code 5937 – part of the California Constitution - is not well enforced. In fact, as documented in a 1991 SF Chronicle report, the highest officials in CDFG told their employees not to enforce that law in the Scott and Shasta River Basins. Those top CDFG officials have now mostly retired; but Code 5937 is still not being enforced and fish are still dying en mass below irrigation diversions.

Watermasters

In California most - but not all - surface irrigation is administered by the California Department of Water Resources (DWR). DWR provides watermasters who make sure irrigators do not take more water than the amount specified in their water right or permit. The watermaster’s job includes either directly operating or overseeing stream diversions for irrigation or livestock watering.

Farmer’s Ditch does not have watermaster service. But in other parts of the Scott and Shasta Valleys where watermasters do work they too are involved in killing Coho – along with Chinook, Steelhead and other critters – when diversions are turned on and stream sections below are dewatered. Some of these watermasters also allow other practices of questionable legality including running irrigation ditches full outside the irrigation season – a practice which is becoming more common in the Scott River Valley.

The Immigrant Creek Irrigation Ditch running full on Christmas Day 2009

This is a relatively new practice in the Scott River Basin

Watermaster involvement in “take” at stream diversions became a big concern for DWR managers when Scott and Shasta Coho were listed under California’s endangered species protection law. If a DWR state employee were to be hauled into court for violating state law it would be a huge negative PR hit and could cost some managers their jobs. So the DWR managers went to their sister department – CDFG – for help.

Fish Rescue

Back in the 1970s when the diversions were turned on each spring CDFG employees would mobilize, take fish stranded in the isolated and shrinking pools below diversions and release them into the Scott River downstream from Scott Valley. Not all diversions dewatered streams; but the CDFG folks were plenty busy with those that did.

In the 1980s CDFG abandoned fish rescue. Scientists had discovered that moving stranded fish weakened all fish present at locations where “rescued” fish were released. Fish crowded into areas with insufficient food experience increased mortality. Because all the fish are weaker they are all more susceptible to disease and predation. This process is known by the term density dependent mortality.

In an attempt to minimize density dependent mortality, CDFG now releases "rescued" fish into the Kelsey Creek Spawning Channel - a failed Forest Service/CDFG restoration project from the 1980s. Salmon rarely spawn in the channel .

Under pressure from DWR, CDFG resumed “fish rescue” in the 1990s and has continued it since. This does not eliminate “take” but it does hide it from the eyes of those who might object and file a lawsuit on behalf of Coho.

Is killing Coho legal?

The National Marine Fisheries Service has reportedly authorized “take” by DFG in its “fish rescue” (sic) program. That decision itself could be vulnerable to challenge under federal law. But the situation with state law is more serious and immediate. CDFG, DWR and the irrigators who are involved in killing Coho when diversions are turned on could be prosecuted under state law.

Whether under the state or federal ESA, however, successful prosecution for “take” of a listed species usually requires a dead specimen - or at least a photo of a dead specimen. But “take” specimens and photos can be hard to come by even below stream diversions. In this case, however, those who wish to end the killing of Coho below Scott and Shasta Valley stream diversions could challenge DFG’s “fish rescue” program.

Agricultural water use in the Scott and Shasta River basins has become controversial. Streams dewatered by diversions, diversions run full year around and unregulated groundwater pumping all contribute to river flows which threaten not only Coho but also Chinook, Steelhead and Lamprey. The Forest Service’s water right for flows in Scott River is now not being met during late summer and fall even in years of average precipitation. Consequently, Chinook, Coho and Lamprey migration and spawning in and above Scott Valley has been delayed or even denied in some years. Dewatering and low flow are also implicated in the failure of Scott River water to meet water quality objectives established to protect cold water fisheries.

Scott River Chinook held up near the mouth by low flows, October 6, 2009

Coho defenders could petition the California Attorney General – the state’s top law enforcement official - to investigate the persistent illegal activities in the operation of Scott and Shasta River diversions and associated malfeasance by CDFG and DWR officials. Or they could challeng CDFG/DWR “fish rescue” in the Scott River Valley. That would appear to be the logical next step for Klamath Riverkeeper and the other organizations which successfully challenged Shasta and Scott programmatic “take” permits.

Will Klamath Riverkeeper, et al follow through on behalf of the Coho? Will some other organization take action

Stay tuned.

Promoting “voluntary compliance” - The Scott Valley Establishment targets water board members

2011-04-25T17:16:00.000-07:00

Bryan McFadden, who works for the North Coast Water Quality Control Board, has been assigned the task of implementing the plan to clean up sediment and temperature pollution in the Scott River Watershed – a major Klamath River tributary. That Plan was adopted by the North Coast Board on January 21, 2006. The Scott River Sediment and Temperature TMDL and Clean-Up Plan identifies the causes of sediment and temperature pollution and what needs to be done to reduce the pollution in order to restore beneficial uses of Scott River water as guaranteed by the Clean Water Act. Those beneficial uses include cold water fisheries, including salmon, steelhead and resident trout.

Timber companies and other landowners who log are now required to maintain shade along streams, develop erosion control plans and comply with waste discharge requirements. While road, landslide and riparian management problems remain, the four large timber companies operating in the Scott Sub-Basin are moving to satisfy at least the letter of compliance with the Plan. Road management in particular has continued to improve.

A timber company logging road in Scott Valley left open all winter long

Environmental and recreation interests want farmers and ranchers to also be required to retain shade on streams running through their property and to stop livestock from trampling streambanks and defecating in streambeds. Native, sport and commercial fishermen want farmers and ranchers to limit water use in order to keep stream temperature from becoming lethal to salmon and other fish.

So far, however, the North Coast Board has refused to put teeth behind the Clean-Up Plan’s requirements and prohibitions. Instead, on August 9, 2006 the Board adopted a “waiver of waste discharge requirements” for Scott River Basin agriculture.

The Scott Ag Waiver embraces the concept of voluntary compliance (sic) and is implemented through Ag-friendly groups like the Siskiyou RCD and Scott River Watershed Council. That has been the approach for the past four plus years. The waiver has a five year term and sunsets in August. The North Coast Board must either renew the waiver or take other regulatory action with respect to Scott River Basin agricultural operations. And while there has been no systematic evaluation to determine whether voluntary compliance is working, it appears that McFadden and his supervisors are prepared to continue to back the approach favored by the Scott Valley Establishment.

At the urging of Scott Valley agricultural and other leaders, McFadden organized two meetings in the Scott Valley last week. They were designed to convince members of the North Coast Water Quality Board that voluntary compliance is working and therefore that a new waiver should be granted. One North Coast Board member attended as did KlamBlog. So did several members of the local Scott Valley Tea Party which is also known as Protect Our Waters or POW. POW appears to be against clean water regulation as a matter of principle; several T Party speakers challenged the right of government to regulate private property in any manner.

KlamBlog reports on the two workshops below - including how the Scott Valley Establishment tried to persuade North Coast board members that voluntary compliance is working.

The Scott Valley Tea Party Protests Water Quality Regulation and the UN

Day 1: Scott Valley Groundwater Study

On Wednesday April 20th, Dr Thomas Harter of the University of California Extension provided an update on the groundwater model he and his UC Davis students are developing. The model is required by the Scott Clean-Up Plan in order to understand the impact of groundwater pumping on stream flow and stream temperature. Flow and temperature are related – more flow usually lowers stream water temperature; less flow typically results in higher stream water temperature.

Currently the US Forest Service does not receive the adjudicated in-stream flows in the Scott River below Scott Valley to which it has a right even in years of average precipitation and snow pack. Those flows were established to sustain Scott River fisheries. A recent peer reviewed scientific study found that more than half the loss of Scott River flow in recent decades cannot be explained by changes in precipitation and snowpack and are most likely related to a doubling in irrigation pumping from groundwater in the Scott River Valley since 1960. If done properly, the groundwater model should help quantify the impact increased groundwater pumping has had on Scott River stream temperature. It will also be useful in modeling the changes in stream temperature which would occur if measures are taken to increase Scott River flows.

Dr. Harter’s study has been delayed which suits Scott Valley Ag folks. Delay is a tactic which has proven effective for agricultural interests in their nation-wide quest to avoiding complying with clean water laws. It is a prime reason why agricultural pollution is now (along with urban run-off) the #1 source of pollution in most US rivers and their estuaries nearly 35 years after the Clean Water Act became the law of the land.

While the groundwater study is not complete, Dr. Harter and his students have made several interesting discoveries. One is that groundwater flow in the Scott River Valley is toward the River – in particular from the mountains to the west. Another is that there are sections of Scott River which still gain water from groundwater springs while many other sections loose water to groundwater.

Harter also found that groundwater flow in the vicinity of the River is parallel to the River and runs downstream. This is significant in that, under California law, “underground streams” are considered to be surface water and therefore can be regulated whereas groundwater not running in an underground stream is not subject to state regulation.

Was the boundary of the underground stream running along with Scott River properly delineated during the Scott River Adjudication? Even cursory study of the Adjudication maps suggests that the boundary line was politically rather than scientifically drawn. For example, at its widest the zone of interconnected groundwater is ¼ mile on each side of Scott River. However, at times the line is right on the River’s bank. Furthermore, the line dips toward the River to exclude certain irrigation wells and away from the River to include certain other irrigation wells.

While evidence is mounting that the interconnected groundwater boundary in the Scott Adjudication was improperly drawn, information from Harter’s modeling, however, like previous USGS reports, confirms that groundwater in the Scott Valley is broadly connected to surface flow. That means groundwater pumping anywhere in Scott Valley can diminish streamflow if enough water is removed and the groundwater level drops below the streambed’s level. The Harter-UC Extension study should help better define the interconnection of River and groundwater and thereby help determine the impact of groundwater pumping on Scott River flow and temperature.

Day 2: Showcasing the good guys

The second day’s workshop was devoted to showcasing good stewardship as practiced in the Scott River Valley. Several ranchers made PowerPoint presentations showing what they have done to reduce the impact of their operations on fisheries and water quality. Two of the family ranches located along Scott River invited interested folks to come out and see what has been done first hand; one ranch is applying for "Salmon Safe" certification. While much of the showcased stewardship work was funded by the government, some farmers have done good stewardship work on their own without outside assistance. It was clear from the presentations that there are a number of farmers and ranchers in the Scott River Valley who really do care about water quality and beneficial uses, want to do the right thing. These folks devote considerable thought and energy toward real stewardship.

Also presenting were folks working with the timber industry to reduce road sediment and county officials who are updating the Siskiyou County development manual to address grading issues. Staff of the Siskiyou RCD presented their work as did the Siskiyou Water Trust which leases water from irrigators to provide flows for Coho. Some fish advocates oppose leasing water to mitigate low flows and stream dewatering because the fish already have a right to the water they need.

Missing from the presentations was any discussion of those agricultural management practices common in the Scott Valley which contribute to sedimentation, low flows and high Scott River water temperature. Nor was there anything said about how the RCD and Watershed Council hope to persuade those who are clearly not good land stewards to “voluntarily” comply with the Scott Clean-up Plan. How will those who plow right down to the stream, for example, be convinced to voluntarily move back and establish riparian shade?

Removing riparian vegetation and plowing right down to the streambank is a common practice in the Scott River Valley which contributes to abnormally high water temperature and excessive sedimentation

Unmentioned also were irrigation ditches run full all year, feeding cattle and piling their manure right next to live streams and allowing cattle to trample streambanks. It was as if the poor management so blatantly evident just a mile or so from the Fort Jones meeting location did not exist!

KlamBlog has documented these problems in previous posts and we documented more in a recent trip to the Scott which will appear in a future post. We will continue to present these problems so that they cannot be ignored. And we will continue to ask the Scott Valley Establishment and the North Coast Board staff to explain just how they intend to get those who vehemently refuse to take any responsibility for maintaining water quality to voluntarily comply with the Scott River Clean-Up Plan, that is, with the LAW.

Meeting TMDL Levels in the Klamath Basin

2011-04-15T18:35:00.000-07:00

TMDL is the technical abbreviation for pollution reduction targets established under the Clean Water Act. Below KlamBlog brings you a special report from John Sully - a member of the Rogue Group of the Sierra Club and a frequent visitor to the Klamath River Basin from his home in the Rogue River Valley. John provides his thoughts about how the newly adopted TMDL clean-up plan for the Klamath River can be implemented effectively. If you have ideas about how to clean up Klamath water quality why not comment on John's report.

from John M. Sully of Ashland, Oregon:

On September 7, 2010 the California State Water Resources Control Board adopted a set of standards for Total Maximum Daily Loads (TMDL) for the Klamath and Lost Rivers in the Klamath River drainage. The Action Plan for the Klamath River Total Maximum Daily Loads addresses Temperature, Dissolved Oxygen, Nutrients, and Microcystin Impairments in the Klamath River in California and Lost River. The action plan was forwarded to the EPA and approved 12/28/2010 under the Clean Water Act section 303 (d) (2).

The Klamath River was declared to be water quality limited in 1996. There has been pressure to get the California State Water Resources Control Board to set TMDL limits ever since. At least 4 species of fish are listed as rare/endangered in the Klamath Basin and River and tributaries. Recovery of these has been a mandate of the Water Resources Control Board. But declaring the river system to be water quality limited, and setting TMDL limits does not necessarily result in action being taken to clean up the river.

Recover of Four listed species of fish, the Endangered Species Act, the Clean Water Act section 303 (d) (2) could be a strong motive for taking action. Transferring Keno Dam to BOR from PacifiCorp may lead to an environmental review of the proposed Transfer Agreement and/or those of its provisions which are pertinent to Klamath River clean-up under the Basin Plan. It should happen as the impoundment behind Keno Dam has the accumulation of all pollution of human activity in the Klamath Basin and for which BOR will be responsible after the transfer!

Keno Reservoir receives all Upper Basin Ag and Municipal waste.

Keno has the worst water quality in the Basin and many opportunities to restore wetlands

Complying with the required TMDL limits does not have to be expensive or complicated!!! It can be as simple as utilizing existing or constructed wetlands as “cleaners”. Wetland functions include water storage, ability to remove pollutants by wetland vegetation (obligate wetland and facultative wetland, and facultative plants) growing in the wetlands. Wetlands will also reduce sedimentation downstream of the wetlands, reduce temperature of the incoming water through shading by the wetland vegetation, reduce erosion by slowing the flow of water, and increase habitat for wetland dependant species, i.e. waterfowl, various invertebrates, amphibians, fishes, etc.

Klamath Basin is an ideal place to establish constructed wetlands, or utilize existing wetlands to meet the TMDL standards. One example of a treatment wetland would be the Klamath Straits Drain area. The area is large, flat, and before the inception of the BOR project was a wetland. Flooding the area would have the effect of reestablishing a wetland. Modifications probably would have to be made to the “plumbing” to reestablish flow to the river. But it is a feasible project.

Other possibilities include creation of wetland swales around areas where cattle are grazing, cultivated fields, etc. Constructed wetlands could be located adjacent to sewage treatment plants for secondary sewage treatment, as has been done very successfully at the Arcata marshes and in Indio, California. Dr. Robert Gearhart of Humboldt State University may be available as a consultant in designing treatment wetlands for TMDL clean up.

The use of treatment swales has been successfully used along the I-5 freeway and the coastal route in Orange County in District 7 (Los Angeles) to protect marshes from highway nonpoint source pollution that threatened Marina Del Rey and Anaheim Bay (Bolsa Chica NWR). The use of constructed/treatment wetlands is a well recognized science by EPA and the National Research Council (see Wetlands Characteristics and Boundaries and Compensating for Wetland Losses Under the Clean Water Act, published by the National Research Council and publications of EPA).

If BOR is sincerely interested in “restoring” the Klamath Basin and doing so in an economical and ecological manner, the use of treatment wetlands/constructed wetlands for reducing pollution from point sources and non point sources would be a way to ease the conflict with the environmental community.

Unraveling the Klamath Bureaucratic Knot: What is the KBCC and what is it up to?

2011-04-11T11:00:00.000-07:00

On Thursday April 5th KlamBlog correspondent Felice Pace had the opportunity to attend a meeting of the Klamath Basin Coordinating Council (KBCC) – a group called for in the KBRA Water Deal. That Deal – which has not been signed by any federal government representative – calls for this group to provide public oversight of Upper Klamath River Basin water management and to be in charge fisheries/watershed restoration basin-wide. But, although its agenda deals entirely with Public Trust Resources, participation in the KBCC is tightly controlled. The entry ticket is an organization’s signature on the KBRA Water Deal and the KHSA Dam Deal.

Because neither the KBRA nor the KBCC have been authorized by Congress, the official function of this group at this point is limited to informing the public about those portions of the KBRA Deal which do not require congressional authorization. Aspects of the Water Deal are being implemented both by “Parties” to the KBRA (that is, those tribes and private organizations which have signed it) and those federal agencies - Department of Interior (BOR, BIA, USFWS, BLM) and the Department of Commerce (NOAA/NMFS) - which created it Felice reports on those “updates” below.

“Parties” which have signed the KBRA include the Klamath Water Users Association (KWUA), Yurok Tribe, Karuk Tribe, Klamath Tribes, Trout Unlimited, American Rivers, Salmon River Restoration Council Humboldt and Klamath County.

Mouth of the Klamath River - "Parties" to the KBRA Water deal have yet to meet inside the Klamath River Basin

Felice’s Report

What is most interesting about the Klamath Basin Coordinating Council’s (KBCC) Fortuna Meeting is not the meeting itself – which I report on below - but rather what happened the day before the meeting and on its margins.

Wednesday Meeting

The day before the public KBCC meeting, there were unannounced, private meetings of KBRA signatories – those tribes and private interests which identify themselves as “the parties” - with the federal agencies which actually created the KBRA but which have not and cannot sign it without Congressional authorization. Present at that meeting and likely facilitating it was Department of Interior contractor – Ed Sheets.

Federal officials are prohibited from seeking the advice of non-federal parties in private meetings unless an official committee for that purpose is authorized by Congress under the Federal Advisory Committee Act (FACA). On its face, the private meeting of Dam and Water Deal “Parties” with federal and state officials appears to violate FACA and state open meeting laws. But federal and state officials deny a violation. They say the “parties” requested the meeting and therefore there is no violation. KBRA Opponents seem to agree; to date no suit has been filed alleging FACA or open meeting law violations. Violation complaints filed with either a federal inspector general or a state attorney general would not be public unless announced by those filing the complaints. No such announcements have been made.

At Wednesday’s unnoticed meeting of “Parties” with federal and state officials there was a discussion of prospects for seeking Congressional blessing for the KBRA Water Deal and KHSA Dam Deal. That strategy discussion was mentioned in the public KBCC meeting on Thursday but no specifics were provided. Officially, the “Parties” remain “optimistic” that they will receive the authorizations and $1 billion in federal subsidies they seek. In light of the federal deficit, strong opposition within the Basin on both the right and left and the opposition of important House Republicans, however, the “optimism” of “parties” may be more show than real.

There likely were other discussions at Wednesday’s unnoticed meeting which bear on the Public’s interests in the Klamath River and Klamath Salmon. Questions raised recently by KlamBlog and others about how the Endangered Species Act is being implemented within the Basin were hopefully discussed at length. But no information was offered about the nature of those discussions.

Thursday’s Meeting

Potential FACA violations were a topic of discussion at Thursday’s public meeting. Concerns are apparently so great that the US Fish and Wildlife Service has offered to bring in their national FACA specialist to advise “parties” and the federal agencies involved. FACA “charters” are being drafted in anticipation of congressional authorization.

Most of the meeting was a series of reports on progress made on Dam and Water Deal work plans. Here are a few highlights:

PacifiCorp’s Tim Hemstreet reported on Dam Deal Work Plan implementation over a phone conference line. A written report was available at the meeting but is not available on line.

Keno: the dam that won’t come out

The most important information in Hermstreet’s report was about the fifth PacifiCorp Klamath River dam – Keno. Under the KHSA Dam Deal Keno Dam and Reservoir will be transferred to the US Bureau of Reclamation (BOR). A draft agreement between PacifiCorp and BOR for the transfer is on track for completion by June 1. It was stated that this agreement will undergo federal environmental review.

Keno Reservoir: Once connected to Lower Klamath Lake, Keno Reservoir receives all Klamath Project agricultural waste water. Consequently Keno has the worst water quality found anywhere within the Klamath River Basin.

Specifics of the Keno Transfer Agreement will be critically important to the future of the Klamath River and Klamath Salmon. Keno Reservoir receives the massive amounts of highly polluted irrigation, livestock and storm waste water generated within the 200,000 acre plus Klamath Project. Consequently Keno has the worst water quality in the entire Basin. The Transfer Plan should include specifics for how the BOR will meet applicable water quality standards.

Klamath water quality cannot be fixed – and Klamath Salmon cannot be restored – unless Keno is fixed. Many scientists and long-time Klamath River activists believe that the key to fixing Keno water quality is restoration of the former Lower Klamath Lake and its marshes.

Algae Bloom in Keno Reservoir: Fish kills - including kills of endangered Kuptu and Tsuam - occur at Keno nearly every year due to polluted discharges which fuel algal blooms and kills fish.

PacifiCorp’s Coho Mitigation Fund

Hermstreet also reported that PacifiCorp is working with Cal Fish & Game and NMFS to identify projects for funding with the second year of the company’s Coho Mitigation Fund. The fund is part of the KHSA Dam Deal and is intended to mitigate dam impacts between now and dam removal sometime after 2020. KlamBlog and others have criticized the secret process used to allocate these funds and the lack of restoration standards, transparency and accountability within the program. In the first year of operation, for example, PacifiCorp funded yet another fish screen for ranchers in the Scott River Valley. Fish screens protect ranchers from “take” at diversion sites but do little if anything to help Coho recover.

PacifiCorp appears to be poised to again allocate the Coho Mitigation funds it committed in the KHSA based on politically rather than scientific criteria. This mirrors how the California Department of Fish & Game has allocated salmon restoration funds in the Scott and Shasta River Basins. The dominance of political considerations over restoration science is the #1 reason why salmon restoration has, on balance, been a failure both within the Klamath River Basin and throughout the Northwest and California.

At the KBCC meeting PCFFA’s Glen Spain and SRCC’s Petey Brucker put in a plug for a transparent, public process for allocated Coho Mitigation funding. It is unclear whether these pleas will be heeded by PacifiCorp which controls the process and funding decisions.

Mr. Hemstreet also reported that the various studies needed for a decision on dam removal are on schedule.

Implementing the Water Deal

Ed Sheets – the contractor paid by the Department of Interior to facilitate and staff the KBCC – reported on implementation of the KBRA Water Deal work plan. Many of the items in the work plan are on hold because they require federal legislation and/or the appropriation of new funding. However, several parts of the complex and controversial Deal which benefit those irrigators who receive water via the Bureau of Reclamation’s Klamath Project are moving forward.

Apparently the Bureau of Reclamation has chosen to fund Klamath Project Irrigators’ Water Deal priorities out of the agencies regular budget. This has not happened to the same extent with portions of the Deal which benefit tribal and environmental priorities. But this is nothing new: the Bureau of Reclamation has always had as a top priority taking care of “its” irrigators. More than 100 years of such preferential treatment - along with generous taxpayer subsidies – is what created the West’s Irrigation Elite.

In the Klamath River Basin the Irrigation Elite is represented by the Klamath Water Users Association (KWUA) and the new public entity they control – The Klamath Water and Power Agency (KWAPA). The Irrigation Elite is ready to go out to bid on a feasibility study for bringing cheap Bonneville power to the pumps which the Bureau of Reclamation uses to wheel Klamath and Lost River waters. If obtained, that cheap Bonneville power will also power pumps which the Irrigation Elite use to sell water to the federal government. Reduced power costs would translate into increased profits at the expense of taxpayers.

As KlamBlog has pointed out, the Department of Interior has not chosen to balance the excess of demand for Klamath River water over supply by reducing demand. Instead the Bureau of Reclamation pays the same irrigation interests to whom it delivers subsidized Klamath River water for more expensive pumped groundwater. It is a sweet deal for irrigation interests especially because the largest pumps used to sell water to the Feds were given to irrigators free of charge by the State of California. This is the sort of sweetheart deal at taxpayer expense which justifies use of the term Irrigation Elite to describe the very well off Klamath Basin federal irrigators.

KWUA is close to going out to bid on a second Water Deal component – the On Project Plan. According to Deal promoter Glen Spain, this plan will spell out how the Irrigation Elite will work to reduce its use of Klamath River Water. Based on past experience with Klamath EQIP and other irrigator-developed “water conservation” programs, however, we can expect the Irrigation Elite’s On Project Plan to include taxpayer funded investments in irrigation “improvements” without any guarantee that water use will be reduced. In other words, this plan will set the stage for yet another taxpayer fleecing for the benefit of the Irrigation Elite.

A plan for Bureaucratic Drought

My cynical expectations for the On Project Plan are based in part on the newly released Draft Drought Plan. Shrouded in dense legal terminology, this document repeats the Water Deal’s approach. Bottom line: If fish need water they will have to lease that water from the Irrigation Elite, i.e. river flows require corresponding money flows. If that approach becomes institutionalized, the Public Trust Doctrine as applied to water will have been effectively nullified within the Klamath River Basin and the Irrigation Elite will have transformed themselves into the Klamath’s Water Tzars.

The Draft Drought Plan contains a paragraph from the KBRA Water Deal which makes it clear that more water goes to the Irrigation Elite if the dams come down even if there is no reduction in water demand and no new water storage is developed. Here’s the key paragraph from KBRA section 15.1.1 repeated in the Draft Drought Plan:

The DIVERSION quantity specified in Appendix E-1 for the irrigation season will increase by 10,000 acre feet in some years effective March 1 after the earlier of: (1) the physical removal of all or part of each of the hydroelectric facilities has occurred and achieved a free-flowing condition and volitional fish passage; (ii) 10,000 acre-feet of new storage has been developed under section 18.3; or (iii) the KBCC, on or after February 1, 2020 and after receipt of recommendations from the TAT, determines the increase is appropriate.

The Drought Plan was discussed briefly at the Fortuna meeting. However, there was no discussion of two key questions left unanswered in the Draft Drought Plan:

Why must taxpayers pay irrigation interests for water to which fish have an absolute right pursuant to the Public Trust Doctrine? And,

If taxpayer funds to buy the water fish need are not available, how will the excess of supply over demand for Klamath River Water be resolved?

The Draft Drought Plan also advances the Irrigation Elite’s desire to control declarations of “drought” within the Basin. Currently droughts are declared by federal and state governments based on meteorological conditions and the size of the snow pack. If the Draft Drought Plan is institutionalized, however, drought will be declared by the State of Oregon in the Klamath River Basin whenever demand for Klamath River water exceeds supply. If that method for declaring drought is implemented, we will see bureaucratic droughts in the Klamath River Basin ever 4 or 5 years. In contrast, real droughts occur in the Basin on average about once in every 20 years.

Under current ESA management, flows in the Klamath River are cut drastically when a drought is declared. The Draft Drought Plan seeks to institutionalize yet another way that the KBRA Water Deal places the burden for reconciling water supply and demand squarely on the Klamath River and Klamath Salmon.

Because of the Water Deal, the 2010 Bi-Op reduced the amount of water which flows in the Klamath River during many times of year in most years. What will be the impact on Klamath Salmon if the dams come down and another 10,000 acre feet of water is taken away from the River and given to the Irrigation Elite? The Draft Drought Plan does not even ask the question much less answer it.

Can Klamath Salmon survive another 10,000 acre foot reduction in Klamath River flows?

Dam removal studies indicate that water quality in some months will be worse below Iron Gate once the dams are removed. Is that because of the Deal’s 10,000 acre reduction in flow? Whatever the reason, the double whammy of reduced river flow and worse water quality just might render dam removal under the KBRA Water Deal on balance bad for salmon. That’s one among the reasons it is in the interest of the Klamath River and Klamath Salmon to sever the political linkage between the Dam and Water Deals.

Those concerned about the possibility of worse conditions for salmon post dam removal, should insist that the dam removal EIS/EIR fully analyze and disclose the impact of loss of an additional 10,000 acre feet in River flow once the dams are breached.

Summing Up

In light of the federal budget impasse and the existence of powerful Republicans intent on cutting funding to implement the Dam and Water Deals, I found it surprising that there was absolutely no discussion during Thursday’s public meeting of contingency plans should the $1 billion in taxpayer subsidies called for in the Water Deal not be forthcoming from Congress. But then I learned about the secret meeting of the “Parties” with federal and state agencies on Wednesday. Discussion of such an important matter likely took place there away from public view.

I was the only member of the public to attend the Fortuna KBCC meeting which was not well publicized. During public comment at the end of the meeting, I pointed out that the KBCC – which aspires to govern Klamath Water and Restoration – has yet to meet within the Klamath River Basin. I noted that “Parties” justify meeting outside the Basin by claiming that government officials need to fly in. But the Fortuna meeting site is about as far South from Arcata Airport as the town of Klamath, near the River’s mouth, is to the North. I asked the “Parties” why they had chosen to go in the opposite direction. I then urged KBCC members to give thought to how they can empower the citizens of the Basin and encourage citizen involvement. A good start would be to begin meeting within the Basin. Yreka, Klamath and Klamath Falls all have airport access at about the same time-distance as that found in most major cities.

It appears clear that Thursday's KBCC's Fortuna meeting was a show for the public while the real meat and the real discussions took place the day before at a meeting from which the Public – including those Klamath River interests which did not sign the Dam and Water Deals – were excluded. The message this delivers is that Dam and Water Deal “Parties” have no respect for the Public and no real interest in hearing from us. The KBCC show meeting began at about 9:30 and was wrapped up by noon.

Felice Pace for KlamBlog
April 10, 2011

If you want to know more

You can keep up with public activities of the KBCC on line. For notice of KBCC public meetings and document releases contact DOI contractor Ed Sheets. For notice of what KlamBlog can learn about the “Parties” non-public activities subscribe to KlamBlog Notices.

Invitation

In the interest of fully informing the public, KlamBlog invites Glen Spain and other Deal “Parties” who were at Wednesday’s and Thursday’s meetings in Fortuna – as well as federal and state officials either officially or anonymously - to provide their reports or to comment on Felice’s report. Longer submissions should be e-mailed to unofelice@gmail.com.