Glen Spain's view of Klamath reality

KlamBlog editor's note:

From time to time KlamBlog will feature the views of guest authors on Klamath River issues. We invite submissions from all of good faith. Below is a submission from Glen Spain. Glen took exception to our October 1st post but could not fit his objections into the allowable comment space. So we are publishing his critique in full.

Glen Spain has been involved with Klamath River issues for a decade or more. He has been involved in Klamath Settlement Negotiations since they began. Glen is an attorney.

Glen Spain is one of the most articulate promoters of the proposed Klamath Dam and Water Deals. KlamBlog does not agree with his reading of the benefits and costs of those Deals but we will resist the temptation to critique his analysis here.

--------------------

GUEST WRITER: GLEN SPAIN
NW Regional Director
Pacific Coast Federation of Fishermen’s Associations (PCFFA)
(541)689-2000 Email to: fish1ifr@aol.com

Reference to KlamBlog entry for 10/1/09

Though such mistakes in these complex issues are certainly understandable, the analysis of the KBRA and the new Klamath Hydropower Settlement Agreement (KHSA) outlined in the KlamBlog October 1, 2009 entry is both over-simplistic as well as incorrect, for a number of reasons. Hopefully this response will clarify the facts and help separate them from the myths as part of this healthy debate.

The facts are these:

(1) NEITHER THE KLAMATH HYDROPOWER SETTLEMENT AGREEMENT (KHSA) NOR THE PARALLEL KLAMATH BASIN RESTORATION AGREEMENT “WAIVE” THE FEDERAL OR CALIFORNIA ESA TO ANY DEGREE. The only “waiver” of any provision of California wildlife laws that will be required to remove the Klamath Dams is a very limited one to allow dam removal (which will create sediment, which will harm some fish) that may adversely affect certain “fully protected species” from a short list codified in Cal. Fish & Game Code sections 3511 and 5515. These sections predate the California Endangered Species Act (CESA) and were largely replaced by CESA (except for this remaining list of species in sections 5515 and 3511) because they are a “zero tolerance” impacts policy. Those specific species from this statutory list which occur in the Klamath include: Lost River sucker, shortnose sucker, bald eagle, American peregrine falcon and golden eagle.

In other words, it would currently be LEGALLY IMPOSSIBLE to remove dams in the Klamath or anywhere else in California that “might” adversely affect any of these specifically named so-called “fully protected” species without a statutory waiver. There simply IS no CESA-like “incidental take” exemption available under Fish & Game Code section 3511, even when the small short-term harm is a necessary price for much greater long-term benefits, such as large-scale river restoration. CESA was adopted much later to remedy that problem, but the old statute was never actually repealed.

A placeholder statement that legislation will be introduced resolving these conflicts to allow dam removal appears in the KHSA Appendix G-3. A much older (and now superseded) statement of specific proposed bill language to resolve that conflict appears in the KBRA at Appendix A-3, but this KBRA language will probably disappear in the final version of the KBRA because it was: (a) overly complex and a bit too broad, and; (b) the issue is now better covered in the KHSA Appendix G-3 specifically as a dam removal issue.

To keep Fish & Game Code Secs. 3511 and 5515 on the books, according to Fish and Game, legally blocks the Department’s ability to do many forms of watershed restoration, not to mention dam removals, all over the state – wherever any of these so-called “fully protected” species are present. Since these species are already covered under the far more inclusive as well as more flexible modern CESA process, these old statutes, they argue, are now obsolete.
CESA and the federal ESA would still apply regardless, and cannot be changed by a mere contractual agreement in any event. The specific exemption would also only apply to dam removal impacts – not to irrigation or other farming activities, to which the regular CESA and ESA would still always apply.

(2) THERE ARE NO CONCEIVABLE SCENARIOS IN WHICH PACIFICORP SHAREHOLDERS (AS OPPOSED TO ITS CUSTOMERS) WILL BE EXPECTED TO SHOULDER COSTS OF EITHER FERC RELICENSING OR DAM REMOVAL. Public utilities are nothing more state-regulated pass-through organizations. All their costs and operational expenses, whether for power facilities building, relicensing or demolition, are always simply passed through the company to be divided up among its ratepayer-customers. The only restriction on the Company’s ability to pass these costs through is that those costs must be “prudently incurred” (as determined by the state Public Utilities Commission (PUC) in an appropriate rate setting case) in the course of the utilities’ business. Neither Warren Buffett nor any of the Company’s other shareholders would be ever required to shoulder prudently incurred costs by FERC or otherwise. Utilities just do not work that way.

(3) THE TEN (10) YEAR TIME FRAME FOR KLAMATH DAM REMOVAL IS BOTH REASONABLE AND NECESSARY. It can take a long time to tear down a dam right. The other major PacifiCorp dam involved in a removal settlement agreement, Condit Dam, will also take about 10 years to remove if (as currently scheduled) it comes down in 2010. The recently removed Savage Rapids Dam on the Rogue River took something like 18 years to remove.

There are many studies still to be done on how to engineer the removal, minimize fish damage and sediment, and avoid other environmental problems. There is almost certainly going to be litigation to resolve, and additionally the Klamath Trust Fund ratepayer funding for dam removal will not be all there until 2020 at the modest ~$1.50/month rate increase it was possible (barely) to pass into law in Oregon (SB 76). There simply is not enough time to have the $200 million required by SB 76 before 2020, nor enough time before then to accomplish all the other myriad of details that such an undertaking will require.

In fact, 2020 seems optimistic to many. Fortunately, however, numerous dam removal studies have already been done, and many more are in the pipeline right now, as part of the FERC process and in anticipation of an extensive NEPA-CEQA process. This has given us several years head start on meeting the 2020 deadline.

(4) THE REGULAR FERC PROCESS WOULD LIKELY NOT GET DAMS DOWN ANY SOONER – AND PERHAPS NOT AT ALL. FERC has never, during its entire history, unilaterally ordered a dam down against the wishes of a relicensing Applicant. The only arguable exception of the Edwards Dam in Maine -- which ultimately also resulted in a negotiated settlement -- still only gives you odds of such a FERC action at about 1/2 of 1 percent of all dam relicensing cases to come before FERC in the last 20 years. These are not good odds for getting FERC to unilaterally order dams down in the Klamath without the Company’s consent.

In order to get the dams decommissioned through the regular FERC process by other means, first you have to win the Clean Water Act 401 Certification fights in BOTH CA and OR, with both states firmly saying no (or making conditions PacifiCorp cannot live with). Then you have to win ALL the legal appeals, without exception, all the way through the state court system, then once again thorough the federal system on preemption and related issues, and finally to the US Supreme Court -- and this could easily be 7-8 years of litigation right there. And THEN, all PacifiCorp has to do to start the whole process over again would be to withdraw the original Application for 401 Certification and resubmit a new and slightly modified Application -- giving them one more year to obtain State 401 Certification administratively each time they do so, followed perhaps by more years of litigation, on and on well past 2020 and maybe past 2030.

And all this time, absent the KHSA, PacifiCorp does not have to do any "interim measures" of any sort, because they get an automatic annual status quo renewal of the current license. FERC has always been upheld on this in every past legal challenge of such rubber-stamp existing annual license extensions.

And, of course, without any sort of negotiated settlement you get no water reforms in the process as provided for in the KBRA. You might also wind up with at least one dam (J.C. Boyles, in Oregon) in the end, with a few patched-up fish passage measures. Oregon’s case against state 401 Certification for J.C. Boyle is much weaker than the case in California where most of the Clean Water Act problems within the reservoirs exist. J.C. Boyle Dam is also by far the most valuable part of the Hydro Project to PacifiCorp for power production.

At least with a negotiated FERC settlement you know what you are getting – all four dams down by 2020. Without such a settlement, facing many years of litigation and disputed hearings before FERC, you would not know with any certainty in advance that the dams will in fact be removed.

(5) FINALLY, THE “NEW SPENDING” IN THE KLAMATH CONTEMPLATED BY THE KBRA IS NOT “$500 MILLION” ALL IN ONE CHUNK AS IMPLIED, BUT OVER A PERIOD OF 10 FULL YEARS – THAT IS, ONLY ABOUT $50 MILLION/YEAR. This is not very much money by Congressional standards, but will do a great deal of good – and help the Klamath Basin avoid expensive future conflicts.

There is always competition for funding in Congress these days, but this problem is endemic to all federal funding programs, not just to the Klamath’s. To maximize the odds of full funding, however, requires Congressional authorization for at least that 10-year amount. Authorized programs always have first budget priority over ad hoc needs. So potential funding problems are an argument FOR Congressional authorization of the KBRA, not against it.
Fortunately, dam removal itself will be paid from non-federal funds ($200 million from PacifiCorp rate surcharges, and up to $250 more from future California bond funding) and so requires no Congressional funding. However, taking the dam removal decision entirely out of FERC’s hands does require Congressional approval – which is why this is provided for in the KHSA.

*****

Hopefully the above helps to shed more light on these complex issues as groups analyze the Agreement in more detail. The KHSA documents are available at www.edsheets.com by following the Klamath link. KBRA References above are to the May 6, 2009 Draft KBRA available at: www.klamathbasincrisis.org/settlement/documents/KBRA05060.pdf .
People should read these documents and think through these issues for themselves. These decision are too important to leave to speculation and rumor.

*****

KlamBlog can echo that! Here are quick links directly to the documents:

• KBRA Link

• KHSA Link

A tale of two ditches….and a water trust

KlamBlog investigators have been in the Scott River watershed recently to check on the status of adult Chinook salmon. Regular readers will remember that Scott River Chinook salmon have been prevented from reaching their spawning grounds due to extremely low river flow. Our latest investigation was on November 4th; we have good and bad news to report.

The good news is that some Scott River irrigators voluntarily shut off their ditches to help the fish. The bad news is that some ditches are running nearly full even though – according to the Scott River Adjudication - irrigation was supposed to end “on or about” October 15th. Out of season irrigation is a regular practice in the Scott River Valley. Most of the Valley has no watermaster service and the California Department of Fish and Game refuses to enforce codes that regulate diversions. As a result, compliance with the Scott River Adjudication and California’s Fish & Game Codes is unregulated and voluntary.

One of the ditches that was shut off is the Scott Valley Irrigation District’s ditch – the largest diversion on the Scott River. Here’s a photo of that ditch on the 4th of November:

Scott Valley Irrigation District Ditch, Scott River Valley, November 4, 2009

At the same time another major irrigation ditch – the Farmer’s Ditch below Callahan - was running at an estimated 3 to 5 cubic feet per second (cfs). Since the irrigation season had ended more than two weeks earlier, the Farmer’s Ditch was officially running to supply livestock water – a right of 0.1 cfs. However, this irrigation district has been known to practice out-of-season irrigation. Here’s a photo showing out-of-season irrigation of a cattle pasture from the Farmer’s Ditch in a recent prior year. The photo was taken in early November.

Out-of-season flood irrigation from the Farmer's Ditch, Scott River Valley

While the Farmer's Ditch was running full, most of the salmon were still stuck in the Scott River canyon where they were forced to spawn before reaching their natal streams in and above Scott Valley. A few battered salmon had made it as far as Fort Jones in the lower part of Scott Valley. Some of the best Chinook spawning grounds are located in tributaries above Fort Jones.

The Farmer’s Ditch is owned and operated by an irrigation district with a sordid record. In addition to regularly practicing out-of-season irrigation this district killed an estimated one hundred thousands young steelhead and salmon a few years back. The irrigators turned on Farmer’s Ditch and dewatered the Scott River below the diversion. The resulting fish kill was documented by the California Department of Fish & Game (CDFG) but was not disclosed to the public. KlamBlog learned about it from a whistleblower. That fish kill was covered up and no consequences were enforced. The kill reportedly included a few juvenile Coho salmon. It is unknown whether Coho take prohibitions were in effect at that time.

Water Trust or Public Trust

On the same day KlamBlog was investigating the situation on the Scott an article appeared in the Mt. Shasta Herald newspaper announcing that the Scott River Water Trust had taken action to help migrating salmon. According to the article, the Trust leased 400 acre feet of water from Scott Valley irrigators in early October. The Trust’s press release indicated that their action helped “reconnect” the dry reaches of the Scott River in Scott Valley. Maybe so; KlamBlog did not observe any portion of the Scott River which did not have some flow on November 4th. However, it was clear that the flows in the river were not sufficient to get the salmon to their preferred spawning grounds, that is, the streams in which they were born.

The Scott Valley Water Trust claims to be the first water trust in California. Those who care about salmon should hope that it is also the last water trust in the state. That’s because the Trust is using public money to lease water which – pursuant to Public Trust law – belongs to the fish and the River.

The prospect of becoming water brokers who sell water so that fish can survive is becoming more and more popular with irrigation interests. Another example in the Klamath River Basin is the misnamed Klamath Water Bank whereby the Bureau of Reclamation pays irrigators to deliver the water the Bureau is compelled by the Endangered Species Act to release to the Klamath River. The Bush Administration initiated the practice so that it could continue to provide full irrigation deliveries to the very irrigators from whom it purchased water to prevent jeopardy to Klamath River Coho salmon.

Think about that for a second. Even though the ESA and the Public Trust legally trump the rights of all other water users, the Bureau of Reclamation has diverted Klamath River water for irrigation and then bought water from the very irrigators to whom it supplied the water!

This practice has not ended with the Bush Administration. If the proposed Klamath Basin Restoration Agreement (KBRA) is legislated by Congress, government payments to irrigators in order to provide the flows fish need during drought years will be institutionalized. With more and more drought years predicted, this KBRA provision could become a big budget buster which over time will dwarf the $1 billion in subsidies which promoters of the controversial Water Deal want Congress to appropriate.

Did developers of the KBRA Water Deal defer development of the drought plan in order to hide the true cost of the Deal from Congress? It certainly looks that way.

Have Chinook salmon been extirpated from Shakleford-Mill Creek?

Returning to the Scott River, in early November KlamBlog also observed that Chinook salmon were not able to reach spawning grounds in the Shakleford-Mill Creek portion of Scott Valley. Shakleford-Mill is a large tributary system which enters the Scott River at the lower end of Scott Valley. The creeks are fed by streams originating in the Marble Mountain Wilderness. They should have good flows year around.

As late as the early 1970s this major Scott River tributary did have year-around flows and these flows supported prolific Chinook and a solid Coho run. Then a government-funded “soil conservation” project diked and channelized the lower portion of the creek in order to “reclaim” more land for irrigated farming. This was followed in the 1980s by massive logging and road building by a new industrial timber owner. Fruit Growers Supply – a Sunkist subsidiary – bought the industrial forests above Shakleford and Mill Creeks and accelerated logging and road building. This led to massive amounts of sediment being delivered to the creeks.

As a result of channelization and logging-generated sediment a large gravel delta has developed at the mouth of Shakleford Creek. Flow diminished by irrigation diversions can not break through this barrier and goes underground. As a result, adult Chinook can not access the creek in many years. Mill Creek – a major Shakleford Creek tributary – has been identified as possessing some of the best remaining Coho habitat in Scott Valley. But if major storms do not come soon, even Coho will not be able to spawn in Shakleford-Mill Creek this year.

Sediment barrier at the mouth of Shakleford Creek
Scott River Valley, July 2009

The slide toward extinction

The Scott River conditions described above are not unique. From San Francisco Bay north to the Oregon border Chinook and Coho salmon are being extirpated from streams in a similar manner. Irresponsible logging clogs the streams with sediment; illegal water diversion and unrestrained groundwater pumping result in diminished flows; low flow barriers to migration develop. As salmon are prevented from reaching spawning grounds in more and more streams and in more and more years they eventually are extirpated from the streams. As more and more streams suffer this fate extinction happens.

This is the course we are on and there is no indication that as a society we are going to turn back.

Opposition grows to PacifiCorp Dam Deal

Concerns are mounting that the recently unveiled Klamath Hydroelectric Settlement Agreement (KHSA) may not actually result in dam removal. Problematic provisions have been identified that could frustrate dam removal or delay it for decades. Klamath Salmon advocates also worry that by the time the dams actually come down Coho and Spring Chinook Salmon may have already been driven to extinction in the Klamath River Basin. Here is a summary of the main concerns which have surfaced so far:

• The KHSA does not make a commitment to dam removal. Instead it outlines a process by which the Secretary of Interior would make a decision in 2012 concerning whether dam removal is in the public interest. An increasing number of dam removal advocates are saying that this is not good enough. These activists want PacifiCorp and the Obama Administration to make a definite commitment to TAKE DOWN THE DAMS!

• The KHSA contains numerous provisions that could stop the process and allow PacifiCorp to back away from dam removal. Activists say these provisions could be used by PacifiCorp to indefinitely delay dam removal or even to avoid it altogether. Meanwhile the company would continue to reap profits while Klamath River Salmon continue to suffer from lethal water quality and inadequate flow below the dams.

• The KHSA would delay dam removal at least a decade beyond the time necessary to complete engineering and environmental impact studies. The only reason for the delay is to allow PacifiCorp to collect money for dam removal from its customers in Oregon and Northern California. Under the KHSA PacifCorp would continue to make profits during this period but would contribute no funds toward dam removal. Activists say that PacifiCorp stockholders should share bear part of the cost of removing facilities it owns and that the federal government should advance funds for dam removal and recoup those funds later from ratepayers.

• The KHSA does not adequately protect water quality or salmon during the decade-long period it proposes to delay dam removal. In fact, the Deal would in effect provide PacifiCorp with an exemption from the Clean Water Act. This in turn would prevent the North Coast Water Board from implementing the Klamath TMDL Clean-Up Plan it is currently developing. That Klamath Clean-Up Plan offers hope that the severe water quality problems which kill millions of young salmon every year might finally be addressed.

The dams are only part of that water quality problem – pollution from irrigation return flows and livestock operations create even more pollution than the dams. We can not clean-up the Klamath without addressing both Ag and dam-related pollution. Furthermore, Agricultural interests will rightly cry fowl if they are expected to clean up their pollution while PacifiCorp is allowed to continue business as usual.

Water polluted with livestock waste flows from a ditch into the clear water of Patterson Creek in the Scott River Valley

• The KHSA would absolve PacifiCorp from any and all liability associated with 100 years of powerhouse and power generation operations. Old power generation facilities often contain hidden toxic legacy which can be very costly to remediate. Activists say that it is OK to free PacifiCorp from liability for dam removal but they should remain liable for any toxic legacies associated with their operation of power generating facilities .

Connection to Water Deal Questioned

Grassroots activists and organizations are also questioning the wisdom of connecting the Dam Deal with the proposed Klamath Basin Restoration Agreement. Like KlamBlog, these activists and organizations realize that saddling dam removal legislation with the weight of controversial water allocations and costly cash subsidies could well sink the legislation or delay it in Congress for a long time.

The nearly $1 billion in subsidies and new programs included in the controversial KBRA will require shifting money from other tribes and other federal programs. That will be opposed by those other interests and programs because they would loose government funding as a result. The KBRA also requires nearly $500,000 in new funding – much of it for subsidies to the small group of wealthy irrigators who dominate Upper Klamath River Basin politics. Under congressional rules a congressperson or senator who proposing such spending will have to specify which programs will be cut to provide for the new spending. Cutting existing programs can be very controversial and all it takes is a single senator to put an indefinite hold on such legislation.

The KHSA and KBRA also include a provisions which would provide irrigators in the Upper Klamath River Basin with power from the Bonneville Power Administration. Because it is cheap Bonneville Power is coveted across the West. Those who currently have access to that power are vigilant lest they loose some of it. But the Dam and Water Deals both propose taking some of that power away from current industrial users and giving it to wealthy Klamath Basin irrigators. In response the Northwest Industrial Power Users Association – a trade group made up of internet firms and aluminum producers – has become involved in Klamath dam issues. This is a powerful and well connected lobby group whose opposition could kill dam removal legislation.

Termination of Tribal Rights

While the above list of problems with the proposed KHSA and KBRA are formidable they are not the least of the problems with these proposed deals. Exploding onto the national scene recently have been concerns about a waiver of rights which the four federal Indian tribes involved in dam negotiations – the Hoopa, Yurok, Karuk and Klamath Tribes - would be required to sign as part of the Deal. While the Yurok and Karuk Tribes argue that the waivers are conditional on funding and other aspects of the deals going forward, tribes across the US have become concerned about provisions in the KHSA which would allow the federal government to waive the rights of a dissenting tribe should the other tribes involved decide to sign the waiver.

This provision of the KHSA appears to be aimed directly at the Hoopa Tribe which has expressed serious reservations about the waiver of rights and about how the KBRA would impact Trinity River restoration.

The Hoopa Tribe may hold the trump card when it comes to Klamath Water Deals because they have the status of a state for purposes of the Clean Water Act. Because a portion of the Hoopa Reservation crosses the Klamath River above Weitchpec, the Hoopa Tribe’s water quality standards must be addressed. But the combination of KHSA provisions empowering the federal government to terminate the Hoopa right to decide for themselves whether to waive their water rights and the proposed suspension of the Clean Water Act discussed above could in combination render objections of the Hoopa to the Dam and Water Deals ineffective and irrelevant.

Indigenous activists like Chris Peters, president of the Seventh Generation Fund, have spoken out against an agreement that would empower the federal government to terminate the rights of a sovereign tribe without their consent. Many members of the three lower Klamath River tribes – the Yurok, Hoopa and Karuk - are related or have common ancestors. The three tribes also participate in each others traditional dances and ceremonies. Will the Karuk Tribal Council and Yurok Tribal Council go along with the consultants and staff who are telling them that it is OK to treat the Hoopa in this manner? Only time will tell.

You can read Chris Peter’s statement on “termination” of tribal rights in KlamBlog’s October 10th post below.

Termination of tribal rights without a tribes consent would set a modern national precedent and harkens back to days when Indians were treated like small children for whom the federal parent decided virtually everything. Both the Affiliated Tribes of Northwest Indians and the National Congress of American Indians recently passed resolutions in support of each tribes sovereign right to enter into or reject water agreements.

Widespread tribal attention to the proposed Klamath Deals calls attention to the broader context in which the Klamath Dam and Water Deals are being pursued. If one were to add up all the water to which western federal tribes have claim it would likely amount to about half of all the water in the West. But when that water was divided during past centuries those claims were ignored.

Over the past two decades the federal government has been systematically cutting deals with tribes across the West that are designed to make sure those tribal claims never are quantified or perfected. All of these deals involve tribes giving up water rights – or the ability to exercise those rights – in exchange for the promise of federal funding, restoration and – in the case of the Klamath Tribes - land. But in the modern world of water banks and water brokering those tribes which hang onto and perfect their water rights are likely to be much more wealthy than the wealthiest casino tribes of today. Still the allure of funding and the promise of restoration has proven difficult for cash strapped tribal governments to resist.

Seen in this light the Klamath Dam and Water Deals can be viewed as part of yet another vast swindle whereby Indigenous People are being divested of the most valuable right they hold – the right to life-giving Water. History may look back and condemn our complicity with this immoral federal project which has and continues to be implemented in Democratic as well as Republican administrations.

The Klamath on PBS - River of Renewal to air during November

River of Renewal - the award winning documentary about the struggle to restore the Klamath River and Klamath Salmon - will air on numerous Public Broadcasting Stations during the month of November. On November 6th the film will show nationwide on PBS World. You can check out all showing dates and times on line.

There is a lot more information about the film on the River of Renewal website. You can purchase a DVD of the film there too; River of Renewal DVDs make excellent holiday gifts! You can also learn more about Klamath River issues, how to get involved, where to get more information and how to contact the filmmakers on the web site.

If you have not yet seen River of Renewal plan to catch it on PBS during November or plan a party around one of the showings.