Implementing the Klamath Agreements - a new KlamBlog series

~ Implementing the KBRA ~
~ A series of reports from KlamBlog ~ Researched and written by Felice Pace ~

~ Series Introduction ~

The Klamath Basin Restoration Agreement (KBRA or Water Deal) and the Klamath Hydroelectric Settlement Agreement (KHSA or Dam Deal) are done. Those who were going to sign have signed and those who were not going to sign have not signed. In the Klamath River Basin there has been a rearrangement of the “sides” in what has always been a zero sum water game with winners and losers.

Two streams now diverge. On the one hand promoters are pursuing federal legislation; on the other hand they are moving aggressively to implement those portions of the Deals which do not require legislation.

The Deals' promoters want federal legislation to provide liability protection and other benefits to PacifiCorp during dam removal, to bless the KBRA's scheme for managing water and restoration, and to provide taxpayer funding for irrigator and other subsidies. Prospects for federal legislation are almost always uncertain - especially when it includes costly and controversial Deals which require new spending in an era of record deficits.  Congress may decide to duck the controversy and the cost and leave it to the Obama Administration to implement the Deals it negotiated within existing authorities and budgets. Whatever it does, however, Congress is unlike to act before the Secretarial Determination (the decision on dam removal) is final.

The legislative dance will play out far from the Klamath River Basin and only a few Basin residents will play a part in it. Meanwhile the Federal Family – the federal agencies which supported, funded and participated in the deal-making – have quickly begun implementing many aspects of the Deals which do not require Congressional action.

This series will track, report on and analyze implementation of the KBRA, the Water Deal. It will not focus on the Dam Deal because that will get plenty of attention elsewhere. The Secretarial Determination and related EIS/EIR are well advertised and reported. KBRA implementation, on the other hand, has not been publicized and is not being reported.

Why Siskiyou Supervisor Jim Cook waffled on the Klamath Dam and Water Deals

There is an apparent change among Siskiyou County’s political elite as revealed by recent actions of the County’s Board of Supervisors. As reported in the Siskiyou Daily News, the supervisors recently voted to join the Siskiyou County Flood Control and Water Conservation District in sending a letter to the water resources departments of California and Oregon, as well as the Klamath River Compact Commission. The letter expresses both boards’ opposition to the Dam and Water Deals formally known as the Klamath Hydroelectric Settlement Agreement (KHSA) and Klamath Basin Restoration Agreement (KBRA).

The vote of the Flood Control Board was 4 to 1 with the South County's Ed Valensuela voting against sending the letter of opposition. The vote of the Board of Supervisors split differently with 3 voting to send the letter of opposition and 2 voting not to send it.

The strange thing is that both boards are composed of exactly the same five individuals: Grace Bennett, Marcia Armstrong, Ed Valensuela, Michael Kobseff and Jim Cook. Valensuela and Cook voted against the Board of Supervisors sending the letter.

Valensuela’s refusal to condemn the two Deals is well known. He represents the Mt. Shasta-Dunsmuir portion of the county which is a progressive enclave in otherwise ultra-conservative Siskiyou County. Previously Valensuela has been the lone vote against uncompromising opposition to the Deals. But Cook’s vote as supervisor signals a change in position; previously he has been one of the most vocal critics of the two Agreements.

Cook’s waffling appears baffling until one considers the district he represents. Siskiyou County’s sprawling first supervisorial district includes portions of the Shasta River Valley, the Copco Area (where opposition to dam removal is fierce among those who live near Copco Reservoir) and the richest portions of the Bureau of Reclamation’s Klamath Project – the former beds of Tule and Lower Klamath Lakes.

Irrigators in the Tule Lake area in particular live in large houses or small mansions and control thousands of acres of farmland both on and off the Tule Lake National Wildlife Refuge. There is so much land available for lease in the area that this small group of irrigators get to farm vast acreage at very little cost. All the irrigation water they choose to take goes with the lease. Those cheap lease rates and cheap water courtesy of the federal government are the foundation of the Irrigation Elite’s wealth.

With that wealth comes political power and the reach of that power extends to Sacramento, Salem and Washington DC where both Democratic and Republican lawmakers have typically been eager to do the bidding of the Irrigation Elite.

Supervisor Cook’s change of position on the Dam and Water Deals reflects the power of constituents who stand to gain tremendously if those Deals become law. In short, the Irrigation Elite has gotten to Cook and his desire to stay in office has overcome his ideological opposition to the Deals. Here’s how the Siskiyou Daily News reported Cook’s rationalization:
      Cook explained that while he continues to oppose dam removal, there were certain aspects of each agreement with which he does not find fault, explaining that he believes the restoration agreement has actions that can help the basin immediately.

It would be interesting to know which "aspects" of the Deals Cook now supports and we invite Supervisor Cook to enumerate those "aspects" here on KlamBlog. We strongly suspect that the "aspects" which directly benefit the Irrigation Elite at the expense of other irrigators and other interests are what Cook now finds can help the basin immediately.

Cook's new position may also indicate a change of position on the part of the Irrigation Elite themselves. The Elite is represented by the Klamath Water Users Association (KWUA). As one of the Deals main beneficiaries, KWUA has taken the position that the Dam and Water Deals are indivisible and must be accepted in total.  Cook's new position may reflect that his most wealthy constituents realize that they can't get the whole package and are now positioning themselves and their supporters to secure those aspects which benefit them most.

The biggest prize for the Irrigation Elite is the Water Deal's allocation of a large amount of Klamath River Water to the federal irrigation project which serves them. If the Water Deal becomes law, the irrigation elite would have first call on a large amount of Klamath River water ahead of salmon and other irrigators. That water allocation would only be limited if Coho salmon were placed in jeopardy as a result. Cook can be expected to do what he can to deliver that prize in particular to the Irrigation Elite.

The problem for Cook is that a first-in-line water allocation to the Irrigation Elite is contrary to the interests of Shasta Valley irrigators who are also his constituents. If the Water Deal becomes law, those irrigators will likely be forced to curtail irrigation to provide Klamath River flows that now come from Upper Klamath Lake - the main source of water to the Irrigation Elite.

KlamBlog has previously opined that the Siskiyou Supervisors opposition to the Deals would likely evaporate if the payoffs to the county were sufficient; it now appears that the price for Supervisor Cook’s support - at least for some aspects of the Deals - has been paid.

Siskiyou County’s water war

In the latest in what will likely be years of legal wrangling, Siskiyou County has filed a motion in the case challenging groundwater pumping in the Klamath Basin’s Scott River Valley. The County wants the case moved from Sacramento Superior Court – where it was filed – to Siskiyou County Superior Court.

The County argues that the lawsuit is a challenge to the Scott Valley Surface Water Adjudication because the Adjudication defined areas of “interconnected groundwater” outside of which groundwater pumping is unregulated. Since the Siskiyou County Superior Court retained jurisdiction over the Adjudication, Siskiyou County argues, the case should be heard by that court.

Those filing the lawsuit – the Environmental Law Foundation and commercial salmon fishing interests – argue that the State Water Resources Control Board has jurisdiction and therefore that Sacramento is the proper venue for the case.

However the County’s motion is decided, the case will most likely end up in the California Supreme Court or - at minimum - in the appellate court system. This will take years to play out; some predict decades.

Meanwhile folks in the Scott River Valley are being whipped up for an all out water war. Property Rights leaders portray the lawsuit, state ordered reporting of water diversions and related calls for water for Coho Salmon and Lamprey as threats to surface diversions, municipal water, all private wells and, of course, property rights.

In reality, any action to put more water into the Scott River will likely target groundwater pumping which has increased dramatically in the Scott River valley since the 1970s. Surface water diversions are unlikely to be affected. The reason is simple: under California Water Law first in time still means first in right; since the groundwater irrigators came last, they will have to curtail pumping in order for flows in the Scott River to improve.

The ELF-salmon fishermen’s lawsuit is aimed squarely at that increased groundwater pumping most of which is for irrigation. Irrigated agriculture has pushed up side valleys and onto the foothills surrounding Scott Valley and the process continues with new land coming under irrigation this year. All this has been totally unregulated.

The federal government has encouraged bringing marginal land under irrigation by funding irrigation infrastructure

Property rights hysteria aside, neither ELF’s groundwater lawsuit nor Klamath Riverkeeper’s challenge to Cal Fish & Game’s proposed Coho Permit for Scott Valley agriculture, are likely to put more water in the Scott anytime soon. Whether the State Water Board’s new emphasis on surface waster diversion reporting results in more water in Scott River remains to be seen. This blog has photographed and reported on Scott Valley diversions from Kidder, Etna and other streams which are run full year around. Reporting requirements should end that practice. But whether state regulators have the stomach to end lawless diversions remains to be seen.

The Dry Riverbed will return

As this post is being written, the USGS Gauge on Scott River below Scott Valley is reading about 34 cubic feet per second – better than the 30 cfs readings recorded during August. Cooler fall temperature and less sunlight mean natural vegetation, alfalfa and (new) rice fields are consuming less water; hence the increased flow.

Thirty cubic feet per second is the minimum Klamath National Forest riparian water right in Scott River. It is the minimum flow the Siskiyou County Superior Court found is needed in the Scott River to maintain Salmon and other fisheries. Although calibration of the USGS’s Scott River flow gauge is disputed, this year the official reading never dipped below 30 cfs.

Years of more normal precipitation and droughts, however, will return. When Scott River flow again falls below the legal minimum will those who champion Chinook Salmon, Pacific Lamprey and Coho Salmon take action to enjoin upstream water users? Those preaching water war in Siskiyou County apparently think so. With no government mechanism established to mediate such conflicts, the courts look like the only avenues open to those who want to stop the dewatering of Scott Valley.

Lack of governance fuels litigation

Government management of water in the American West has been a contentious topic since white Europeans first arrived. The result is an incomplete hodgepodge of water laws, confused and confusing jurisdictions which fuel constant streams of litigation. John Wesley Powell, western explorer and father of the US Geological Survey, suggested organizing western states along river basin lines. Similar calls have echoed from time to time around the West and recently in the Klamath River Basin.

A movement for whole-basin, all-interest Klamath River Basin water management did not make it into the Klamath Basin Restoration Agreement (KBRA) and has yet to catch fire in Klamath Country. Instead water issues in the Basin will continue to play out the way they typically have in the West – through litigation, side deals and piecemeal settlements.

Many before KlamBlog have pointed out that this is not a good way to manage the West’s most precious resource. But the sort of leadership needed to take us beyond this contentious, fragmented and litigious approach has not yet appeared…not on the Klamath…not in the West…and not in the wider world.

Report from the Scott River – Chinook Salmon and Property Rights Fanatics are doing well this year!

Last week KlamBlog was on the Scott River checking out conditions in the river and investigating what is being done to clean-up the Scott now that we have water quality clean-up plans adopted for that river as well as the Shasta and Klamath Rivers. For those who may not know, the Scott is major Klamath River tributary.

Along with the nearby Shasta River, Scott River both produced the bulk of Klamath River Chinook and Coho Salmon and Pacific Lamprey as recently as the 1960s. While they continue to produce most of the Klamath River's wild Chinook Salmon, Chinook production is a shadow of what it once was. Coho and Lamprey have declined precipitously in the two sub-basins to the point that they are now considered to be at high risk of extinction/extirpation.

The culprits in the decline of Scott River Salmon and Lamprey are well known through more than 30 years of study and assessment. Excessive nutrient loading (almost all from livestock and return irrigation flows), lethally high water temperature and especially the dewatering of large amounts of Salmon and Lamprey habitat are driving these fish to extinction/extirpation.

Poor water quality and severely reduced flows from the Scott and Shasta Rivers have also played a major role in promoting epidemic levels of fish disease in the Klamath River proper. Data from out-migrant fish traps indicates that many of the salmon produced in the Klamath River Basin die from these fish diseases before they can reach the Pacific Ocean. Mortality happens every year but increases in dryer years when flows from the Scott and Shasta Rivers approach zero. In those years virtually all the cold, clean water produced in national forest wilderness areas above these valleys is diverted, pumped and consumed by irrigation interests.    

To summarize, the progressive extirpation of Coho Salmon, Spring Chinook Salmon and Pacific Lamprey are well documented. The extinction process is in an advanced stage – especially on the Scott and Shasta Rivers. Unfortunately, we as a society appear to lack the will to reverse the slide toward extinction. Instead we watch it happen like voyeurs at a pornographic movie.

That is the background.....now for the good news:

This year, as a result of heavy snowpack and unusual late spring storms, fish habitat in the Scott River Canyon (lower third of the sub-basin) is in the best condition we’ve seen over the past 30 years. We dove at Gold Flat and near Kelsey and Canyon Creeks. The flows are good, water temperature is low and there are lots of juvenile salmon and steelhead present and well distributed. As a consequence, the Scott River Canyon will produce a large number of Salmon this year. Because water quality is also relatively good  in the Klamath River as well, disease rates should be lower and many of the young salmon rearing in the Scott should make it to the Pacific Ocean.

Unfortunately the good flows and water quality in Scott River Canyon do not extend to the agricultural valley that occupies the middle third of the Scott River Basin. In spite of the fact that there was still snow pack in the mountains and lots of high quality water being delivered to Scott Valley from the national forest wilderness areas above, flows out of the Scott Valley are low. Flow readings at the US Geological Service’s gauge below Scott Valley showed flows of about 30 cubic feet per second last week. That is about half the 68 year average flows for this time of year.

While 30 CFS is a fraction of what would be flowing in the Scott if groundwater pumping had not doubled since the 1960s, KlamBlog estimates that the flows observed at the gauge are actually closer to 10 cfs than to the 30 CFS reported by USGS. The discrepancy is likely the result of failure by the responsible government agency to recalibrate the gauge after large winter and spring storms significantly shifted the bed of Scott River. KlamBlog has alerted the USGS to the problem but the "near real-time" readings for the Scott River continue to show an erroneous 30 CFS.   

Most of the Scott River Basin habitat for juvenile Lamprey is in the low gradient portions of the river that occur in and just below Scott Valley. But most streams in the Valley are once again completely dry this summer. Younger folks living in the Valley have come to think of this dewatered condition as normal. But the old timers know that this is not the way it was. It is also not the way it would be now if applicable laws were enforced and water was managed responsibly.

Lamprey juveniles spend up to 7 years in river bottom sediments. When these streambeds are dewatered by excessive irrigation pumping and stream diversion, the young Lamprey are wiped out. Some fisheries biologists believe that, among all the Klamath’s anadromous fish, Klamath Lamprey are at highest risk of extinction. The primary cause is dewatering of their Scott River Valley juvenile habitat as a result of unregulated irrigation withdrawal.

The demise of the Lamprey has real world consequences. In the not-to-distant days when the Scott River had good flows during June, Native folks living in the Scott River Basin would go down to the riffles with a sock on one hand and a burlap sack in the other hand. They would pick up migrating lamprey with the socked hand and put them into the burlap sack. Lamprey once provided a high protein food source for Native people throughout the Klamath River Basin.

When KlamBlog was in the Scott Valley last week the center pivot irrigation systems which have sprouted around the Valley in recent years were in full operation in the middle of the day. Air temperature was about 100 degrees. Because they are rated by engineers as more efficient as compared to wheel line and flood irrigation, irrigation interests maintain that these center pivot systems use less water to irrigate the same amount of crop or forage land. In 2002 that reasoning persuaded Congress to provide $50 million dollars from taxpayers to buy and install these more efficient irrigation systems for Ag folks in the Klamath River Basin. The promise was that this would mean more water for fish.

But the increased flows never materialized. We wonder whether the center pivot systems - which put out a fine mist rather than a spray of water drops - save water when they are run in the middle of a hot, summer day. Does enhanced evaporation wipe out the water savings? KlamBlog has sent the Natural Resource Conservation Service a query on the question and will report if they respond. You can contact them too; here’s contact information for Yreka NRCS office chief Jim Patterson:
               215 Executive Court, Suite A, Yreka, CA 96097 
               james.patterson@ca.usda.gov, (530) 842-6123

One of our questions for NRCS is why - in exchange for government funding for center pivots - those receiving them were not required to agree to irrigate only during the evening and nighttime hours. We suspect that just that simple change in irrigation practices would cut irrigation water use significantly and consequently keep more water in the Scott River.

Government Funded Water Waste in the Scott River Valley

Irrigating in the middle of hot summer days is only one aspect of government funded water waste in the Scott River Valley. But several organizations are hard at work trying to persuade the public that the irrigators who dewater the river and irrigate in the middle of very hot summer days really care about salmon. The Scott River Water Trust is one such organization. It has issued press releases claiming that Scott River irrigators are working hard to provide for Scott River Salmon.

But if these irrigators really care about fish why don’t they wait until the cool of evening to turn on their irrigation pumps? How much water could be saved for fish and flows if this simple practice were followed? Instead the Scott Valley Water Trust pays irrigation interests for the water it puts into Scott River Basin streams. Is irrigator concern for fish in the Scott River Valley just a matter of money? Those middle of the day misters unnecessarily evaporating precious water provides the real answer.

KlamBlog also believe it is bad policy and unfair to taxpayers to pay for water to which the fish have a first right under the Public Trust Doctrine and California Water Law. The approach of the Scott River Water Trust -leasing water to provide minimum or marginally better conditions for salmon - undermines the Public Trust Doctrine.

According to the Water Trust's web site, the Scott River Watershed Council (SRWC) is one of the Trusts two “partners”.  In a recent commentary by Council Chairperson Marilyn Seward,  published in the Scott Valley View (the Siskiyou Daily News’ new weekly publication), the Council disclosed its core purpose and function: Here’s part of what Seward wrote about the SRWC:

          The most recent project has involved laying the groundwork for the creation of a Scott Valley Groundwater Advisory Committee, which would work with the Siskiyou County Board of Supervisors (in an advisory capacity only) to create a plan which would continue to keep groundwater protection and management under county jurisdiction..……In recent years, several hard-working local groups and the farmers/ranchers themselves have been criticized by state and federal agencies because they “aren’t doing anything.” The Strategic Action Plan tells a different story, but it has become obvious that this information isn’t being disseminated to these critical groups, to county/state/federal groups who partner with Scott Valley ranchers in dozens of conservation/restoration projects, even to Scott Valley citizens themselves. A chief objective of the Scott River Watershed Council will be to rectify this oversight.

In other words, the newly reorganized Scott River Watershed Council’s function will be to promote the fiction that it is OK for Scott Valley irrigation interests to progressively dewater the Scott River thereby driving Coho Salmon and Pacific Lamprey to extinction in the watershed because these folks are taking federal money to do feel-good projects which benefit them more than they benefit fish. Good luck Marilyn - convincing folks that fish can do fine without water or a living river is going to be a hard sell!

In recent decades, Watershed Councils have been formed by diverse stakeholders to help salmon and steelhead survive by cleaning-up pollution and restoring adequate flows. The Scott River Watershed Council is a different animal entirely. By public admission of its chairperson, its mission is “local control”. Like the Water Trust's other "partner" - Siskiyou Resource Conservation District - the Scott River Watershed Council’s function is to keep taxpayer funds flowing to farmers and ranchers while obscuring the fact that these same farmers and ranchers are driving Coho Salmon and Pacific Lamprey to extinction in the sub-basin. 

The reorganization of the Scott River Watershed Council so that it is a more effective propaganda tool for irrigation interests is part of a drive by Siskiyou County property rights fanatics – led by the Siskiyou County Board of Supervisors – to gear up for what they are projecting as a new “water war” focused on groundwater. Siskiyou County’s water war hysteria is in large part a response to a lawsuit filed by the Environmental Law Foundation and Pacific Coast Federation of Fishermen’s Associations (PCFFA) challenging groundwater exploitation in the Scott River Valley. But that lawsuit could take 30 years to complete. Water war hysteria may be more geared to securing funds from right wing foundations than a genuine need to counter an immanent threat of water reallocation.

And, as if it does not already have a sufficient number of organizations ranting about property rights, Siskiyou County has spawned yet another. Scott Valley Protect Our Water – or “POW” is conducting a “Restore Honor Water Rally” at the Siskiyou Fairgrounds on August 28th. There will likely to be plenty of out-of-county lawyers and consultants attending; it will be interesting to see how many Siskiyou citizens show up.

POW joins SOSS, the Siskiyou Farm Bureau, Siskiyou RCD, the Scott Valley Watershed Council as organization whose self-appointed mission is to prevent enforcement within the county of those provisions of the California Constitution which are supposed to guarantee fish the water they need to survive and to assure that the public interest in water is not infringed in the course of meeting private needs. It appears that Siskiyou County’s property rights fanatics each need their own organization!  They must all be leaders and probably desperate for a few followers.

POW is also taking credit for placing “dam removal” on the November ballot in Siskiyou County. KlamBlog suspects the property rights fanatics may be surprised when those votes are counted.

The recognition that those who embrace “restoration” in the Scott River Basin are ripping off the taxpayers for private benefit while driving the very species they are being funded to restore to extinction has finally begun to sink in with those downstream as well as with those who control restoration funding purse strings. It is just a shame that it has taken so many agency and elected officials 30 years to realize what is really going on up on the Scott. Let's hope that recognition, while belated, has come in time to prevent Coho Salmon and Pacific Lamprey from being driven to extinction in the Scott River Basin.

Federal and state agencies which continue to fund these cynical and wasteful operations should be taken to task. If we are going to prevent the looming extinction of Klamath Coho and Lamprey we can’t afford to waste more scarce restoration funds on efforts which on balance hurt the very species they are intended to restore.