Report and Commentary by
Felice Pace
There
was a big “news” event at Requa on the Lower Klamath River last
week. On an absolutely gorgeous, bright-blue morning, a host of
dignitaries, a couple of dozen reporters and camera operators and an
estimated 150 others gathered to listen to speeches and watch the
dignitaries sign not one but two agreements – the amended
Klamath Hydroelectric Settlement Agreement (KHSA) and the
entirely new 2016
Klamath Power and Facilities Agreement (KPFA).
Northcoast Congressman Jared Huffman honored the tribal
maidens and celebrated the Klamath Estuary by describing the
wildlife on display, including sealions, an eagle and thousands of seabirds
For the second time,
Berkshire Hathaway's PacifiCorp, the Secretary of Interior, the
governors of California and Oregon and three of the Klamath River
Basin's six federally-recognized tribesii
signed an agreement to take out four Klamath River dams owned by
PacifiCorp and to transfer a fifth dam to the US Bureau of
Reclamation. This time the plan is to achieve dam removal through the
normal process by which federal power dams are decommissioned and
removed: a settlement overseen by the Federal Energy Regulatory
Commission (FERC).
But while the news
coverage was extensive, most media outlets failed to mention the
fifth PacifiCorp dam and reservoir, Keno, which is to be transferred
to the US Bureau of Reclamation. Keno Dam and its reservoir are
located near where the Klamath River exits the Upper Basin and enters
the canyon through the Cascades where the four PacifiCorp dams slated
for removal now stand. The Associated Press report on the signing
ceremony did mention the transfer; but mistakenly reported that two
dams would be transferred to Reclamation. While PacifiCorp will
transfer hydroelectric generating facilities at Link River Dam, the
federal agency already owns that dam which is at the outlet of Upper
Klamath Lake.
This US Bureau of Reclamation Klamath River Basin map shows the
location of all major dams. Keno is the unlabeled one above J.C.Boyle Dam
With Jes Burns reporting, Jefferson Public
Radio and Oregon Public Broadcasting had the most complete and accurate coverage of the new
agreements; but even they missed important facts, including new
federal irrigator subsidies in legislation already introduced into
Congress that those who signed the KPFA are committed to “support
and defend”.
Keno is
the key
The
transfer of Keno Dam and Reservoir to the US Bureau of Reclamation is
important because that reservoir receives all the highly polluted
agricultural waste water generated by roughly 200,000 acres of
irrigated agriculture within Reclamation's Klamath Irrigation
Project. Super-concentrated nutrients in that wastewater are
primarily responsible for high concentrations of algae in the
reservoir.
Available
scientific information indicates that blue green algae species
dominate Keno Reservoir (>80%) to a much greater extent than
within the PacifiCorp reservoirs which will be removed with the four
dams. Of the four reservoirs slated for removal, Iron Gate and Copco
1 have the largest blue-green algae blooms. Blue-green
algae in those reservoirs is only 50% of total algae biomass as
compared to over 80% for Keno Reservoir.i
However, Keno apparently produces less toxic algae and more of the
non-toxic variety of blue green algae; while Iron Gate and Copco
produce more toxic algae.
During
most recent summers, toxins from Blue Green algae have extended from
Iron Gate Dam all the way to the Klamath River estuary, a distance of
over 190 miles. That will likely
continue at reduced concentrations after
the four dams are removed until Keno water quality improves to the
point where toxic algae production in that reservoir ends. Keno
is 43 river miles above Iron Gate.
Removing
the four dams and their reservoirs should lower the temperature of
Klamath River water somewhat, but
the high
nutrient levels and water temperatures harmful to salmon originate on
the Upper Basin's agricultural lands and will continue after the four
dams and reservoirs are removed.
Highly
polluted agricultural waste water from the Bureau of Reclamation's
sprawling Klamath Irrigation Project enters Keno Reservoir most
significantly via the Klamath Straits. The Klamath Straits is a
natural stream which once flowed through a sea of tules (a large
bulrush) to link the Klamath River and Lower Klamath Lake but which
has been transformed into an agricultural drain. Water quality in the
Straits is so bad that at times it is chemically transformed into
pure ammonium, a substance directly toxic to marine life.
.
Highly polluted agricultural wastewater from 200,000 acres of
federal irrigation are delivered to Keno Reservoir and the Klamath River
Keno Reservoir
experiences fish kills on a nearly annual basis. The fish killed
regularly include Kuptu and
C'wam, two species of
sucker fish that are listed as endangered under the Endangered
Species Act. The US Fish Wildlife Service has never cited either
federal irrigators or the Bureau of Reclamation for their role in
killing those
ESA-listed
fish in Keno Reservoir or
anywhere else for that matter.iv
I
was among those who
encouraged
the three tribes supporting the Klamath Dam and Water Deals – the
Yurok, Karuk and Klamath Tribes – to insist that the amended KHSA
include a firm commitment by the US Bureau of Reclamation, which is
part of the Interior Department, to clean up Keno Reservoir. Unless
and until nuisance nutrients
in Keno are cleaned up and
the temperature of water released from Keno
is considerably lower,
removing four
PacifiCorp dams and
reservoirs will mitigate
but will not solve the
Klamath River's
water quality problems. Unfortunately,
the amended
KHSA does not include a federal commitment to clean up Keno
Reservoir.
Consequences
Along
with insufficient spring flows, abysmally
bad water quality also
fuels
the Klamath's salmon
disease epidemic. In recent
years the epidemic killed
most juvenile salmon hatched
in the Basin
before they could
reach the Pacific Ocean. The
US Bureau of Reclamation controls Klamath River flows, therefore
dam removal will not
significantly improve river flows. Because dam removal will not
resolve the Klamath River's water quality nor produce winter and
spring flows sufficient
to flush disease organisms from river gravels, dam removal is
unlikely to solve the Klamath's disease epidemic unless and until the
quality of water flowing from Keno Dam and Reservoir improves
dramatically.
The
Klamath's salmon disease
epidemic is one of the major reasons commercial salmon fishing in
the ocean and tribal
subsistence salmon fishing in
the River will be severely
constrained this
year. The loss of healthy
salmon in their diet will have negative health consequences for
Yurok, Hoopa and Karuk river residents who depend on these fish. Dan
removal will not end those negative health consequences. Cleaning
up Keno Reservoir remains the key to ending the Klamath's salmon
disease epidemic and to
restoring Klamath Salmon.
Yurok subsistence fishing where the River meets the Pacific Ocean.
The health & welfare of Yurok fishing families will be damaged by
fishing restrictions related in part to the salmon disease epidemic
Last
week at Requa Interior
Secretary Sally Jewel heralded
“the largest river
restoration effort in history”. Someone
needs to tell Secretary Jewell that effort will fail unless
and until Keno Reservoir is cleaned up.
The
other agreement
Artificiality
connected to the amended KHSA is the 2016Klamath Power and Facilities Agreement (KPFA).
That
agreement represents a successful step
in efforts
by Upper Klamath River Basin irrigation interests to salvage what
they had gained in two water deals – the Klamath Basin Restoration
Agreement (KBRA) and the Upper Basin Comprehensive Agreement (UBCA).
In exchange for their support for dam removal and
a restored land base for the Klamath Tribes,
those
deals kept most irrigation water with federal and private irrigators.
The deals also
made adequate Klamath River
flows dependent on the federal government finding
private irrigation interests above
Upper Klamath Lake willing to
sell their water rights. Congress
would have to fund purchasing those water rights over the course of a
decade or two.
By
making irrigation much more feasible, the UBCA rendered it highly
unlikely
that a
sufficient number of willing
water right sellers
could be
found above Upper Klamath
Lake. Obtaining
sustained funding from Congress to purchase and retire water rights
is also problematic. For that
reason, the UBCA made the benefits for the River promised in the KBRA
very unlikely.
Even
though they had gone along with everything the federal government had
asked of them, the Karuk and Yurok Tribes were excluded from
negotiations which resulted
in the UBCA. That was undoubtedly a factor in the Yurok Tribe
withdrawing from the KBRA. According to Yurok Tribe press statements,
the tribal government withdrew from the KBRA because that agreement's
“bargained for benefits” were “no longer attainable”.
According to one member of
the Yurok Tribal Council, the Yurok tribal Government has not signed
the KPFA.
The KPFA's
objectives are stated in its opening “Recitals”:
State
and federal and other Parties are committed to realization of
processes and benefits contemplated under the two agreements (KBRA
and KHSA), recognizing that certain outcomes were not
guaranteed or are more uncertain than others and recognizing also
that certain measures have independent merit; and, under
the circumstances presented, the Parties recognize the need to both
re-affirm and re-orient their approach in certain respects, while
moving forward to continue to address important issues
appropriately.
This means elements
of the KBRA and UBCA will be renegotiated. Hopefully, the Yurok,
Karuk and Klamath Tribes will do a little better job this time
protecting the interests of those species which they claim to care so
much about, the Kuptu, C'wam and
C'iyaal (salmon) of
which the Klamath Tribes' Chairman Don Gentry spoke so
eloquently at the Requa signing event.
The Klamath Tribes' Chairman Don Gentry spoke eloquently at Requa to folks
wearing cowboy hats and Indian hats about what Kuptu, C'wam and C'iyaal mean
to him and his people. Now he and other tribal leaders must match their fine words
with firm negotiating to provide the water and habitat these fish need to recover.
The duty to
support and defend
The new KPFA is
mentioned in one small, section of the amended KHSA:
The States, the
Federal Parties, and other entities are concurrently entering into
the 2016 Klamath Power and Facilities Agreement. Each Party, other
than PacifiCorp, shall support and defend the 2016 Klamath Power and
Facilities Agreement and its objectives in each applicable venue or
forum, including any administrative or judicial action in which it
participates. For purposes of this Section 1.9 only, the terms
“support and defend” mean that the Party will advocate for the
2016 Klamath Power and Facilities Agreement or refrain from taking
any action or making any statement in opposition to the 2016 Klamath
Power and Facilities Agreement. More broadly, the Parties are
committed to engage in good faith efforts to develop and enter into a
subsequent agreement or agreements pertaining to other water,
fisheries, land, agriculture, refuge and economic sustainability
issues in the Klamath Basin with the goal to complete such agreement
or agreements within the next year.
One must turn to the
KPFA itself to learn what those who signed the KHSA have agreed to
“support and defend.” Here's a
link to the Agreement. If you read it you may be surprised to
learn that the “support and defend” provision includes an
amendment to Senate
Bill 2012, the Energy Policy Modernization Act, which has already
been introduced in the US Senate. Amendment
3288 by Oregon Senators Jeff Merkley and Ron Wyden is intended to
secure cheap federal power for operating the numerous pumps which
move irrigation water, agricultural wastewater and extract
groundwater within the federal Klamath Irrigation Project, as well as
for certain non-federal irrigators. However, the amendment also
includes give aways to certain Klamath Project irrigation districts
to pay the costs of reconstructing parts of the aging irrigation
infrastructure. Under current law, the Bureau of Reclamation would
fund the reconstruction but those irrigators benefiting would repay
the cost over time. If the amendment becomes law, the Merkley-Wyden
give-aways to federal irrigators will be paid for by each and every
US Taxpayer.
One of six massive pumps gifted to the Tulelake Irrigation District courtesy of
taxpayers as part of the 2002 California Budget Deal. Cheap Bonneville power will
facilitate the extraction and marketing of groundwater in the Upper Basin. The US
Geological Service determined that current extraction levels are not sustainable.
What should
happen now
The
water deals will
now be renegotiated. What
should emerge is a single vision for how to balance the waters of the
Upper Klamath River Basin
that is fair to all
communities and ecologically sound. Aspects of
the KBRA and UBCA which
sacrificed
the health of the River and the welfare of Klamath Salmon in order to
avoid reducing the amount of irrigation
in the Upper Basin
must go.
Achieving that will
require that tribal and fishing
leaders who are in
the negotiationsv
unite to resist
the predictable push by
irrigation interests and the
Department of Interior to bring
into the new agreement those aspects of the KBRA and UBCA which
damage the River, extend the salmon disease epidemic and prevent
recovery of Klamath Salmon. Above all else, the flows the River needs
to end the salmon disease epidemic must be guaranteed and not put off
to some uncertain future time.
Another aspect of
the old water deals that clearly must be discarded is the KBRA's 19
pages of “Regulatory Assurances”vi.
Federal and state efforts to provide “relief” for federal
irrigators from the “burden” of the ESA, California ESA and other
species protection laws has already killed too many Kuptu, C'wam
and C'iyaal; for
the details see the KlamBlog posts at this link and also here. If
the love for and connection to these species which the Yurok, Karuk
and Klamath Tribes' leaders proclaimed
at Requa are more than just
fine words, their negotiators
will insist that everyone, including federal irrigators, must play a
real role in ending the threats abysmal water quality and inadequate
river and stream flows pose for the
Basin's most at-risk fellow
creatures.
“Relief”
for
one interest, federal irrigators, from a share of responsibility for
recovering those species our collective management of water and
rivers have imperiled is also
not fair to those who must
then shoulder more of the burden, including
private irrigators above Upper Klamath Lake and in the Shasta and Scott Valleys. Not only
the letter of our species protection laws,
but also their
spirit, deserves
respect in all water
agreements.
As
we move forward into new negotiations, many
of us will be watching to see whether
rank and file members
of the tribes sitting at the negotiating table and the public at
large will once again be
locked out of
critical decisions about the future of our River and our communities.
When it comes to tribal
members, the UN Declaration on the Rights of Indigenous Peoples
asserts that the people themselves must give their “free prior and informed consent” before any rights are relinquished. The
right to informed consent, which
goes beyond simply holding an election without explaining to members
what is in draft agreements,
has not been honored in the Klamath River Basin so
far; the feds and the tribes
should fix that this time around.
As
for the PUBLIC, should we
not also
be consulted and informed when Public Trust Resources are on the
line? There is nothing that
prevents the Department of Interior, the government entity that
created the negotiations and which has a team of negotiators and
facilitators working to achieve an agreement, from keeping the people
who have most at stake informed and involved. And shouldn't
those federal and state officials who are charged with protecting the
Public Interest also consult with the interested public on how well
draft agreements fulfill that responsibility?
History
teaches that Public Trust Resources are honored best when decisions
about them are made in public. Confidentiality agreements may have
been appropriate in dam negotiations because the dams are privately
owned. When it comes to negotiations over the
fate of the River, however,
those negotiating on behalf of the Public
Trust
must be free to inform and consult the public.
Tribal
representatives must also be free to consult with their members, and
not just at the end with an up/down vote. In the upcoming
negotiations there should be no confidentiality agreements.
I see this as a
positive time. As a river basin and as a society, we have an
opportunity to fix water deals that would have proven disastrous for
the Klamath River and Klamath Salmon and which, for that reason,
would have created more, not less, conflict. And we have an
opportunity to learn from past efforts and do a better job this time.
The Kintpuash Prayer Pole at Captain Jack's Stronghold overlooks Tule
Lake and much of Reclamation's Klamath Irrigation Project. KlamBlog
will be keeping watch too, looking for an outcome that is fair & balanced.
My
hunch is that success from the River's standpoint will depend on how
much unity and coordination those who care most deeply about the
River and Klamath Salmon can achieve. I'll be working to encourage
that unity while keeping watch and letting you, the KlamBlog readers,
know what I observe.
Stay Tuned.
__________________
Endnotes:
ii The
three federal tribes which signed the amended KHSA are the Yurok,
Karuk and Klamath Tribes. The Hoopa, Resighini and Quartz Valley
tribal governments are not signatories. The Resighini Rancheria and
the Quartz Valley Indian Reservation tribal governments have been
excluded from all Klamath dam and water negotiations.
iii Stillwater
Sciences. 2009. Dam Removal and Klamath River Water Quality: A
Synthesis of the
Current Conceptual Understanding and an Assessment
of Data Gaps. Technical report. Prepared
for State Coastal
Conservancy, 1330 Broadway, 13 th Floor, Oakland, CA 94612, 86
pages,
February.
http://www.stillwatersci.com/resources/2009klamathWQsynthesis.pdf
iv Water
quality related die-offs of Kuptu
and C'wam also occur
regularly in the Lost River and that river's terminus, Tule Lake. In
order to provide “regulatory relief” to federal irrigators, the
US Fish & Wildlife Service failed to designate any portion of
the Lost River Basin
as critical habitat for the two imperiled sucker fish. The action
doomed one of only two viable populations of these species. Curt
Mulis was the federal administrator who delivered that “regulatory
relief” to federal irrigators. He then retired and took a seat on
the board of the Klamath Water Users Association which is comprised
of federal irrigation interests.
v One
of the problems with Klamath water deal negotiations is that there
are no genuine or local environmental organizations included.
American Rivers, Trout Unlimited and California Trout are river and
fishing organizations respectively and thus are special interests,
not true environmental organizations. The true environmental
organizations in the negotiations either were kicked out (Oregon
Wild and Water Watch of Oregon) or did not sign on to the KBRA
(Klamath Forest Alliance).
vi Here's
the link to a Dropbox document which contains the 19 pages of
“Regulatory Assurances” that are part of the KBRA. Those who
truly care about these fishes must insist that these 19 pages do not
appear in a new agreement. Through that new agreement, federal
irrigators should agree to play a positive and appropriate role in
providing for the recovery of Kuptu, C'wam and
C'iyaal.
