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

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

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. 

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

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

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