Irrigation Elite and Klamath Tribes are still working to secure KBRA benefits

The Klamath River Basin's Irrigation Elite, which includes rich and politically well-connected federal irrigators in the Lower Klamath and Tule Lake Areas and a handful of rich cattlemen whose operations are above Upper Klamath Lake as well as in California's Central Valley, have not given up trying to obtain the water certainty and subsidies which their lawyer wrote into the KBRA Water Deal. Instead those rich and dominant irrigators are now looking to a Republican-controlled Congress and the Trump Administration to obtain advantages, subsidies and what they most desire, to keep the Upper Klamath River Basin a place where the federal Endangered Species Act is not enforced with respect to agricultural operations.

The Klamath Water Users Association (KWUA) represents those members of the Irrigation Elite who get cheap federal water subsidized by US taxpayers. The Klamath Falls Herald and News reported recently that, with the help of Oregon's two senators and California's Diane Feinstein, KWUA has secured provisions in federal legislation recently introduced in the Senate which, if the legislation becomes law, will:

• Permanently authorize the marketing of federal irrigation water with receipts going to irrigators rather than the federal treasury,
• Transfer millions of dollars in flume replacement cost from federal irrigators to taxpayers,
• Direct the U.S. Department of the Interior to reduce power costs for irrigators in the Klamath Project, and
• Eliminate requirements for using federal canals, pumps and other facilities to convey groundwater that irrigators want to sell on the open market.

One of several wells and large pumps right on the Cal-Oregon border 

which California taxpayers provided to Tule Lake Irrigation District in

a political brokered budget deal. TID now markets water pumped from 

these wells and seeks legislation to make those sales more profitable.

All American Agriculture is heavily subsidized; but the Klamath Basin's federal irrigators have been extraordinarily successful in obtaining benefits and subsidies worth tens of millions that are not available to most other agricultural operations. Democratic and Republican members of Congress alike appear eager to do the bidding of these rich growers. Generous political donations fuel that eagerness in a country which has the best government that money can buy.

Klamath Tribes lobby Trump appointees

Meanwhile the Klamath Tribes have been meeting with Interior Secretary Zinke and other Trump appointees in hopes of securing a deal that trades the Tribes' hard won in-stream fisheries water rights for funds to purchase land.  The tribal government's agenda has long been to get back into the timber business which ended when the Tribes' reservation was terminated in the 1960s. The former reservation became the Winema National Forest so that it would not be necessary to pay the Tribes for the timber.

Comprised of three tribal groups united in one tribal government, the Klamath Tribes are also considering getting into the marijuana business.

Fight over Klamath Refuges heats up

The Klamath's federal Irrigation Elite has long controlled what does and does not take place on the Klamath River Basin's federal wildlife refuges. They pulled off a coup in the 1960s with passage of a special law that made Tule Lake and Lower Klamath Refuges the only federal wildlife refuges in the country on which commercial agriculture is allowed.

Because it provides very little benefit to wildlife, most of the conservation community has longed to get commercial agriculture off the two refuges. With passage of the National Wildlife Improvement Act in 1997, conservationists believed they had the means to get that job done.

The Act specifically requires that activities and land uses on federal wildlife refuges must deliver the most advantages and support to wildlife; commercial agriculture on Lower Klamath and Tule Lake NWRs clearly does not. The Act required development of refuge management plans; but Oregon Wild (OW) and Water Watch (WW) had to sue to get the feds to develop plans for Klamath River Basin refuges.

Finally, early in 2017, the Comprehensive Management Plan for the Klamath Refuges was released. It did not transfer water rights from federal irrigation to refuge purposes as OW and WW had hoped and continued to allow the use of toxic pesticides on refuge land leased for agriculture. The two groups promptly sued the feds claiming that the Plan does not comply with requirements of the Refuge Improvement Act.

But the Irrigation Elite also sued, claiming that the new management plan would subject growers operating on the refuge to "numerous stipulations, such as prohibitions on post-harvest field work and genetically engineered crops" as well as restrictions on "alfalfa harvests....and disallow hazing of waterfowl during tilling and planting in late winter and early spring"

And so the long simmering conflict over whether it is OK to manage national wildlife refuge lands as industrial-style agricultural fields is once again heating up.

Lower Klamath Lake is the real solution

Completely lost in the conflict is a potential win-win. Farmlands within the bed of the former Lower Klamath Lake, once even larger than Upper Klamath Lake, were created by draining and shrinking the lake in the early 20th century. But the land is salty and so it can only be used to grow grain or for pasture, two agricultural activities that do not produce the high yields and income row crop growers in the bed of the former Tule Lake obtain.

Restoring Lower Klamath Lake would provide wildlife benefits, including expanding scarce stopover habitat for Pacific Flyway birds, and would clean the Klamath Irrigation Project's highly polluted agricultural waste water before that water reaches the Klamath River. Restoring the Lake would also provide additional winter water storage and help eliminate deficits in water supply that have plagued the Klamath River Basin for decades.

Sunset at Lower Klamath Lake

In recent years the lack of flushing spring river flows and poor water quality produced epidemic outbreaks of naturally-occurring fish diseases in the Klamath River. Those epidemics killed most juvenile salmon migrating down the River before they could reach the ocean. With Lower Klamath Lake even partially restored, Upper Klamath Lake water now used to flush disease organisms from the River's bed could be devoted to irrigation instead. Restoring Lower Klamath Lake is the best means to reduce or even eliminate conflict over who gets Klamath River Water water in dry years.

But for now at least, win-win solutions are not on the table. Instead environmental groups, the Irrigation Elite and Klamath River Basin tribes are each independently maneuvering, with the help of politicians, to extract what they most desire from federal bureaucracies, federal judges and the federal budget at the expense of taxpayers. As our president might say: "sad".   

Derrik Jensen interviews KlamBlog writer/editor Felice Pace on Resistence Radio

On Sunday August 7th at 3 PM Pacific Time the Resistance Radio Network will broadcast an interview of KlamBlog's editor and principle writer, Felice Pace. The pre-recorded interview was conducted by author Derrick Jensen.  Jensen has been called the poet-philosopher of the ecological movement.

Derrick Jensen interviewed Felice about the Klamath River and Klamath Salmon. About 24 hours later, the interview will be available in Resistance Radio's audio archives.

When do we have a red alert?

The interview airs at an important time for the Klamath River. Even in this year of average precipitation, government, tribal and university scientists, working together as the Klamath Fish Health Assessment Team (KFHAT), are finding high incidence of two salmon diseases among juvenile salmon migrating down the Klamath, Scott and Shasta Rivers. These are natural diseases that scientists say have become epidemic in the Klamath River as a result of very poor water quality, especially exceedingly high water temperature, and inadequate spring-time river flows. 

Diseased juvenile salmon collected from the Klamath River

 

Sentinel fish studies indicate that up to 90% of juvenile Coho and Chinook Salmon, which must migrating down the Klamath, are dying before they can reach the Pacific Ocean. High juvenile salmon mortality is a major reason fish managers predict the second lowest number of salmon since the mid-1990s will return to the Klamath River this fall.

Already this year, up to 100% of juvenile salmon sampled in the Klamath River between where the Salmon and the Trinity enter the main Klamath have been infected with one of two salmon diseases which are epidemic in the Klamath River. Many juvenile salmon are infected with both Ceratonova shasta and Parvicapsula minibicornis. Nevertheless, the fish kill alert level is "yellow" rather than "red", indicating that no massive fish kill is immanent. California Fish & Wildlife officials stress the economic importance of sport fishing and tend to downplay the Klamath's disease epidemic because they don't want to close down sport fishing for Klamath Chinook Salmon.    

Challenging low springtime river flows

Meanwhile the Hoopa Valley Tribe has filed a lawsuit challenging the 2013 Biological Opinion on operation of the Bureau of Reclamation's Klamath Irrigation Project. The 2013 "Bi-Op" allows Reclamation to starve the Klamath River of the high springtime flows scientists say are needed to flush disease organisms from river gravel. 

By studying rivers around the globe, scientists have learned that the health of a river is tied to its natural hydrograph. In other words, in order to be healthy a river needs the full range of flows under which the river's ecosystem evolved. High flows, including floods, are just as important to a river's health as are adequate minimum flows. 

Most river studies have found that, in order to remain healthy, a river needs about 50% of its natural flow, distributed to mirror the natural hydrograph, to remain in stream. In the American West today, 70 to 90 percent of natural baseflows are diverted from streams to irrigated agriculture. The amount of water currently diverted from western rivers is incompatible with river health. 

As KlamBlog has pointed out previously, rather than reallocate water from irrigated agriculture to in-stream use, the feds want to substitute funding for "restoration" projects for the amount of water a river needs. Because many western tribes and river organizations have become dependent on federal restoration funding, they have tended to go along with the feds. The failure of society to reallocate water from irrigated agriculture in order to restore healthy rivers is driving the ongoing loss of native western fish and fisheries. 

Felice Pace: Why the Klamath Deals failed and what ought to happen now

Below KlamBlog presents the views of its editor, Felice Pace. on why the Klamath Dam and Water Deals failed to secure the endorsement of Congress. Felice argues that understanding why Klamath legislation failed in Congress is essential to crafting a successful path to dam removal and restoration of the Klamath River, its salmon and aquatic ecosystems. Read on to find out why the longest serving Klamath River activist believes legislation is not needed to get the dams out and restore the River. 

Why the Klamath Deals failed and what ought to happen now

Felice Pace

For those who would craft a successful way forward toward dam removal and restoration of the Klamath River and Klamath Salmon understanding why the Klamath Dam and Water Deals failed is essential information. This article presents actual and unreported reasons the deals failed to be endorsed and funded by Congress in 2015, additional congressional hurdles legislation to authorize and fund the deals faced, and why the tribes which supported the deals (the Yurok, Karuk and Klamath Tribes) have apparently decided not to continue hoping for a better result in a future Congress. Finally, this article suggests a way forward toward dam removal, water balance and river restoration that I believe offers the best chance of success and the least vulnerability to legal challenges.

Why Klamath Legislation failed in the 114th Congress

There can be no doubt that the #1 reason legislation to authorize and fund the Klamath Dam and Water Agreements failed to become law was opposition by Republican members of the US House of Representatives to removal of PacifiCorp's Klamath River Dams. While that opposition has an ideological component, opposition to both the KHSA Dam Deal and the KBRA Water Deal by Klamath County Commissioners in Oregon and opposition by Siskiyou County California Supervisors to the KHSA Dam Deal is what convinced Oregon Congressman Walden and California Congressman La Malfa to oppose any legislation that would have resulted in removal of any Klamath River dam.

Opposition to the Dam and Water Deals convinced House Republicans to oppose S 133 

However, opposition to dam removal in the US House does not explain why a bill supported by both senators from Oregon and both Senators from California not only failed to pass the Senate but even failed to get a hearing in the committee which had to pass the bill before it could get a vote by the full Senate. So why did S 133, the Klamath Basin Water Recovery and Economic Restoration Act of 2015, fail to get a hearing in the Senate Committee on Energy and Natural Resources? The answer is Alaska Senator Lisa Murkowski.

Wyden's Klamath Bill: More welfare for the Irrigation Elite

One would have thought that benefits conferred on federal irrigators - and their captured agency, the US Bureau of Reclamation - by the the two Klamath Water Deals (The older KBRA and newer Upper Basin Agreement) would have been enough. After all, not only has Reclamation already used taxpayer funds to implemented many of the costly "benefits" for federal irrigators included in the KBRA, but Congressional backing for the Deals would essentially insulate federal irrigation, the growers it serves and 40% of the total diversions from the Klamath River Basin from tribal water rights claims. Additionally, if Wyden's Bill were to become law, the Klamath Tribes' claim to flows in the Klamath River would be relinquished. That claim is the only practical path to achieving restoration flows in the Klamath River.

Senator Wyden apparently did not believe the Deals benefited the Irrigation Elite quite enough, however. And so he added a new special interest tax break to the legislation he authored. Tacked on at the end of Wyden's Senate Bill 2727, the Klamath Basin Water Recovery and Economic Restoration Act of 2014, is a section titled "MODIFICATION OF TAX EXEMPTION REQUIREMENTS FOR MUTUAL DITCH OR IRRIGATION COMPANIES." That part of the bill would amend Section 501 of the Internal Revenue Code; section 501 is the part of the Code which defines which organizations "shall be exempt from taxation under this subtitle."
Here the substance of the new tax break:
           "In the case of a mutual ditch or irrigation company or of a like organization to a mutual ditch or irrigation company, subparagraph (A) shall be applied without taking into account any income received or accrued (I) from the sale, lease, or exchange of fee or other interests in real property, including interests in water, (II) from the sale or exchange of stock in a mutual ditch or irrigation company (or in a like organization to a mutual ditch or irrigation company) or contract rights for the delivery or use of water, or (III) from the investment of proceeds from sales, leases, or exchanges under subclauses (I) and (II),..."

Klamath Project Irrigators get full water delivery; Klamath Refuges get the shaft...again!

The US Bureau of Reclamation has released its 2014 Drought Plan for the Klamath Irrigation Project. The Plan responds to Upper Basin stream flows projected by the US Geological Service on May 1st at less than 25% of average within the Lost River Basin and at between 25% and 69% of the long-term average for streams discharging into Upper Klamath Lake.

In spite of a third year of drought, however, full irrigation deliveries will be made to irrigators in the Tule Lake Area of the Lost River Basin and some irrigators in the area just North of Lower Klamath National Wildlife Refuges. Other irrigators who receive water via the Bureau's Klamath Project will receive 1 acre foot of water this year which is about 1/3rd of what they would like to receive. Most of those irrigators, however, also have irrigation wells from which they will draw any additional water they need this growing season.

So, one way or another, irrigators within the federal Klamath Project will not experience drought this year; they will be able to farm as if precipitation and snowpack were at normal levels.

Once again, however, Tule Lake and Lower Klamath National Wildlife Refuges - while not mentioned at all in the Bureau's Drought Plan Press Release - will not receive water this summer. Once again permanent and seasonal marshes on these refuges will be bone dry while surrounding fields are green and growing.

Dewatered marshes surrounded by green fields is a common sight

at Tule Lake and Lower Klamath National Wildlife Refuges

(Photos by Brett Cole) 

In a just West, water shortages are shared equitably among users; but in the Klamath River Basin things are different. Within the Bureau-operated Klamath Project, drought has been all but abolished for a select group of irrigators who happen to also be the most wealthy and politically well-connected Klamath Basin irrigators. That is why KlamBlog has dubbed those folks The Irrigation Elite. 

Through a complex web of family corporations, trusts and leases, irrigators 

 like John Crawford control thousands of acres in the bed of  the former Tule 

Lake. The political influence of the Klamath Basin Irrigation Elite is also large.

Greasing the Irrigation Gears

Full irrigation water delivery for the Irrigation Elite in the face of a third year of drought is possible because the KBRA Water Deal has provided corrupt "wink and nod" implementation of the ESA within the Klamath River Basin. Post-KBRA ESA consultations ignore the findings and recommendations of two independent science panels established by the National Research Council which is part of the nation's highest science body. Independent NRC scientists found that there was no scientific justification for maintaining high water levels in Upper Klamath Lake in order to provide for the ESA-endangered Kuptu and Tsuam (aka Lost River and Shortnose suckers). In fact, the science panel pointed out that years when reproduction of these endangered fishes was relatively good corresponded to lower - not higher - Upper Klamath Lake water levels.

Nevertheless, high lake levels continue to be prescribed as an ESA measure by the US Fish and Wildlife Service. The real reason this continues to be done has nothing to do with the ESA. High Upper Klamath Lake levels result in maximum irrigation deliveries to federal irrigators. Former US Fish & Wildlife officials responsible for continuing ESA measures which result in maximum irrigation deliveries have been rewarded by the Irrigation Elite; one former official has been awarded a place on the Klamath Water Users Association (KWUA) Board of Directors. KWUA is a tool of the Irrigation Elite.

In similar fashion, the National Marine Fisheries Service continues to ignore recommendations of the second NRC independent science panel. Those scientists said that the methodology used to determine Klamath River flow needs for ESA-listed Coho salmon had been misapplied. They called for a "basin-wide" flow assessment in order to properly determine Coho flow needs. That was back in 2008; but NMFS has taken no action to implement the needed study. Instead Klamath flows have been set at the bare minimum which will prevent "jeopardy". That all but guarantees Klamath River salmon stocks will not recover but will remain perpetually on lists of threatened, endangered and at-risk species.

Tribes are no help

It is settled law that, where they hold treaty or reserved rights related to fisheries, federal Native American tribes have a right to sufficient water to keep the fish to which they have a right in a condition in which those fish can provide a "moderate living" to tribal members. That amount of water is well in excess of what can be obtained for fish via the ESA. The ESA can prevent "jeopardy" for listed species but it cannot provide for recovery of ESA-listed species. Federal ESA Recovery Plans are voluntary; they have no regulatory force. Treaty and reserved tribal rights, on the other hand, have the full force of law; compliance with those rights can be compelled via federal courts.

That means those Klamath River Basin Tribes which have treaty or reserved rights and which have signed the KBRAⁱ have traded away their rights to the amount of water needed for recovery of Coho salmon, Kuptu and Tsuam for other considerations, including funding for tribal government programs and for fish "restoration". Leaders of these tribes have been persuaded that - when it comes to fish recovery - money for "restoration" can be substituted for water flowing in our rivers and streams.

Both the KBRA and the more recent Upper Basin Water Agreement project substantial decreases in demand for irrigation water. Both deals call for relying on federal funding to retire water rights above Upper Klamath Lake through purchase from "willing sellers". Promoters of the deals speak as if those demand reductions had already been achieved. KlamBlog believes, however, that willing sellers will not materialize; who in their right mind would sell their water rights in today's West? A much better strategy is to hold onto the water rights and lease them to other farmers or for in-stream flows as is currently taking place in the Scott River Basin and in other places in California. Demand reduction under the KBRA and Upper Basin Agreement is pie-in-the-sky.

Those who know Klamath and Pacific Salmon issues are familiar with the statement that for so-and-so tribe "salmon is everything". When viewed in light of the actual deals struck by these tribes, however, it can be seen that the statement is political rhetoric detached from on-the-ground reality. As for any government entity, the first priority of a tribal government is to maintain funding for government operations. Since most tribes are dependent on the federal government to fund their government's operations, the tribes are in a weak and compromised position going into negotiations with the feds.

KlamBlog believes the basic power dynamic in relations between tribes and the federal government explains why western federal tribes have, for the most part, agreed to water deals which trade water rights - or the ability to exercise those rights - worth billions of dollars for the modern equivalent of a handful of beads. Historians will not look kindly upon these water settlements whereby, in most cases, the Native Americans are again being taken to the cleaners with the responsible tribal leaders either clueless or in collusion. 

No solution

The Klamath Water Deals seek to resolve the Basin's water conflicts by persuading Congress to balance water supply and demand on the backs of the Klamath's wildlife refuges, through corrupt ESA administration and by pie-in-the-sky water demand reduction. If the architects of those deals get their way, drought will remain abolished for the Irrigation Elite and will be perpetuated for the Klamath Wildlife refuges. In KlamBlog's view that is not just or balanced. A solution that is not just and balanced can only deepen conflicts, not resolve them.  

___________________________________

i    The only Klamath River Basin Tribe with treaty rights is the Klamath Tribes (one federal tribal government made up of three district tribal ethnicities). The Hoopa, Yurok, Resighini and Quartz Valley Tribes have reservations and, as a result, have potential reserved rights to fish and the water needed to keep those fisheries in good condition. The Karuk Tribe has no reservation and therefore no reserved rights. The Klamath, Yurok and Karuk Tribes have signed the KBRA and Upper Basin Agreements; the Hoopa, Quartz Valley and Resighini Tribes have rejected those deals.

The Transformation of Restoration

KlamBlog Editor's Note: 

In response to an e-mail reacting to one of his posts, Tom Stokely (the editor of "env-trinity digest") - recently invited KlamBlog's editor and chief writer Felice Pace to share an article he wrote some time ago about the failure of watershed and fisheries restoration to accomplish their stated objectives, that is, to actually restore water quality and fisheries. That article - "Humility or Hubris - Restoration at the Crossroads" - and another on the same topic - "The End of Restoration?" - are now available to e-v digest and KlamBlog followers on the web courtesy of Dropbox at the following link. The articles explore why over 30 years of watershed and fisheries "restoration" has created a "restoration economy" but has not been effective in accomplishing restoration goals. 

Since Felice wrote those articles, however, the transformation of restoration programs and projects from voluntary activities independent of regulatory issues into a substitute for regulation limiting water pollution has progressed. The federal Environmental Protection Agency and the state agencies charged with implementing the Clean Water Act - including both Oregon and California - are now poised to approve the use of restoration projects as "offsets" to polluted discharges, thereby substituting restoration projects for strict Clean Water Act compliance. In the article below, Felice updates his analysis of the ongoing transformation of watershed and fisheries restoration programs and projects. 

When restoration projects are used as a substitute for controlling or eliminating the discharge of pollution, they are called "offsets". Felice examines the use of "offsets" as a substitute for requiring those discharging pollution to control, reduce or eliminate it. And he asks whether "offset" schemes will be effective in restoring our rivers and streams. 

Felice's update on "The Transformation of Restoration" is timely. The North Coast Regional Water Quality Control Board (NCRWQCB) has begun work on a Clean Water Act permit for the Tule Lake Irrigation District (TID). Industrial Agriculture in the Tule Lake Area is responsible for roughly 25% of the pollution impairing Klamath River water quality and fisheries. 

TID's polluted wastewater is pumped into Tule Lake, then to Lower Klamath 

National Wildlife Refuge, the Klamath Straits and into the Klamath River

Delivered to the Klamath River just north of the California-Oregon border via the Klamath Straits, agricultural pollution feeds and exacerbates toxic algae production in PacifiCorp's Klamath River reservoirs and kills tens of thousands of juvenile salmon every year.  State water quality officials could try to substitute taxpayer-funded restoration above Upper Klamath Lake for requiring TID to control and limit polluted discharges to the Klamath River.

In KlamBlog's view, substituting taxpayer funded restoration for Clean Water Act compliance will result in the Klamath River remaining polluted and Klamath Salmon remaining at risk. Therefore, we urge readers to contact North Coast Water Board Executive officer Matt Saint John (matt.st.john@waterboards.ca.gov). Urge Mr. St. John not to substitute taxpayer funded restoration for control of polluted discharges. Tell him that TID's pollution needs to be controlled at its source in order to meet water quality standards in Tule Lake, the Klamath Straits and the Klamath River.

                                 <<<<<<<<<>>>>>>>>            

                    The Transformation of Restoration
                                  by Felice Pace               

Pollution trading - the use of "offsets" as a substitute for directly controlling or eliminating pollution - has been around for decades with respect to air pollution and especially as a response to climate change inducing atmospheric carbon. In the classic example, a power plant or industrial air polluter chooses to "offset" the discharge of carbon dioxide through its smokestack with a project in a different location which removes an equivalent amount of carbon from the air. The owners of a power plant in the Los Angeles Metropolitan Area might, for example, pay to protect a forest in West Africa (or in the Sierra Nevada Mountains) which would otherwise be cut down. The carbon stored in the protected forest "offsets" the power plant's carbon emissions and the plant is considered to be in compliance with air pollution control laws even while it continues to put the same amount of carbon into the LA air.

Urban communities - often communities of color with high rates of poverty - have long protested pollution trading and other "offset" schemes which leave their communities subject to unhealthy levels of air pollution. More importantly, rigorous studies of "offset" and other air pollution trading schemes have found the approach to be vulnerable to gaming and corruption. One such study "Pollution trading and environmental injustice: Los Angeles’ failed experiment in air quality policy" is available on-line at this link.

The California Air Resources Board recently approved a pollution trading "offset" approach as part of implementing California’s climate change response. The California ARB's  "Compliance Offset Program" can be reviewed on line.   

In a 2012 Fact Sheet also available on line, the group Food and Water Watch questions whether "offset" and other market-based schemes should be substituted for traditional regulatory approaches to reducing pollution:     
               "If we let market fundamentalists and industry-funded nonprofits tout market-based mechanisms and a “green economy” as innovative solutions to our resource problems, we ignore proven methods of reducing pollution. Instead, we are simply speculating on nature. These schemes are a smokescreen, giving the appearance of regulation and action while at the same time giving industries carte blanche to continue using and abusing our common resources — and letting the finance sector profit from it." 

Proclaiming the "need to protect common resources, not profits", Food and Water Watch urges us to reject turning Public Trust resources into commodities:
                "We cannot afford to bet the health of the environment or our access to water on the Wall Street casino. Instead of gambling with financial actors and markets in nature-based assets, we should rely on regulation of activities that harm the environment and contribute to climate change. Instead of pushing the expansion, integration and financialization of water markets, we should implement and enforce regulations that preserve our essential resources and promote policies that acknowledge water as a human right."

Pollution trading comes to the Klamath River Basin

In spite of problems encountered in pollution trading "offset" schemes implemented to reduce air pollution and address climate change, the EPA and state agencies have moved forward with plans to use the same market-based approach for Clean Water Act compliance. One of the first examples in California and Oregon is being developed in the Upper Klamath River Basin and is intended to constitute compliance with the Clean Water Act at the point where the Klamath River flows from Oregon into California. 

Approved by the North Coast Regional Water Quality Control Board in March 2010, the "Action Plan for the Klamath River Total Maximum Daily Loads (TMDLs) addressing temperature, DO, nutrient, and microcystin impairments in the Klamath River" and the "Implementation plan for the Klamath and Lost River Basins" authorize a program that would "calculates credit towards meeting regulatory requirements through offsite mitigation."

In order to implement the authorized "offset" program, the NCRWQCB is developing the "Klamath Basin water quality improvement tracking and accounting program."  That program will be used to calculate "offset" credits which will then be used in permits developed for polluters. Once in place, these polluters will be able to legally continue discharging unlawful levels of pollutants into the Klamath River in violation of water quality standards because that pollution would be "offset" by "restoration" elsewhere in the basin.  

We are likely to first see the Klamath's pollution trading "offset" scheme applied in discharge permits for City of Klamath Falls sewage treatment plants and for the Tule Lake Irrigation District (TID).

Located just south of the California-Oregon border, Tulelake Irrigation District (shown 

in yellow on this map) is part of the Bureau of Reclamation's Klamath Irrigation Project

The City of Klamath Falls has protested phosphorous discharge limitations imposed by the State of Oregon; the city could avoid the cost of reducing its phosphorous discharges by funding wetland restoration as an "offset". 

In the case of Tule Lake Irrigation District (TID), we could see taxpayer-funded restoration above Upper Klamath Lake proposed as an "offset" for the highly polluted run-off which TID pumps from the Lost River Basin and discharges into the Keno Reach of the Klamath River, just upriver of the California-Oregon border, via the Klamath Straits. At times that discharge has been so polluted that pure ammonia - a substance toxic to all life forms - has been discharged into the Klamath River.

Poor water quality leads to toxic algae blooms and fish kills in Keno Reservoir.

Currently owned by PacifiCorp, Keno Dam and Reservoir is not proposed for removal.

Under the KHSA Dam Deal, Keno would be transfered to the Bureau of Reclamation

A permit which substitutes taxpayer-funded restoration above Upper Klamath Lake for pollution control by and on the Tulelake Irrigation District would allow TID to continue to discharge pollution into three natural water bodies - Tule Lake, a federal wildlife refuge, the Klamath Straits, a natural stream used as the discharge drain for much of the Klamath Irrigation Project, and the Klamath River. 

TID farming operations are among the largest and most profitable agricultural operations in the entire Klamath River Basin; they are also among the most polluting operations in the Basin. It would be ironic if well-to-do TID farmers become the first in the Klamath River Basin granted "relief" from the Clean Water Act at the expense of US taxpayers and Klamath Salmon. 

The legality of "offset" schemes which allow discharge of pollution into natural water bodies to continue is yet to be tested in court. The one federal case filed so far - which challenged a water pollution trading and "offset" scheme for Chesapeake Bay - was dismissed on procedural grounds. Attempting to use "off-sets" above Upper Klamath Lake to permit discharge of polluted agricultural wastewater into Tule Lake, the Klamath Straits and the Klamath River could also prompt a federal court challenge. 
 
In theory, pollution "offset" schemes can be effective both economically and environmentally. As the US EPA asserts with respect to water pollution "Where watershed circumstances favor trading, it can be a powerful tool for achieving pollutant reductions faster and at lower cost." In the real world, however, pollution "offset" schemes have had mixed results; most often, activities used as "offsets" have only shifted the impacts of pollution from one location and community to another location and another community. In other words, "offset" schemes have produced winners and losers. Water bodies and communities where the "offsets" (restoration) take place are among the winners; lower income folks, which are often communities of color, and areas where pollution continues unabated have often been the losers.

In the Klamath River Basin pollution "offset" schemes are likely to benefit Upper Basin interests at the expense of lower income and Native American communities along the Mid and Lower Klamath River.

Will "offset" and other market-based schemes work?

The essential question is whether the substitution of restoration project "offsets" for actually controlling polluted discharges will lead to achievement of water quality objectives and, thereby, to restoration of fisheries and other beneficial uses of water. While the devil will be in the details of the individual programs and permits implementing "offset" schemes, it is unlikely that there will be sufficient new funding from government or the private sector to "offset" the massive agricultural and urban stormwater pollution which are now the top reasons rivers and estuaries across the US do not meet established water quality standards.  Under these circumstances, existing levels of restoration used as "offsets" would result in compliance with the Clean Water Act on paper but would not lead to restoration of water quality and beneficial uses.

In the final analysis, finishing the job of cleaning up our rivers and estuaries will most likely not be achieved through "offsets" but rather will require directly controlling non-point pollution - especially agricultural pollution and urban stormwater run-off.  The reticence of the EPA and state Clean Water Act implementing agencies to effectively regulate agricultural pollution is not a good sign. Unless these agencies develop the will to effectively regulate non-point pollution from agriculture, urban run-off and other non-point sources, our streams, rivers, estuaries and the fisheries and other beneficial uses of water which depend on clean water will not be restored.


Felice Pace is editor and chief writer for KlamBlog. He has lived in the Klamath River Basin since 1976 and has been advocating for fisheries, clean water and watershed restoration since 1986.

Greed trumps science - TID's plan to mine groundwater in the Klamath River Basin

Adoption of a Groundwater Management Plan by the Tulelake Irrigation District (TID) this past April has not been reported in the press...but it should have been. The Plan covers the California portion of the Lower Lost River Basin within the Bureau of Reclamation's Klamath Project. In spite of evidence that the deep groundwater aquifer is being depleted, the Tulelake Irrigation District's plan is to
          "enable the District, individual landowners, and their regional neighbors to continue use of local groundwater as a supplemental water supply during years of surface water shortages."

Tulelake Irrigation District (TID) is controlled by fewer than 10 growers who, by virtual of their wealth and political power, dominate both the District and the Klamath Water Users Association. These growers have been successful for over a decade in preventing their "neighbors" from selling legal and contractual rights to Klamath River water so that the rights can be retired and demand for water diverted from the Klamath River can be brought into line with demand for that water.

One reason TID's dominant growers oppose retiring water rights and contracts is the money the District has pocketed in recent years selling groundwater. TID uses deep wells and pumps provided by California at taxpayer expense during a drought emergency to sell water to "neighbors" and to the Bureau of Reclamation.

One of nine deep wells and pumps gifted to Tulelake  

Irrigation District in 2001 by the State of California 

Reclamation buys well water from TID when demand for irrigation water exceeds the supply available from the Klamath River. Purchasing and retiring water rights and contracts within Reclamation's Klamath Irrigation Project would mean Reclamation would not have to buy groundwater from TID. As is usually the case in the Klamath River Basin, understanding how the money flows is key to understanding Klamath water issues.

Tulelake Irrigation District's Plan for Groundwater

TID's Groundwater Management Plan acknowledges that groundwater extraction since 2002 has lowered the deep aquifer and attributes the decline to below average precipitation. The Plan does not, however, use the model developed by the US Geological Survey for predicting the impact of groundwater extraction rates on future groundwater supplies. Instead TID's plan calls for continuing to use groundwater to meet any deficit in surface water supplied by Reclamation over irrigation water demand.

Located in the bed of the former Tule Lake, the Tulelake Irrigation District  

includes the highest value agricultural soils within the Klamath Project including 

18,000 acres of controversial, commercially farmed national wildlife refuge lands   

Since 2002, groundwater pumping and government payments in exchange for not irrigating have occurred whenever surface water supply from the Klamath River has not been sufficient to meet full Klamath Project irrigation demand. In other words, and in contrast to private irrigators, salmon, wildlife refuges and all others who depend on Klamath River water, federal irrigators have been made whole one way or another when there has been a shortage of Klamath River irrigation water. 

A know nothing plan

Klamath Disaster Roulette: Waterfowl and Eagles are the latest casualties

While media attention focuses obsessively on impending disasters, Klamath reality is that there is always another crisis or two simmering below the surface of the Klamath River Basin's waters. Often the next crisis bubbles up even as the previous one is winding down.

This summer of yet another drought year (they seem to be coming more often these days), media and public attention was focused on the large number of salmon expected to return to the Klamath River. The Hoopa and Yurok Tribes, in particular, called attention to low flows and poor water quality – conditions which, when combined with a large salmon run, led to a dramatic die-off of adult salmon in the Lower Klamath River in 2002. 

Each tribe called for the Bureau of Reclamation to release more water from Trinity Dam into the South Fork of the Klamath (aka the Trinity River) in order to stave off a fish kill. Others called for complementary releases from Iron Gate Dam so that adult salmon entering the North Fork of the Klamath (aka the Mainstem above Weitchpec) would not be enticed to ascend the River only to die in the low flow and poor water quality conditions found in the North Fork (Mainstem).

    Agriculture in the Upper Basin, Shasta Valley and Scott Valley is the

#1 source of Klamath River nutrient and temperature pollution

The Bureau of Reclamation responded to calls for Trinity Dam releases but delivered a silent rebuke to those calling for increased flows from Iron Gate Dam. Increasing flows from Iron Gate would have required a reduction in irrigation water delivery within Reclamation's Klamath Project. Armed with a new biological opinion granting the Agency “flexibility” to cut flows below biological opinion “minimums” (sic), Reclamation, which has always served the interests of federal irrigators above all else, simply ignored the request for release of more Klamath River Water downstream to avoid a fish kill.

Then came a spate of arson and lightning fires on the Mid-Klamath; soon smoke was blanketing much of the Basin. The fires caused road, trail and wilderness closures and evacuation orders; the fire's smoke also lowered the temperature of Mainstem (North Fork) water a full ten degrees! The smoke blocked so much solar radiation in some watersheds that streamflow was observed to increase – although the rise was not apparent in river and major tributary hydrographs.

By the end of August, rain and sustained higher humidity had tamed the fires, lifting the blanket of smoke. By then, however, shorter days and cooler air temperature assured that the worst water quality conditions would not return. While the salmon run is still not over and water quality is still not good, the threat of an adult fish kill has receded. Through a combination of nature's beneficence and serendipity, the Klamath River Basin had avoided another disaster...just barely.

The next crisis

Even as attention was focused on the feared fish kill, another crisis was developing. Relying on an Interior Department Solicitor's Opinion from the 1990s, Reclamation officials were dewatering the oldest and most important of the Klamath River Basin's eight national wildlife refuges.

Dewatered permanent marsh on Lower Klamath NWR, July 2013 

Klamath Water Woes

On Wednesday a federal judge in Fresno issued a temporary injunction halting the planned release of additional water from Trinity Dam to the Trinity and Lower Klamath Rivers. The Bureau of Reclamation had scheduled the pulse flow in order “to prevent a potentially serious fish die off impacting salmon populations entering the Klamath River estuary.”

An injunction can only be issued if the judge believes those seeking the injunction are likely to prevail in the subject litigation. In his order granting a temporary injunction Judge Lawrence O'Neill indicated that:

          The Trinity River Record of Decision (“TRROD”), which, among other things, sets forth the volume of water to be released to provide in-stream flows below Lewiston Dam on the Trinity River

in various water year types, clearly indicates that while “the schedule for releasing water on a daily basis ...may be adjusted...the annual flow volumes...may not be changed.”

The Judge has promised to make a final decision on the requested injunction on August 16^th after parties and intervenors submit replies to their respective original briefs. It appears likely he will issue a full, ongoing injunction at that time.

Meanwhile, native fishermen tell KlamBlog that, while some some adult salmon have already ascended the Klamath River, most of the expected large run come into the estuary but then – sensing that conditions are bad for making the run - go back to the ocean.

 Where River meets Sea

Reclamation could still help the salmon

There is debate among fisheries biologists about whether artificial, short duration pulse flows as proposed by Reclamation are a good idea. Fishermen report that past pulse flows on the Trinity (aka South Fork Klamath) side of the basin – while they entice the fish to run up river – subsequently confused them when Reclamation turned off the spigot at Trinity Dam and the higher flows ended.

Some biologists are concerned that many of the adult salmon attracted upriver by increased flows will turn left at Weitchpec and enter a Klamath River above the Trinity confluence which is running low and is polluted to the extreme. KlamBlog shares the fear that augmented flows in the Trinity could help create a large die-off of adult salmon in the Klamath River above Weitchpec. 

The threat of a fish kill above Weitchpec has motivated some activists to call for more water to be released from Iron Gate Dam in order to ameliorate poor flow and water quality conditions in the Klamath River below iron Gate Dam. Others feel that increasing Klamath River flows could be detrimental to salmon because water from the Upper Klamath River Basin is of such poor quality. Increased Klamath flows could be particularly detrimental to salmon if they are not sustained or are "ramped up" too rapidly.

As one fisheries biologist quipped recently, temporarily augmenting river flows to prevent a repeat of the 2002 fish kill in the Lower Klamath River is, in essence, an “uncontrolled experiment”.

Post Adjudication

Not withstanding the experimental nature of artificially augmenting Klamath and Trinity flows in August, and the questionable legality of augmenting Trinity River flows this year, the Bureau of Reclamation possess the legal right and ability to augment flows on the Klamath River (North Fork Klamath) side of the basin in a sustained manner The State of Oregon recently completed the Klamath Basin Adjudication and granted to the federal government the top priority among consumptive uses of water.¹ Under Oregon law, those water rights can be temporarily or permanently shifted from irrigation and used to augment Klamath River flows or to provide water to Klamath Wildlife Refuges.

Furthermore, Reclamation failed to meet minimum Klamath River flows the agency stated in their 2013OperationsPlan they would provide. Reclamation failed to meet minimum Klamath flows during 11 days in April, 29 days in May and 12 days in June. During the same period, the Agency also dewatered Lower Klamath and Tule Lake National Wildlife Refuges in order to provide more water to the irrigation interests it serves.

At the same time Reclamation was shorting the Klamath River and providing San Joaquin farmers who rely on Trinity River water with only 20% of their full, contracted water allocation, the same Agency provided Klamath Project Irrigators with about 80% of their full, contracted water allocation. This is yet one more reason KlamBlog refers to the Klamath Basin's pampered federal irrigators as the Irrigation Elite.