Thursday, April 14, 2016

New Deals signed at Requa: What's in them that's not being discussed and what happens now


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.

Tuesday, January 5, 2016

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.

Tuesday, December 15, 2015

Native activist calls for an end to the Klamath Agreements

This morning KlamBlog received a press release from Kayla Godowa-Tufti. The press release is presented below followed by an afterword by KlamBlog.

Godowa-Tufti is a member of the Confederated Tribes of Warm Springs of Oregon and a descendant of the Klamath, Modoc, Yahooskin peoples of the Upper Klamath Basin. She is an Indigenous rights/water advocate and freelance journalist who has been active in opposing the Klamath Agreements. Godowa-Tufti currently resides in Kalapuya Territory, Oregon. Kalapuya Territory is also known today as the Willamette Valley. The photos in this post were provided by Kayla Godowa-Tufti.


FOR IMMEDIATE RELEASE--

Stop the Klamath Agreements, Save our Wild Salmon
 
Will Senator Greg Walden attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement?

December 15th 2015 (Upper Klamath Basin, Oregon) 

The infamous Klamath water Agreements appear to be on their final days. Rumor has it that Tuesday December 15th Senator Greg Walden will attempt to slam through fraudulent legislation for the smoke and mirror Klamath agreement. But there’s a catch. The bill as it stands today will no longer include the language for dam removal, which has been a primary bargained for benefit to signatory tribes to improve historic Klamath River wild salmon runs that have been irreversibly damaged by settler occupancy.

Rate payers have been charged a fee on their monthly bills from PacifiCorp for a number of years for dam removal. But if legislators have no intention of removing the dams, where did all of the fees rate payers have been charged go?

California’s Hoopa Valley Tribe was part of initial Klamath Agreement talks but refused to support the accord on the grounds that it didn’t guarantee sufficient flows for struggling Coho and Chinook salmon populations. 
 
     A young member of the Hoopa Tribe protests while standing in salmon-killing algae.

The Klamath River flows directly through the Hoopa Valley Reservation in Northern California and the Trinity River is a major tributary to the Klamath River. Trinity water flows secured by the Hoopa Valley Tribe have contributed significantly to saving wild salmon populations in the Klamath River when Klamath water levels were not secured by enforcement of Klamath Tribes senior water right.

As of September 2015, The Yurok Tribe of California has been rumored to have withdrawn from the agreements.

If that is true, then the only two remaining signatory tribes are the Karuk Tribe of California and the Klamath Tribes of Oregon.

According to an article published December 11th 2015 by Western Livestock Journal, Andrew Malcolm, Communication Director for Senator Greg Walden states, “The way the agreements work is that the tribes that have senior water rights would lock in river flows, and the tribes would allow water to flow to agriculture in the project. … The way the process works is, in the first few years, it’s a temporary exchange in terms of the tribes allow for these flows to happen, but then as certain benchmarks are met throughout the agreement, then that water becomes permanent.”

Malcolm agreed that the issue is largely a semantic one; while the Klamath Tribes are not waiving their senior water rights, they’re waiving a portion of the water their senior water rights grant them, assuming the agreements hold.

“The fact is we felt the need to remind people that we’re trying to protect the taxpayers here and that for the tribes to get land, they are giving up some of their senior water. [Gentry, Chairman of the Klamath Tribes] doesn’t like the word ‘waive,’ but in reality, once the agreements become permanent, that’s what they’re doing.”

In an article published by Dylan Darling in the Herald and News October 15th 2003, the at time Tribal Chairman Allen Foreman in a message to members of the Tribes on Sept. 27 2003, stated “The Klamath Tribes are not interested in surrendering their claim for senior water rights in exchange for regaining portions of their former reservation, tribal officials said Tuesday.

A press release issued by the tribes said media reports indicating they were considering a trade of water rights for land now held by the U.S. Forest Service were incorrect.

Carl "Bud" Ullman, attorney for the Tribes, said the Indians have two objectives: gaining water rights in order to restore fish populations, and regaining about 690,000 acres of former reservation land now in public ownership.

Though both objectives are being discussed with federal officials, the Tribes aren't planning on turning over their senior water rights,” Ullman said.

Two paragraphs later Ullman states, the Tribes are considering foregoing some of their water rights in exchange for a restored sucker fishery, which has been closed since 1986. Under such an arrangement, the Tribes would hold their water rights but not seek enforcement of them if the federal government works to restore sucker populations.

According to Ullman, there had been progress in the last year and that an agreement could be reached by the end of that year, though it could then take another year to get approval from Congress.

That was 12 years ago. The current Klamath Tribes chairman Don Gentry and past chairman Allen Foreman have been operating on the same manipulative, double talk agenda.

And as it now stands only 4 days remain until the Klamath Agreements sunset in Congress.

The "Historic dam Removal" campaign is set up to generate Republican push back against the Federal Energy Regulatory Commission (FERC) dam removal re-licensing process.  Signatory tribes and front groups have used those scare tactics to garner support and protect wealthy PacifiCorp shareholders from paying for dam removal.

The Klamath water Agreement issue is not about dam removal. The dams are out of compliance and will come down regardless. The Klamath Agreement issue is who's paying for dam removal?
An article published September 21st 2015 by Adam Spencer in The Triplicate states, “The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of Appeals challenging that the federal dam regulatory agency has violated the Clean Water Act in its approach to the relicensing — or lack of it — of the Klamath River dams.

The hydropower license needed for PacifiCorp to operate its hydroelectric dams on the Klamath expired in 2006, but the Warren Buffett-owned power company has delayed the relicensing of the dams since then using a legal-gray-area strategy outlined in one of the Klamath Agreements. All in hopes that Congress would pass legislation implementing the Klamath Agreements. But that hasn’t happened after three years of sitting in Congress with little traction.”

The Hoopa Valley Tribe’s tactic of forcing the hand of the Federal Energy Regulatory Commission to get PacifiCorp to proceed with relicensing of the dams seems to have better odds of removing the deteriorating dams that have decimated wild salmon runs in the Klamath Basin than the glorified Klamath water Agreements.

To relicense the dams in compliance with the Clean Water Act, PacifiCorp needs to apply for Water Quality Certification from regulatory agencies in both California and Oregon, where the dams are located.

“Plainly the operation of the hydro project violates the water quality rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’ previous 1956 license pre-dates environmental law.

According to Spencer of the Triplicate, “even if water quality certifications were completed and a new license issued, it would require PacifiCorp to install ladders to provide for passage of migratory fish through the dams, an action already mandated by National Marine Fisheries Service.

Fish ladders would exceed the cost of dam removal and the dams would produce less energy and be less profitable, making dam removal the most economical option for shareholders and ratepayers.”

Both California and Oregon’s public utilities commissions have determined that dam removal is the best option for ratepayers.

The Klamath Hydroelectric Settlement Agreement (KHSA), the agreement focused specifically on dam removal, states “PacifiCorp shall withdraw and re-file its applications for Section 401 (water quality) certifications as necessary to avoid the certifications being deemed waived under the (Clean Water Act) during the Interim Period.”

According to the Clean Water Act, if a state fails or refuses to act on a water quality certification “within a reasonable period of time (which shall not exceed one year)” than the certification is considered “waived.”

Case law cited in Hoopa Valley Tribe court documents states, the purpose of the waiver provision is “to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification.”

A waiver would lead to the relicensing process outside of the Klamath Hydroelectric Settlement Agreement (KHSA), the less desirable option for Buffet’s grossly rich PacifiCorp.

Spencer of the Triplicate reported, “PacifiCorp has withdrawn and re-filed its water quality certification application in both California and Oregon eight times to keep the application active without having certification considered waived by the state agencies. Withdrawing and re-filing the application is done with a single email.”

“Their theory is that the letter gives the water board another full year to do nothing,” Schlosser said. “We kept saying ‘no, this is a violation of the Clean Water Act and you can't get around it by this letter writing campaign.’”

FERC denied the Hoopa Valley Tribe’s request for a hearing on the issue in October 2014. Though the agency released a statement that they do agree that PacifiCorp and state regulators are “clearly violating the spirit of the Clean Water Act” and possibly acting “contrary to the public interest by delaying the issuance of new licenses that better meet current-day conditions than those issued many decades ago.”

In the end, the FERC’s discussion concluded that while PacifiCorp may violate the spirit of the law “we do not conclude that they have violated the letter of that statute.”

“They are essentially saying that this little routine that PacifiCorp is using violates the spirit of the Clean Water Act but they are going to go ahead and approve it,” Schlosser said.“They are deciding to do nothing for a settlement agreement they never approved or reviewed. I’m optimistic that court of appeals will say FERC has fallen down on the job and they ought to dismiss the application for licensing.”

Without these corporate Klamath deals the Interior Secretary can make a finding on dam removal, to ultimately dismantle the dams.

Its past time to revise the Klamath agreements and address problems in a sequential cost effective fashion, that won’t drive wild salmon stocks to extinction.

The KHSA minimizes PacifiCorp’s required operational changes until at least 2021, strips Federal Energy Regulatory Commission (FERC) of jurisdiction while the agreement remains in place, and also protects the utility from compliance with any other measures to improve water quality. (Sec. 6.1.1 and 6.3.4.A.)

The KHSA halts State water quality certification proceedings, which now are the only remaining step before FERC would force dam removal. (Sec. 6.5.)
Dam removal cannot be forced with the Klamath water Agreements in place. The Klamath Agreements will cost tax payers $750 million over a 15-year period.

The federal Indian policy questions raised by Senate bill (S.133) prompted more than 50 federally recognized Indian tribes to object when the Klamath Agreements were considered by Senator Lisa Murkowski’s Committee in the 113th Congress.

Among their criticisms was that the legislation would reverse longstanding federal Indian affairs policies of tribal self-determination, self-governance, and respect for property rights held in trust for Indian tribes.

The objecting tribes stated specifically that section 5(f) of the bill would authorize approval of settlement terms that would require the United States to abandon its trust relationship and subordinate tribal fishing and water rights to others unilaterally, without tribal consent.

They also maintained that the settlement terms required by the bill are associated with discredited tribal trust termination policies that were in effect in the 1950s.

Chairman Murkowski, on November 14, 2014 spoke about the Klamath settlement in the 113th Congress stating that: “There is another issue, and that is the estimated $500 million in needed funds over the next ten years called for under the agreement would come from. I can tell you from my perspective as an appropriator; we don’t exactly have an extra $50 million per year lying around under the seat cushions in my office.”

Many groups reached the same conclusion about the unavailability of funding and walked away from the Klamath Agreements.

The Hoopa Valley Tribe received over 50 letters of support from federally recognized Indigenous tribes from all across the United States in their efforts to oppose the Klamath water Agreements.

Warren Buffet is the richest man in the world because he has a manipulative mind for business. People like him don’t get disgustingly wealthy by playing nice. He has found tenacious individuals to lobby for PacifiCorp dam removal, tribes and front groups alike. All for California and Oregon tax payers to foot the bill, leaving Buffet’s corporation exempt of financial responsibility.

Members of the Hoopa Valley Tribe and Klamath Tribes refuse to endorse the fatally flawed Klamath agreements because they unilaterally terminate tribal water rights. Rights that are intended to be enforced to protect the environment.

“The ancestors pray for our fish. And our fish always pray with us because we take care of them and they take care of us.” Says Oni Rose Orcutt, 7 year old Hoopa, Yurok and Karuk descendant.

“We are asking you to not support Walden’s bill. Because this bill is killing our salmon and terminating our water rights. Ts’ediyah. Thank You. ” Stated 10 year old Presley Orcutt (sister to Oni Rose), also a Hoopa, Yurok and Karuk descendant.

Please help support our friends in the Hoopa Valley community and relatives of the Klamath Tribes in efforts to protect their salmon babies by not endorsing the following-- Senate Bill 133: Klamath Basin Water Recovery and Economic Restoration Act of 2015, The Klamath Basin Restoration Agreement (KBRA), Klamath Basin Hydroelectric Settlement Agreement (KHSA), Upper Klamath Basin Comprehensive Agreement (UKBCA)

Please help support an effort that will truly “Undam the Klamath and bring the salmon home.”

Happy belated birthday to Oni Rose and Presley, the girls of Hoopa Valley whose hearts are forever with our salmon and waters. This is dedicated to you and all our future generations to come. May all your hopes and dreams come true.

In collaboration with and in honor of our friends at the Hoopa Valley Tribe and our Klamath, Modoc, Yahooskin relatives at Honor the Treaty of 1864.

 Naat ciiwapk diceew'a “We help each other; We will live good.”

                                  Traditional Hoopa canoes on the Trinity River
 
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Afterword by KlamBlog:

Oregon's Klamath River Basin Water Rights Adjudication recognized some but not all water rights claims made by the Klamath Tribes, one tribal government comprised of three distinct Indigenous Peoples: the Klamath, Modoc and Yahoskin. In its Final Order of Determination the State of Oregon recognized the Klamath Tribes' claims to flows for  fish in streams discharging into Upper Klamath Lake but denied the Tribe's claims to flows in the Klamath River below Upper Klamath Lake. According to the State of Oregon's Press Release which accompanied the Final Order of Determination:
          The most senior determined claims in the Klamath River Basin Adjudication are claims held by the United States in trust for the Klamath Tribes.  These claims carry a priority date of “time immemorial.” The tribal claims were recognized for certain reaches of the major tributaries to Upper Klamath Lake, and for Upper Klamath Lake itself.  Other tribal claims were denied for streams outside the boundaries of the former Klamath Indian Reservation.  For example, the Klamath Tribes’ claim for portions of the Klamath River was denied.  

There has been confusion over the Klamath Tribes Water Rights because the media reported only that Oregon had accepted the Klamath Tribes' claims. For example, the headline in the Eureka Times Standard's report on the Final Order read "Oregon backs Klamath Tribes water rights; effect on Lower Klamath Basin unclear". The article failed to mention that Oregon denied the Tribes' claims to Klamath River flows.

Oregon's action in the Klamath Adjudication with respect to the Klamath Tribes' water rights claims is properly understood as recognizing those claims which, in effect, maximize irrigation water delivery to federal irrigators and denying those claims which could provide more water for salmon in the Klamath River. Upper Klamath Lake is the main source of federal irrigation water. Maximizing inflows to Upper Klamath Lake via the Klamath Tribes' water claims also maximizes the amount of water available each year for federal irrigation. Oregon's denial of the Klamath Tribes' claim to Klamath River flows sacrifices Klamath River Salmon in an attempt to insulate federal irrigators from tribal water rights claims that could reduce the amount of water available for federal irrigation.

     This map of the Upper Klamath River Basin shows the Klamath River flowing out of 
         Upper Klamath Lake and the sprawling Klamath Irrigation Project in orange

Under the earlier KBRA Water Deal neither the Klamath Tribes nor any other tribe relinquished water rights, Under the more recent Upper Basin Agreement, the Klamath Tribes agree not to challenge in court denial of their claim to flows in the Klamath River; but only if Congress restores a portion of the Tribes' former reservation, which is now the Winema National Forest, and provides funding for a tribal lumber mill and wood products business.

KlamBlog does not believe it is morally right to force the leaders of the Klamath Tribes to choose between water for salmon and restoration of their reservation which was illegally terminated in the 1960s. As KlamBlog editor Felice Pace has written elsewhere, the federal government is forcing tribes across the West to choose between the funds they need to provide basic services to their people and their rights to water.

As they have in the Klamath River Basin, the feds are doing all they can to keep water to which tribes have a right with mostly white irrigation interests and in particular with federal  irrigation projects administered by the US Bureau of Reclamation. In favoring white irrigators over tribal water rights, the federal government is abrogating its responsibility as trustee to act in the best interest of federally-recognized tribal peoples.


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