Monday, January 26, 2015

Trinity Victory not a solution for Klamath Salmon

There was good news in January for those who value and depend on Klamath River Salmon. Lawyers for the Department of Interior released a legal opinion finding that Humboldt County's right to 50,000 acre feet of the water stored behind Trinity Dam is distinct from water designated when the dam was built to sustain Trinity River fisheries. The US Bureau of Reclamation, part of the Interior Department, had claimed the opposite. That allowed them to divert more water from the Trinity and ship that water to corporate farms far to the south in the San Joaquin Valley.

North Coast Congressman Jared Huffman, who had pushed for release of the legal opinion, hailed its release in a special press release
          Humboldt County’s annual right to 50,000 acre feet of water from Trinity Lake is not a close call – it was explicitly guaranteed by statute and in a federal contract six decades ago, but these commitments have been ignored by the federal government....I’m gratified that the Solicitor thoroughly examined this issue and that the Interior Department heeded my requests to publicly release the solicitor’s findings.  The disclosure of the Solicitor’s legal opinion confirms the position I have argued for the past two years and is an important step toward honoring the promise Congress made 60 years ago.

Before becoming an elected official, Congressman Huffman was an environmental lawyer at the NRDC where he specialized in water law. 

Ich (Gill Rot) Disease 

If followed by the US Bureau of Reclamation, the legal opinion should make more water available to prevent unnatural die-offs of Klamath-Trinity Salmon. But using Trinity water to mitigate for inadequate flows and terrible Klamath River water quality is not a solution. Trinity River water enters the Klamath low in the watershed at Weitchpec. Increased Trinity water releases can help prevent adult salmon die-offs in the Lower River but will not prevent juvenile salmon migrating through the mid and upper Klamath River from contracting fish diseases which are related to poor water quality and low river flows.

Scientists and government reports confirm what has been hidden from most citizens: In 2014 up to 100% of the juvenile Chinook salmon monitored while migrating down the Klamath River were found to be diseased. High disease rates occur in every dry year as flows are cut and always poor water quality gets even worse. Biologists tell us these fish may or may not die as juveniles but are significantly less likely than healthy salmon to survive long enough to return, as adults, to spawn in Klamath tributaries.

Algae clogs the River starved of flows to maximize irrigation water delivery

Why is it that the yearly tragedy of Klamath River juvenile salmon disease and mortality is not reported in the media? And why is it that the self-proclaimed defenders of Klamath Salmon - the Yurok and Karuk Tribal Governments - whose leaders have claimed that for their peoples "salmon is everything" are not bringing this information out and taking action to address the Klamath's salmon-killing flows and terrible water quality?

In essence, the Yurok and Karuk Tribal Governments have become docile in the face of ongoing Klamath outrages because they agreed in the 2010 KBRA Water Deal to support the Bureau of Reclamation's management of Klamath River water. Reclamation manages Klamath water to maximize diversion and delivery of irrigation water. Under the KBRA the Klamath River gets minimum flows barely sufficient to prevent ESA listed Coho salmon from going extinct and a promise of higher spring flows when and if there is water in excess of irrigation demand.

These tribes have also become increasingly dependent on funding from the US Bureau of Reclamation to run their fisheries and restoration departments and projects. If these tribal governments were to anger Reclamation managers that funding could and would be cut off. In essence, it is jobs and government funding which help make Karuk and Yurok leaders docile in the face of ongoing threats to salmon. 

To make matters worse, the Upper Basin's Klamath Tribes recently agreed to give up their claim to Klamath River flows for salmon below Upper Klamath Lake if the federal government comes up with money to buy land and for economic development projects. The Klamath Tribes' leaders want to get into the timber business and they are willing to give-up their right to Klamath salmon flows if the feds will finance their business plans.

Are the Yurok, Karuk and Klamath tribal governments selling out Klamath salmon? Each person must judge for herself. KlamBlog takes note, however. that humans are adept at rationalizing their decisions. It is thus likely that tribal government leaders truly believe they are acting in the best interest of the River and Klamath Salmon. Like many other tribal governments across the West, most restoration organizations and even some environmental groups, these leaders have bought the idea that funding for "restoration" can substitute for the river flows needed to restore salmon to abundance.  

Where they have water rights related to fisheries, federal tribes have a right to river and stream flows sufficient to restore fisheries to the point where they can provide a moderate living for the tribal folk who depend on them. Across the West, however, the right to restoration flows is being negotiated away by tribal government leaders in exchange for funding for tribal programs, infrastructure and "restoration".

Historians will look back at these water deals as the second great rip-off of the American West's Indigenous natives: first they took the land and tried to "exterminate" the people; now, with the acquiescence of tribal governments, they are taking the water for the modern equivalent of a fistful of beads. History will not look kindly upon tribal government leaders who made these Faustian water deals. 

History will also make clear that the idea we can substitute "restoration" for the water flows a river needs is hogwash. Unfortunately, by then it will likely be too late for Pacific Salmon.

Saturday, September 27, 2014

There's a new PacifiCorp-Reclamation Water Deal - will salmon pay the price next spring?

Flows in the Klamath River will likely be lower next spring because of a short-term water agreement between utility PacifiCorp and the US Bureau of Reclamation. Under terms of the deal, PacifiCorp is drawing down its Klamath River reservoirs this fall to meet ESA flow requirements in the Klamath River. Reclamation will return the water to PacifiCorp's reservoirs sometime after November 1st.

Drawing down PacifiCorp's reservoirs to meet minimum river flows will allow Reclamation to divert more water from Upper Klamath Lake to the irrigators it serves in California and Oregon. According to officials at the Tulelake Irrigation District, ninety percent of the highest yielding agricultural lands within the 210,000 acre federal irrigation project - those located within the bed of the former Tule Lake - are receiving full irrigation water delivery this drought year.  

 90% of the former Tule Lake has been drained, diked and converted to agriculture.

High spring flows help juvenile salmon survive poor water quality and predators; consequently more salmon reach the ocean and more return 3 and 4 years later. Klamath fisheries managers also want higher spring flows to flush fish parasites from the river, reducing disease morality. 

Higher spring flows are one of the "bargained for benefits" which helped persuade the Yurok and Karuk Tribes to sign the long-term KBRA Water Deal. However, in spite of the fact that higher spring flows have not materialized, the two tribes continue to support the KBRA.

If a series of big storms come soon to the Upper Klamath River Basin, or if the coming winter's precipitation is well above average, spring flows may not be cut. However, the federal Drought Monitor operated by NOAAi forecasts below average precipitation in the Upper Klamath River Basin through March of 2015. If the forecast turn out to be accurate, spring flows will be cut to the minimum and more young salmon will die before reaching the Pacific Ocean. Once again Klamath Salmon will have been sacrificed in order to maximize water delivery to federal irrigators, the Basin's Irrigation Elite

Meanwhile, the self-proclaimed defenders of Klamath Salmon - the Dam Slayersii - have neither condemned nor questioned the deal. One of them, California Trout, even claims on its website that the draw-down of PacifiCorp's reservoirs is being done "to protect" Klamath salmon! KlamBlog can't tell if Cal Trout is naive, confused or intends to mislead visitors to its web site.

Wednesday, September 10, 2014

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),..."

Wednesday, May 21, 2014

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.