The Latest: After a long battle, agreement for the Klamath

 

Backstory
To protect endangered fish during 2001's drought, federal officials shut off irrigation water in Oregon and California's Klamath Basin, costing agriculture millions. The next year, farmers got their water – along with a massive salmon die-off that infuriated Klamath tribes. Tribal members and farmers remained at odds until 2004, when federal rulings prompted dam-owner PacifiCorp to begin negotiating dam removal and water redistribution ("Peace on the Klamath," HCN, 6/23/08). In 2010, two agreements were signed, but lawmakers wanted more inclusive, less expensive solutions.

Followup
At last, a majority of farmers, fishermen, environmentalists and tribes have reached a compromise. The tribes now hold senior water rights, and under the Upper Klamath Basin Comprehensive Agreement signed this spring, they'll conserve water for downstream irrigators in exchange for economic development and habitat restoration. PacifiCorp has agreed to put a small utility surcharge toward demolishing its four salmon-blocking dams by 2020, but implementation depends on congressional approval. The Senate is considering a $250 million Klamath bill, but passage seems unlikely.

Get more Klamath context at hcne.ws/1kxSdWJ

Tom Schlosser
Tom Schlosser
Jul 14, 2014 01:28 PM
It's true that passage of S. 2379 is unlikely; that would be understandable if your reporting was less inaccurate. First, it was a 2006 decision to uphold fish passage conditions that motivated Pacificorp. See http://www.schlosserlawfiles.com/~hoopa/KLAMATH_DNO_Final 092706.pdf Second, the 2011 bills sank without a ripple, though costs and missing parties were problems for the proponents. Third, most of the affected California tribes do not support the 2010 agreements, which were engineered by PacifiCorp and the Bureau of Reclamation. Fourth, the 2014 Upper Basin agreement does nothing for river flows but simply moves water to the Reclamation project. Fifth, the Senate bill authorizes only $40 million, but Reclamation's testimony called for $500 million in federal funding.

Your readers should know there's a better way: Progress on the Klamath Settlement Agreements has stalled. Members of Congress have dismissed the Agreements as prohibitively expensive. But existing statutes and regulations provide for dam removal. New legislation is not needed for that purpose. Under the Federal Power Act, when dam owners conclude that they can no longer economically operate under applicable law, they go through a well-understood procedure to remove the dams. For example, PacifiCorp itself removed Condit Dam in 2011 pursuant to Federal Energy Regulatory Commission (FERC) authorization under the Federal Power Act, not a new Act of Congress.

For the Klamath dams, fish passage and operational conditions prescribed by the National Marine Fisheries Service and by the U.S. Fish and Wildlife Service (and upheld by Administrative Law Judge McKenna), identify environmental remediation costs that exceed the benefits of future dam operation under a new FERC license. FERC has no discretion and must include these conditions in the new license. E.g., City of Tacoma v. FERC and Skokomish Indian Tribe, 460 F.3d 53 (D.C. Cir. 2006). PacifiCorp has acknowledged to the Public Utilities Commissions of California and Oregon that removal of four dams is now the cost-effective solution. The commissions authorized PacifiCorp to surcharge electric rates to raise funds for project removal. Those funds are accumulating in trust accounts for removal costs.

FERC has completed an environmental impact statement preliminary to issuing a new (highly conditioned) license for the Klamath Project but it has not acted because Oregon and California have not issued water quality compliance certifications. Although the States of Oregon and California have chosen not to exercise their authority to protect water quality in this matter, action by them is not necessary. FERC requires only that the States be given a timely opportunity to act on Section 401 certification, i.e., within one year of the license application. That time lapsed in 2007. PacifiCorp persuaded Oregon and California to extend that one-year period repeatedly by successive annual letters that withdraw and resubmit PacifiCorp’s application. See Klamath Hydroelectric Settlement Agreement § 6.5 (“KHSA”). FERC has overlooked this practice, but has never ruled that a license applicant can stop the licensing process in this way. E.g., Central Vermont Public Service Corporation, 113 FERC ¶ 61167 (Nov. 17, 2005). FERC has urged the States to finish their review. FERC 2009, FERC 2011. In 2012, the Hoopa Valley Tribe asked FERC to call a halt to the States’ and PacifiCorp’s letter writing and to issue a license that incorporates the established fish passage and operational conditions promptly. Such a license will force PacifiCorp to remove the dams. Members and the public should call on FERC to enforce its licensing obligations without further delay.
John DeVoe
John DeVoe Subscriber
Jul 15, 2014 01:29 PM
Interesting that the article includes a photograph of what appears to be well watered national wildlife refuge wetland from the Klamath Basin. This photograph is not representative of current conditions on many wetlands on the national wildlife refuges within the Klamath Basin.

Unfortunately, the signatories to the Klamath agreements all agreed to support 50 more years of continued commercial lease land farming on 22,000 acres of Lower Klamath and Tule Lake National Wildlife Refuges. The unfortunate reality is that these two refuges were created to preserve some of the most important bird habitat in the United States, but they are being sacrificed to serve a handful of local agribusiness interests.

The Klamath Basin wetlands once encompassed more than 350,000 acres and what was believed to be the largest concentration of waterfowl in the world, with up to 10 million birds occupying basin wetlands at one time. Today, these internationally significant wetlands have been reduced to 80,000 acres to make way for commercial agriculture. This greatly increases the importance of the remaining wetlands, some of the most critical of which lie within Lower Klamath and Tule Lake refuges. In this situation, displacing essential wildlife habitat by leasing more than 22,000 refuge acres for commercial agriculture makes no sense.

The refuges’ anachronistic leaseland program displaces refuge habitat and consumes the most senior water right on each refuge. In drought years such as 2013 and 2014, this means commercial potato and alfalfa crops on refuge lands receive full water deliveries, while refuge wetlands remain parched, even during the critical spring and fall migratory periods. These conditions helped spark massive waterfowl die-offs from avian cholera in 2012 and botulism in 2013.

Unfortunately, the Klamath agreements - and the accompanying legislation - prevent the refuges from improving their water situation.

However, options for improving the water situation on the refuges exist independent of the Klamath agreements or the flawed legislation referenced in the article. Progress in Oregonʼs adjudication of Klamath Basin water rights has created new opportunities to improve refuge water supply by clarifying rights to water, allowing for enforcement, and eventually allowing for water right transfers. Most importantly, it is clear that the adjudication provides both these refuges with significant senior water rights that could be used now to support wetlands, even during drought. Once a decree is issued in the adjudication, or state legislation is passed allowing temporary transfers prior to the decree, water right transfers could also be allowed to achieve additional improvements for wetland water supply on both refuges. These newly available options should be implemented to prevent future bird die-offs and restore essential wildlife habitat.

Specifically, there are three options that should be seriously considered right now, independent of the Klamath agreements and the legislation to enhance refuge water supply:

1. Use the refugesʼ 1905 irrigation rights for wetland purposes within the existing places of use of those rights, instead of for irrigation of refuge leaseland commercial agricultural operations as
currently practiced. This option can lawfully be implemented today.

2. Transfer USFWS-owned senior water rights to refuge habitat areas with less senior water rights. The transfer process will become available once a decree is issued, or state legislation is passed
allowing temporary transfers prior to a final decree.

3. Purchase or lease senior water rights for transfer to the refuges to enhance wildlife habitat through the Federal Water Rights Acquisition Program, or other programs or funds.

A recent report - Opportunities for Improving Water Supply Reliability for Wildlife Habitat on the Tule Lake and Lower Klamath National Wildlife Refuges - documents these opportunities and is available on WaterWatch of Oregon's website.

http://waterwatch.org/[…]/klamath-program