The Klamath River
The purpose of this article is to raise public awareness about the tragic decline of the Klamath River and its fisheries, and about ongoing efforts toward restoration. To read the entire article from the beginning, start at the top and scroll down the page using a mouse or the down arrow key. To read a particular section click on the link for that section or scroll down the page until you find it.
Decline of the Klamath
The Klamath Basin was once the third most productive river system for salmon on the west coast. It supported combined run sizes estimated between 660,000 to 1.1 million adult fish per year. These included spring-run chinook, fall-run chinook, coho, pink, and chum salmon, and winter and summer steelhead. Only the Columbia and the California Central Valley river systems produced more salmon.
Changes to Klamath River flows and habitat loss due to human development in the last 150 years have driven steep declines in the once mighty Klamath runs. Pink and Chum salmon are now extinct in the Klamath. Coho salmon, spring-run Chinook salmon, and summer steelhead populations have declined to tiny fractions of historic numbers and are headed for likely extinction. Spring-run Chinook were once probably the most abundant salmonids in the Klamath and Trinity Rivers. Now, the total number in both rivers rarely exceeds 1000 fish and drops below 300 fish in many years. Summer steelhead and Coho salmon populations are similarly depleted. None are likely to survive if the current status quo continues.
Fall-run Chinook historic run sizes are estimated at 300,000 to 400,000 fish per year. After decades of declines, a rebuilding goal of 68,000 spawners was set. This goal was later abandoned as “unachievable”. A minimum of 35,000 natural spawners per year are needed for long term survival of wild populations. In recent years, numbers have often dropped below this minimum. This indicates a 90% decline from historic numbers. These declines will likely get worse without major changes in watershed management. Without such changes, winter steelhead are also likely to continue on a downward trend.
The great historic Klamath salmon runs were dependent on the quantity and quality of water in the Upper Klamath River and its tributaries. Much of the upper basin is arid and receives little rain in the summer but often experiences abundant winter snows that feed a vast and complex area of wetlands, volcanic aquifers, and lakes during spring runoff. The upper basin once contained some 350,000 acres of shallow lakes, wetlands, freshwater marshes, and seasonal floodplains. This area naturally stored large amounts of water and gradually released it downriver during the driest parts of the year. They provided the main source of flow for the lower basin in late summer and fall, and were an especially critical source of water during drought years. The vast wetland areas also helped filter pollutants, including naturally occurring nitrates and phosphates, out of the river. These lakes and wetlands provided abundant flows of cool, clean water which created ideal conditions for the Klamath’s salmon and steelhead populations.
Historic conditions began to change around 1900. Settlers moved into the area and began draining wetlands and lakes for farming and ranching. In 1907, this process was accelerated when the U.S. Bureau of Reclamation (USBR) began to develop what would become the Klamath Irrigation Project. The project is located in the heart of the upper basin and includes a series of dams and diversion structures which store water for agricultural water users. The Bureau eventually drained vast areas of lakes and wetlands for conversion into farmland. Over time, about 75% of the upper basin’s wetlands were drained. This greatly reduced the basin’s natural water storage capacity, and at the same time, greatly increased agricultural water demand. State and federal managers over-allocated the limited water supply by promising more water for agriculture than they can deliver without causing severe damage to fish and wildlife. Water demand in much of the basin now far exceeds supply in all but the wettest of years, with fish and wildlife needs generally given lowest priority. Making matters worse; low flows have concentrated pollutants including pesticides, herbicides, chemical fertilizers, and animal wastes carried into the river by agricultural runoff. Without enough wetlands to provide natural filtering to break down these pollutants, pollution increased drastically and water quality became seriously degraded.
The Klamath Hydroelectric Project has compounded the problems described above, and has caused enormous damage to the Klamath’s fisheries. Separate and distinct from the Klamath Irrigation Project, this privately developed hydro project includes a series of dams built for power generation. The first dam to be built was Copco 1 Dam in 1917. This was followed by Copco 2 Dam built in 1925, Keno Dam built in 1931, and J.C. Boyle Dam built in 1958. The last and southernmost dam, Iron Gate Dam, was built in 1962. All were built without fish passage. The dams block over 350 miles of spawning and rearing habitat for salmon, steelhead, and other migratory fish. All anadromous runs of salmon and steelhead, once abundant in the upper basin, are now extinct above Iron Gate Dam. These fish have quite literally been dammed to extinction. The river’s spring Chinook runs declined enormously after the dams, as much of their prime habitat lies above the current hydro project.
The reservoirs created by these dams heat the water to lethal temperatures during the hottest parts of the year, and deplete dissolved oxygen which fish need to survive. Warm water releases from Iron Gate Dam into the river have further devastated the fish runs. The waters in these reservoirs are warm, stagnant, and laden with nutrients carried into the river by agricultural runoff. These conditions create ideal breeding grounds for the toxic algae Microcystis Aeruginosa. It can cause severe liver damage and other serious health problems in humans and in fish. In recent years, algae releases from the reservoirs have caused over one hundred miles of the river to be posted by state agencies warning the public to avoid contact with the water. In 2006, some water samples contained the highest concentrations ever recorded in the U.S: 4,000 times higher than the maximum safe limit set by the World Health Organization.
The conditions described above are what we have forced the Klamath’s salmon and steelhead to try to survive in. These fish need adequate flows of cold, clean, well-oxygenated, water to survive. Instead, we have given them warm, toxic, oxygen-depleted, agricultural wastewater. These conditions have devastated and continue to devastate the Klamath’s once great salmon runs. In many years, water quality and flows from the Upper Klamath has been so bad that salmon runs far downstream have been destroyed. There have been too many fish kills in the Klamath to describe them all in this article. We will describe just one: the tragic fish kill of 2002. It’s a story about blatant disregard for science and for the law. It’s a story about abuse of authority for political gain, with the Klamath’s salmon and those who depend on them being the big losers. It’s a story whose lessons very much apply today as we witness the destruction of salmon runs in the California Central Valley and elsewhere.
By 1988, populations of shortnose and lost river suckers in Upper Klamath Lake had declined so severely that they were listed as endangered under the federal Endangered Species Act (ESA). In 1997, the Klamath River’s coho salmon had declined so severely that they were listed as threatened under the ESA. After these listings, ESA consultations were required to assess USBR’s operations for potential damage to these fish. In April 2001, the U.S. Fish and Wildlife Service (USFWS) issued a biological opinion stating that USBR’s proposed operations would jeopardize the endangered suckers by leaving inadequate water in the lakes. Also in April 2001, the National Marine Fisheries Service (NMFS) issued a biological opinion stating that the operations would jeopardize threatened coho salmon by leaving inadequate flows in the river. The opinions stated that lake levels and river flows proposed by USBR were too low to protect the listed species. These opinions were legally binding under the ESA. USBR was forced to comply. This meant that less water would be available for agricultural irrigation in dry years.
In 2001, a severe drought occurred in the Klamath Basin. There was not enough water to meet the combined demands of agricultural irrigation and fish protections required by the ESA. Agricultural diversions were greatly reduced. Farmers couldn’t irrigate their crops and suffered economic losses. Angry farmers protested the cutbacks. They made national headlines as they formed “bucket brigades”, demanded resumption of irrigation deliveries, and chanted, “Let the water flow! Let the Water Flow!” Some farmers and farm supporters defined the conflict in terms of “fish versus people”. They argued that radical environmentalists and the federal government had chosen to save the lives of fish by destroying the lives of people. It was stated that, “the most threatened species in the Klamath Basin is man himself.” We will have more to say about this “fish versus people” argument later.
The irrigation cutbacks outraged Oregon’s Republican political base. The Bush Administration came to see the Klamath water problem as a political problem which must be solved. Republican Senator Gordon Smith of Oregon faced a tough re-election. On January 5, 2002, President Bush and Republican political advisor Karl Rove went to Oregon to visit Senator Smith. Republican leaders there wanted to support their agricultural base by diverting more water from the river to the farms. The administration agreed. Bush had lost Oregon in the 2000 presidential election by less than 1%. He did not want Smith’s Senate seat to be lost to the Democrats in the next election.
According to a report published in the Wall Street Journal, Karl Rove made a presentation to 50 top managers at the U.S. Department of Interior. He spoke of constituencies, poll results, and water levels in the Klamath. He stated the connection between Oregon’s Klamath issue and Republican prospects in the coming election. He said, “Control of Congress will turn on a handful of races decided by local issues, candidate quality, money raised, campaign performance, etc.” He made it clear that the administration would side with Klamath farmers. Those attending the meeting understood that they would be expected to support the administration’s position.
Politics trump science
The administration formed a cabinet-level task force on Klamath issues. Soon after, federal agencies completed a new 10-year Klamath water management plan to begin in 2002. It allowed much larger water diversions than did the 2001 plan, leaving drastically reduced flows in the river. The plan appeared to have been designed to support the administration’s political goals. They knew that USFWS and NMFS must submit biological opinions on whether the proposed plan would jeopardize the endangered fish. They knew that the agencies would likely make jeopardy findings, as they had in 2001. They knew that jeopardy findings would make the agencies legally bound to change the plan in order to protect endangered fish, and that this would leave less water for agriculture. Although this would have been the correct and lawful course for the agencies to follow, it would not have been consistent with the administration’s political goals. The administration was determined to find a way around this problem.
They asked the National Research Council (NRC) to review the 2001 biological opinions which had so angered their political base in Oregon. The NRC preliminary report stated that there was no scientific justification for changing project operations to leave more water in the river to protect endangered fish. The report’s conclusions differed from those of the biological opinions because the NRC applied a less rigorous burden of proof than legally required by the ESA. The NRC fully acknowledged that the standards they applied did not meet those required by the ESA. The report therefore was neither scientifically nor legally sufficient to overturn the biological opinions. The report also concluded that USBR’s operations plan was unjustified because it could leave the Klamath’s flows too low. The administration conveniently ignored that conclusion. They chose just those parts of the report which they could use to justify overruling the biological opinions in favor of USBR’s plan. This was in spite of the fact that the report stated that USBR’s plan was not justified. One NMFS biologist close to the situation said, “I am convinced that the interim NRC report was engineered to give the Bush administration its desired answer.” Another said, “The Bush Administration played the NRC like a fiddle.”
On April 1, 2002, NMFS submitted a draft biological opinion which, as expected, determined that USBR’s proposed plan would likely jeopardize endangered coho salmon. It included a “reasonable and prudent alternative” (RPA) which NMFS determined would avoid jeopardy. The Justice Department reviewed the BiOp and called it “indefensible”. The lead biologist who had worked on the BiOp, Michael Kelly, was never told why it was indefensible. He later wrote, “I suspect it was called indefensible because it was not perceived as being consistent with the interim National Research Council (NRC) report.” We share Mr. Kelly’s suspicion. The Justice Department falls under the executive branch and reports to the President. It only makes sense that they would have been expected to support the administrations’ position on the Klamath issue. USBR rejected the NMFS RPA and developed their own.
At an April 29 meeting, USBR presented their RPA and asked NMFS to accept it. It proposed that only 57% or less of the instream flows necessary to avoid jeopardy would be provided during the first 8 years of the 10-year plan. It offered no analysis to show how 57% or less of necessary flows for 8 years avoided jeopardy for coho salmon, a species with a 3 year life cycle. 5 full generations would complete their life cycles during these 8 years. The NMFS team knew that the proposed plan created risks to the endangered coho salmon, and that the risks must be carefully analyzed. They were never permitted to do the analysis. The two teams spent the first day discussing the proposal. NMFS was not able to accept it by the end of the day. By the morning of the second day, the ranking NMFS official, James Lecky, had received a phone call. It was from a high ranking administration official who told him that he and his scientists needed to stop “stonewalling” USBR’s proposal. Soon after, Mr. Lecky directed his team to accept USBR’s RPA with no further analysis. He directed Mr. Kelly to conclude, contrary to the evidence, that drastically reduced flows would not jeopardize the endangered salmon. Under Mr. Lecky’s direction, NMFS accepted the USBR plan and incorporated it into their 2002 BiOp.
Mr. Lecky would not say who he had spoken to or where the order to stop stonewalling had originated. Michael Kelly had been told by his supervisor that Vice President Cheney and had been briefed on their consultations. We don’t know if the order came from Mr. Cheney, from someone on his staff, or from some other administration official. Whoever gave the order had covered his tracks. Michael Kelly later said, “It was obvious to me that someone up the chain of command was applying a tremendous amount of pressure on Mr. Lecky. There’s simply no other explanation for anyone in NMFS developing or accepting such a completely bogus and illegal BiOp.”
The 2002 fish kill
As the drought continued, huge volumes of irrigation water were diverted out of the river. By late summer, river flows had dropped to record low levels. The stage was set for disaster. In September, 2002, it happened. A large run of fall Chinook salmon had returned to the river. They crowded into the warm, dewatered lower river but could not survive the lethal conditions there. 64,000 adult salmon died in the Lower Klamath River before they were able to reach their spawning grounds. The carnage made national headlines. Photographs and film footage showed images of thousands of dead salmon floating in the river and rotting on the banks. These were shown in newspapers, TV, on the internet, and infuriated people across the nation. It should also be noted that 200,000 juvenile salmon died in the river from low water conditions months earlier, during the spring of 2002. This “other” 2002 Klamath fish kill didn’t make headlines. Few people ever learned that it happened.
The Bush administration tried to dodge the blame by claiming that the fish kill was a “mystery.” The California Department of Fish and Game (DGF) analyzed the causes for the kill and found no mystery. They found that low flows and flow related factors, including poor fish passage, high water temperatures, high fish density, and gill disease brought on by high temperatures and crowding, had caused the massive fish kill. They wrote, “Flow management under the 2002 Biological Opinion (BO) compared to the 2001 BO is the only major factor DFG can identify over the past two years that differs substantially enough to have caused the 2002 fish kill.”
Congressman Mike Thompson, who represented the district, had this to say, “These dead fish represent thousands of jobs, millions of dollars, and priceless resources that are being destroyed due to the Bush administration’s failures in the Klamath Basin.” He dumped 500 pounds of dead salmon in front of the Interior Department office, accusing the agency of gross mismanagement in the disaster.
The 2002 Klamath water plan continued destroying salmon in the years following the kill. In 2004, only 24,000 fall-run Chinook spawned naturally in the Klamath. The 2005 number was 27,000. These numbers were well below the minimum conservation floor of 35,000. In 2006, 29,000 natural spawners were predicted. Three consecutive years of falling below the management threshold triggered conservation action to protect the weak Klamath stocks. The Pacific Fisheries Management Council (PFMC) voted to shut down the 2006 commercial salmon season along 700 of miles of the west coast. This closure was partly driven by the loss of so many spawners in 2002. The federal government declared a fishery disaster. They released $60.4 million in disaster relief funds to help compensate the losses to struggling commercial fishermen and fishing related businesses in Oregon and California.
Victory in court
The 2002 Klamath water plan was soundly rejected in federal court. A coalition of fishing groups, environmental organizations, and native tribes sued USBR and NMFS for their roles in the disaster. On July 15, 2003, the U.S. District Court for the Northern District of California ruled that the 2002 Klamath BiOp was illegal on three separate points. However, it was only a partial victory. The court let stand the short term measures which provided inadequate survival flows to protect endangered salmon.
The plaintiffs appealed. On October 18, 2005, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the plaintiffs. The court ruled that the BiOp was arbitrary and capricious because it failed to analyze the effects of the first 8 years of the 10-year plan, and that the short term measures failed to protect endangered salmon as required by the ESA. The ruling stated, “The BiOp contains no analysis of the effect on the SONCC coho of the first eight years of implementation of the RPA, and thus we cannot sustain the agency’s decision.” The court went on to say, “Five full generations of coho will complete their three-year life cycles -- hatch, rear, and spawn -- during those eight years. Or, if there is insufficient water to sustain the coho during this period, they will not complete their life cycle, with the consequence that there will be no coho at the end of the eight years. If that happens, all the water in the world in 2010 and 2011 will not protect the coho, for there will be none to protect."
The appeals court remanded the case back to the district court and directed it to issue injunctive relief to prevent harm to endangered salmon in the Klamath River. On March 27, 2006, the district court ordered NMFS to issue a new BiOp. And, it ordered USBR to limit Klamath Project irrigation deliveries if they would cause water flows in the Klamath River below Iron Gate Dam to fall below the minimum survival flows necessary to protect endangered salmon. The federal flow plan which had been killing salmon in the Klamath River every year since its beginning in 2002 had finally been overturned.
Fishermen, wildlife supporters, and tribal members applauded these decisions. Mike Thompson, also a plaintiff in the case, said, “The unanimous decision by the court confirmed what we have been saying for years, Klamath River salmon need sufficient flows of cool, clean water to survive.” While we also applaud the court’s decision, we must add it never should have been needed. This legal victory came far too late to save the 68,000 salmon that died. Pro-fishery coalitions have achieved many legal victories in recent years. However, they are almost always achieved after the damage has been done. While we continue to win in court, our salmon populations continue to be destroyed.
Contrary to the evidence and court rulings, the Klamath Water Users Association (KWUA) never admitted that the 2002 flow plan was a causative factor in the kill. In the midst of the 2006 salmon closure, they appealed the district court’s ruling. Not even the Bush administration went that far: USBR and NMFS did not join the appeal. KWUA asked the appeals court to throw out the district court’s order directing USBR to start providing minimal survival flows for salmon. On March 26, 2007, the appeals court upheld the district court’s order and threw out KWUA’s appeal. The irrigators had continued to lose in court until they ran out of legal options. Consequently, these rulings marked a turning point in the battle to save the Klamath salmon.
A tale of two biologists
Michael Kelly filed for federal whistle blower protection and testified before Congress about the causes of the fish kill, and about the culture of political tampering and improper science within NMFS. He said that there was strong evidence that endangered salmon were killed due to a blatantly illegal decision and called for a criminal investigation into the actions which led to the fish kill. Unwilling to participate in fraudulent science, he asked to be assigned to a different project. On his next assignment he again saw science corrupted by politics. He produced a draft biological opinion concluding that a proposed action in the Eel River estuary would jeopardize California Coastal Chinook salmon. His conclusion was overturned. He had had enough and soon resigned from NMFS. In his resignation letter he wrote, “I speak for many of my fellow biologists who are embarrassed and disgusted by the agency's apparent misuse of science.
James Lecky, the NMFS official who directed Michael Kelly to approve the flawed and illegal Klamath plan, was never held accountable for his role in the disaster. Instead, he was promoted. In 2005, the Commerce Department Inspector General released an audit of the 2004 NMFS biological opinion on the effects of increased delta water pumping on ESA-listed salmon and steelhead. This was the BiOp that approved the massive increases in delta pumping which led to the collapse of California’s Central Valley salmon. An earlier draft of the BiOp had concluded that the proposed action would harm the listed salmonids. The audit found that an NMFS assistant regional administrator, James Lecky, had circumvented internal controls and violated internal rules after he “stepped in” and assumed control. Under hisdirection, the BiOp was revised to conclude that the action wouldnot harm the listed fish. The revised BiOp was never reviewed and cleared by the regional Endangered Species Act (ESA) coordinator or agency lawyers as should have been done. The ESA coordinator was quoted as saying that if she had seen the revised opinion, she would not have cleared it because she saw "a basic disconnect between the scientific analysis and the conclusion." Soon after, James Lecky was promoted to Director of Protected Resources, overseeing all biological opinions on threatened and endangered species.
On April 16, 2008, the U.S. District Court for the Eastern District of California ruled that the 2004 biological opinion altered under Mr. Lecky’s direction was severely flawed and illegal. The court found that the BiOp failed to protect endangered salmon and steelhead as required by law. The ruling stated that the “no jeopardy” conclusion was arbitrary, capricious, and “irreconcilably inconsistent” with the evidence presented in the report. This ruling confirms the “basic disconnect” between analysis and conclusion which the ESA coordinator had reported. The illegal 2004 BiOp was a major contributor to the recent collapse of California’s Central Valley salmon, the 2008 and 2009 salmon closures, and a federal fishery disaster declaration which in 2010 was extended for the third consecutive year.
Why would NOAA Fisheries promote an official who helped engineer two of the worst fishery disasters in U.S. history? Was the promotion due to the good job he did protecting endangered fish? We don’t think so. Judging by that metric, he should have been fired. We feel forced to conclude that he was promoted for his obedience to the Bush Administration and for his willingness to do their bidding in blatant violation of sound science and of the law. We believe he was pressured to do what he did but that doesn’t make it right. Our primary purpose here is not to launch a personal attack against James Lecky. His actions represent just one example of a much larger problem. Our purpose is to expose a culture of political tampering, suppression of science, and abdication of duty which prevailed at NMFS and other federal agencies during the Bush administration. This culture caused NMFS to become complicit in the destruction of the salmon stocks which they were legally and ethically bound to protect.
Fish versus people
As stated earlier, we have more to say about the “fish versus people” argument made by farmers and their supporters during the Klamath drought. It is true that farmers suffered economic losses due to irrigation cutbacks forced by the drought. This truth must not be discounted. It is also true that they received some $40 million in state and federal disaster aid in 2001. However, the “fish versus people” argument ignores another truth. The destruction of the Klamath’s fisheries has caused many other people to suffer devastating economic losses for decades. These include the Klamath, Karuk, Yurok, and Hoopa tribes, commercial fishermen, charter operators, sporting goods retailers, marine service and repair workers, restaurant and motel operators, and many others living and working in river and coastal communities. Are they not people too? Those who make the “fish versus people” argument conveniently ignore the fact that so many people have been hurt by the destruction of the Klamath’s fisheries.
The “fish versus people” argument has been discredited in the Klamath, thanks in large part to many dedicated activists there who stood up and said, “We are people too!” It’s unfortunate that such grass roots activism is not as robust elsewhere in California. Excessive Sacramento-San Joaquin Delta water exports have led to the collapse of California’s Central Valley salmon runs. Corporate agriculture in the western San Joaquin Valley, and their political allies, still use “fish versus people” and “fish versus farms” arguments to justify the excessive water withdraws which have destroyed the salmon. They conveniently ignore the many people who have been hurt and who have suffered financially from the collapse of the Central Valley salmon, the salmon fishing closures of 2008-2009, and by the collapse of the delta ecosystem.
The winds of change
Competition for water has pitted the Klamath’s farmers and farming communities against fishermen, coastal communities, and native tribes for decades. We place much of the blame on state and federal governments for promising more water to more people than was actually there to give. Farmers, tribes, and fishermen alike became victims federal water promises that could not be kept. Over allocation of water made conflict inevitable. People on each side have felt that their way of life was threatened with destruction from demands made by the other. The situation offered little hope that they could work together and develop solutions for their mutual benefit. In the short term, the 2002 fish kill seemed to polarize Klamath-dependent communities even further. In years following, however, conditions changed.
Those on the fishery side who had fought against the drastic flow reductions felt that their positions had been vindicated after the kill, and again after the 2002 BiOp was ruled illegal. Although they were determined to secure higher river flows, they knew that this must be achieved by negotiation and not by fighting. They knew that compromise on all sides would be needed. Their position was not that farmers were the bad guys or that they were to blame for the Klamath’s water problems. They understood that farmers had a right to make a living. Their position was that bad government policy had caused over-allocation of water, causing too many interests to chase too little water. Their message was that farmers, fishermen, and native tribes had all become innocent victims of bad government policy and federal water promises that could not be kept.
When the Republicans lost control of Congress in November, 2006, the irrigators’ lost some of their political advantage. The “fish versus people” argument became less likely to turn public opinion in their favor after the kill, and even less so after the 2006 salmon closure. Economic losses suffered by fishermen and coastal communities got increased media coverage, as did the economic and spiritual losses suffered by native tribes. These events weakened the irrigators’ arguments. Although KWUA never admitted that low flows had caused the fish kill, the salmon declines, or the 2006 Klamath fishery disaster, some farmers must have known that these events had been a public relations disaster.
After the 2002 Klamath water plan was ruled illegal and KWUA lost their appeal in 2007, the irrigators ran out of legal options for maintaining the status quo. They came to realize that they wouldn’t likely be permitted to reduce river flows to 2002 levels and risk another massive fish kill. Having exhausted their options to prevent change, they came to accept that change was inevitable. They came to realize that it was in their interest to work with other Klamath-dependent stakeholders to develop solutions to balance water use among different parties. This situation helped set the stage for negotiations which led to the Klamath Basin Restoration Agreement.
On a parallel track, developments related to the re-licensing of the Klamath dams set the stage for dam removal negotiations. PacifiCorp owns the dams and operates them for hydroelectric power generation under licensing authority of the Federal Energy Regulatory Commission (FERC). All four dams generate about 82 Megawatts which is very little by today’s standards. The 50-year operating license was set to expire in 2006. PacifiCorp began the relicensing process in 2001. Requirements for fish passage and water quality certification put pressure on PacifiCorp to give up on relicensing negotiate a deal.
The Federal Power Act requires that FERC consult with federal fisheries agencies during the re-licensing process in order to ensure adequate protections for fish and wildlife. In June, 2005, PacifiCorp submitted a license application that proposed no fish passage. In March, 2006, NMFS and USFWS issued a prescription which requires that PacifiCorp install fish ladders and screens to keep fish from being sucked into the turbines on all of its dams. Fish passage compliance would also require that less of the river’s flows be used for power production, reducing production by about 27%. PacifiCorp didn’t like this answer. Contrary to the evidence, they disputed the agencies findings that these improvements would benefit the salmon. They requested a hearing during which they fought desperately to maintain the status quo. They failed. In September 2006, a federal judge found that the fish passage requirements sought by the agencies were legally sound and based on solid facts. He ruled in favor of the agencies. FERC issued a draft Environmental Impact Statement (EIS) which showed that it would be far cheaper for PacifiCorp ratepayers to remove the dams and replace the power than to bring them into compliance. They estimated that the required retrofitting would be so expensive that the dams would operate at a net loss of about $20 million per year. PacifiCorp estimated that it could cost $250 million to install the fish passage facilities and that the reduction in power generation would cut income significantly. These developments made relicensing and continued operation of the project appear much less economically viable.
For re-licensing, section 401 of the Federal Clean Water Actrequires that PacifiCorp must obtain a Water Quality Certification from the State Water Board (SWB). PacifiCorp first submitted their 401 permit application in 2006. Due to toxic algae problems and other complications, they withdrew and resubmitted their permit application multiple times. Water quality problems made it unlikely that they would be issued a certification. The mounting pressures of fish passage and water quality certification motivated PacifiCorp to seek a settlement rather than continue their efforts to relicense their outdated dams. This set the stage for negotiations which led to the Klamath Hydroelectric Settlement Agreement.
It should also be noted that many tribal activists and others from the Klamath region waged a spirited campaign for dam removal. They traveled to Omaha Nebraska and elsewhere to protest at shareholder meetings of Warren Buffet’s PacifiCorp Company. They raised awareness that while Mr. Buffet the philanthropist made charitable contributions to relieve hunger and poverty in developing countries, his dams contributed to the hunger and poverty of people living in the Klamath region.
The Klamath Restoration Agreements
The Klamath Settlement Group formed in 2004 after PacifiCorp applied to FERC for relicensing of the five dams it operates on the Klamath River. Under the relicensing process, parties can submit to FERC a preferred negotiated outcome. The preferred outcome for many was to decommission the project and remove the dams. Negotiations focused on relicensing at first but soon grew in scope to include basin-wide issues not normally included in FERC negotiations. The settlement group includes the Karuk, Klamath, and Yurok Tribes, Pacific Coast Federation of Fishermen’s Associations, American Rivers, Cal Trout, Trout Unlimited, Salmon Restoration Council, water districts, irrigators, local businesses, Del Norte, Humboldt, Klamath, and Siskiyou Counties, PacifiCorp, and several state and federal agencies. The settlement group worked on two agreements: the Klamath Basin Restoration Agreement (KBRA), and the Klamath Hydroelectric Settlement Agreement (KHSA). Both agreements were signed by the Secretary of the Interior, the governors of California and Oregon, and by other member organizations on February 18, 2010.
The Klamath Hydroelectric Settlement Agreement (KHSA) establishes a process for the U.S. Department of the Interior (DOI) to study the issues and make a decision, called a secretarial determination, as to whether Iron Gate, J.C. Boyle, Copco 1 and Copco 2 dams should be removed. The U.S. Secretary of the Interior must decide by 2012 whether the massive effort is in the public's interest. Many factors must be considered. These include costs and funding, environmental impacts and compliance with applicable laws, affects on local communities and tribes, timing of removal, methods for removal, whether dam removal is in the public interest, and whether it will advance restoration of the Klamath’s fisheries. If DOI makes an affirmative determination then California and Oregon will notify DOI and the other group members whether or not they concur. The governors of both states must agree to dam removal before the project can move forward. If they agree then the Secretary of the Interior will decide whether DOI will serve as the dam removal entity. If the KHSA gets passed into law then dam removal is slated to begin in 2020.
The draft KHSA is available at the following link. http://www.doi.gov/documents/DraftKlamathHydroelectricSettlementAgreement.pdf
The Klamath Basin Restoration Agreement (KBRA) contains a series of programs which are intended to restore and sustain natural fish production, to establish reliable water and power supplies for agriculture and communities, and to contribute to the welfare of all Klamath Basin communities.
The Fisheries Program provides for fishery restoration, reintroduction, and monitoring. Its goals are to reconnect, restore and maintain historic fish habitat, and to re-establish naturally sustainable fish populations to the full capacity of restored habitats. It includes plans to reintroduce anadromous fish above the current site of Iron Gate Dam.
The Water Resources Program includes plans to improve the management of water supply deliveries for irrigation and related uses.
The Power for Water program includes plans to provide power cost security for irrigators and others through the use of conservation and efficiency improvements and renewable power generation.
The Tribal Program includes plans to assure that implementation of the Restoration Agreement will occur in a manner that benefits the native tribes in the Klamath region.
The Counties Program includes plans to assure that the agreement is implemented in a manner that reflects the interests of Klamath County in Oregon, and Del Norte, Humboldt and Siskiyou counties in California, and their residents
The KBRA is available at the following link. http://www.doi.gov/news/pressreleases/upload/Klamath-Basin-Restoration-Agreement-2-18-10.pdf
Supporters were optimistic as the agreements were finalized. Steve Rothert of American Rivers had this to say, “By releasing the proposed Basin Restoration Agreement today, we’re saying that there is a better way, and that ongoing environmental degradation is no longer an option. It’s time to bring disparate groups together and work out realistic solutions that will pave the way for a better, more responsible future.”
The agreements are controversial within the environmental community. Supporters believe that, while not perfect, they offer the best chance for dam removal and restoration, and that these achievements are worth the compromises. They believe the agreements represent an opportunity which must not be missed. Others don’t agree. Friends of the River and the Hoopa Tribe participated in the negotiations and have long supported the goals of dam removal and restoration but have declined to support the agreements. Northcoast Environmental Center, Oregon Wild and Waterwatch also support these goals but were excluded from the negotiations after they requested science based fish flows which were opposed by the irrigators.
Here are some objections which opponents have stated regarding the KHSA:
— Funding for dam removal is provided by the $11.1billion California water bond opposed by California fishermen and which voters are unlikely to approve.
— It lacks enforcement mechanisms to ensure that signatory groups must meet their obligations.
— It depends on a new and untested regulatory process which puts it on shaky legal ground and which is likely to result in lawsuits and delays far beyond 2020.
— It imposes so many prerequisites to dam removal, prerequisites uncertain to be met, that the dams may never come down.
— It allows PacifiCorp to sidestep the relicensing process. It gives them many more years to continue making money from their fish-killing dams without having to make any promises that dam removal will actually occur.
Here are some objections which opponents have stated regarding the KBRA:
— It guarantees water deliveries for agriculture while making no such guarantees for endangered fish and wildlife. The river and the fish get what is left over after irrigators take their deliveries.
— There has been no substantive scientific analysis to indicate how the flows proposed under the agreement would impact most fish species in the river, or whether they would actually restore salmonids above Iron Gate Dam.
— River flows for fish in some drought years could fall below minimum survival flows required by the current biological opinions. They could even fall to fish kill levels.
— Even these inadequate flows are not guaranteed to be available. They assume actions, such as water right buyouts and increased storage through restoration projects, which are not guaranteed to produce as much water as projected.
— It provides power subsidies for pumping water. This continues to provide economic incentives for inefficient water use in an overdrawn basin.
The above objections do not necessarily represent the views of Water4Fish. At this time, we are not prepared to take a position for or against the agreements. It would be beyond the scope of this article to provide a thorough analysis of the arguments for and against them. We encourage our readers to learn the issues and to make up their own minds. More information is available at the links below. There will be many challenges to resolve as the process moves forward. We do urgently hope the goals can be achieved either through these agreements or by other means.
For more information
(If any of the links below fail, go to the organization’s home page and search on “Klamath”)
American Rivers: http://www.americanrivers.org
California Trout: www.caltrout.org
Friends of the River: http://www.friendsoftheriver.org/site/PageServer?pagename=KlamathHome
Hoopa Tribe: http://www.hoopa-nsn.gov/news/klamathwater.htm
Karuk Tribe: http://www.karuk.us/karuk2/press/campaigns
Klamath Riverkeeper: http://www.klamathriver.org
Northcoast Environmental Center: http://yournec.org