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News
from the Front #91:
A
New Cloud Over the Klamath
Basin
by
James Buchal
January 17, 2008
This year marks the
twentieth anniversary of the listing of “endangered” suckerfish,
beginning the invasion of the Klamath Basin by “swarms of officers”
“sent hither”, in the words of the Founders, “to harass our people
and eat out their substance”. On
Dam Removal and Other Economic Losses
One overarching purpose is the destruction of productive capital
in the form of dam removal, though PacifiCorp is not yet on board.
Presumably one reason the draft Agreement was released, rather
than being consummated in secret like so many other vital natural
resource decisions, was the need to pressure PacifiCorp.
Destroying clean, renewable hydropower in favor of forcing
citizens to fund their foreign enemies with energy payments will someday
be regarded as a great crime. For
now, the answer is always the same:
Uncle Sam will print up more dollars to paper over the problem,
but those days will soon come to an end.
Specifically, there is to be a $41.7 million (143) program “to
provide power costs security” at a level of three cents (2007) per
kilowatt-hour (141). But
“actual realization of the specific power cost target depends on
several factors and variables and is not guaranteed by the Agreement”
(141). To get the
benefits, if any, participants must “enroll to support this Agreement
and the Hydropower Agreement” (142), adopting the time-honored tactic
of using borrowed fiat dollars to buy off political opponents of the
Agreement.
Counties losing tax revenue from dam removal or suffering other
adverse impacts (147) will be bought off by the “Counties Program”
for economic development, though no level of funding is specified yet
(148). Local losses may be
even worse as more land is converted into into
Tribal trust property; a “Mazama Forest
Project” (138), rumored to involve converting 80-90,000 acres, appears
to show a proposed funding level of $21 million (175).
A related
Klamath Tribe document
even suggests that the Tribe expects to “[s]ecure
assurances that the Tribes and Tribal members will be given preference
on contracting, employment and business opportunities generated on the
Tribes’ ancestral homelands by the Settlement Agreement”.
Immediate and Long Term Restrictions on Irrigators
The most immediate effect of the Agreement is to “provide
limitations on diversions from the Klamath River and Upper Klamath Lake
associated with the Klamath Reclamation Project” (114).
The precise amount of such “limitations” is not specified,
though the total suggested diversions, to be made effective by
stipulation in the
It is true that in exchange for dam removal (or if more storage
is built), the irrigation season may be increased by 10,000 acre feet
(less than 3%) in the Klamath Reclamation Project “in some years”
(58), assuming that increases are not enjoined by disgruntled parties
for reasons set forth below.
In the Upper Basin, one can expect “voluntary retirement of
water rights or water uses” (98), and new restrictions on groundwater
use (100), with the ultimate goal of increasing inflow to Upper Klamath
Lake by 30,000 acre-feet a year—unless there is “still a need for
additional water for instream uses” (102).
Very roughly speaking, then, irrigation interests give up three
or more buckets of water for one bucket back.
Landmines such as the command to avoid “adverse impacts” on
the flow of numerous springs throughout the Basin will require a new
Klamath Water and Power Agency to “remedy the adverse impact” (77);
as a practical matter, war is declared on new wells (78-79).
One of the most important questions—what to do when water runs
short—is not really resolved. The
Klamath Basin Coordinating Council “shall identify a lead entity” to
develop a “Drought Plan”, taking care to ensure that “commercial
fishers”, among others, are involved in the development (107).
The Plan sets forth a list of drought response measures in
priority order, which rapidly evolve to the “exercise of water right
priorities” (109), and under Extreme
Drought conditions (e.g., 1992
and 1994), reductions to the otherwise-stipulated diversion rights for
the Project (109). And if
“climate change” makes things worse, the parties are bound to
“develop supplemental terms” including “adaptive management of
water resources” (113)—a code word for taking more water from the
irrigators.
Spreading Listed Species Problems Further Around the Basin
All of the parties commit themselves to the great lie that
reintroducing salmon and steelhead (and their parasites, lamprey)
“will result in significant net conservation benefits” (46).
The likely (albeit not certain) effect will be to commit the
Basin to sustaining fish where they will not thrive, requiring ever
larger public expenditures and ever greater human restrictions (called
“additional measures” (55)) to conduct the same failed experiment
with each passing year. Half
a billion dollars is to be
wagered on this experiment in the first ten years (47), and we can be
sure that the value of any fish that are produced will be orders of
magnitude below this figure.
The parties have sufficient wit to realize that introducing new
listed species above the dams threatens to create further regulatory
nightmares (121), and agree to “take every reasonable and
legally-permissible step to avoid or minimize any adverse impact”
(122). Those words are
empty, of course, since the law is going to require new steps to protect
new listed species, and the parties will merely “meet and confer” if
things go wrong (124). Californians,
however, have negotiated special, extra protection by specific
provisions to keep the new fish out of the Lost River system and the
Tule Lake Basin (46), continuing their successful campaign of evading
issues (e.g., Trinity
diversions) in the Klamath Basin.
More Administrative Overhead
Another overarching purpose of the Agreement is to establish
“Collaborative Management”. Instead
of reforming a broken system with countless agencies all claiming
jurisdiction over the same subject, we are to ratify the process and
require “mutual agreement” (21).
By this means, the swarms of officers can eat up ever-greater
amounts of our substance through endless internal meetings and
paperwork, as less and less is accomplished for the people.
The resulting “governance structure” alone will cost $3.3
million in the first ten years of the Agreement (35).
As authority is diffused amongst an alphabet soup of new,
parasitic agencies, the people will suffer even greater loss of their
ability to hold officials accountable for the inevitable problems.
Tribes
Get Everything, Give Up Nothing
The Agreement ratifies the legal fiction that the Tribes have
“water rights for fish to propagate and produce sufficient numbers for
harvest” (18), as if one could manufacture fish at will with instream
flows. The irrigation
interests bind themselves to “not protest, contest, object or block
any assertion of water rights by the Klamath Tribes” consistent with
the Agreement (82), which water rights are to be “recognized . . . at
the claimed amounts and with the priority date of time immemorial”
(83). Last time I looked,
the claimed amounts exceeded natural streamflows,
meaning that enforcement of such rights would terminate all junior
rights—and such enforcement would naturally arise in the absence of
“sufficient” salmon for harvest.
A related Klamath Tribe document entitled “Klamath Tribe
Economic Revitalization” confirms the Tribe’s intention to “[a]ssert
tribes’ senior water rights”. To
make matters worse, the parties cannot contest any instream
flow applications filed by
The Tribes will provide a “written assurance” (83) not to
enforce water rights in a fashion that interferes with Project
operations, except that the assurance is carefully crafted to be
meaningless, because, among other things it “shall not include, or be
construed to extend to, rights under statutes of general applicability,
including the Endangered Species Act”. Indeed, the Tribes even
specifically reserve the right to enforce future ESA biological opinions
(130).
And notwithstanding the yet-to-be developed “written
assurance”, the Tribes have made it clear that “nothing in this
Agreement is intended to diminish the rights of those Parties which are
sovereign Indian Tribes” (28). Appendices
E-6 and E-7, which document potential future limitations on the Tribes,
conditioned on federal legislation (85), and “substantial funding”
(89), are left blank (254-55). Nowhere
is there even a clear waiver of sovereign immunity by the Tribes that
would permit parties to take them to court to enforce the Agreement.
So far, the non-tribal interests have really gotten nothing out
of the Tribes, but what can one expect from local leaders who cower at
the prospect of enforcing even the local building codes against tribal
leaders?
The
Agreement Ultimately Promises Nothing for the Irrigators
One could hardly put a larger red flag on the field than carveouts
to allow continued attacks under the Endangered Species Act.
(See also 107.) Nor
does the Agreement provide any “waiver of federal Clean Water Act
requirements or of comparable state water quality standards”.
(121; see also 130 (Tribes reserve right to seek Clean Water Act
regulatory authority)). Clean
water statutes and rules are rapidly metastasizing into a form as
virulent as the Endangered Species Act.
More general provisions confirm that the Agreement will not be
the last word in “eating out the substance” of Basin residents, for
all parties remain bound to comply with existing law (27).
That law in turn changes upon the whim of the
It is true that parties to the Agreement are to support
“existing management of water levels” behind Keno Dam (43) and
operation of Link River Dam “in a manner that ensures the availability
of water for diversion” (44), but the Agreement specifies how further
“diversion limitations” will be accomplished for “changed
circumstances” (127). And
of course nothing prevents nonparties
from making attacks. This
leaves open the door for a time-honored tactic of the environmental
movement, which can always field a new set of objections and objectors
to anything previously negotiated away.
If the Basin’s leaders were actually interested in striking a
deal that would defend the interests of their constituents, all
concessions in the Agreement would be predicated on the adoption of an
Act of Congress that exempted
the participants from environmental statutes of general applicability in
exchange for suffering administration under the Agreement.
That way, it would require a further Act of Congress to destroy
the benefits of the Agreement (if any), rather than a single disgruntled
environmentalist.
Conclusion
It is remarkable to see a community give up so much, and provide
such massive funding for its enemies, in exchange for comparatively tiny
programs to benefit their actual constituents.
The new Lords of the Basin will bask in nearly a billion dollars
of funding, while mitigation to local power customers, water users and
local governments will be funded at perhaps a tenth of that level.
Three buckets of water, and associated crop income, are to be
given up now, in exchange for immediate restrictions and the possibility
of one more bucket later. This
is not a recipe for sustainability, but for the continued rise of the
parasitic classes at the expense of the host.
As the
What is especially tragic is the lack of courage and leadership
in the Basin, which has rejected available alternatives.
Real leadership could have organized a new public utility
district that condemned and took over the dams, and operated them for
the benefit of the local communities—avoiding massive rate increases
that threaten economic sustainability.
Real leadership could have stuck to the original design of
Reclamation legislation, and taken ownership of the Klamath Basin
Project, pruning away great swarms of officials in the process.
And real leadership would have continued to fight against bogus
ESA listings that were generated to fund the parasitic classes, and are
only maintained by their lies.
Note:
Numbers in parentheses refer to electronic page numbers of the
Adobe Acrobat file “Proposed
Klamath Basin Restoration Agreement January 15, 2008 (Draft 11).pdf”
©
James Buchal,
You have permission to
reprint this article, and are encouraged to do so. The sooner people
figure out what's going on, the quicker we'll have more fish in the
rivers.
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