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Deal or No Dam Deal
NEC says proposed Klamath Restoration settlement has no "guaranteed flow for fish"
By: Allie Hostler
September 24, 2008
Klamath River enthusiasts question the fate of one of the nation's largest salmon-producing rivers because of a new water deal for the river.The water deal resulted from four years of negotiation talks among 26 stakeholders, but it may not be a deal and it's not really about dams. Several stakeholders refuse to sign the document as it's written - the North Coast Environmental Center and the Hoopa Valley Tribe are two.
"There is no guaranteed flow for fish." said Greg King, director of the North Coast Environmental Center. The NEC has been at the forefront of Klamath River issues since it formed 37 years ago. He said the deal will also allow farming within the Upper Klamath Wildlife Refuge for the next 50 years.
Fish need water and they need healthy water to survive. The Pacific Coast salmon fishery is in a state of decline - some would argue a collapse. The entire 2008 Chinook Salmon commercial fishing season on the California and Oregon Coast was closed by the Pacific Fishery Management Council in April.
In 2002, the largest fish kill in U.S. history occurred on the Klamath. Over 68,000 adult Chinook, Coho and Steelhead corpses lined 36 miles of Klamath River banks from the Pacific Ocean to Weitchpec. Thousands died on their migration up the Trinity River, the Klamath River's main tributary.
The cause? Ich and Columnaris - pathogens that thrived during September 2002 because of low flows and warm water temperatures, according to the Department of Fish and Game's final analysis. Bad water conditions combined with an above average fall run of salmon created a recipe for disaster. Parts of the river were too shallow for some fish to pass, leaving thousands of adults trapped and unable to complete their migration to spawn.
"Flow is the only controllable factor and tool available in the Klamath Basin to manage the risks," the Department of Fish and Game analysis stated. The Klamath Settlement Agreement attempts to address flows, but does so without guarantees for fish and without PacifiCorp, the power company which owns the four lower dams on the Klamath River.
Irrigators in the upper Klamath Basin are guaranteed upwards of 330,000 acre-feet of water during dry years and 385,000 acre-feet in wet years. A guarantee, King says, that violates the Endangered Species Act.
This leaves the Hoopa Tribe begging the question - what happens if farmers get their water and the fish don't?
Robert Franklin, senior hydrologist at Hoopa Tribal Fisheries said the agreement, as written, has substantial scientific flaws and legal drawbacks.
"The agreement would require the Tribe to sign a waiver not to sue even if something devastating should happen to the fishery," he said. "The legally-binding waiver would be in effect for the life of the agreement - 60 years."
NEC has spent over $60,000 analyzing the scientific and legal facets of the 256-page agreement. Consultant Thomas Hardy reviewed the document and shares a similar opinion with the Hoopa Tribe - agriculture gets all the guarantees, and everything else related to fish and the environment is vague.
"This is nothing more than an old-west water deal for upper-basin irrigators," Hoopa Tribal Chairman Clifford Lyle Marshall said.
Hardy has since changed his position on the deal for various reasons, but the Hoopa Tribe has not. In fact, the Hoopa Tribe has been against the deal since negotiations began, claiming it's a sweetheart deal for upper-basin irrigators and compromises tribal senior water rights.
The agreement does state that tribes must agree to not assert their water rights under certain conditions. Some tribes are willing to sign on regardless.
The Yurok, Karuk and Klamath Tribes tout the deal as a critical step towards dam removal, have agreed to support it, and accept the legally-limiting waiver under specific conditions. Yurok Tribe Policy Analyst Troy Fletcher is focused on the preservation of the Yurok Tribe's most prioritized resource - fish. He says the Yurok Tribe's position is based on seeing action now, instead of through litigation that can take decades with an uncertain outcome.
"Our fish can't wait. We need to protect fish now. We negotiated specific rights...this is an expression of the Tribe's water rights because we are going to get the dams out, because we are going to restore habitat, and we are going to get more water," Fletcher said.
"Our water rights are meaningless unless there's fish and the right to fish is meaningless unless we have water."
There are no provisions for dam removal anywhere in the agreement. In fact, the dam owner - PacifiCorp, a subsidiary of MidAmerican, a power giant owned largely by the richest man in the world, Warren Buffet - dropped out of the negotiations two years ago. Still the agreement hinges on what is being called the dam deal, which would call for the removal of four hydroelectric dams on the Klamath River. The document doesn't yet exist, but proponents are hopeful it will in the near future.
King at the NEC anxiously awaits PacifiCorp's dam deal. In the meantime, he felt a need for the community to hear NEC's concerns and position about the pending restoration agreement. A meeting will be held October 15, 2008 at the Warfinger Building in Eureka from 7-9 p.m.
Nobody knows for sure what PacifiCorp has planned, but the company withdrew its State Water Resources Control Board application for water quality certification in July, a permit the company needs in order to re-license its dams on the Klamath River.
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