THE ENDANGERED SPECIES ACT, BAD SCIENCE,

AND THE KLAMATH BASIN

 by: Steve Cheyne

May 25, 2001

The Mark Twain quotation, “Whiskey is for drinking and water is for fighting over” certainly rings true here in the Klamath River Basin .  It also applies to most of the American West, especially in this year of drought.  The problem here in the Klamath Basin is a Federal Court order from Oakland based Judge Sandra Armstrong.  She directed the Bureau of Reclamation to halt all Klamath Project water deliveries from Upper Klamath Lake . Her order resulted from a lawsuit brought by several environmental organizations.  These include the Klamath Forest Alliance, Water Watch, The Wilderness Society, The Audubon Society, The Oregon Natural Resources Council, and The Pacific Fisheries Alliance.  The suit contended that the Bureau of Reclamation failed to adequately consult with The National Marine Fisheries Service.  In so doing she sided with the Biological Opinion of the National Marine Fisheries Service for the recently listed Coho Salmon in the lower reaches of the Klamath River .  The Water Users appeal to Judge Ann Aiken in Eugene failed.  The judge feels we need to settle our differences out of the courtroom.  It is worth noting that the decision stands under the Endangered Species Act.  There is no provision in the ESA for out of court settlements at this point so that position seems somewhat ridiculous. There are two conflicting Biological Opinions involved in the water controversy here.  The other opinion is from the US Fish and Wildlife Service and it deals with two species of Suckers, the Lost River Sucker, and the Short-nosed Sucker, which were listed in 1988.  The NMFS opinion requires massive water releases from Upper Klamath Lake for the Coho.  The USFWS opinion requires quite high levels to be maintained in Upper Klamath Lake for the Suckers.  The problem is that we have the Klamath River System here, not something larger.  It is hard for some to understand the support of the Klamath Tribe for the result of this suit.  This decision places Salmon ahead of the Suckers. The Klamath River cannot satisfy the water requirements of both biological opinions six out of every ten years even with no water being delivered for crop production.  This would likely be another year that the Link River would be dry by July without the Link River Dam and the Reclamation Project.

The order denying water release from Klamath Lake into the Klamath Project Lands also denies water to the Tule Lake and Lower Klamath Lake National Wildlife Refuges. The decision also shuts off the Klamath Game Management area of the Oregon Fish and Wildlife Department. It also denies wildlife access to the hundreds of miles of water delivery canals and drainage ditches that are usually full of water.  There are over 400 different wildlife species present here that will feel the effect of this decision.  Many wetland areas outside the refuge system but within the Klamath Project are already dry.  Drainage canals, which I have never in my life seen dry, are dry now.  Waterfowl nest in all of them.  The Klamath Basin is a stop over point for the majority of the waterfowl using the Pacific Flyway.  The California Waterfowl Association states that the food demands of these birds cannot be met without the food contribution from agricultural fields.  Anyone who has ever seen the huge numbers of White Fronted and Snow Geese feeding on succulent new growth of grass and alfalfa in here April will not doubt that position.  In the fall, those same birds use harvested grain fields in large number. The decision will also drastically affect the food source for our National Symbol, the Bald Eagle.  The eagle is also a threatened species.  The Klamath Basin is home to the largest population of Bald Eagles outside of Alaska .  The refuges are supplied by the same canal system that supports agriculture. That system is dry and the refuges are in the same boat with agriculture.  One might wonder why the Audubon Society participated in the lawsuit that dried up two National Wildlife Refuges.  Proponents of the decision are saying that after years of struggle, balance has finally been achieved.  Tell that to the people who have to operate a wildlife refuge with no water, or farmers with no water.  Balance in their view seems to be getting all available water in a drought year for fish and if somebody else suffers so what, we have balance.

                The current weak link in our situation is the nonsense science that is being bandied about by Federal Biologists and their environmental allies.  While they now stand as a legal fact, the two Biological Opinions have not been properly reviewed for their factual validity.  Nor has proper review been applied to the bulk of reports used in the formulation of those opinions. In fact, the Endangered Species Act does not require review. The ESA does however say that the best available science will be used.  Without review, how do we know it is the best available?   Is there something wrong with that picture?  Should not decisions of the magnitude involved here be based on sound science?  If the science is indeed valid why should the preparers and proponents of this science object to review?  Many simple and very basic factors are discounted or dismissed.  During the last dry years we had, 1992 and 1994, there were no fish kills in Upper Klamath Lake .  In both of those years the elevation of Upper Klamath Lake was drawn down to 4137.37 feet or less in elevation.  There were large fish kills in the lake in 1995, 1996, and 1997.  With little evidence presented for the claim, the biological opinions state that as many as 80% of the suckers perished. They point to 1997 as the worst of the kill years.  The low point of the lake that year was 4140.1 feet, some 2.73 feet higher than the low point of 1992. They gloss over the fact that of the thousands of fish examined almost no fish that had been tagged in ongoing research efforts were among the casualties of the kills.  During the three years with fish kills, the low point in lake level reached 4138.6 feet in 1996; 1.23 feet higher than the low of the no fish kill years.  Data, presented without discussion by biologists for the Klamath Tribe, shows that the ammonia, that biologists claim to be a major factor in the fish die-off cycle, was at low levels during 1992 and 1994.  They do not offer a single word of discussion about this in the text of their report. Observant readers must get it themselves, but the data is there.  The high water with fish kills scenario is repeated in 1932, 1971 and again in 1986.  In all of those years the water level of Upper Klamath Lake was high. In 1932, the summer low was 4140.22 feet.  In 1971, the lake level low point was 4141.78 feet.  In 1986 the low point was 4140.4.  Those levels correspond closely to the lake level requirements of the biological opinions. It is worthy of note that reports in the Herald and News from 1972 remarked on good runs and fishing success for the suckers, known as mullet at that time.   Nay Sayers will say that the evidence of fish kills in high water years is nonsense.  The facts tend to indicate that the fish kills have happened when the levels of the lake are high.  One might think that a scientist might wonder what other factors could be at work here.  This is supported by data.   Avoiding fish kills would seem to be a logical goal of species restoration efforts.  The biologists are requiring lake level regimes that have historically proven fatal to the fish they would have us believe are in dire need of their protection.

                During the low water year of 1992, agriculture voluntarily released more water for down stream use than they were required to release.  That was done in the spirit of good faith and cooperation.  We have been rewarded with claims that the fact we are out of water is our own fault for not being willing to share what we had. The salmon that were spawned in the Klamath River in 1992 returned in record numbers to spawn in 1996.  The fish spawned in 1996 returned in near record numbers in 2000.  During 1992, the yearly flows through Iron Gate Dam were about 470,000 acre-feet.    This year, by order of the Federal Court, that flow will double.  There is much more water in Klamath Lake at this point in the calendar year than there was in 1992. In April of 1992, the elevation of Klamath Lake was 4141.68 feet.  In April 2001 the lake level was 4143.02 feet, a difference of 2.32 feet. Logic would seem to indicate that repeating the flow regime of 1992 would let everybody through the year with more water left in the Upper Klamath Lake than remained at the end of 1992.  Wendell Wood of the Oregon Natural Resources Council stated in a Herald and News Editorial (also available on the ONRC website) that water from Klamath Lake was so foul it killed salmon.  If that is so, why did the ONRC join in a suit claiming all of it for Salmon?  In addition, the ONRC has now filed a 60-day notice of intent to sue the BOR to release water to the National wildlife refuges.  I think the pot just called the kettle black.  If they now think the refuges need water, why did they participate in the first suit that shut the water off?  We await their next move maybe that will finally make some sense.

                It should be noted that a report, widely referred to as the Phase 1 Hardy Report, is the basis for much of the NMFS Biological Opinion for the Coho Salmon.  The Hardy Report also is ignorant of some simple yet basic facts.  The years that Hardy used to establish the baseline historic flows for the Klamath River saw 27% greater than normal precipitation amounts.  One need not be a scientist to wonder about the selection of those years.  If one skips a year, the equal number of years following that baseline saw some 24% less than normal precipitation. Included in that time frame, the Link River , at the outlet of Upper Klamath Lake , went dry at least once.  Why were those years either ignored or not included in the flow calculations?  Would logic not indicate that the baseline flow might be high?  Hardy also makes reference to what he calls the smooth yearly hydrograph characteristic of the Klamath River .  He cites no supportive data for this.  We are evidently left to take him at his word.  He further states that the reason for the smooth hydrograph is due to the immense storage and buffering capacities of Upper Klamath Lake , Lower Klamath Lake , and Tule Lake .  Here he does cite a report done by Balance Hydrologics in 1996.  That Upper Klamath Lake contributed greatly to the flows of the Klamath River cannot be denied.  However, Tule Lake has never been connected with Klamath River and could not possibly have either contributed to, nor buffered the flow of, the Klamath River .  The only connection between Tule Lake and the Klamath River was during prehistoric times with the existence of ancient Lake Modoc .   There were likely historic floods, which probably pushed water from the Klamath River , through the Ager Slough into Lost River , and then to Tulelake.  However in 1867, Lower Klamath Lake did over-flow into Tule Lake during one of the high water years.  That information can be found in the Shaw Historical Society book published in 1999 called “Water Resources of the Klamath Basin ”.  Flow of water from Lower Klamath Lake into the Klamath River may not have been as frequent as some would believe.  Such occurrence would likely have happened only in high water years. One such instance cited in the Shaw publication was during a flood in 1880-81.  In drier periods, the Klamath River would flow into Lower Klamath Lake . In Dickens book, “The Legacy of Ancient Lake Modoc: A Historical Geography of the Klamath Lakes Basin ” there are maps prepared from USBR data that indicate Lower Klamath Lake was high in 1905.  By 1916 Lower Klamath Lake had receded to its lowest point.  In other words, the lake, in 1905, likely did contribute some water to the hydrograph of the Klamath River , however by 1916 it could not have flowed into the Klamath River .  The Lower Lake was high at the years used in the Hardy report, and low in the years immediately after the Hardy Report.  This mirrors the precipitation amounts for those years.  It is far more likely that the Klamath River was more of a contributor to Tule Lake and Lower Klamath Lake that vice versa.  Tule Lake is now connected to Lower Klamath Lake through a 6,600 foot long 5.75 foot in diameter tunnel at what is called the D pump plant.  That pump plant has a lift of 78 feet.  Hardy might have been reasonably expected to check that before citing it. 

Hardy (as well as a lot of people) also misidentifies the reason for elimination of anadromous fish runs on the upper Klamath River .  He lays blame for that to the construction of Copco Dam and Reservoir between 1910 and 1917.  John C. Boyle’s book, “Fifty Years on the Klamath” will document that the US Bureau of Fisheries eliminated the Salmon and Steelhead runs with their fish racks and traps at Klamathon, downstream from the current Iron Gate Dam. This was in 1898, more than a decade before the Copco Dam.  Fish ladders over the Klamath River Dams were not deemed necessary because there were no Salmon runs to use them.  Biologists assured us that hatcheries would replace the salmon runs. That is also documented in Boyle’s book.  The US Bureau of Fisheries evolved into the US Fish and Wildlife Service.

                        Biologists will also tell us that the historical low level for Upper Klamath Lake is 4140 feet.  This datum is used as at least part of the basis for their high lake level requirement.  They also did not see the need to look at Boyle’s book either.  There is also Bureau of Reclamation and United States Geological Service information to back up Boyle to document that the natural basalt reef at the outlet of Upper Klamath Lake was at an elevation of 4137.8 feet.  Boyle also refers to a BOR sounding done in 1919 that measured the actual level of the lake at 4137.1 feet.  That would seem logical because there are pictures of a dry Link River in 1918 found in Boyle’s book.  These pictures are also at the Klamath County Museum . There are more such pictures in the Klamath County Library.   This was also in the time frame ignored by Hardy that had 24% less than normal precipitation.  Simple logic would indicate that a reasonable low elevation for the lake is 4137.8.  The elevation of 4140 is listed (in Boyle) as the estimated average low for Klamath Lake and should not be considered as the historical actual low.  Data from the Bureau of Reclamation end of month lake elevations does indicate the level of the Lake never dropped below 4140 feet from the beginning of the project in 1905 to the construction of Link River Dam in 1922.  One would assume that there might be some problems with that data set that need to be resolved.

                Science should be viewed as “getting things right”.  If we cannot take this view, regardless of our opinion of the ESA, then we are in serious danger of loosing science as a resource management tool.  There are serious problems with the science that has been promoted here under the auspices of the ESA and the Biological Opinions. Whether you like that statement or not, decisions of this magnitude need to be based on fact, not fiction.  Our political representatives tell us that the ESA is need of revision.  Many of those of us in the west who have to live with its consequences would heartily agree with that. Many would not.  Many of us will support them with whatever means we have. Many will oppose it. The environmental community will howl with outrage and massive “send us money” requests from supporters when that happens.  Enough political support for meaningful reform may not yet exist.  At the minimum, the science used in ESA decisions needs to be validated by honest scientific review before it can be allowed to stand as a legal fact.  Current efforts seem to focus on economic damage.  Both are necessary, but the weak link that needs fixing is the bad science. The more times the ESA goes to court, the more conflict there is that is generated.  We need to ask the question of how much conflict can society survive.  The real problem with the Endangered Species Act is that it seeks to rectify symptoms of a problem rather than deal with the cause of a problem.  Beyond that, the problem is the perception of some people that this is actually a good thing.  Slogans of “save what ever it is” are not the basis for sound resource management.  In many ways, a sound resource management and utilization policy is the most important function of a government.  The ESA is like taking aspirin for the headache caused by a brain tumor.  The ESA relies on regulation imposed through bureaucratic regulation or environmental suit, and often from people who do not have to live with the negative consequences of those actions.  It is not possible, under the ESA for people living in an affected area to band together to solve their own problems.  There is always the certainty of an environmentalist lawsuit from some outside group, or regulation by a group of bureaucrats whose interpretation of the law makes it seem to them that they need to regulate.  We have to realize that the biologists who work with one or two species of allegedly endangered species are not necessarily qualified to deal with the larger social ramifications of their actions.  At some point people directly involved with these situations will have to be able to come together to look for solutions.  Nothing that has happened here so far has done anything but make that kind of cooperation unlikely to happen.  Environmental interests view themselves as winning the way things stand and there is nothing short of legal change that can alter that perception.

                Throughout the course of recorded human history, the failure of a society’s agricultural system has led to the failure of that society.  Agriculture in fact is what allowed the development of human civilization.  For the first time we have a society that is using bad science, and the Endangered Species Act to actively seek to destroy its agricultural base. The Klamath Basin controversy is not the only example. The elimination of large tracts of land from private to public ownership is an obvious goal of such action. Some of the same groups that successfully sued here have recently filed a 60 day notification of intent to sue to shut off irrigation in 2 million acres in Idaho and Eastern Oregon , citing the Klamath suit as a precedent.  At some point we have to realize that the food on the grocery store shelf has to come from a farm.  How much more energy dependence can we survive if we have to start importing food, which at some point may not be available to import?  Do we really want to destroy the American agricultural producer, who stands the best chance of sustaining agricultural production into the centuries ahead, or do we need to work as a society to ensure a sound agricultural system?  Our political leaders need to know they have support in their undertaking.  We have to let them know that we support a reasonable environmental protection policy.  It must require the use of sound science and be able to avoid economic hardships. Such a policy must address the needs of people, the economic base for survival of society, as well as a functioning land base.  We also need a policy that provides incentives for private interests.  Finding an endangered species on your land today is about the worst thing that can happen to a private landowner.

                The ideas here are presented as my own expression of personal opinion, as is my right under the first amendment to the constitution.