The Hoopa Valley Tribe agrees that restoration of the Klamath River and its fishery depends on the removal of hydroelectric dams on the upper Klamath River. The dams have degraded water quality and blocked fish spawning habitat for much too long.
How the Klamath Settlement’s Water Plan Puts Klamath-Trinity Salmon at Risk June 10, 2010
Recent Klamath-Trinity Basin history presents lessons of the perils of non-science based water management. The basin suffers from dramatic species decline, repeated and massive adult and juvenile fish kills, and catastrophic fishery collapse due primarily to water management implemented against the findings of the best available science. Unfortunately, the Klamath Basin Restoration Agreement (KBRA) ignores these painful and well-publicized lessons by proposing a flow plan for the Klamath River that departs from the best available science on ecological recovery flows as represented by the Hardy Phase II Final Report (Hardy II) and supported by the National Academy of Sciences. Worse, the KBRA’s projected flows not only regularly drop below flows needed for ecological recovery: KBRA flows regularly drop below the minimums necessary to avoid catastrophic risks to fish health. Moreover, the agreement contains no assurances that even these high-risk flows will be realized.
The Hardy II report defines Ecological Base Flows as “minimum stream flows needed to maintain tolerable water quality conditions and provide minimal aquatic habitat.” (Hardy et al. p. 183). As such, these minimum flows should be considered biological tipping points below which risk to salmon escalates to unacceptable levels. Unfortunately, there has been no published analysis to justify the KBRA’s proposed decades-long departure from this scientific standard.
Salmon occupy a central position in the cultural, spiritual, and traditional ways of the Hoopa and other Native American Tribes of the Klamath-Trinity Basin. Loss of the historic, vigorous salmon runs in the Klamath represents an irreparable loss to our cultures. Hoopa presents this critique of the KBRA flow plan – and suggestions for adopting a proposal based upon the best available science – in an effort to achieve real solutions for the Klamath-Trinity that restore abundant fish populations and provide a better future for all communities dependent on the basin’s natural resources.
KBRA Departure from Best Available Science Presents High Risks
Ecological Base Flows represent the lowest scientific standard for fish survival, even so, the KBRA flow plan would regularly violate this rock-bottom standard. For example, KBRA projections indicate high-risk flow levels throughout August for 48 percent of future years, throughout September for 25 percent of years, throughout October for all future years, and throughout November for 98 percent of years. Overall, KBRA flows are projected to drop into the ecological danger zone throughout an average of four months each year.
Low flows in the late summer through winter period are of particularly grave concern, risking the disruption of access to winter refugia, habitat connectivity within mainstem, tributaries, riparian zones, and floodplains, and support of ecological processes. (Hooper et al. 2005)
According to the best available science, ecological degradation can be expected when flows drop below minimum levels regardless of the time of year or location in the mainstem.
The single resource agency analysis of the KBRA, known as the “Compilation,” focuses on possible impacts to the Klamath River between Iron Gate Dam and the tributary Scott River. This stretch represents only 50 miles of a 260-mile long river.
The “Compilation” focuses almost exclusively on impacts to fall Chinook, and does not properly consider the needs of other Klamath-Trinity fish, including spring Chinook, steelhead, Pacific lamprey, green sturgeon, and coho. According to the U.S. Fish and Wildlife Service, the agency has offered “little analysis” of the impacts on these species. (USFWS, “Compilation of information to inform USFWS principals on the potential effects of the proposed Klamath Basin Restoration Agreement…” p. 1).
The “Compilation” offers no justification for departing from either Hardy II’s recommended flows or Ecological Base Flows, despite the fact that the National Academy of Sciences concluded that Hardy II “enhances understanding of the Klamath River basin ecosystem and the flows required to sustain it” and that “the recommended flows resulting from the study should be adopted on an interim basis pending the model improvements… and a more integrated assessment of the scientific needs of the basin as a whole.” (NRC, “Hydrology, Ecology and Fishes of the Klamath River Basin,” p. 152.)
Establishing a Flow Plan to Meet the Standards of the Best Available Science, Protect All Basin Communities
Bringing projected KBRA flows up to absolute minimum Ecological Base Flows would require significant volumes of water. For example, raising flows above the ecological danger zone in the driest 20 percent of years would require an average of 161,340 acre-feet of water. For the driest 50 percent of years, the shortfall averages 100,140 acre-feet, and for all years, the shortfall averages 63,307 acre-feet.
Judging from previous Upper Klamath Basin water banks, bringing projected KBRA flows above the ecological danger zone by leasing water would cost an average of approximately $5 million per year, or roughly $250 million in taxpayer funds over the span of the KBRA. Added to the $1 billion cost of the KBRA – ostensibly to restore salmon – this represents an extraordinary price to maintain flows at the barest survival minimums for fish. Moreover, the U.S. Geological Survey has found previous water banking in the region to be unsustainably reliant on groundwater pumping. (USGS, “Assessment of the Klamath Project Pilot Water Bank,” p. 48.)
Providing Klamath-Trinity fishery flow to meet long-term minimum ecological needs will require an increase in allocated supply to the river and a corresponding permanent decrease in allocation to irrigation. Achieving these flows will also require establishing concrete minimum flow assurances within any agreement or legislation.
Global climate change is predicted to dramatically shift runoff timing in the Klamath Basin in the coming decades. Any agreement or legislation must have the built-in ability to adequately adapt to maintain protections for minimum ecological flows in the face of decreased manageable water supply when and if significant runoff is lost.
Alternative Flow Plans
Alternative flow plans must be developed to meet Ecological Base Flow conditions in addition to the needs associated with habitat and water quality requirements.
Following standard instream flow needs assessment protocols will produce a solid analytical platform. This will require several steps:
1) Expand the target species beyond fall Chinook to include coho, spring Chinook, steelhead, Pacific lamprey, and green sturgeon;
2) Establish specific restoration goals for these populations;
3) Identify biological/ecological criteria; and
4) Thoroughly analyze flow alternatives.
Adverse Effects of the Klamath Basin Water and Hydroelectric Agreements on Trinity River Restoration
The Klamath River flows through California’s Hoopa Valley Indian Reservation. Also, the Klamath’s largest tributary, the Trinity River, bisects the Hoopa Valley Reservation en route to its confluence with the Klamath River approximately 45 miles upstream of the Pacific Ocean. The Trinity River produces most of the anadromous fish in the Klamath River basin. The Klamath River provides essential water and habitat for fish migrating between the ocean and the Trinity River. The Hoopa Valley Tribe has vested fishing rights in the Klamath/Trinity fishery that the United States holds in trust pursuant to congressional, judicial, and administrative authority.
In 1984 Congress found that the Central Valley Project’s Trinity River Division caused a “drastic reduction in anadromous fish populations.” In the quarter century since then, bipartisan congressional and administration actions in conjunction with the Hoopa Valley Tribe produced the Trinity River Restoration Program.
In the past decade, conflicts over water rights and hydroelectric licensing proceedings in the upper basin of the Klamath River have presented a new threat to the Trinity River fishery and the restoration program. The principal source of the conflict lies with the Bureau of Reclamation’s Klamath Project and the proposed allocation of water for irrigation. The new proposed Klamath River Agreements present three challenges to the Hoopa Valley Tribe’s vested rights: (1) failure to fund and implement restoration as prescribed by the December 19, 2000 Trinity River Mainstem Fishery Restoration Record of Decision (ROD); (2) infection of salmon smolts by parasites in the main stem Klamath River causing death or debilitation of smolts; and (3) disease epidemics near the mouth of the Klamath River occurring from insufficient water flows in the main stem Klamath as a result of federal irrigation diversions in the Upper Klamath Basin, near Klamath Falls, Oregon.
The recently-signed Klamath River Restoration Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement (KHSA) threaten success of the Trinity River Restoration Program in several ways.
First, parties to the Klamath River water rights adjudication pending in Oregon state court advocate that the proposed Klamath River Basin Restoration Agreement (KBRA) include limits on the federal government’s authority and responsibility to administer and divert water to the Bureau of Reclamation's Klamath Project. However, if adopted, those limits would come at the expense of water and fishing property rights and interests in California for which the Federal government is also responsible.
The nature, extent and priority of the federal responsibilities for tribal rights in California and Klamath Project administration are set forth in, among other documents, two Pacific Southwest Regional Solicitor’s opinions dated July 25, 1995 and January 9, 1997. Among other things the opinions concluded that “Reclamation must, pursuant to its trust responsibility and consistent with its other legal obligations, prevent activities under its control that would adversely affect those rights . . .” (1995 Opinion at 8), and that tribes’ rights are “superseding obligations” (1997 Opinion at 8) that are “senior and enforceable against junior uses, and adjustments may be required in how the Klamath Project is operated to be consistent with the tribes’ rights.” (Id. at 5, n.6.) Resolution 09-63 of the Affiliated Tribes of Northwest Indians supports the sovereign authority of tribes to enter into water agreements and “opposes any policy of the United States to terminate the rights of, or impose adverse consequences upon, a tribe that chooses to retain its water rights instead of settling on terms desired by the federal government.” Proposed section 15.3.9 of the KBRA is the provision objected to by the Tribe that would have that effect.
Second, the KBRA guarantees irrigation diversions of water for the Klamath Irrigation District Project in Oregon. Those diversions--330,000 to 385,000 acre-feet per year--would trump the in-stream flow needs of fish and other aquatic organisms. Fish would get whatever water flow remains after those diversions. This imbalance in the allocation of risk in the KBRA stands the reserved rights doctrine on its head with real adverse consequences for the fishery. Analysis of the guaranteed diversions makes clear that the water flows in the vicinity of Iron Gate Dam (near Interstate 5, in California) would frequently fail the requirements of the National Marine Fisheries Services’ Biological Opinion for protection of salmon in the mainstem Klamath River. Such low flows caused the fish die‑off in 2002, adversely affecting Trinity River spring and fall Chinook populations. The 2002 event was the largest adult salmon die‑off in recorded history--in September 2002 up to 70,000 adult salmon, principally of Trinity River origin, died in the lower Klamath River.
Third, the 1955 act authorizing the Trinity Division of the Central Valley Project includes a provision that “not less than 50,000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.” That water supply could be critical to fish survival and restoration in the Klamath basin.
Fourth, the estimated $1 billion price tag for the KBRA likely will divert funds from the already under funded Trinity restoration program. (For example, the FY 2010 budget is $11.02 million, $6.4 million below the Program requirements.)
Fifth, a lengthy dam removal planning process is authorized by the KHSA and minimal operational changes will be made by PacifiCorp to its fish-blocking dams during the next 11 to 25 years. None of the measures prescribed by the federal and tribal fisheries agencies pursuant to the Federal Power Act will be implemented except a few items listed in Appendices C and D of the KHSA, called the “interim measures.” Thus, nearly all of the river’s flow (and fish) will pass through PacifiCorp’s turbines during that time. A minimal addition of gravel to the Klamath River below Iron Gate Dam will not aid fish survival. This is important because that area is a major disease breeding ground for the parasites that infect both juvenile and adult Trinity River salmonids when they enter the Klamath. Despite the concerns expressed by fisheries biologists, the PacifiCorp interim measures will not be re‑examined for a number of years, far longer would be the case if the PacifiCorp Project proceeded through the normal Federal Energy Regulatory Commission relicensing/decommissioning process.
Fulfillment of the government’s trust obligations and statutory duties to restore, replace and enhance the Trinity River fishery will require revision of the KBRA and KHSA.
Outline of Objections to KBRA and KHSA
March 12, 2010
Here are major defects in the Klamath Basin Reclamation Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement (KHA):
1. The water balance, guaranteeing diversion of 330,000 acre-feet for irrigators, has no scientific basis and will, in 40% of water years, leave too little water in the Klamath River to meet the Coho Salmon BiOp flow requirements. There are no guaranteed flows for fish. Sec. 15.1.1.B and App. E-5.
2. The KBRA has no restoration goals. It establishes no target salmon run sizes or harvest goals. Thus its success can’t be measured.
3. The likely failure of restoration efforts on Klamath-origin stocks will shift impact of lower river salmon fisheries to Trinity-origin stocks, hurting Hoopa harvest on the Trinity.
4. Neither the KBRA nor the KHA requires removal of any dam. The KHSA is a planning process that merely might, after 12+ years, lead to dam removal.
5. The KBRA requires Indian Tribes to waive claims of violation of trust water and fishing rights regardless of the success of restoration. Sec. 15.3.6, 15.3.9, 38(a).
6. The $1 billion of federal appropriations called for in the KBRA will enable irrigators to increase ground water pumping, (using subsidized 1905-era electric power rates), which will further deplete surface water flows in the Klamath. Sec. 15.3.1, 15.2.4, 17. None of this funding goes to dam removal.
7. The KBRA requires parties to support water diversions and follow procedures that will weaken the effect of the Endangered Species Act. Sec. 21.3.
8. If funds are appropriated to purchase water to augment instream flows for the benefit of fish, the Bureau of Reclamation, not a fisheries Technical Team, will decide whether to use the money. Sec. 20.4.4.
9. The KBRA establishes a governance group of KBRA signatories that merely advises various state and federal agencies. It ignores the National Research Council report on the Klamath, which criticized piecemeal decision-making in the Klamath Basin. Appendix D-1.
10. The KHSA requires signatory parties to sign the KBRA also, linking the documents. Sec. 2.2.
11. The KHSA gives to the Interior Secretary the Determination whether dam removal is “in the public interest,” thus delaying action while unnecessarily duplicative NEPA analysis and state CEQA analysis occurs. Sec. 3.3.1.
12. The KHSA prohibits the Secretary from choosing dam removal until, among other things, two States and Congress pass legislation to fund it. Sec. 3.3.4.
13. The KHSA gives Oregon and California the right to veto dam removal if they do not concur in both the Secretarial Determination and the choice of a Dam Removal Entity. Sec. 8.11.1.C.
14. The KHSA minimizes PacifiCorp’s required operational changes until at least 2021, strips FERC of jurisdiction while the agreement remains in place, and also protects the utility from compliance with any other measures to improve water quality. Sec. 6.3.4.A.
15. The KHSA halts State water quality certification proceedings, which now are the only remaining step before FERC would force dam removal. Sec. 6.5.
16. The KHSA sets a mere “target” of 2020 to begin dam removal but also demands $27 million in extra payments to PacifiCorp if removal begins before 2021. Sec. 7.3.3.
17. The KHSA lists eight events that will terminate the dam removal planning process and restart FERC relicensing/dam removal proceedings, such as legislation or any regulatory approval conditions that are “materially inconsistent” with the KHA. Sec. 8.11.1. 10
