[Senate Hearing 113-069]
[From the U.S. Government Publishing Office]
S. Hrg. 113-069
THE KLAMATH RIVER BASIN
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HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
TO
RECEIVE TESTIMONY ON WATER RESOURCE ISSUES IN THE KLAMATH RIVER BASIN
__________
JUNE 20, 2013
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
RON WYDEN, Oregon, Chairman
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana JOHN BARRASSO, Wyoming
MARIA CANTWELL, Washington JAMES E. RISCH, Idaho
BERNARD SANDERS, Vermont MIKE LEE, Utah
DEBBIE STABENOW, Michigan DEAN HELLER, Nevada
MARK UDALL, Colorado JEFF FLAKE, Arizona
AL FRANKEN, Minnesota TIM SCOTT, South Carolina
JOE MANCHIN, III, West Virginia LAMAR ALEXANDER, Tennessee
BRIAN SCHATZ, Hawaii ROB PORTMAN, Ohio
MARTIN HEINRICH, New Mexico JOHN HOEVEN, North Dakota
TAMMY BALDWIN, Wisconsin
Joshua Sheinkman, Staff Director
Sam E. Fowler, Chief Counsel
Karen K. Billups, Republican Staff Director
Patrick J. McCormick III, Republican Chief Counsel
C O N T E N T S
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STATEMENTS
Page
Addington, Greg, Executive Director, Klamath Water Users
Association, Klamath Falls, OR................................. 66
Boxer, Hon. Barbara, U.S. Senator From California................ 4
Brockbank, Dean S., PacifiCorp Energy, Vice President and General
Counsel, Portland, OR.......................................... 57
Connor, Michael L., Commissioner, Bureau of Reclamation,
Department of the Interior..................................... 7
Fletcher, Troy, Executive Director, Yurok Tribe, Klamath, CA..... 40
Gentry, Donald C., Chairman or the Klamath Tribe or Oregon,
Chiloquin, OR.................................................. 24
Hillman, Leaf G., Director of Natural Resources, Karuk Tribe,
Happy Camp, CA................................................. 31
Hutt, Hayley, Hoopa Valley Tribal Council Member, Hoopa, CA...... 34
Hyde, Becky, Board Member, Upper Klamath Water Users Association,
Chiloquin, OR.................................................. 64
Johnson, Tim, Assistant General Counsel For Power, Bonneville
Power Administration, Portland, OR............................. 81
Kobseff, Michael, Vice-Chair, Board of Supervisors, Siskiyou
County, CA..................................................... 47
Laird, Hon. John, Secretary For Natural Resources, California
Natural Resources Agency, Sacramento, CA....................... 21
Lovelace, Mark, Humboldt County Supervisors, Eureka, CA.......... 53
Mallams, Tom, Commissioner Position One, Klamath County, Klamath
Falls, OR...................................................... 45
McCarthy, Jim, Communication Director and Southern Oregon Program
Manager, Waterwatch of Oregon, Ashland,, OR.................... 76
Merkley, Hon. Jeff, U.S. Senator From Oregon..................... 5
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 4
Nicholson, Roger, President, Resource Conservancy and Fort
Klamath Critical Habitat Landowners, Ft. Klamath, OR........... 62
Roos-Collins, Richard, Water and Power Law Group PC, Berkeley, CA 82
Whitman, Richard M., Policy Director, Oregon Governor John
Kitzhaber's, Natural Resources Office, Portland, OR............ 17
Wyden, Hon. Ron, U.S. Senator From Oregon........................ 1
APPENDIXES
Appendix I
Responses to additional questions................................ 103
Appendix II
Additional material submitted for the record..................... 145
THE KLAMATH RIVER BASIN
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THURSDAY, JUNE 20, 2013
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:40 a.m. in room
SH-216, Hart Senate Office Building, Hon. Ron Wyden, chairman
presiding.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM OREGON
The Chairman. The committee will come to order.
First, I want to thank all of our guests for being here
today. I know that many of you traveled a long distance to
come. We very much appreciate everybody being here.
The committee is holding this round--table to discuss what
is arguably the most challenging set of water resource issues
in our country. Of course, those issues are what the Klamath
Basin is all about and what the Basin has been wrestling with
for some time.
My own view is the Klamath needs a long-term solution, and
one that addresses 4 key principles.
First, there needs to be long-term certainty that our
irrigators are going to get the water they need.
Second, the Federal Government has the right to approve or
deny any dam removal, although PacifiCorp has the right to make
a business decision.
Third, it's quite clear the Klamath tribes have to be a
part of the solution.
Finally, it has to ensure the recovery of our fish runs.
My own view is much progress has been made over the past 10
years trying to find common ground on how to reconcile the many
important and competing interests in the Basin. This work is
making a big difference for the on-project irrigators. But the
fact is hundreds of farm households and citizens have been left
behind.
Working for a permanent solution is especially important
now because the Basin is being pounded by drought once more. As
we speak off-project irrigators are losing water supplies that
they depend on. Everyone, and let me emphasize, everyone in the
Basin has a right to expect better.
Last month I was in Klamath Falls for a town hall meeting.
My sense from that gathering is that all sides now recognizing
how difficult this summer is want a real solution. From that
town hall meeting I got a sense that people in the Basin want
to put the disputes behind them. They want certainty for the
future.
When I chaired a hearing on drought earlier this spring the
Commissioner of Reclamation told the Committee that it is his
high expectation that water will not be shut off to the Klamath
project this summer. That's because the on-project water users
have negotiated with the Tribes and other interests in the
Basin and have agreed with them on how to address water-short
years.
This important compromise, a compromise that hopefully will
keep the on-project irrigators farming this year, is a step in
the right direction. The reality is the drought and the
exercise of water rights under State law has resulted in off-
project irrigators not receiving the water that they are
accustomed to taking. Without a fresh solution that addresses
the needs of everyone in the Basin, it's clear that's only
going to happen more often.
To the parties that have not reached a compromise and are
experiencing that water cut-off, I want them to know that I am
committed to sitting down with all of you and the other Basin
interests to find a long-term solution that reflects both the
anticipated water supply in years to come and economic issues
that those family farmers are facing.
In the West, we all understand that water is precious. The
determination of water rights is exclusively within the purview
of our States. The prior appropriation doctrine-what's in
effect, first in time and first in right-sets the rules of the
road.
Our State, the State of Oregon, has just completed a 38-
year process to adjudicate water rights in the Basin. As a
result, the Klamath Tribe has been recognized as having rights
going back to, and I quote, ``time immemorial.'' These are in
effect property rights under our State's law.
In 2001 when the Basin had another very horrendous drought,
these water rights had not been adjudicated. Now the Basin is
bound by the system under State law that directs how to deal
with water shortage and who gets what water. Unless a court
intervenes, these are the rights that will be enforced this
year and in the future. I think it's worth noting the Klamath
County Circuit Court already declined to intervene just in the
last few days.
Now the Klamath Basin presents other serious challenges as
well: degraded fisheries, high electricity costs, poor water
quality, and adversely impacted towns and communities. Farming
is obviously an energy-intensive undertaking. Our family
farmers need affordable power to stay afloat.
I have been working over the last few weeks with
PacifiCorp, the Bonneville Power Administration, and the
Interior Department to address this issue and can announce
today that on-project users will soon see a real reduction in
their power rates. Now, I discussed this with Congressman
Walden last night and both he and I, and I know certainly
Senator Merkley, all of us agree that we need rate relief for
all our farmers. My own sense is this will require legislation.
But there may be other ways to provide power rate relief for
off-project users.
I also at this time want to publicly express my
appreciation to Bonneville, to PacifiCorp, the Department of
the Interior, for making what I have just stated possible.
That, in effect, is why the committee is holding this
hearing. We are looking today for constructive approaches and
fresh ideas to build on the good work that has been done in the
past and to move ahead and to recognize the fiscal realities
Congress and our Nation are facing.
After considerable thought, I've concluded that the KBRA
and essentially what has been agreed to at this point, is
simply unaffordable in the current Federal budget environment.
My message on this point is working together in good faith
there's got to be a way to accomplish the agreement's
objectives with a lower price tag.
Finally, I want to pledge to Oregonians that California is
going to pay its fair share of this program. Already ratepayers
who Senator Merkley and I represent are paying for the Klamath
solution. Oregonians are still waiting for California to pass
its bond to pay its share of the cost.
As chair of this committee, I believe all parties should
have a chance to have input before the committee advances any
legislation. I state that whether or not they have been for the
previous agreements or have differing views. We've already
received more than 4,000 comments through our website. We want
to continue to hear from stakeholders and the public and work
for that lasting solution.
Let me close with just one last point. We can figure this
out. I am very much aware that there are people-and I was
reading various news articles last night-there are people
hanging crepe on all this. They're saying this can't be done.
This is too contentious and it's just not doable.
I want you to know as we begin this discussion I've got a
lot more faith in you and your--good will. I think there are
people around this table and throughout the Basin that
understand this has gone on long enough. People who understand
how serious the situation is now and who want us to come
together and find a solution.
My own take with respect to these intractable resource
challenges and Senator Murkowski and I have been able to tackle
a few of them with some measure of success here in the last
couple months, is that nobody in a challenging situation like
this gets everything they want. Nobody gets everything they
believe they deserve. But working together we can find a way so
that everybody gets what they need as part of a lasting
solution.
So that's what today is going to be all about. I want
everybody to understand that we're going to stay at this. We're
going to stay at it until we find a solution this time.
So I'm very lucky to have my colleague from Oregon here.
Senator Murkowski will make her statement. Want to, again,
express my appreciation to her.
Late last night 14 bills came out of this committee and
passed the Senate Floor, late last night. Bills that in many
instances had been debated for years. It could not have been
done without the good will and the partnership that has been
possible in this committee.
Senator Murkowski, I've said it before, I'm very
appreciative. I'm appreciate of you coming here to discuss a
matter so important to Senator Merkley and myself. We welcome
your comments. Then we're going to hear from Senator Merkley.
[The prepared statement of Senator Boxer follows:]
Prepared Statement of Hon. Barbara Boxer, U.S. Senator From California
Mr. Chairman, thank you for holding this hearing on water resource
issues in the Klamath River Basin.
Covering more than 10 million acres and stretching more than 250
miles from southern Oregon to the Pacific Coast of northern California,
the Klamath River Basin (Basin) is vitally important to the tribes,
farmers, fisherman, and others who call it home. Known as the
``Everglades of the West,'' the Basin's lakes, rivers and forests
provide habitat for more than 400 species of wildlife and is critical
for the recreation and tourism industries in the region.
A severe drought in 2001 and the massive die-off of more than
34,000 salmon the following year sounded the alarm that a bold plan was
necessary to balance the needs of all those who depend on this critical
resource.
The stakeholders in the Klamath River Basin responded to this
crisis by developing a plan through cooperation and consensus. In 2010,
the Klamath Hydroelectric Settlement Agreement and the Klamath Basin
Restoration Agreement was signed by more than 40 parties. I was proud
to support the efforts of the coalition's agencies, tribes, farmers,
fisherman, ecologists, and scientists, by cosponsoring implementing
legislation in the last Congress, the Klamath Basin Economic
Restoration Act (KBERA).
No agreement of this complexity is ever perfect, but the KBERA was
an important start to the legislative discussion because immediate
relief for the region is paramount. The ultimate costs of inaction to
the $750 million dollar a year fisheries and agricultural economy
alone, and subsequent federal disaster relief, far outweigh the
investment needed to support solutions that will bring reliability to
the region's water supply.
I firmly believe that the Klamath River Basin will serve as a model
of what can be accomplished when communities historically divided by
competing interests recognize the most important interest of all, our
shared future.
Mr. Chairman, I look forward to working with you and the Ranking
Member on this and other issues that will come before your Committee
this Congress. I'm dedicated to openly working with the parties to
ensure success, and thank you for the opportunity to address this
hearing.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you chairman. I think it is
important for all those that are gathered here to recognize
that what you're seeing here with the very broad list of
participants around the table. It is just yet one more measure
of how the chairman of this committee has been handling things.
We've got our fair share of contentious issues that we deal
with on the Energy and Natural Resources Committee. Our process
here, our way forward, has been one where we roll up our
sleeves and we tackle the tough things. We try to find that
sweet spot, as you describe it so many times.
It's hard stuff. It's tough stuff. You have been involved
with these issues for decades.
Litigation that goes on for decades.
Issues that are absolutely integral to all that goes on
within your State in many ways and also down in California.
So the fact that you are all here at the invitation of the
chairman of the Energy Committee, I think, is really quite
significant and important.
Coming from a State like Alaska where more times than not
we have more water than we need, sometimes it's been difficult
for me to appreciate fully these water wars that go on. My
first subcommittee that I ever chaired was Chairman of the
Water and Power Subcommittee. That was a real eye opener for me
in terms of understanding what really has gone on historically
with discussions and arguments and fights and hopefully
resolutions over our State's water rights.
But I do think that, again, it's important to note that the
chairman has really gone out of his way to make sure that this
is an all inclusive approach. Truly gone out of his way to make
sure that we have stakeholders here this morning that are
representing every interest whether it's the farmers, the
Indian tribes, commercial and sport fishermen, power producers,
environmental groups, municipal water users, outdoor
enthusiasts, advocates for Federal wildlife refuges. So gaining
the full perspective on the 2 Klamath Basin agreements is going
to be critically important.
For me to better understand the goals there which I
understand at this point include allocating water resources so
farming, tribal, recreational, wildlife and fishing interests
are protected.
Restoring the fisheries in the Basin.
Removing 4 dams while continuing to provide affordable
power to agricultural communities.
Improving habitat and water quality.
Ensuring no further degradation of the Basin resources.
As the chairman has indicated, all very complex, all very
challenging, particularly at a time of limited Federal dollars.
But I do hope that this morning's hearing will provide that
better understanding on how we proceed into the future. I hope
that you take the chairman's words to heart that we will stick
with this. I think you've got the commitment of your 2 Oregon
Senators to make this happen and know that I will be working
with you from the committee perspective to do what I can to
help facilitate.
I do have Appropriations mark up at 10:30 so I'll be
excusing myself at that point in time. But it won't be because
of lack of interest. It's multiple scheduling. But Mr.
Chairman, thank you for the opportunity to be part of, what I
think, is a great collaborative process on how we move forward
with some very complex issues.
The Chairman. Thank you very much, Senator Murkowski.
Suffice it to say what we're trying to do is sort of throw
out the textbook with respect to a lot of these issues, the
textbook that says you mostly have to fight. At the end of the
day, everybody goes to Federal court and fights some more.
It's only possible to have this approach that really brings
people together when we have colleagues like you make it
possible. I want everybody to know how appreciative I am.
Senator Merkley has done an awful lot of good work on this
issue. He's holding town hall meetings, meeting with all the
parties, has spent a lot of time trying to bring people
together. I so appreciate our partnership.
Senator Merkley you just go forth as you would like.
STATEMENT OF HON. JEFF MERKLEY, U.S. SENATOR
FROM OREGON
Senator Merkley. Thank you so much, Senator Wyden and Chair
of this committee. Thank you to Ranking Member, Senator
Murkowski. I'm going to thank you both for holding this hearing
and inviting so many stakeholders from Oregon with multiple
things at stake, important things at stake for their families,
for their community in trying to figure out a path forward.
I know that you've been engaged in this for far more than a
decade. I appreciate your interest and that experience that
you're bringing to bear.
When I was first elected to the Senate one of my first
trips was down to the Klamath Basin to talk to folks about the
history of the Basin and of the challenges that existed there.
It was in 2001 when I was a member of the Oregon House that I
first became aware of the challenges in sharing water because
that was a year of substantial drought, the worst drought to
date at that point. It really became national news. It became
national news because of the enormous frictions of how, in a
drought year, how do you allocate water?
Of course, at that point the water rights weren't
adjudicated. That was before the Klamath Basin restoration
conversation. It was on the trip that I took down there in 2009
that I was reminded of the saying I'd heard all of the time I
was growing up which was, ``Whiskey, that's for drinking and
water that's for fighting.'' That captures the challenge of
sharing this incredibly important resource.
On that trip I was briefed on the fact that many
stakeholders in the community were meeting together to try to
find a win/win path forward. One person described it to me this
way. He said, the only person winning are the lawyers. We don't
want to spend the next 20 years just enriching lawyers. We want
to solve the problem.
I was very impressed that folks, who could barely talk to
each other after the 2001 drought, had been sitting down for
years to try to forge a path forward. I know that wasn't easy.
But I do know that in the course of those meetings people came
to respect each other, to understand each other and to realize
there could be a path that was better for irrigators, better
for the river, better for the fish, better for the tribes and
that that was what they were going to try to capture.
I'm a skeptical. I'm a skeptical that you could go from a
theory of wanting to achieve such an agreement to actually
sketching an outline. But the many community stakeholders who
participated did sketch an outline. They did actually put it
into print. They signed the agreement, the Klamath Basin
Restoration Agreement and a second power agreement.
Senator, the Secretary of Interior flew in to witness it.
I'll tell you that those bonds that were formed in that process
were incredibly important in 2010 during another extremely
difficult drought where the relationships with each other and
the relationships with Interior Department and with the
Agricultural Department helped the community find a path
forward that worked better than in 2001. Anyone nationally
would not have known that the drought that year in 2010 was
worse than 2001 because it never became national news as the
community worked to solve the problems.
So I think the stakeholders in the Basin, they're tired of
fighting. They're tired of suing. They're tired of arguing.
They want to end the water wars with a plan that works better
on all parts.
I certainly resolve to do what I could to assist. Said that
if they could sign an agreement I would be a partner and try to
help with Federal implementing legislation. That is process
that is now here in this committee. I pledge to work with you
and with the ranking member and with the committee as best as I
can to help figure this out.
You've laid out the key parameters that need to be
addressed. We have here today folks who are part of the Klamath
Basin Restoration Agreement. We have folks who were not part of
the agreement who have come to share their perspectives. That's
an important part of this process as well that they have the
opportunity to put forward their concerns as we seek to build
this path forward.
So I simply want to close by saying that this year we have
another worst ever drought. I hope that while everyone is here
it's raining back home. I heard it was raining a little bit
yesterday in the Basin. But it needs to rain a lot or this
truly is a very, very difficult.
In 2010 I was going through the Floor of the Senate with a
chart which compared the lake levels in different years
compared to the 2010 level which was a way of dramatizing how
that was the worst ever. There's the complexities here are
enormous between the endangered suckers in the lake, the
endangered salmon in the stream, the demands on for irrigation
and so forth. So not simple, for sure.
The challenges now for us in Congress to put the same type
of effort into this that all of our witnesses have put into the
conversation. I look forward and hope that we can succeed in
building a framework that can be adopted here by the U.S.
Senate, carry momentum to the House and help build a better
future for all Oregonians in the Basin.
Thank you.
The Chairman. Senator Merkley, thank you. You've put a lot
of sweat equity into this cause in terms of working with
people. I very much appreciate it.
As Senator Merkley has indicated, now is the time,
literally and figuratively. So let's have each of you take a
few minutes and we'll just throw it open. Obviously you've
heard from me and my colleagues the premium is on fresh
thinking; that's going to help bring people together.
Mike Connor, please. Welcome.
STATEMENT OF MICHAEL L. CONNOR, COMMISSIONER, BUREAU OF
RECLAMATION, DEPARTMENT OF THE INTERIOR
Mr. Connor. Thank you, Mr. Chairman, Ranking Member
Murkowski, Senator Merkley. I'm Mike Connor, Commissioner of
the Bureau of Reclamation here representing the Department of
the Interior interest today. I appreciate the opportunity to
discuss the water resource issues in the Klamath River Basin.
The Klamath has a long history of conflict driven by scarce
water resources that have over allocated among competing uses.
This year's drought continues that unfortunate trend. There's
new turmoil caused by the ongoing priority enforcement of water
rights resulting in the shut off of junior water users. At the
same time project irrigators will not receive a full supply of
water. The tribal fishery in Upper Klamath Lake continues to be
closed to all but a ceremonial catch of 2 to 3 fish.
Wildlife refuges that support some of the most important
habitat on the Pacific Flyway will struggle for water. Fish
species in both Upper Klamath Lake and the Klamath River
continue to be at risk of extinction. Even more disturbing is
that the analyses we've done that indicate that without a long
term solution all of these problems will likely worsen and may
occur more frequently in the coming years due to the impacts of
climate change.
Many of the parties most affected, those that live and work
in the Klamath Basin, have decided enough is enough. Have
charted a different future for themselves. The Klamath
Hydroelectric Settlement Agreement, or KHSA, and the Klamath
Basin Restoration Agreement, or KBRA, were signed in February
2010 and require action from Congress to be fully implemented.
If enacted these agreements would address the ongoing
impacts on the rest of the Basin's resources while
strengthening the communities that rely on these resources.
The Klamath agreements hold great promise to transform what
was once a landscape of turmoil and conflict to one built on
cooperation and trust. Our perspective is that a long term
solution that is driven at the local level by those who are
most directly affected is the best opportunity to avoid the
year to year crises that plague this Basin. Under this approach
there is a mutual commitment to a shared resource, the economy
is strengthened and those who are most directly affected have a
say in how the resource is managed.
We should not lose this opportunity and we understand the
need for flexibility here, Senator Wyden.
My written statement describes the KHSA and KBRA in detail.
One point I'd like to make here though is that the promise
of the Klamath agreements are more than just lofty words. They
can be translated into real, specific benefits and conditions
like the current water year.
For example with the KHSA and KBRA in place this year's
project allocation would be 353 thousand acre feet instead of
the projected 219 thousand acre feet.
Wildlife refuges would be allocated approximately 51
thousand acre feet compared to the zero available this year.
Thirty thousand acre feet of depletions above Upper Klamath
Lake would be dedicated toward fishery purposes with the system
managed in real time.
Tribal members would be at work on implementing habitat
restoration actions.
Water users both on and off project who are currently
paying between 9 and 15 cents per kilowatt-hour power for
agricultural production relation would be paying about half
that amount allowing for more investment in the agricultural
economy.
There would also be more tools to address fishery needs and
of course, the Secretary would be able to proceed with
determining whether damming is in the public interest and will
advance fishery restoration.
Without the framework of the Klamath agreements we are
expanding a system that simply cannot meet all the competing
demands year in and year out. Under this scenario the current
cycle of crises management, disaster relief and unfulfilled
tribal rights will continue. A more permanent solution that
provides greater predictability for the availability of water
and improved fishery resources is an investment that will be
more cost effective in the long run.
We acknowledge that despite our best efforts there are
parties that have not signed the Klamath agreements. I speak to
their concerns in my written statement and am glad to discuss
them further today. Given the constraints of time I'll simply
conclude by thanking the committee, Mr. Chairman, your
leadership for convening this round table and we're looking
forward to working on the agreements that we need to put in
place for the long term.
[The prepared statement of Mr. Connor follows:]
Prepared Statement of Michael L. Connor, Commissioner, Bureau of
Reclamation, Department of the Interior
Chairman Wyden, Ranking Member Murkowski and members of the
Committee, I am Mike Connor, Commissioner of the Bureau of Reclamation
(Reclamation). I am pleased to represent the Department of the Interior
(Department) today to discuss water resource issues in the Klamath
River Basin.
The Klamath River Basin has a long history of conflict driven by
scarce water resources that have been over-allocated among competing
uses. While we are not far removed from the events of 2001, when water
to Reclamation's Klamath Project (Project) was not delivered in the
spring, or 2002, when 30,000 adult salmon perished in the lower Klamath
River, or 2006, when the commercial ocean fishery closed along the
Oregon and California Coasts due to poor Klamath Basin stocks; we only
need to look at the conditions in 2013 to understand the importance of
a long-term, comprehensive, and durable solution for the Klamath Basin.
Consistent with eight out of the last twelve years, project irrigators
will again not receive a full supply of water, and the power rates they
are paying continue to escalate and are among the highest charged to
irrigation projects in the West. Both of these issues directly and
adversely affect the Klamath Project water users and the $600 million a
year their agricultural products and jobs contribute to the local
economy.\1\
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\1\ Revised Cost Estimates for the Klamath Basin Restoration
Agreement. June 17, 2011. http://216.119.96.156 /Klamath/2011/06/
RevisedCostEstimates.pdf
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With the Upper Klamath Basin experiencing a drier than normal water
year, last week the Department and the Klamath Tribes exercised their
adjudicated water rights for rivers flowing into the Upper Klamath
Lake, which I will go into further detail later in my testimony. In
addition, the tribal fishery in Upper Klamath Lake continues to be
closed to all but a ceremonial catch of two to three fish per year and
the abundance of these endangered fish populations have continued to
decline for the last 20 years. Wildlife refuges that support some of
the most important habitat on the Pacific Flyway struggle for water and
suffer bird die offs, water quality continues to be degraded, and
species in both Upper Klamath Lake and the Klamath River continue to be
at risk of extinction. Private irrigators in the upper basin will
struggle to maintain crops and livestock in this drought year. And,
finally, a relatively large run of Chinook salmon is expected to return
home to the Klamath River this fall. While this should be a reason to
celebrate, this year's drought conditions have raised concerns about
how to avoid another salmon die-off in the Lower Klamath River. Our
analysis shows all of these problems will likely worsen and may occur
more frequently in the coming years due to impacts of climate change
unless a long term solution is found.\2\
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\2\ As stated in section 4.1.1.2 of the Secretarial Determination
Overview Report, our analysis shows all of these problems will likely
worsen and may occur more frequently in the coming years due to impacts
of climate change. For example, models show that, while there is some
uncertainty, over a period of 50 years (2012 to 2061), water
temperatures in the Klamath Basin would increase 1 to 3 degrees C (2 to
5 degrees F) and earlier snow melt would decrease summer flows.
Removing the Klamath River dams would restore salmon access to critical
cool-water habitat for spawning and rearing in the upper basin, thereby
helping to buffer against effects of climate change. Removing the dams
would also immediately improve late summer and fall water temperatures
for salmon below this reach, thereby buffering against future impacts
of climate change.
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Moreover, these very same scenarios have played out in three of the
four years since over 40 parties have signed the Klamath Agreements;
the Klamath Hydroelectric Settlement Agreement (KHSA), and the Klamath
Basin Restoration Agreement (KBRA) in February 2010. The Klamath
Agreements were crafted to address these ongoing impacts and risks to
the Basin's resources while strengthening communities that rely on
these resources by charting a path of collaboration and cooperation.
The Klamath Agreements hold great promise to transform what was once a
landscape of turmoil and conflict to one that is built on cooperation
and trust with the recognition that we cannot take care of ourselves if
we fail to also take care of our neighbors.
While visiting the Basin several times over the past few years, I
have been personally struck that tribal members, fishermen, and
irrigators--who only a few short years ago could not even stand in the
same room together--are no longer arguing with each other but are now
advocating for each other and for the protection of each other's
interests. The Klamath Agreements stand as a common vision for these
diverse parties, and the commitment to cooperation and collaboration
contained in these agreements is nothing short of historic.
Our perspective is that a long-term, durable solution that is
driven at the local level by those who are most directly affected is
the best and perhaps only opportunity to avoid the year to year crises
that are endemic to this basin. Under this approach, there is a mutual
commitment to a shared resource, the economy is strengthened and jobs
are created, and those who are most directly affected have a say in how
the resource is managed. It is for these reasons that the framework
embodied in both Klamath Agreements holds such promise for addressing
the needs of the Klamath Basin in a manner that fits the above
criteria.
To be sure, implementing these agreements and accomplishing the
parties' collective goals will take substantial resources. From a
Federal perspective, we have significant concerns about overall costs
in light of the current fiscal climate. Whatever the final costs might
be, there should be an appropriate cost share that follows the
`beneficiary pays' principle and is in line with other restoration
programs that have been enacted in the recent past. We also acknowledge
there are a handful of parties that have not signed the Klamath
Agreements despite the non-partisan development of this framework over
several federal and state administrations. We needr to continue our
efforts to find common ground with these groups. But we also believe
that the time is ripe for action and that we have a unique opportunity
to heal and restore the basin in a lasting manner. We should not lose
this opportunity.
KHSA
The KHSA is a unique combination of environmental and business
interests striking an agreement that combines both business sense and
protection of natural resources. It is an agreement to study the
potential removal of four privately owned hydroelectric facilities on
the Klamath River and to determine, based on a host of scientific and
engineering studies, whether removal of these facilities is in the
public interest, including consideration of the interests of local and
tribal communities, and whether it will advance restoration of the
fisheries. The KHSA calls for removal to occur in 2020, should there be
a determination that removal is in the public interest. Congressional
authorization is necessary for the Secretary to make this
determination. Should there be a decision to remove these facilities;
the costs shall be borne by a combination of PacifiCorp's electricity
customers in Oregon and California, through a minimal surcharge, and a
water bond from the State of California. Consequently, there are no
federal costs associated with any potential dam removal under the KHSA.
The KHSA also includes certain protections for PacifiCorp in the
facilities removal process should there be a determination to remove
these dams. The current cost estimate is below the protection levels
provided to PacifiCorp, though it remains uncertain at this point who
would bear any costs in excess of those protections, should such a
situation arise. The KHSA also provides a commitment for PacifiCorp to
transmit and deliver federally generated power to the Klamath Project,
which could provide savings to water users on power costs, making for
efficient project operations, which in turn makes more water available
for conservation purposes. On this point, discussions are underway
between PacifiCorp, the Department, Bonneville Power Administration,
and the Klamath Water Users on developing a plan that can be approved
by the Public Utility Commission in Oregon to provide federal
preference power to the Klamath Project water users. In 2006, that
Commission terminated the Klamath Water Users' preferential power
contract as discriminatory; then gradually increased the water users'
power rates over a period of seven years to equilibrium with market
rates for agricultural use in the region. We could have similar
discussions with Western Area Power Administration for the California
part of the Project. Although we do not have the authority to provide
such federally generated, below-market-rate power to off project
irrigators, and doing so would be an expansion of Reclamation's typical
project arrangements, there are provisions in the Klamath Agreements,
if approved by Congress that would approve such an arrangement.
KBRA
The KBRA is a restoration agreement that includes water allocation
and fish habitat restoration actions, predicated on, and working in
conjunction with dam removal, to restore the Klamath Basin. The KBRA
includes agreements among tribal and non-tribal entities resolving
water rights disputes and provides the means for Reclamation's Klamath
Project to conserve water supplies and develop sources of power that
will place the Project on par with other similarly sized irrigation
projects in the West. The KBRA provides real water to wildlife refuges,
and if funded will put tribal members to work on habitat restoration
actions needed in the Basin. Through the establishment of a Federal
Advisory Committee Act charter, the KBRA will return many decisions
regarding the Basin resources back to local control. While most of the
items in the KBRA, especially those involving tribal and fisheries
programs, are presently authorized under existing law, key items
associated with making Reclamation's Klamath Project more efficient and
flexible would require additional Congressional authorization.
To illustrate how the Klamath Agreements would change the impacts
of the current water year, if fully authorized, the Project allocation
would be 353,000 acre-feet instead of the current projected 319,125
acre-feet, wildlife refuges would be allocated 51,000 acre-feet
compared to no available water this year, and 30,000 acre-feet of
depletions above Upper Klamath Lake would be dedicated towards fishery
purposes, with the system managed on a real-time basis able to react to
changes in hydrology. Tribal members would be at work implementing
habitat restoration actions. There would also be more tools to address
fishery needs in the fall. Without the framework of the Klamath
Agreements, we are managing a system that simply cannot meet all the
competing demands year in and year out. Without the Klamath Agreements,
the current cycle of crisis management, disaster relief, animosity
between communities, and unfulfilled tribal rights will continue. A
more permanent solution that provides greater predictability as to the
availability of water and improved fishery resources is an investment
that will be more cost-effective in the long run.
KHSA/KBRA Science Process
Between the signing of the Klamath agreements in early 2010 and
today, many federal studies have been undertaken and completed that
analyze the potential effects of Klamath River dam removal and
implementation of KBRA on local communities, tribes, and the
environment. A Final Environmental Impact Statement analyzed the
proposed action to remove the four lower PacifiCorp dams on the Klamath
River in 2020 and to implement the KBRA, as well as three alternatives
where some or all of the dams would remain in place.
The process undertaken to develop new information for a Secretarial
Determination was rigorous, open and transparent, provided multiple
opportunities for stakeholder and public participation, included
independent subject-matter experts to provide a breadth of
perspectives, and relied on multiple levels of independent peer review
to ensure objectivity and accuracy of findings, as described in more
detail below.
A team of more than 50 federal experts, scientists and
engineers, from eight separate federal agencies and offices,
prepared or oversaw the preparation of 50 new technical 5
reports covering areas such as engineering, hydrology, fish
biology, economics, cultural resources, recreation, and real
estate. Agency guidelines governed the peer review process for
these published reports.
Completely separate from the development of these new
technical reports, four independent expert panels were convened
to provide additional perspectives regarding the likely impacts
of dam removal and KBRA implementation on four groups of fish
species. The four reports from the expert panels benefited from
broad public and stakeholder input as well as independent peer
reviews.
The major findings from these 50 reports, the findings from
the four independent expert panel reports, and many other
existing reports were summarized in a single Klamath Overview
Report. This Overview Report was treated as a ``Highly
Influential Scientific Assessment'' and received a second round
of peer review from an independent panel of six nationally-
recognized experts. The peer reviewers were also provided
public comments on the Overview Report to consider during their
peer-review deliberations. As part of the peer review process,
an independent ``referee'' ensured that the federal scientists
adequately addressed each of the peer review comments and
recommendations in the Final Overview Report.
All of these studies and materials are available to the public and
can be found at http://klamathrestoration.gov/.
Public Involvement
Over 80 meetings and workshops were held throughout the Basin over
a period of two years that allowed for public and stakeholder
participation in the science process. The public and stakeholders
provided input on hypotheses to be tested, study designs, available
sources of information, data analysis, and conclusions to be drawn from
the analyses. The public involvement improved the quality of reports. A
summary of the findings from the science process is attached as an
Appendix.
Parties that have not signed the Klamath Agreements
We acknowledge that despite our best efforts, there are a small
number of parties who participated in the negotiations but have chosen
not to sign the Klamath Agreements. We respect that each party has its
own unique concerns and must make its own decisions as to what it
believes is in its best interest. Some of those who oppose the Klamath
Agreements want to maintain the status quo or have general concerns
about dam removal; others believe their resources are being
inappropriately harmed or their rights are being terminated; or, in the
case of homeowners around the reservoirs, that they are bearing an
unfair share of the adverse consequences of the Klamath Agreements.
As to those who want to maintain the status quo or have general
concerns about dam removal, I wish to be clear that as Commissioner of
the Bureau of Reclamation, which owns 476 dams and annually generates
40 billion kilowatt-hours of electricity, I understand the importance
of dams to both the economy and the communities of the American West. I
also believe that given the ongoing challenges and increasing demands
for limited water resources, we should continue to evaluate
opportunities to develop additional storage and power generation
opportunities where it makes sense. But we should also not be afraid to
evaluate potential dam removal when the specific circumstances warrant.
The KHSA reflects the unique circumstances of the Klamath Basin, where
the owner of these private dams, in making a business decision that is
in the best interests of its electricity customers and the company, has
agreed to evaluate whether their removal would advance fisheries and be
in the overall public interest as part of a Basin-wide restoration
effort that addresses many of the systemic problems that continually
plague the Klamath Basin. Dam removal in this instance has been given a
hard look because, with the passage of time, it is clear that the
ongoing costs of these facilities most certainly outweighs the
benefits-- something now confirmed based on the analyses completed.
While no final determination has been made on the removal of these
PacifiCorp dams, there are several specific facts that bear
emphasizing: these dams are privately owned and their owner has agreed,
as part of a business decision, to evaluate their potential removal,
which could still occur as an independent business decision even
without any Congressional action on the Klamath settlements. In
addition, these dams provide no water storage for purposes of
irrigation, drinking water, or flow augmentation for fish. Nor are they
designed or currently operated for downstream flood control. Moreover,
these dams generate a limited amount of electricity, approximately 82
megawatts, which PacifiCorp has already made up with other power
sources.
Just as importantly, if these dams are retained, PacifiCorp would
have to obtain a new long-term operating license, which would require
retro-fitting the dams for fish passage and remedying water quality and
temperature issues below the lowermost dam. Provisions of a new
license, plus additional operational restrictions, would decrease power
production by 20 percent and result in the loss of the majority of
peaking power at J.C. Boyle Dam. PacifiCorp's estimated that
relicensing would involve at least $400 million in capital costs for
retro-fits, and $60 million in operation and maintenance cost over the
40-year life of the new operating license. The Public Utilities
Commissions for both Oregon and California agreed that relicensing
would include substantial costs and that there was a significant risk
that ratepayers would face much higher costs if PacifiCorp sought
relicensing than they would under the KHSA. When this is combined with
flow requirements that will decrease hydropower generation and peaking
power, both Commissions determined that dam removal as laid out in the
KHSA, was preferable to relicensing. Simply operating these dams as
they have been operated for the last 50 years is not a viable option.
Additionally, our climate change analysis shows that water temperatures
will increase 2-5 degrees Fahrenheit over the coming decades,
exacerbating the warming influence on the river from the dams and
reservoirs, further impacting salmon, and increasing costs to
ratepayers for keeping the dams in place. These additional facts are
why we have undertaken an analysis of potential facilities removal
within the context of the great promise of the Klamath Agreements to
restore resources and help struggling communities in the basin.
There are others who favor of dam removal but do support the
Klamath Agreements because they either want to remove or significantly
limit irrigated agriculture from the Basin or believe that the
assurances in the Agreements regarding water supply and, the connected
issue of river flows, terminate tribal rights. As to the former,
irrigated agriculture is part of the societal fabric of the Basin and,
as mentioned earlier, provides significant jobs and economic support to
all communities of the Basin. While the KBRA does provide further
funding for voluntary retirement of up to 30,000 acre-feet of
irrigation water on a willing seller or buyer basis, total removal of
irrigated agriculture is simply not consistent with a comprehensive and
durable restoration program meant to restore the communities of the
basin. As to the concern regarding tribal rights, there is nothing in
the Klamath Agreements that would ``terminate'' the rights of any non-
signatory Tribe. The United States believes the Klamath Agreements are
consistent with any federal trust obligations to Tribes in the Basin
and provide the best hope for restoration of thriving fisheries in the
Basin. Our analysis of the fishery with dams removed and under the
management of the KBRA shows significant improvement for many fish
populations, such as steelhead, coho salmon, and redband trout, and
increases in the annual production of Chinook salmon by about 80
percent in the Klamath Basin. Improvements in fish production would
result from restoring fish access to the Upper Basin through dam
removal, including access to critical cool-water streams, and from
actively restoring spawning and rearing habitats. Thus, we respectfully
disagree with those who point to comparisons of flow rates in the KBRA
to current or recent conditions as a reason to challenge the
sufficiency of the Klamath Agreements. Our view is that a comparison of
only flows in the river tells an incomplete story. You must also
account for the habitat improvements and habitat expansion that will
occur as a result of both dam removal and restoration actions. Chinook
salmon are critically important for commercial, sport, and tribal
fisheries in the river and the ocean and are a cultural, subsistence,
and economic mainstay of the Basin's Tribes. After much study and
evaluation, the scientific record shows that the Klamath Agreements
provide significant benefits to the resources of the Tribes in the
Basin, a conclusion validated by the support of most of the affected
Tribes.
We have also heard the concerns of those around the reservoirs
whose properties and businesses would be most directly impacted by
removal. On this point, we believe that if the Klamath Agreements are
ultimately authorized, consideration should be given to establishing a
fund to be managed by representatives in local communities to
recompense land owners for any lost value that occurs as a result of
dam removal. The size and scope of this fund can be worked out with the
interested parties at the appropriate time in the legislative process.
This would however, increase the costs of implementing the settlement
and create an additional burden on the general taxpayer.
2013 Operations and Biological Opinion
This year, the Klamath Falls area reported the second driest
January through March period on record and precipitation has been below
average throughout the Klamath Basin. As a result, in April the Klamath
Basin Area Office implemented a 10-day delay for the startup of the
irrigation season to ensure that the water elevation in Upper Klamath
Lake would rise above critical elevations identified in the 2008 U.S.
Fish and Wildlife Service (USFWS) BO. As a result of the dry hydrologic
conditions, Reclamation is anticipating that full water user demand
will not be met in 2013 consistent with eight of the last ten years.
Reclamation is working with the Klamath Water and Power Agency (KWAPA),
which administers the Water User Mitigation Program, to address
potential water shortages to the extent possible given existing
authorities and available appropriations. Shortages of approximately
75,000-100,000 acre-feet or more are currently expected, depending on
weather conditions and the associated irrigation demand during the 2013
irrigation season. Additionally, it is possible that little or no water
will be available for the Lower Klamath National Wildlife Refuge.
Over the past two years, Reclamation, NOAA Fisheries and USFWS
worked together to develop an new water management approach for
Reclamation's Klamath Project that has the flexibility to optimize the
benefits of available water for federally-listed species while
providing more certainty related to irrigation deliveries to the
Project. Late last month, NOAA Fisheries and USFWS jointly issued an
integrated Endangered Species Act (ESA) biological opinion on
Reclamation's new water management strategy for the Klamath Project.
They concluded that this approach adequately protects the federally-
listed fish in the lake and river under the ESA for the next 10 years
and is not likely to jeopardize their continued existence or to result
in the destruction or adverse modification of their critical habitat.
This new water management process relies upon real-time hydrologic
conditions in the Upper Klamath Basin, provides more flexibility,
ensures more water certainty for farmers (even in drought years), and
includes a process where a team of agency and tribal technical staff
work together to track real-time ecological conditions in Upper Klamath
Lake and the Klamath River to support adaptive management changes that
would provide additional conservation benefits to listed fish. Such
innovation is absolutely critical, especially with the limited water
supplies of the Upper Klamath Basin.
Just like the Tribes, farmers and fishermen who have found a new
working paradigm under the Klamath Agreements, agency staffs have also
discovered a better way. Building off a shared goal of enhanced inter-
agency efforts to develop a proposed action that protects listed fish
while also providing more certainty of water supply for the Klamath
Project farmers, agency staff built effective relationships which
enabled a collaborative process that produced tangible results. An
early decision by the Regional Directors to bring the ESA analyses from
each agency together into one document, instead of two biological
opinions, encouraged higher levels of coordination among the agencies
than ever before and served to ensure that terms and conditions for the
Project from one fishery resource agency did not conflict with those
from the other.
While Reclamation's new water management system is more flexible,
provides more certainty for irrigation deliveries, and adequately
protects endangered species as required by the ESA, I do not believe
any biological opinion is the long-term and comprehensive solution for
the Klamath Basin. NOAA Fisheries and the USFWS have concluded that
Reclamation's new water approach is protective enough for listed fish;
the ESA's ``no jeopardy'' conservation standard means that
Reclamation's Klamath Project will not stand in the way of recovery.
However, it does not mean that the new approach will recover listed
fish or fully address tribal interests without other recovery actions
occurring throughout the Basin that go well beyond the discretion of
Reclamation. The recovery and restoration of listed fish species in the
Klamath Basin requires a basin-wide solution that is built, supported,
and undertaken by those that live and work in the Basin. While ESA
biological opinions are fundamental to ensuring that federal actions
protect listed species, Congress did not intend these consultations to
be the sole tool for recovery. Building a better and holistic solution
that will advance recovery of listed fish while also building
sustainable fisheries for fishing and tribal communities, as well as
creating sustainable agricultural communities, requires a more
comprehensive solution with Basin support. The Klamath Agreements hold
great promise for being such a solution.
Adjudication
In March of this year, the Oregon Water Resources Department issued
its Final Order of Determination (FOD) in the Klamath Basin
Adjudication. A number of federal entities received water rights under
the FOD including the National Park Service, USFWS, Forest Service,
Reclamation, and the Bureau of Indian Affairs. The most senior rights
in the basin were jointly awarded to the Klamath Tribes and the United
States to support tribal trust resources. Although not as senior as the
tribal water right, the Klamath Project was also awarded a relatively
senior water right. Because of the current water year, and our
obligations to the tribes, water users, and refuges, we are exercising
these water rights. Because of the current water year, and to project
the tribal, refuge, and irrigation interests that rely on our water
rights, we are exercising these rights.
To be clear, we believe the impacts of regulation of water rights
can be addressed through the KBRA or similar negotiated agreements. For
parties to the KBRA, issues surrounding the enforcement of water rights
have largely been resolved through agreements among the parties that
are included in the KBRA. Once again, the goal of the parties has been
to provide increased certainty and overall sustainability for all
parties to the agreements. There are still a number of water rights
holders in the basin, however, that have not settled their disputes
regarding either the tribal or Project water rights. With the
assistance of the Governor, we are continuing to reach out to those
water rights holders in an effort to secure a resolution of these
longstanding issues and are hopeful that a solution can be had.
Conclusion
This concludes my written statement.
APPENDIX
summary of key findings regarding klamath river dam removal and
implementation of kbra\3\
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\3\ This document is intended to serve as a summary and, as such,
numbers cited herein represent averages and/or aggregates which may
include associated levels of uncertainty that are explained fully in
the contributing studies. All of the scientific studies, which include
the complete scientific analysis and associated uncertainties, are
available at klamathrestoration.gov.
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Dam removal, sediment processes, and impacts on flooding
The most probable cost for full dam removal, which is the
preferred alternative identified in the FEIS, is about $292
million and is under the State cost cap of $450 million (1
percent and 99 percent probability for removal costs range from
$238M to $493M, in 2020 dollars).
Dam removal would mobilize between one-third and two-thirds
of the 13 million cubic yards of sediment behind the dams. The
majority of the sediment is fine-grained material that would be
readily transported to the Pacific Ocean 2 to 3 months
following the drawdown of reservoirs in the winter of 2020.
Extensive chemical testing of sediments behind the dams
shows that human health would not be at risk due to contact
with these sediments.
Dam removal would immediately restore more natural water
temperatures and dissolved oxygen concentrations important to
downstream fish and fisheries.
Dam removal would immediately eliminate toxic algae produced
in the reservoirs; toxic algae create health concerns in the
reservoirs and downstream in the Klamath River for people,
fish, and wildlife.
Long-term flood risks would increase slightly for about 18
miles downstream of the location of Iron Gate Dam. Analyses
show that some additional structures currently outside the 100-
year flood plain would be located in a new 100-year floodplain
following dam removal. If dam removal were to proceed, the Dam
Removal Entity would work with willing landowners to reduce or
eliminate flood risk for these additional structures.
Impacts of dam removal and KBRA on fish and fisheries
The timing of reservoir drawdown in a single winter season
was designed to minimize negative impacts of released sediments
on sensitive fish species, particularly federally listed Coho
salmon.
Basin-wide adult and juvenile salmon mortality is expected
to be less than 10 percent in the year following dam removal,
even under worst-case flow conditions.
In the long run, opening up fish passage to the Upper
Klamath Basin through dam removal and restoring aquatic habitat
under the KBRA would increase salmon and steelhead production.
For example, annual Chinook salmon production would increase
about 80 percent (ranging from 40 to 190 percent among modeled
years).
The increased production would increase Chinook salmon
harvest about 50 percent for commercial and sport ocean
fisheries, as well as for in-river tribal fisheries.
Coho salmon would be expected to access 68 miles of stream
habitat upstream of Iron Gate Dam, including 23 miles currently
inundated by the reservoirs, thereby advancing the recovery of
this federally listed species.
Steelhead trout would be able to migrate to historical
habitat above Iron Gate Dam, including up to 420 additional
miles of stream, and thereby advancing the most prized game
fishery in the Basin.
Dam removal would also expand the distribution and number of
trophy redband rainbow trout, another prized game fishery,
throughout the hydroelectric reach of the river.
Dam removal would totally eliminate a large non-native game
fishery on the reservoirs, which includes bass and yellow
perch.
Climate change impacts on water temperatures, fish, and flows
Over a period of 50 years (2012 to 2061), climate change
models show that water temperatures in the Klamath Basin would
increase 1 to 3 degrees C (2 to 5 degrees F) and earlier snow
melt would decrease summer flows.
Removing the Klamath River dams would restore salmon access
to critical cool-water habitat for spawning and rearing in the
Upper Basin, thereby helping to buffer against effects of
climate change.
Removing the dams would immediately improve late summer and
fall water temperatures for salmon below this reach, thereby
buffering against future impacts of climate change.
Decreased summer flows will worsen already strained water
supplies needed to support farms, refuges, and fisheries.
Impacts on jobs and regional economies
Dam removal and full KBRA implementation would create a
number of full time, part time, and temporary jobs:
--Hundreds of commercial fishing jobs in five management areas from
northern California to central Oregon;
--1,400 jobs during the year of dam removal;
--300 annual average jobs over 15 years for KBRA programs;
--70 to 695 farm jobs in drought years depending on drought
intensity.
Dam removal would also result in the loss of about 70 jobs
associated with the operation and maintenance of the dams and changes
in the recreational industry (reductions in whitewater rafting and
reservoir fishing/boating).
Tribal and Cultural Impacts:
All of the native people residing in the Klamath River
environment have spiritual beliefs and traditional practices
that are inseparable from the River and surrounding homeland
environments. Dam removal and implementation of the KBRA would
help address tribal trust and social issues identified by the
Klamath River Basin Tribes as detrimental to their traditional
way of life. Dam removal would have beneficial effects on water
quality, fisheries, terrestrial resources, and traditional
cultural practices. Dam removal would enhance the ability of
Indian tribes in the Klamath River Basin to conduct traditional
ceremonies and other traditional practices.
Dam removal and reservoir drawdown could affect Native
American cultural resources sites reported to be currently
submerged beneath the reservoirs. Human remains may be
associated with these sites. Plans to identify cultural
resources and to avoid, minimize, or mitigate impacts to those
resources would be developed in consultations with the
appropriate State Historic Preservation Office, Tribes, and
other Native American organizations.
The removal of the dams and associated facilities, all part
of the Klamath Hydroelectric Project, would result in effects
to those historic properties. Plans to avoid, minimize, or
mitigate effects to historic era properties would be developed
in consultation with the appropriate State Historic
Preservation Office and other historic preservation entities.
Hydropower, Green House Gas emissions, and electricity customers:
Dam removal would eliminate about 82 megawatts of hydropower
in 2020 (enough power for 70,000 homes), which would be made up
by a mix of other energy sources.
Following dam removal in 2020, approximately 526,000 metric
tons of carbon dioxide equivalents (MTCO2e) per year would be
emitted to the atmosphere from replacement power assuming
PacifiCorp's current resource generation mix. This number would
decrease to approximately 451,000 MTCO2e per year assuming
PacifiCorp met California's goal for replacement power sources.
A 2010 analysis by PacifiCorp prepared for the Oregon and
California PUCs demonstrates that dam removal as laid out in
KHSA would be less costly for their customers (about $251
million), and less risky, as compared to likely customer costs
associated with relicensing the four dams, which would be in
excess of $460 million over a 40-year license term.
Wildlife refuges
Dam removal and KBRA implementation would allow the refuges
associated with Reclamation's Klamath Project to have greater
certainty about water deliveries with 14 newly established
allocations, even during drought years, and increased
flexibility in the timing of water deliveries.
Full refuge needs would likely be met in 88 percent of
years; currently refuge needs for water are met in less than 10
percent of the years. These NWRs wetlands are critical
components of the Pacific Flyway, the corridor for migrating
birds from as far away as Alaska and Mexico.
The additional water deliveries-and the increased
predictability of those deliveries-would mean that greater
numbers of migratory waterfowl, non-game water birds, wintering
bald eagles, and other sensitive species would be supported by
the refuges and would increase recreational wildlife viewing.
The estimated increase of over 190,000 waterfowl in the fall
would result in an additional 3,600 hunting trips annually.
Real Estate
Upstream of Iron Gate Dam studies identified 668 parcels
near Copco 1 and Iron Gate reservoirs which either have water
frontage, water access, or views of reservoirs. Of these 668
parcels, 127 include single family homes. These 668 land
parcels would decline in value if dams were removed and
reservoirs drained.
Land values of parcels downstream of Iron Gate Dam, with
river views and river access, may increase in the long-term
because of restoration of the river, including improved water
quality and more robust salmon and steelhead runs.
Flows
The differences in monthly average flows between dams
remaining in place and dam removal options are relatively
small; however, without the dams, pulse flows and other
seasonal fluctuations beneficial to fish would occur more
often.
The absolute minimum flow target under the KBRA would be
approximately 800 cubic feet per second (cfs) at the location
of Iron Gate Dam. In most months and years, however, flows
would be much greater. In extreme drought years, flows could
drop slightly below this target, but never drop below 700 cfs
owing to the water-management provisions in the KBRA.
The Chairman. Very good. Thank you, Mr. Connor.
For all of you we'll put your full written statement into
the record. Mr. Connor was trying to set a land speed record
for trying to summarize. I appreciate that. We thank you very
much, Commissioner.
We've got Richard Whitman here who has been doing important
work for Governor Kitzhaber on this. We welcome you, Mr.
Whitman.
STATEMENT OF RICHARD M. WHITMAN, POLICY DIRECTOR, OREGON
GOVERNOR JOHN KITZHABER'S NATURAL RESOURCES OFFICE, PORTLAND,
OR
Mr. Whitman. Thank you, Chairman Wyden and Ranking Member
Murkowski. Appreciate the opportunity to participate in this
very important round table this morning on one of the most
vexing resource challenges we have in this country concerning
the use of water. Challenges that have created no winners only
conflict, only anger, only instability.
It's a top priority of the State of Oregon and Governor
Kitzhaber to resolve these vexing issues. A hallmark of the
Governor's approach to these issues is very much echoed by your
approach on this committee of the importance of taking
collaborative approaches where everybody comes to the table,
everybody shares in the success and the sacrifice necessary to
get a long term, stable solution. So appreciate your leadership
in bringing us all together today.
There are 4 basic competing demands for water in the
Klamath Basin.
We have the downstream fisheries of importance to both
States and downstream tribes and fishing communities on the
coast.
We have the upstream fisheries in Upper Klamath Lake of
importance in particular to the Klamath tribes.
We have the Klamath irrigation project.
Then we have the Upper Basin Water Users, largely a
ranching community above Upper Klamath Lake.
In the past when we've had shortages on a regular basis the
burden of those shortages has been borne unevenly between these
different interests.
In 2001, we had the Klamath irrigation project take the
brunt of the shortage.
In 2002, with the fish kill on the lower portion of the
river, we had the downstream fisheries take the brunt of the
shortage.
At least arguably in many years with shortages we've had
the Klamath tribes take the brunt in terms of being at the end
of the line in terms of water availability in the upper portion
of the Basin.
With the completion of the water right adjudication in the
State of Oregon we are now shifting to another allocation of
burdens in terms of water shortages in the Basin. That's a very
abrupt shift that's happening very dramatically this year both
because of the completion of the adjudication and the historic
levels of drought that are occurring in the Upper Basin. The
burden is shifting for the first time to the ranching community
in the Upper Basin. We are looking at a situation where it's
very possible that we'll have a near complete shutdown of the
ranching, the irrigation of the ranching community in that part
of the Basin with very severe economic consequences to that
portion of the Basin.
We have to stop lurching from this set of complete winners
and complete losers from one side to the other. Get to a
solution where the burden of over allocation of water resources
in this Basin is shared in some more equitable way between the
parties. In reading the testimony, the submitted testimony, of
the witnesses it's remarkable almost every witness talks about
the need for a more equitable sharing of water resources. I
think we're very encouraged by that consistency in the
testimony today.
Governor Kitzhaber has made resolution of Upper Basin water
issues a top priority. Over the last 6 weeks we've been
involved in formal discussions with a number of the key parties
in the Upper Basin. We're very encouraged by those discussions
as well as the testimony today. We believe there is a solution
space in the Upper Basin where people can come together and
share the shortages, share the sacrifice.
We'd ask 2 things of you, Chairman Wyden and this
committee.
First of all, to work with the parties here to develop
legislation that implements key provisions of the agreements
that have been reached between these parties and that allows us
to share the burden more equitably.
Second, legislation that gives us additional tools to
improve the resiliency of this Basin to withstand drought that
we are inevitably going to face in the future.
Secondly, we need the ongoing close engagement of key
Congressional offices in this effort to bring the parties
together so that they understand that this is the time to come
to the table and reach a resolution here in the Klamath Basin.
With that, I'll conclude my testimony. Thank you for the
opportunity.
[The prepared statement of Mr. Whitman follows:]
Prepared Statement of Richard M. Whitman Policy Director, Oregon
Governor John Itchier's Natural Resources Office, Portland, OR
Chairman Wyden, Ranking Member Murkowski, and members of the
committee, my name is Richard Whitman, and I am the Policy Director for
Oregon Governor John Kitzhaber's Natural Resources Office. I am here
today to testify on behalf of Governor Kitzhaber, and to convey the
urgency of the need for Congressional action to help the interests in
the Klamath River Basin resolve the repeated crises brought on by many
decades of poor management decisions.
None of the interests before you today, including the states, the
federal government and the people of the basin, are blameless for the
situation we now face--competing demands for over-allocated water
resources. The question before you today, however, is not how we got to
where we are, but how we transform the management of this river basin
so that it sustains all facets of our communities, our economy and our
environment. If we do not act soon, serious harm is going to occur in
many parts of the basin, from the upper basin off-project irrigators
represented on this panel, to the lower Klamath wildlife refuges, and
downstream to the Tribes and other fishing interests that depend on
water to support Coho salmon, Chinook salmon and other fisheries.
There is a way to move this basin away from conflict and crisis to
stability. That way is outlined by the Klamath Basin Restoration
Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement
(KHSA). The State of Oregon is a signatory to the KBRA and the KHSA,
and Governor Kitzhaber reaffirmed his and Oregon's support of those
agreements last December in agreeing to extend and amend the KBRA.
Oregon stands ready to work with Congress and all basin interests to
craft legislation that moves this region away from the cycle of
conflict we have seen over the past twelve years.
Oregon's Commitments and Interests
Oregon's support for these agreements is not merely a matter of
signing a piece of paper. Oregon ratepayers have already contributed
over $50 million to implement the KHSA, through a surcharge on electric
rates approved by the Oregon legislature and the Oregon Public
Utilities Commission. Oregon also has invested millions of dollars in
actions to improve water quality and restore habitat in the upper
Klamath River Basin. Additional investments have been made by other
governmental and non-governmental actors. Oregon is committed to
continued investment in the Klamath basin, as it works with irrigators,
the Klamath Tribes, local governments and industry to restore this area
to health.
We are already seeing improvements as a result of the KBRA, KHSA
and related actions. Water quality is starting to improve in the upper
basin. Levels of a key pollutant, phosphorus, are declining as a result
of the restoration of marshes and riparian areas. Stream flows are
increasing above the lake as well, albeit slowly. Collaborative actions
have been undertaken to stabilize the threatened and endangered bull
trout and sucker populations in the upper basin, with significant
increases in bull trout numbers in local streams. Future actions
contained in the KBRA are expected to move these populations toward
recovery.
Oregon's interests come down to assuring that the farming and
ranching communities dependent on water resources in the Klamath River
Basin are afforded reasonable stability and certainty on which they can
base decisions, that the Klamath Tribes have a land base restored to
them along with water quality and quantity needed for healthy
fisheries, and that downstream fisheries are also healthy. Oregon is
still very much a farm state. Agriculture is Oregon's number two
industry, and agriculture in Klamath County is an important part of
that success. Klamath County is ranked 7th out of 36 counties in Oregon
for the value of agricultural production ($150 million in 2007 and $284
million in 2011, with half in crops and half in livestock sales).
Farming within the Klamath Irrigation Project generates about half of
the value of agricultural production in the region, and approximately
13% of the employment is in agriculture and agricultural processing.
Oregon also cares deeply about the success of our Indian Tribes.
Governor Kitzhaber signed an executive order to assure that state
government works with Oregon Tribes on a government to government
basis, and that order was subsequently enacted as legislation by the
Oregon Legislature. Oregon has worked closely with the Klamath Tribes
to improve water quality above Upper Klamath Lake, and the Oregon
Watershed Enhancement Board has recently designated this area for its
Strategic Investment Program. Oregon strongly supports the Klamath
Tribes efforts to reacquire lands within the former Klamath Indian
reservation, as it has supported other tribal efforts to acquire a land
base.
Klamath River Basin Water Rights Adjudication
Many members of the committee likely have read or heard that
irrigators in the upper Klamath River basin are having their water shut
off this year as a result of the severe drought conditions in this part
of the state. I want to take this opportunity to describe for you what
is going on, and how it relates to our current predicament.
Up until this year, when water was short in the Klamath basin, the
burden of that shortage fell largely on two sets of interests--the
Klamath Tribes and the Klamath Irrigation Project. Oregon, like other
western states, regulates water use by the prior appropriation
doctrine: ``first in time--first in right.'' But in a basin where pre-
water code water rights, including those of both the Klamath Irrigation
Project and the Klamath Tribes, had not been determined, those water
rights were not and could not be protected under state law. As a
result, water users in the upper part of the basin were able to use
water without limitation, and shortages downstream of those uses--in
tributaries to Upper Klamath Lake and in the lake itself, occurred
regardless of seniority.
The unregulated use of water in the basin ended this year, with the
completion of the administrative phase of the Klamath Water Rights
Adjudication. Now that water rights are quantified and confirmed, the
state is required to protect them by regulating water use under the
prior appropriation system. Last week, seven irrigation districts with
a priority date of 1905, and the Klamath Tribes with the earliest
priority date in the basin, among others, made ``calls'' for water to
the state---requesting regulation to protect their senior water rights.
Given current weather conditions in the basin, and the lack of snowfall
this past winter, a large portion of the water right holders above
Upper Klamath Lake may be required to stop irrigating.
Most of the water use above Upper Klamath Lake is to irrigate
pasture and grow hay for cattle. Many of these lands are used as summer
pasture by operations that move livestock between California and
Oregon. It is estimated that there are approximately 70,000 head of
cattle on the lands above the lake. While ranchers were able to
irrigate into early June, fields will begin to dry out quickly as we
move to July, and ranchers likely will have to reduce herd sizes by
selling or moving cattle as a result. As drought conditions are
widespread in the west, opportunities to move cattle are very limited
and hay prices are high.
Another set of interests that will be affected by water regulation
this year are the wildlife refuges managed by the U.S. Fish and
Wildlife Service. These refuges have priority dates for their water
rights of 1925 to 1985, well-after the Klamath Irrigation Project. As a
result, the refuges are unlikely to receive much, if any, water (and
this will be true in most drought years absent agreements to the
contrary). These refuges seasonally support a large proportion of the
migratory waterfowl and associated species in the Pacific Flyway, as
well as significant wildlife-oriented recreation and tourism.
Other interests affected by water regulation this year are likely
to include Park Service facilities as well as Forest Service
campgrounds and another Bureau of Reclamation facility that supplies
water to the Medford, Oregon area. While the effects on the Medford
area are expected to be minor this year, disruption of past patterns is
likely to extend beyond ranchers.
You may hear from some that the State of Oregon has ``given away''
water to federal and other interests in quantities well-beyond amounts
that have ever been used. That allegation is simply not true, as
demonstrated in the charts provided at the end of my testimony. The
rights confirmed for the Klamath Tribes are rights that were reserved
by the Tribes as part of their treaty with the United States. The
priority dates of those rights were determined based on federal court
decisions, and the quantities of those rights reflect legal standards
set by federal court decisions and the evidence presented by the
parties in the adjudication, quantities that were reduced substantially
from what was claimed, and that are below the median stream flows in
the Upper Basin.
Some parties argue that their rights are being taken away before
they have had their day in court. You need to know that the Klamath
Adjudication afforded all participants a full opportunity to make their
cases over a 38-year period. The claims and contests were heard first
by an independent hearings officer, who then made a recommendation to
an independent adjudicator. Yes, there is an opportunity for all
parties to file exceptions in state circuit court, with yet another
round of independent review. But under Oregon law, the rights confirmed
by the adjudicator must now be enforced unless the circuit court grants
a stay. A stay request is currently pending in state court, and is
likely to be decided within the next month. All in all, it will likely
be a number of years more before we all know the final results of the
adjudication. For now, though, the burden of uncertainty has shifted to
the Upper Basin.
One set of interests that has elected to forgo challenges to the
Klamath Tribes water rights is the irrigation districts within the
Klamath Irrigation Project. Under the KBRA, and corresponding
agreements in the Klamath Water Rights Adjudication, the districts have
agreed not to contest the Klamath Tribes water rights, in return for
agreement by the Tribes that they will not call water rights from Upper
Klamath Lake and the Klamath River below the lake that have a priority
date earlier than August 9, 1908--leaving the irrigation districts free
from a tribal call for regulation. In return, the districts have agreed
to support the KBRA and related provisions that limit their water
demand to levels that are protective of fisheries using the lake.
This form of agreement between water users is the basic model of
the way forward in resolving water use disputes in the Upper Klamath
Basin. The KBRA includes similar provisions allowing ``off-project''
water users assurances if they agree to participate in efforts to
reduce water use by 30,000 acre-feet (by purchasing rights from willing
sellers), and by participating in riparian restoration efforts that
will improve water quality.
With the completion of the adjudication in March, the Oregon
Governor's office was asked to begin a renewed effort to bring the
upper basin parties together to achieve a settlement. We are working
actively to bring the key parties together to reach agreement on water
use and riparian area restoration. Such an agreement is the key to
avoiding the hard, black or white, winner-take-all contests that we now
see. The next few months will be critical in this effort. We need the
good faith and assistance of all parts of the farming and ranching
communities, the Klamath Tribes, the other KBRA parties, local
governments, and the multiple federal agencies involved in this complex
system. We also need the encouragement and assistance of Congress.
Enacting legislation that allows the key elements of the KBRA and KHSA
to move forward is the only clear way to avoid years of escalating
conflict and costs. Failure to act will result in major losses for many
parts of the basin, and only escalate and inflate the ultimate price of
reversing years of poor management decisions in the Klamath.
The Chairman. That's very constructive, Mr. Whitman. The
Governor has talked to me about this on a number of occasions.
He is very passionate about the idea.
A, this is the time.
B, it is going to take a unique and collaborative effort to
do it.
So we will be working very closely with the Governor and
you on this.
We welcome Mr. John Laird, Secretary for Natural Resources
in California in Sacramento.
Welcome.
STATEMENT JOHN LAIRD, CALIFORNIA SECRETARY FOR NATURAL
RESOURCES, CALIFORNIA NATURAL RESOURCES AGENCY, SACRAMENTO, CA
Mr. Laird. Thank you very much. I really appreciate the
opportunity to present today, Chairman Wyden, Ranking Member
Murkowski. I'm here on behalf of Governor Jerry Brown to state
the State of California's continued and firm support of both
the agreements that you have. As somebody that is a recovering
State legislator, I really appreciate the precedent of having
people read their statements into the record.
Hopefully shortly----
The Chairman. You've probably dealt with a few of these
kind of non-controversial piece of cake issues, huh?
Mr. Laird. Exactly. But nobody appears to about to be
arrested. So it is very different from California hearings.
So let me make a few points in summary which is California
has been taking a real run at a number of contentious problems
in a real collaborative stakeholder driven way.
We've negotiated with Nevada to back off from the brink of
going away from our Tahoe Compact for lake clarity.
We've negotiated a strong network of marine protected areas
and did it with involving tribes so that historic takes were
involved in the concept of protected areas.
We have the mother of all problems, the Sacramento/San
Joaquin River delta issues. We're working really hard to
involve stakeholders and do it in a way that both restores the
ecosystem and provides water reliability. We're doing a
stakeholder driven process to site desert renewables to both
use the best sites, do mitigation in a durable way and work
with local governments. The Klamath is exactly in that spirit.
The stakeholder driven process where over 40 stakeholders
came together and it was a give and take. There were not
winners and losers. Everybody got something. But everybody gave
something. That is historic in the Klamath Basin.
That is why we signed on to the agreements in 2010.
That is why we re-signed on for the extension.
The accomplishment is really remarkable given the history.
I think we hear in meetings from people that also are not
enthusiastic about the agreements and have their own solution,
but usually there's no one else they bring with them in
offering their solution. The significance is the give and take
that resulted in the Klamath Agreements.
The support is broad based in terms of resolving the years
of conflict. It improves water reliability, particularly given
the issue of drought. We in California have just measured a
record low in our Sierra snowpack heading into this water
season. We did not have, in some parts of the State, which is
negligible reported rainfall or snowfall after the first of the
year, unprecedented in the history of record keeping.
That obviously extends to the Klamath Basin in the drought
impacts. So what it does is it makes the point for these
agreements. There are about to be some things that are going to
happen in the Klamath Basin that really will be to the
detriment of some stakeholders there. They would not be
happening if these agreements were in place. That is very
significant.
So California requests the support, your support, for
legislation implementing these agreements and appreciate your
leadership.
But I want to add one thing that's not in my statement
that's responsive to a comment you made in your opening
statement, Mr. Chairman. In short, California is good for its
financial commitment. We are committed.
In a little more detail. California, just as with Oregon,
our Public Utilities Commission did a rate surcharge on all our
rate payers that are in the Klamath Basin and in the Klamath
watershed. Obviously there are many more rate payers on the
Oregon side. So we did a similar rate surcharge even though it
doesn't raise anywhere near as much as is raised on the Oregon
side.
We do have a bond that contains the remaining money here.
That bond was postponed because just frankly in the great
recession the voters were not disposed to spend money. One of
the challenges the Governor undertook is he walked in the door
January 2011 with a $26 billion deficit in the State budget.
He is signing a budget this week that is completely in
balance with surplus and presumed surplus in the future years.
It was very hard sledding. Because as somebody who was chair of
a legislative budget committee for 4 years, the budgets in the
last 10 years might have been legally balanced, but were not
structurally balanced.
So the point is that this isn't required until 2020. If for
any reason the bond doesn't pass we will be good for it in
another way. We work on that. We know there's lots of fluidity
in the cost estimates and to issues that were more forward to
2020.
But we hope that these agreements are implemented. We hope
we can work with the stakeholders on how exactly to make good
that commitment in the event that we hope is an unlikely event
that the bond doesn't pass.
So I just wanted to be responsive to what I presumed might
be a question when you got to the question period. I look
forward to the discussion. I'm grateful for having been able to
participate here today.
[The prepared statement of Mr. Laird follows:]
Prepared Statement of John Laird, California Secretary for Natural
Resources, California Natural Resources Agency, Sacramento, CA
Chairman Wyden, Ranking Member Murkowski, and members of the
committee, I am California Secretary for Natural Resources John Laird.
I am here on behalf of California Governor Jerry Brown to express the
State of California's continued and firm support of both the Klamath
Hydroelectric Settlement Agreement and the Klamath Basin Restoration
Agreement.
In California, Governor Brown is committed to tackling some of the
most difficult issues of our time. California is a leader on climate
change and marine protection--where we established a globally-
significant network of marine protected areas while still protecting
tribal interests in historic gathering. We forged an agreement to
resolve differences between the states of California and Nevada in
protecting the clarity of Lake Tahoe, we have released a draft of a
comprehensive plan to restore habitat and establish water supply
reliability in the Delta, and are working on a landmark program for
siting desert renewables.
Part of that determination is reflected in California's continued
commitment to the Klamath agreements. More than 40 coalition members
representing all of the major interests in the Basin came together and
spent years negotiating these complex agreements. California signed
onto these agreements in 2010 and signed again, along with all of the
other parties, last year to extend them.
The Klamath Agreements represent the first stakeholder-driven
compromise ever aimed at the success and health of this basin from,
literally, its headwaters in Oregon to the Pacific Ocean in California.
They reflect an enormously diverse community that has agreed to a
common future for the Klamath Basin for their own stability, recovery,
and future economic prosperity.
This accomplishment is even more remarkable because of the history.
In the early 2000s, when many of the very same individuals and
stakeholders were locked in courtroom battles, bouncing between
rotating crises for fisherman, Tribes, farmers, and conservationists,
most observers predicted compromise would never occur. It did in the
form of the Klamath Agreements.
Every party receives some benefit and more importantly every party
is carrying some burden. There are those at this hearing who will tell
you that these agreements are not good enough. They may even tell you
that they have an alternative. But if you ask them whether the same
diverse stakeholders of the Basin will sign on to their alternative
like they have signed onto the Klamath Agreements, they don't have an
answer.
In the Upper Klamath Basin, irrigation provides over $300 million
annually in direct revenues, an additional $300 million in indirect
revenues, and provides 4,500 jobs. The commercial salmon fishery
provides an additional $150 million into the Basin. In 2006, Congress
had to provide more than $60 million in disaster relief to commercial
fishing families when the Klamath salmon stocks were closed to
commercial fishing, resulting in over $100 million in losses. The
Klamath Agreements reduce water supply uncertainty for all of the Basin
interests that rely on Klamath water. The agreements provide
substantial economic benefits to regions that have been impacted by
these dams for many years. An analysis under the National Environmental
Policy Act indicated the implementation of the agreements would
generate 4,600 jobs regionally and protect the $750 million farming and
fishing industries that are still at risk. Support for these agreements
and legislation implementing them is support for a broad-based solution
that will resolve years of conflict, it is support for one of the
single most beneficial actions we can take to restore salmon in the
United States and set the Klamath Basin on a stronger economic path
going forward.
The agreements also improve water reliability. They provide for a
drought planning mechanism to deal with low water years and prevent
abrupt reductions and stop gap measures like additional releases by the
United States Bureau of Reclamation from the Trinity River Division to
augment flows in the Lower Klamath.
Improving water reliability and restoring habitat are key goals of
our Administration in California and these goals are reflected in our
continued support of the Klamath agreements. The State of California
requests your support for legislation implementing these historic
agreements. We thank you for your leadership in working with these
diverse stakeholders to make the Klamath Basin a better place.
The Chairman. Thank you very much, Mr. Laird, for bringing
some more good news. We've been at it about 40 minutes or so
and the fact that the utilities are trying to step up and
provide some rate relief to some of these farmers that are hard
hit, you're saying that California is going to be good for its
commitment on the financing side.
I can't tell everybody to take the rest of the day off, but
we're making some progress.
Mr. Laird. I can't do 250 million every 40 minutes. I'll
just do it in the first increment.
The Chairman. I got the drift on that.
[Laughter.]
The Chairman. But certainly that is encouraging. Very much
appreciate you and Governor Brown, who I know is spending a lot
of time trying to figure out a way to show fiscal discipline
and still solve some problems.
Mr. Laird. Thank you.
The Chairman. We appreciate it.
Our next witness is going to be the Honorable Don Gentry,
Chairman of the Klamath Tribe. As we begin, Chairman Gentry, I
want people to know how much I appreciate the good--will that
you and so many in the Tribe have been showing. Again and again
in these discussions you've said we want to find a way to
resolve this. We are going to work in good faith. I so
appreciate the constructive tone that the Tribe has been
taking.
So please proceed with your comments.
STATEMENT OF DONALD C. GENTRY, CHAIRMAN OF THE KLAMATH TRIBES
OF OREGON, CHILOQUIN, OR
Mr. Gentry. Thanks so much, Chairman Wyden and Ranking
Member Murkowski.
The Chairman. I have a feeling, Mr. Gentry, your--yes, get
your mic.
Mr. Gentry. There we go.
The Chairman. There you are.
Mr. Gentry. Thanks so much, Chairman Wyden and Ranking
Member Murkowski. As you know I'm Don Gentry, Chairman of the
Klamath Tribes. I thank you so much for holding this hearing
today to help us better understand the serious and complexity
of the issues that are facing us in the Basin.
I represent the Klamath Tribes, the Klamath, the Modoc and
the Yahooskin Band of Snake Indian River people. Our time
immemorial water right in the Klamath Basin supports our
inherent right to hunt, fish, trap and gather.
In an 1864 treaty with our people, the United States
promised to honor our treaty rights. It supports our right to
hunt, fish, trap and gather. Our ancestors ensured these rights
were reserved to us forever in the treaty.
In addition to providing for subsistence the treaty
resources are central to exercising our cultural and spiritual
practices. Exercising our rights to these resources, like our
endangered c'waam or Lost River Suckers is critical to the
overall health, social health and well being of our people.
Without the resources like our endangered c'waam, we simply
can't live as the people we believe Creator intended us. This
is why we have such a deeply felt responsibility to protect our
treaty resources for our people and the future generations.
Decades of failed State and Federal policies of over
promised water across a diverse set of groups in the Basin and
few decades of conflict. These failed water polices have
acerbated treaty resources and brought the remnant of our
treaty protected fisheries to the brink of collapse. Make no
mistake this is a breach of the United States treaty based
trust responsibility to us.
We take no pleasure in the fact that water must sometimes
be cutoff to our neighbors to satisfy the United States
obligations. Even some of our own Klamath tribal families have
had to make the sacrifice.
After years of contentious litigation many in the Basin
realized that a collaborative approach was necessary. Our
negotiations led to the delicate balance of needs and
compromise within the Klamath Basin Restoration Agreement.
Unfortunately conflicts continue with those who chose not to
become KBRA parties.
We are in a State water adjudication process where the
tribe's senior time immemorial water rights were recently
reaffirmed and recognized as enforceable by the State of
Oregon. This litigious process is not our preferred path
forward. It is in stark contrast to the collaborative approach
of the KBRA.
The door remains open however for those tied up in
litigation to seek a settlement within the framework of the
KBRA. Congress must act to implement the KBRA and KHSA.
Congressional inaction will guarantee continuing conflict,
economic calamity and disasters that have already cost the
Federal Government 170 million dollars in emergency relief.
None of the KBRA parties created the situation that we're
dealing with in the Basin. But we have worked hard to develop a
consensus based, locally solution. Now the onus is on Congress
to act.
Chairman Wyden, I thank you and committee for holding this
hearing. I'm happy to answer any questions you may have.
[The prepared statement of Mr. Gentry follows:]
Prepared Statement of Donald C. Gentry, Chairman of the Klamath Tribes
of Oregon, Chiloquin, OR
Chairman Wyden, Ranking Member Murkowski, and members of the
Committee, my name is Don Gentry and I am the Chairman of the Klamath
Tribes. I want to thank the Committee and Chairman Wyden in particular,
for holding this Hearing to better understand the serious water-related
issues we are grappling with in the Klamath River Basin (Basin). As
Chairman of the Klamath Tribes, it is my honor to convey to this
Committee the views of the Klamath Tribes on these important matters. I
am also joined today by Jeff Mitchell, a former Klamath Tribal
Chairman, who has been the Tribes' lead negotiator on the Klamath Basin
Restoration Agreement.
I represent the people of the Klamath Tribes who are comprised of
the Klamath Tribe, the Modoc Tribe, and the Yahooskin Band of Snake
Indians. In 1864 our respective leaders entered into a Treaty with the
United States. In one section of the Treaty our ancestors reserved to
us, with the complete agreement of the United States, water rights that
we have held since time immemorial. While we ceded other lands and
rights in the Treaty to the United States for the benefit of its
citizens, we reserved our water rights for hunting, fishing, gathering,
and trapping. The treaty resources are essential to the Klamath people
and make us who we are. They allow us to live our tribal way of life.
In addition to providing for our subsistence, the resources are central
to our ability to exercise our cultural and religious practices, which
is critical to providing for the physical and social health of our
families and community. Without the treaty resources like the
endangered c'waam (Lost River Sucker), we simply do not have the
ability to live as Klamath People in the way Creator intended. That is
why our people and the government of the Klamath Tribes have a deeply
felt responsibility to steward our Treaty resources for our 3,700
members and our future generations.
Below I provide a brief summary of our history, which is essential
to understanding how we have approached water-related issues. Then,
some of the cyclic catastrophes that have plagued the Basin are
described, with an emphasis on the Upper Basin. In addition, specific
water-related issues are examined, followed by an explanation of how
the two recent settlement agreements, the Klamath Basin Restoration
Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement
(KHSA) will resolve these issues and bring stability to the Basin.
What Came Before--Land Loss, Tribal Fishery Loss, Tribal Termination,
and Tribal Restoration
In the Treaty of 1864, the Klamath Tribes relinquished claim to a
vast territory of 20 million acres of what is now southern Oregon and
northern California. However, we reserved to ourselves 2.5 million
acres of land, encompassing the entire Upper Klamath River Basin above
Upper Klamath Lake. By 1954, fraudulent surveys and various federal
Indian polices reduced the Klamath Indian Reservation to 1.2 million
acres, of which 882,000 were Tribal trust lands.
More was yet to come. The Termination Act of 1954 led to the loss
of federally recognized Tribal status, the conversion of a major
portion of our ancestral lands into the Winema and Fremont National
Forests, and the abrupt loss of the forest-based foundation of our
Tribal economy. At the time of termination, the Klamath Tribes was
among the most prosperous Tribal Nations in the United States.
Ironically and brutally, the federal Termination policy was based on
the idea that because of our success, we could do without the land base
that was the very source of that success. Predictably, Termination
precipitated severe economic and social devastation from which we are
still struggling to recover.
In 1986 the United States acknowledged the failure of the
termination era policies by restoring our federally recognized Tribal
status. While this step restored some capability and authority to
influence resource management, it was not accompanied by the return of
our ancestral lands. Federal recognition did not re-start our forest-
based economy and the social devastation wrought by termination is
still with us. To date the Tribes have reacquired only about 700 acres
in scattered parcels.
Our aquatic resources, which are fundamental to Klamath tribal
life, suffered too. Over the past century as the Klamath land base was
eroded, development focused on putting water to beneficial use. Vast
tracts of wetlands and even lakes were diked, drained, and transformed
to farmland. Floodplains of our major river systems were developed for
agricultural uses and hydropower dams were built on the Klamath River.
Upper Klamath Lake was put to work as the primary reservoir serving the
needs of hydropower and agriculture. These developments enabled robust
non-tribal economies to develop around the water resources of the Upper
Basin.
But these changes involved significant loss to the Klamath Tribes.
Our salmon and steelhead runs were completely wiped out when the first
Klamath Hydroelectric Project dam was built in 1917 without fish
passage facilities, despite the Klamath Tribes' strong protests and
written promises from the California Oregon Power Company that such
passage would be built. In addition to obliterating the salmon and
steelhead runs, the resulting changes in the hydrology of Upper Klamath
Lake and its tributaries damaged other Treaty-protected fisheries. Loss
of wetlands and riparian ecosystems, along with other land use changes,
increased the flow of nutrients into Upper Klamath Lake. This excessive
nutrient enrichment causes enormous summertime cyanobacterial (blue-
green algae) blooms, impairing water quality so severely that the two
lake-dwelling sucker species-some of the toughest fish, and once among
the most abundant fish in the Basin-have been pushed to the brink of
extinction. Effects of this nutrient enrichment are felt by other
fisheries and water users in the Klamath River far downstream of Upper
Klamath Lake.
While a lot of focus is placed on the Tribes' fishery resources we
must not forget that the Tribes treaty resources include other plant,
wildlife, and water fowl. For example, the wokas, or woksam in Klamath,
is the yellow "water lilly" that is one of the main nutritious food
staples of our people. Wokas is used year round and the dried seed
shells can be used as a dye for the tule reeds used in making baskets.
In the 1800s, it was estimated that the Klamath Marsh contained
thousands of acres of wokas. The same can be said of the Upper Klamath
Lake, Lower Klamath Lake and Tule Lake. Today the wokas beds are
dwindling and are only a mere fraction of what they used to be. It's
difficult to depend on the wokas from year to year as the crops
continue to shrink, yet the wokas is an integral part of Klamath
culture and diet. Our collective memory always comes back to the wokas
as the one thing that ties us together. It in part has, after all,
helped us persevere through the millennia.
The Klamath Tribes have borne many severe costs associated with
developing the Basin, but have received few of the benefits. Our salmon
and steelhead are gone, while PacifiCorp shareholders and rate-payers
have continuously benefited from the electricity produced by the dams
that destroyed these fisheries. We have not fished for the endangered
c'waam and koptu (Lost River and shortnose suckers) since 1986, while
irrigated crops and livestock have been raised and sold each year from
agricultural operations that take water from our rivers and lakes, and
contribute to excessive nutrient loading that compromises ecosystem
health. These fisheries sustained our people for millennia, but a mere
century of development threatens their continued existence, and now,
after centuries of harvesting tens of thousands of fish, we are
restricted to two fish each year for ceremonial purposes. Many other
examples exist. Make no mistake: the Klamath Tribes view these steep
inequities as Treaty violations - a demonstrated failure of the United
States to keep faith with our people. As may be imagined, deep, abiding
anger and sadness about this situation has pervaded our people for many
years.
After the Klamath Tribes' federal recognition was restored, we
initially worked in an adversarial manner to turn these realities
around, but eventually came to see that a collaborative approach was
necessary to resolve the Basin's persistent conflicts. For the decade
of the 1990s, we did what everyone else was doing: we sought only what
we needed, without particular regard to the needs of others. We came to
realize that when everyone acts in this manner, then conflict and
division prevails. This began our earnest efforts to seek collaborative
settlement of these issues. Despite several failed attempts, our
interest in settlement remained and when the large settlement efforts
around the KBRA/KHSA emerged, we committed ourselves to helping them
succeed.
The Basin's Many Conflicts
Natural resource crises have plagued the Basin for decades, and
while conflicts over water have taken center-stage, the fundamental
issues driving these conflicts go beyond water. Recurring crises
reflect the continued inability of various groups to attain or maintain
social, cultural and economic sustainability, which inevitably causes
strife as groups fight one another to ease their social and economic
pain. Most who understand the issues have realized that the status quo
simply dooms us all to the unabated continuation of these catastrophes
and conflicts until precious things are lost forever.
Rotating Catastrophes
Due to continuing population declines, in 1986 the Klamath Tribes
closed their fisheries for c'waam (Lost River sucker) and koptu
(shortnose sucker). The United States' failure to preserve these treaty
resources for the Tribes is a treaty violation as well as an economic
and cultural bombshell for the Tribes. Two years later, the Lost River
and shortnose suckers were listed as Endangered under Endangered
Species Act and in 1997 coho salmon were listed as Threatened. While
listing was important for protecting fish populations, a comprehensive
management scheme has never been established. Accordingly, beginning in
1991, and continuing to the present, rather than being managed in a
sustainable way, water has been managed via Biological Opinions and
litigation in Upper Klamath Lake and the Klamath River.
Between 1995 and 1997, there were severe fish kills in Upper
Klamath Lake. These kills were dominated by endangered suckers, further
imperiling the existence of the fish the United States is responsible
for protecting.
In 2001, as a result of Biological Opinions for Upper Klamath Lake
and Klamath River flows, there was an almost complete cessation of
water deliveries to the Klamath Irrigation Project. Irrigators who
relied on the water occupied the head gates and protesters gained
national attention. Eventually there was $40 million in disaster relief
funding for irrigators, but the crisis starkly demonstrated the results
of decades of failed federal policy in the Basin.
In 2002, there was a severe fish kill in the lower Klamath River,
dominated by adult salmon and steelhead. This was another economic and
cultural blow, this time to lower river Tribes. By 2006, the perilous
condition of Klamath Chinook salmon stocks precipitated severe
restrictions on ocean salmon harvest along the Pacific coast. This was
catastrophic for coastal communities and even more disaster relief
funds had to be dispersed because there was no management plan in place
for the Basin. Throughout 2008 there were recurring, severely
restricted ocean salmon harvests due to low salmon returns along the
West Coast, including the Klamath River.
In October, 2009, Upper Klamath Lake levels were very low, the
result of river, irrigation, and refuge demands. The dry winter that
followed, coupled with relatively high court-mandated winter flows in
the Klamath River, prevented the Lake from filling, which caused severe
water shortages in 2010. This was a test of key relationships formed in
the KBRA/KHSA negotiations. Former adversaries worked together to
successfully manage the problem. This situation demonstrated the value
of the new relationships. However, while these relationships are
strong, they hinge on the common purpose of implementing the
agreements. Therefore, Congress must act to implement the KBRA and KHSA
if this cooperation is to endure.
That brings us to the present. Similar to 2009, in October 2012,
Upper Klamath Lake was taken to very low levels by meeting demands from
the Klamath River, irrigators, and refuges. Upper Klamath Lake then
failed to fill during the dry winter that followed. Despite the fact
that a new Biological Opinion has altered and improved water management
strategies, beginning the irrigation season with so little water in the
Lake severely complicates water management in 2013. Project irrigators
face a large shortage, refuges will be nearly dry, and the Tribes'
water right will not be met in the lake. Environmental groups and one
lower river Tribe have filed lawsuits under the ESA over water
management issues.
Conditions in 2013 clearly demonstrate that the crisis-generating
stressors are still present and remain intractable. The KBRA and KHSA
offer the Basin its best hope of breaking the cycle of catastrophes and
conflict. The success of settlement efforts is largely due to a shared
commitment of the parties to put these conflicts and catastrophes
behind us. The only thing holding back success is the inaction of
Congress.
While some complain that the KBRA's cost is too high, it is clear
to those who thoroughly understand the issues that the cost of doing
nothing and maintaining the status quo is unsustainable. The recurring
calamities already cost the federal government significant sums. For
example, all told, disaster relief funding in the Basin has averaged
$18 million per year since 2001. Disaster relief alone has cost $110
million, of which $60 million was a direct cost to the federal
government. Therefore, the question before Congress is not whether to
spend money, but whether to spend it on an endless series of band-aids
or to spend it on a permanent remedy. Federal financial resources would
be much better allocated to the long-term solutions conveyed by the
KBRA and KHSA.
The status quo has been costly to local economies. For example, in
2006 the Chinook salmon fishery closure resulted in $100 million in
lost fishing revenues. Clearly, the status quo is costly to the federal
government, states, local economies, tribes and families. The parties
to the KBRA and KHSA are the only ones offering a solution.
Specific Water Issues and their Relation to Settlement Agreements
In 1975, the Klamath Basin Water Adjudication began in Oregon,
which involves most of the Klamath River Basin in Oregon. The
difficulties associated with the Adjudication process illustrate the
necessity of the KBRA. Oregon's Adjudicator issued a Final Order of
Determination in March, 2013, which in part determined that the Klamath
Tribes possess the most senior (time immemorial) priority dates for
water, and large and geographically extensive rights for water in
streams, rivers, seeps, springs, marshes and lakes in the Upper Basin.
Accordingly, the Klamath Tribes has an enforceable senior water right.
Because water in the Basin has never been carefully measured or
monitored, it is not possible to say precisely what impact the now-
enforceable Tribal water rights will have on prior water management
practices. But it is safe to predict that significant changes in that
management will be required.
The Adjudication has moved from an administrative to judicial
phase. Here, the conflict continues with parties other than our KBRA
partners and is expensive, very adversarial, and antithetical to
cooperative relationships. At least twice in the press, Klamath Country
officials have speculated about the likelihood of violence in the wake
of the adjudication decision favoring the Klamath Tribes.
The Basin's difficulties are driven by underlying problems like
water availability, water quality, habitat degradation and extirpation
of salmon and steelhead from the Upper Basin. The Adjudication is
concerned solely with water availability and will therefore not address
all of the Basin's problems. By contrast, successful implementation of
the KBRA will largely resolve water issues among the Klamath
Reclamation Project farmers, the Klamath Tribes, and others. The KBRA
also outlines a process for reaching agreement with the Off-Project
agricultural community, which is underway. If Congress fails to enact
the KBRA, it guarantees descent into winner-take-all litigation.
The Endangered Species Act
Three listed fish species (coho salmon, c'waam (Lost River
suckers), and koptu (shortnose suckers) are very important cultural and
subsistence resources for Basin Tribes. The Klamath Reclamation
Project, managed by the US Bureau of Reclamation, is subject to
Biological Opinions from the US Fish and Wildlife Service (for effects
on suckers) and the National Marine Fisheries Service (for effects on
coho). Currently, there is competition and constant tension surrounding
resources and water management decisions among water levels in Upper
Klamath Lake for suckers, irrigation deliveries to Project farmers,
flows in the Klamath River below Iron Gate Dam for coho, deliveries to
the Tule Lake and Lower Klamath Wildlife Refuges, and off-Project
agricultural and ranching. Under the status quo there is not enough
water to fulfill all of these demands. Most water management decisions
since the early 1990's have been dictated by an inconsistent series of
Biological Opinions under the ESA, which have changed frequently,
hurting or helping each of the interests at various times.
The KBRA shifts energy and resources from fighting over ESA
jeopardy determinations and water allocations based in Biological
Opinions and focuses instead on cooperatively managing for species
recovery. The KBRA strongly emphasizes ecosystem restoration,
reintroduction of salmon and steelhead above Iron Gate Dam, and
equitable distribution of limited water resources. It also shifts
regulatory focus to the use of Habitat Conservation Plans and related
tools to harness the portions of the ESA best suited to fostering
species recovery in cooperation with local communities.
Damaged Ecosystems
Recurring social, political, and economic crises are direct and
predictable results of many decades of water and land use practices
that have impaired critical ecosystem functions. If the present
degraded ecosystem conditions are not acknowledged as a fundamental
cause of difficulties in the Klamath Basin, and if comprehensive
ecosystem rehabilitation measures are not implemented as a primary
component of the solution to these difficulties, then the Basin's on-
going, cyclic conflict will continue.
Klamath Hydroelectric Project dams owned by PacifiCorp extinguished
salmon and steelhead runs to the Upper Basin in 1917 and continue to
damage remaining runs. Tribes up and down the Klamath River, as well as
many other groups and governments, have fought hard within the Federal
Energy Regulatory Commission relicensing process to return salmon and
steelhead to the Upper Basin. Removing the lower 4 dams under the KHSA,
coupled with restoration actions delivered by the KBRA will resolve
this conflict. However, if the agreements do not move forward, this
conflict will re-ignite, and litigation will likely continue for
decades while the damage to fisheries and water quality continues, and
costs to electrical ratepayers mount.
Over-allocated water leaves too little for ecosystem needs and
guarantees extreme conflict over who gets how much water. To date,
there have been two avenues for determining water allocation: the
Klamath Basin Adjudication and Biological Opinions. Neither of these
avenues facilitates the collaboration and compromise required to move
beyond conflict. However, the KBRA and KHSA have settled significant
portions of these conflicts and offer promise to settle more through an
Off-Project water settlement.
Non-point source loading of nutrients into rivers and Upper Klamath
Lake causes serious water quality problems, leading to battles over
Clean Water Act implementation (TMDLs, CWA certification for dams,
etc.). The Klamath Hydroelectric Project is plagued by water quality
problems that can only be resolved by dam removal. These problems
include massive blooms of toxic cyanobacterial (blue-green algae) in
reservoirs that pose a serious risk to human health, and changed
temperature regimes of the Klamath River that damage salmon runs. Above
Upper Klamath Lake, agricultural uses have damaged riparian ecosystems
and increased nutrient loading.
The only existing solution is to implement the two agreements. The
KBRA delivers an aquatic ecosystem restoration program that will
accompany a reintroduction program for salmon and steelhead. Aquatic
ecosystem restoration and the reintroduction programs are both large,
but are necessary for success. The KHSA charts a course to removing the
lower four dams on the Klamath River. Accompanied by an equitable
distribution of water delivered through the KBRA, successfully
implementing these collaborative programs will radically change the
past reality of permanent conflict in the Klamath Basin. For the first
time, energy and resources will flow to solutions of the foundational
problems.
The Klamath Tribes Strongly Support the KBRA and KHSA
The Klamath Tribes' support of the KBRA and KHSA is unwavering.
Twice now, the Klamath Tribes have held referendum votes on these
agreements and each time the outcome has been positive. Such support
reflects our tribal citizens' understanding that the agreements
represent the best opportunity to find stability and a positive future
for all communities, resources, and economies in the Klamath Basin.
These agreements support recovery of fish populations to eliminate
litigation and reinvigorate fishing economies, provide reliable water
deliveries for farming and fish, and invest in environmental and
economic stability for Tribal and agricultural communities.
Such outcomes were important enough to the Tribes to justify
compromise with the Klamath Reclamation Project irrigators regarding
some of our senior water rights. In addition, we agreed to certain
performance-based relinquishment and release of breach of trust claims
against the United States.
Economic & Land Recovery
Like the other settlement parties we seek economic stability, but
it will be decades before the Klamath Tribes' will see the full benefit
to our fisheries from dam removal. Therefore, one of our key bargained-
for benefits in the KBRA was re-acquisition of former reservation
lands, the 90,000 acre Mazama Forest. Tribal ownership of this tract
will put Tribal and non-tribal members to work in forest products, one
of the area's traditional economies. Klamath County needs forest
products businesses and it needs jobs for its people. Currently, the
Klamath Tribes contribute more than $50 million per year to the Klamath
County's economy in the form of payroll, direct expenses and goods and
services. Furthermore, the Tribes employ approximately 450 people,
approximately half of which are non-tribal members. With the recovery
of the Mazama Forest the Tribes will put many more people to work in
the community.
Loss of our land destroyed the Tribal economy and recovery of land
is a key to economic recovery. Other parties to the KBRA will get
economic benefits quite soon in the form of power benefits, reliability
of water supply, and healthier runs of harvestable fish. By contrast,
most benefits for the Klamath Tribes depend upon full, successful
implementation of both the KBRA and the KHSA, and will therefore
manifest gradually over many decades. We need short term, tangible
benefits as well, and Mazama Forest allows recovery to begin soon by
returning Tribal members to jobs in the woods, which was our main
economic base before the United States terminated our reservation. Our
development plans revolve around green energy production closely linked
to improved forest health and reduced danger of catastrophic wildfire.
Woody materials removed from the forest pursuant to implementing
forest management strategies designed to restore healthy stands will
provide feedstock for a biomass energy facility and other businesses.
The Tribes will use the guidelines of our rigorous, peer-reviewed
Tribal Forest Management Plan (http://www.klamathtribes.org/background/
documents/ Klamath__Plan__Final__May__2008.pdf) to restore the forest
to a healthy ecosystem that also provides for sustainable timber
harvest and wildlife habitat.
Reacquisition by the Klamath Tribes of the Mazama Forest is an
essential and appropriate ingredient of the KBRA. It offers economic
opportunities in fields familiar to the Tribes and the surrounding
community. Moreover, it acknowledges the Tribes' need to express the
fullness of their connection to their homeland. Reacquisition creates
acceptable parity among KBRA participants, establishing a balance
enabling the Klamath Tribes to agree to other core elements of the
KBRA. Without this balance, the KBRA would be unacceptable to the
Klamath Tribes.
Conclusion
I once again extend my thanks for this opportunity to deliver this
message from the Klamath people. We have put enormous effort into
finding productive, collaborative ways to resolve difficult issues that
profoundly affect Klamath Tribal interests. After nearly a century of
conflict in the Basin, we have an opportunity with the KBRA and KHSA to
put an end to these persistent battles and move our communities and
economy forward. The only thing standing between the present
dysfunction in the Basin and the implementation of an already-
negotiated agreement is the United States Congress. We ask the United
States to honor its trust and treaty obligations and enact legislation
implementing the KBRA and KHSA.
Thank you again for holding a hearing on this important topic. I am
happy to answer any questions you may have.
The Chairman. Very good, Mr. Gentry. We thank you and
particularly thank you for all your cooperation.
Leaf G. Hillman is Director of the Karuk Department of
Natural Resources. The tribe is in Happy Camp, California.
We welcome you, sir.
STATEMENT OF LEAF G. HILLMAN, DIRECTOR OF NATURAL RESOURCES,
KARUK TRIBE, HAPPY CAMP, CA
Mr. Hillman. Thank you.
Good morning, Mr. Chairman, Ranking Member Murkowski.
Appreciate the opportunity to be here. On behalf of the Karuk
Tribe I/we do appreciate the opportunity to engage in this
important conversation that affects both States.
I appreciate the discussion and would point out that the
entire Basin, this revolving crisis, affects from top to
bottom. Past attempts to resolve problems in the Basin have
been focused both in the lower Basin, restoration legislation
to restore the Klamath Basin ended at upstream at the dams.
Other attempts at restoration began at the dams and looked at
upstream and Upper Basin issues.
Never before have we had the opportunity to look at a
holistic solution that includes both the Upper and Lower Basins
and looks at the system as it truly is, one system. Although
the complexities of looking at the one Basin system that it is
includes obviously 2 States and increases the size of the tent,
as you may. This is the approach that is necessary to truly
resolve the years of conflict that have plagued the communities
in the Basin from top to bottom.
The revolving crisis in the Basin has affected our
communities from the coast of California, 700 miles of
coastland and the fisheries, commercial salmon fishery at the
coast that's dependent on the salmon runs and the health of the
system as a whole. We can't restore and solve the problems from
the top to the bottom, this one system, without taking this
holistic approach. We do appreciate the leadership of the
chairman to take on this issue and appreciate the nuances of
all of the communities that are affected here.
The Karuk Tribe is located directly below the last dam on
the Klamath. As such have witnessed the impacts created by the
hydro projects and the ongoing impacts that they have. This
effort that we've been engaged in, many parties in the Basin,
for a number of years, all of us have suffered and our
communities have suffered, you know, the economically as well
as culturally. Our communities are looking for leadership to
resolve these conflicts.
The KBRA represents something that's very unique in the
history of the water struggles in the Klamath Basin. It
represents compromise. A true compromise, a very large tent
that represents many communities, very diverse and when we
began this a number of years ago sitting across the table from
one another people who considered themselves historic enemies
put those differences aside and worked together to resolve
these issues. We appreciate the committee committing itself to
do the same.
Thank you.
[The prepared statement of Mr. Hillman follows:]
Prepared Statement of Leaf G. Hillman, Director of Natural Resources
Karuk Tribe, Happy Camp, CA
Ayukii Mr. Chairman and Members of the Committee. On behalf of the
Karuk Tribe, I thank you for the opportunity to participate in this
important conversation on water resource issues in the Klamath Basin.
My name is Leaf Hillman and I am the Natural Resources Director for
the Karuk Tribe. The Karuk Tribe is the second largest federally
recognized Indian Tribe in California with over 3,600 members. Our
aboriginal territory is located immediately downstream of the Klamath
River dams and spans large portions of Siskiyou and Humboldt Counties
in Northern California.
I was born on the Klamath River and have lived on it my entire
life. I am a hereditary dance owner and ceremonial leader responsible
for carrying on our ancient traditions of Piky'avish or World Renewal
Ceremonies. Every year since the beginning of time, Karuk People have
remade the world through these ceremonies handed down to us by the
Creator where we pray for all things and all the peoples of the earth.
So for my People, these issues are not just about fish or water but
about something far deeper and more meaningful. Our physical health,
our spiritual health, and our cultural identity are intimately tied to
the ecological integrity of the Klamath River Basin.
The Karuk traditionally lived in over 120 villages and subsisted on
the bountiful runs of salmon, steelhead, and lamprey in the rivers and
the abundance of acorns, mushrooms, deer, and many other native plants
and animals in the forests. The productivity of the natural landscape
enabled the Karuk to develop a sophisticated culture replete with its
own currency, basketry, natural resource management practices, and
ceremonial structure. Trade networks were well established with
neighboring tribes in the area. The productivity of the landscape and
the Karuk's sophisticated civilization inspired historian Arthur
McElvoy to describe the Karuk at the time of contact with Europeans as
`` . . . at once the wealthiest of all California Indians in terms of
disposable resources and the most specialized economically.''
In the 1850s, the traditional Karuk lifestyle ended suddenly and
violently with the onset of the California gold rush. As miners moved
into Northern California to stake their claims--and as the U.S. Calvary
moved in to ensure miners' safety--Karuk People were murdered,
massacred, and enslaved. Many who escaped the violence fell to disease
or starvation. Whole villages were burned and the life giving Klamath
watershed was damaged by hydraulic mining and mercury contamination.
Still many Karuk remained in our traditional territory, refusing to
succumb to the violence and oppression of the invaders.
The gold rush was only the beginning. For over 160 years, the
economy and politics of the middle Klamath River region was driven by
the quest to extract natural resources; gold and copper mining
operations were soon followed by the hydropower industry which
constructed a series of dams between 1918 and 1962; the timber industry
peaked in the mid-20th century; industrial agriculture has dewatered
the river increasingly over the past 100 years; and today the middle
Klamath is a destination for illicit marijuana growing operations which
pose a new set of environmental and social problems.
Today the middle Klamath River region remains unhealed from the
devastating effects of this series of disruptions to social, economic,
and natural systems. Historically, Klamath River salmon runs numbered
up to a million returning adults per year. (Hamilton, Crutis, Snedaker,
& White, 2005). Today, runs are a fraction of this with some runs of
salmon, such as chum and pink salmon, extirpated from the Klamath
system altogether, and others such as coho salmon on the Endangered
Species List.
The cumulative effects of mining, destructive logging practices,
irrigation diversions, dam building, and the attempted genocide can be
seen in Karuk communities today. In contrast to McElvoy's observation
that the Karuk were `` . . . at once the wealthiest of all California
Indians in terms of disposable resources,'' today the Karuk experience
poverty at alarming rates. According to a recent government report, 91%
of Karuk Tribal members in Klamath River communities live below the
poverty line. (U.S. Department of the Interior, Bureau of Indian
Affairs, 2005).
The dramatic decline in fisheries also affects our physical health
by denying Karuk People access to healthy foods. Before contact,
research indicates that the average Karuk consumed over a pound of
salmon, per person, per day. Today, the average Karuk living along the
river consumes less than 5 pounds of salmon in a year. Thus, the
decline in fisheries has led to a rapid shift in diet for Karuk People
from fish to what is available through government food programs. The
result of this altered diet is that today, the diabetes rate among the
Karuk is 21%, nearly 4 times the national average. Similarly, the rate
of heart disease is 39%, or 3 times the national average. (Norgaard,
2005).
As previously noted, the reasons for the decline in Klamath River
fisheries is manifold; however, we assert that Klamath River dams are
one of the two greatest factors to consider (the other being operation
of the Klamath Irrigation Project discussed below). The Karuk Tribe has
been one of the leading proponents of Klamath Dam removal for decades.
That's because we have witnessed the impacts of Klamath River dams
first hand. With the completion of Iron Gate Dam in 1962, we saw the
utter collapse of Klamath fisheries which were already imperiled by a
century of mining, poor forest management, dams, and diversions. Today
we live with massive blooms of toxic algae that originate in the
Klamath Reservoirs. When our Tribe's medicine men are required to bath
in the Klamath River to fulfill their religious obligations, the river
is often posted with signs warning against bodily contact with the
water due to high levels of algal toxins. In the summer, we can't let
our children swim in the river or let our dogs drink from it.
Thus dams harm Klamath River fisheries by blocking salmon's access
to nearly half of their historic range in the Klamath Basin (Hamilton,
Curtis, Snedaker, & White, 2005) and facilitate massive blooms of the
toxic blue green algae Microcystis aeruginosa which create a
significant human health risk (Kann, 2006).
As the health of the river has declined, the conflicts between
Klamath basin communities have intensified. That's because in any given
year, at least one community in the Klamath Basin is doomed to suffer.
Sometimes its irrigators who get their water shut-off; sometimes its
commercial fishermen who are not allowed to fish for a living; and in
many years it is the Klamath River Tribes who cannot harvest enough
fish to meet basic subsistence needs. We live with a rotating crisis
that for years has led neighboring communities to engage in bitter
political and legal battles. After decades of trying to shift the
burdens of this crisis to someone else, leaders from the Basin's
diverse rural communities decided to try something new. Something
unprecedented in the Klamath Basin: compromise.
This effort started soon after the back to back disasters of 2001
and 2002. Although the Klamath Crisis started many years earlier, it
was the irrigation shut-off to the Klamath Project Irrigators in 2001
followed by the massive fish kill of 2002 that elevated the Klamath
Crisis into the national spotlight. Immediately following these events,
Tribes, irrigators and other parties engaged in a series of court
battles while at the same time they sought help from their respective
members of Congress. At the time, these disputes focused on the
operation of the Bureau of Reclamation (BOR) Klamath Irrigation Project
(KIP) which is the primary factor controlling flows in the main-stem
Klamath River. The KIP represents nearly 250,000 acres of irrigated
farmland in southeastern Oregon and northwestern California. The KIP is
made up of over 1,400 family farms and the Klamath Wildlife refuges
which are fundamentally important nesting and feeding grounds for birds
migrating along the Pacific Flyway.
Much of the litigation revolved around the Biological Opinion on
the BOR irrigation plan. Since there are Endangered Species Act (ESA)
listed suckers in Upper Klamath Lake and ESA listed coho salmon in the
lower river, the BOR operational plan must be evaluated by wildlife
agencies to determine if its implementation will jeopardize the
survival of these species. It is important to understand that when we
talk about balancing water in the Klamath, we are balancing water
between 1) the lower river for ESA listed coho and other anadromous
species, 2) ESA listed suckers that dwell in Upper Klamath Lake and
other areas, 3) the wetlands of the Klamath Wildlife Refuges that are
vitally important for migratory waterfowl, and 4) the Klamath
Irrigation Project. Needless to say, in the past it has been impossible
to balance water resources in the Klamath Basin in a manner that
satisfies the needs of all communities.
About the same time that Klamath communities were dealing with the
aftermath of the 2001/2002 catastrophes, PacifiCorp's fifty year old
Federal Energy Regulatory Commission (FERC) license to operate the
Klamath River dams downstream of the BOR KIP expired. With PacifiCorp's
application for a new dam license came an opportunity to participate in
a process that could mitigate or end the devastating impacts of the
dams. It also meant that for the first time, the two greatest factors
limiting fish production in the Klamath Basin were subject to
regulatory review at the same time: KIP diversions were subject to a
Biological Opinion and PacifiCorp dams were subject to FERC
relicensing.
In many ways, the timing of the 2001 water shut-off, 2002 fish
kill, and the expiration of PacifiCorp's Klamath dam license was
serendipitous. However, it was the leadership from Klamath Basin
Tribes, irrigation districts, fishermen's organizations, conservation
organizations, and local governments that recognized the opportunity
and seized it. What started out as a FERC relicensing process evolved
into a broad based discussion aimed at solving once and for all the
Klamath Crisis. The products of these negotiations are the two Klamath
Restoration Agreements. The Klamath Hydropower Settlement Agreement
(KHSA) lays out a strategy for removing the lower four Klamath Dams in
2020 pending regulatory reviews, a public interest determination by the
Secretary of Interior, and congressional approval. The Klamath Basin
Restoration Agreement (KBRA) represents a roadmap for restoring the
fisheries and water quality of the Klamath Basin while providing water
security for Klamath Basin farmers, ranchers, and irrigators. It was
not easy and some parties who were there in the beginning were not
there in the end. But after years of conflict, I think that the parties
whose cultures and livelihoods are most at risk realized that we all
share a common destiny. We will either emerge from this crisis together
or suffer perennial conflict and community instability for generations
to come, which means many of our communities could simply perish.
The process has led to some very unique and unlikely alliances. I
sit before you today in partnership with farmers and ranchers,
commercial fishermen, conservationists, neighboring Tribes, and dam
owner PacifiCorp. It's true that we still don't see eye to eye on every
issue, but we are uniformly committed to a long term solution to the
Klamath Crisis. That solution is embodied in the Klamath Restoration
Agreements. These Agreements are not perfect. The Karuk Tribe is not
getting its every need met. Neither is anyone else. That is the nature
of compromise. But the alternative, as I see it, is the continued
collapse of west coast salmon fisheries, economic disaster for the
region's unique and diverse rural communities, and the failure of the
United States to live up to its obligations and to fulfill its legal
and moral commitments to Klamath River Tribes. I respectfully and
emphatically urge this committee to act quickly to introduce
legislation that would see the Klamath Restoration Agreements fully
enacted as soon as possible.
I realize that even if the Klamath Agreements are fully implemented
there will remain some unresolved issues in the Klamath Basin. We still
have water quality issues to address and degraded habitat in many
tributaries will still need to be rehabilitated. But I firmly believe
that if implemented, the Klamath Agreements would serve to set the
Klamath Basin's ecosystems and economies firmly on the road to
recovery.
The Karuk Tribe truly appreciates your attention to this important
issue and the opportunity to share our perspective. Please let us know
if we can provide any additional information or assistance to the
Committee as it moves forward to address the ongoing Klamath Crisis.
The Chairman. Thank you very much, Mr. Hillman. That's very
much appreciated.
Ms. Hayley Hutt, welcome.
STATEMENT OF HAYLEY HUTT, HOOPA VALLEY TRIBAL COUNCIL MEMBER,
HOOPA, CA
Ms. Hutt. Good morning.
I'm Hayley Hutt, an elected member of the Hoopa Valley
Tribal Council located in Northern California. Thank you for
the opportunity to participate in this hearing.
The Hoopa people have resided in Hoopa Valley and
surrounding territories since time immemorial. After military
campaigns in the 19th century failed to drive us from our
homeland the United States withdrew its soldiers and
established the Hoopa Valley Reservation in 1864. Both the
Klamath and the Trinity Rivers flow through our reservation
land. We have been fighting for decades to protect our rights
in these rivers and to restore their fisheries.
We have several needs for the committee to take into
account as consideration to the Klamath River water issues.
The need to enforce Federal trust responsibilities for
Indian water and fishing rights.
The need to honor the law of the Trinity River to restore,
preserve and propagate our fishery resources. The United States
holds in trust the KBRA's subordinates the Trinity record of
decision.
The need to prevent the over allocation of Klamath River
water to the Klamath Reclamation Project in Oregon at the
expense of tribal trust fishery needs in California.
The need to identify specific Klamath fishery restoration
goals based on the best available science. The fishery goals
should really be to pre-dam levels.
The need to respect tribal self determination and the
sovereign authority of a tribe to decide whether proposed water
agreements are in the best interest of its members.
The need not to adopt any settlement that terminates the
rights of or imposes adverse consequences upon a tribe that
chooses to retain its water rights instead of settling on terms
desired by the Federal Government.
The need to separate hydroelectric relicensing from
settling of water rights in the Upper Basin. Separate the FERC
licensing process from the KBRA. Allow the California Water
Board to enforce the Clean Water Act.
The need to protect senior Klamath Basin water rights in
California.
The need to build a basin wide management structure.
I look forward to discussing these needs and have tribal
staff on hand to address any technical questions that you might
have. Our written testimony includes additional details on
these points.
Thank you.
[The prepared statement of Ms. Hutt follows:]
Prepared Statement of Hayley Hutt, Hoopa Valley Tribal Council Member,
Hoopa, CA
Thank you for the opportunity to present testimony on behalf of the
Hoopa Valley Tribe concerning Water Resource Issues in the Klamath
River Basin. The Hoopa Valley Indian Reservation, established in 1864,
is the largest land based Indian reservation in California. The Klamath
River runs through the northern part of our Reservation, and the
Trinity River, the largest tributary of the Klamath, bisects our
Reservation running south to north. The rivers join at the northern
boundary with the Yurok Reservation.
We are very familiar with the problems caused by over-appropriation
of waters from the Klamath River system from our long experience
addressing the over-appropriation of waters from the Trinity River
system. There are strong similarities between the Klamath River today
and what happened on the Trinity River in the 1970's where the Bureau
of Reclamation, in disregard of the Trinity River Division Act,
diverted up to 90% of the flow of the Trinity at Lewiston, California
to the Central Valley Project (``CVP''), nearly destroying the
anadromous salmon runs. Secretarial decisions in the 1980s and advocacy
by our Tribe led to studies and ultimately to passage of the Central
Valley Project Improvement Act of 1992 (CVPIA), Pub. L. 102-575, Sec.
3406(b)(23). In recognition of the Tribe's long record of stewardship
of the Trinity River, the CVPIA required the Secretary to obtain the
concurrence of the Tribe before any program to restore the Trinity
River fishery could take effect. Pursuant to that act studies in which
tribal scientists played a crucial role identified water needed for
fishery restoration and associated restoration activities. The
Secretary and the Tribe convened in Hoopa in December 2000 to execute
their joint decision for Trinity fishery restoration. That agreement to
restore the Trinity River fishery is a modern Treaty between the Hoopa
Valley Tribe and the United States. Restoration work and carefully
regulated water diversions and releases are in place.\1\ As discussed
later in this testimony, our Tribe has also been deeply involved in
efforts to restore the Klamath River fishery. This experience informs
our testimony concerning water issues in the Klamath River.
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\1\ See Westlands Water Dist. v. Hoopa Valley Tribe, 376 F.3d 853
(9th Cir. 2004) (restoration decision complied with NEPA and Endangered
Species Act).
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Our testimony will address: (1) protection of rights to Klamath
River water in California; (2) a Basin-wide management structure in the
form of a Joint Directorate for coherent oversight and decision making
about Klamath River water supplies and needs; (3) authority and funding
for acquisition of water rights in Oregon; (4) the need to restore
ecological functions of the Lower Klamath and Tule Lake Wildlife
Refuges to improve water quality in the River; (5) limiting the effects
of certain Tribes' waiver of their claims so that other rights are not
adversely affected; and (6) separation of the relicensing or settlement
of the Klamath Hydroelectric Project from water rights of the Klamath
Basin.
1. Protection of Klamath River Water Rights in California.
For several years, water users in the Klamath basin have focused on
the negotiation of the Klamath Basin Restoration Agreement (KBRA) to
satisfy Oregon demands for Klamath water. But the KBRA substantially
infringes on needs for water in the Klamath River below Iron Gate Dam
in California. Dry conditions in the Oregon portion of the Klamath
Basin coupled with over-appropriation of waters from Upper Klamath Lake
by the Bureau of Reclamation last year, now threaten serious adverse
consequences that ripple all the way to southern California. The KBRA
also has a direct impact on the Central Valley Project (CVP) and the
Bay Delta Conservation Plan (BDCP) because by reducing water supplies
in California's portion of the Klamath River, the KBRA would put
greater demands on the CVP's Trinity Division to serve Klamath/Trinity
needs. The un-reconciled demands for water from the north and the south
could lead to catastrophe for the Trinity and the Lower Klamath salmon
fishery. The Tribe has spent decades working to avoid that outcome and
needs the help of this Committee in order to succeed.
The BDCP--and the proposed tunnels around the San Francisco Bay
Delta--assume that Trinity River water that Congress allocated to the
Klamath Basin more than a half century ago will be available to the
rest of California. In addition, the reduced availability of Upper
Klamath Lake water has caused the Pacific Fisheries Management Council,
the Trinity Management Council, and California Salmon and Steelhead
Advisory Committee to call on the Secretary of the Interior to take
action this summer to release additional water from Trinity reservoirs
into the Klamath basin to prevent a die-off of adult salmon in the
Lower Klamath River. Already, CVP interests are protesting this
reduction in water available to them. . See Letter from San Luis &
Delta Mendota Water Authority to Bureau of Reclamation Regional
Director David Murillo, May 31, 2013 (attached). Further, since at
least 2003, the Department has refused to release Trinity Division
water to Humboldt County and downstream users as required by: (1) the
1955 Trinity Division authorization act; (2) the associated state
permits for the TRD; and (3) the 1959 CVP water service contract
between Humboldt County and the Bureau of Reclamation. The Trinity and
Klamath are under stress from the CVP and BDCP.
BDCP and Interior officials continue to deny requests that BDCP
models incorporate Trinity water rights. They have refused to do so on
the grounds that the water has not been historically used. But that is
because of Interior's refusal to release the water. Moreover it is
inconsistent with the Interior Department's practices in planning
federal project water use in
California.--For example, the BDCP water supply model includes
anticipated future uses in the Sacramento basin, so it makes no sense
for the Bureau to refuse to do the same for existing rights in the
Klamath basin. As mentioned above, the CVP contractors are putting
heavy pressure on the Bureau of Reclamation not to use any Trinity
Division water for the Lower Klamath fishery.
As less volume and more polluted water flows into California from
Oregon, the stress on California salmon increases sharply. For most of
the last decade, the only safety valve for fish survival in the Lower
Klamath estuary has been increased releases of water from Trinity
reservoirs. That means less water for California and disregards our
Tribe's senior water rights. In Wyoming v. Colorado, 259 U.S. 419
(1922), the Supreme Court ruled that the waters of a stream rising in
one State and flowing into another State may not be disposed of by the
upper State without regard to the harm that may inure to the lower
State. Even without an interstate adjudication, the relative rights of
two adjoining states which have both adopted the doctrine of prior
appropriation should be determined on that basis. Therefore, Oregon is
not free to adjudicate and dispose of all of the waters of the Klamath
River Basin in Oregon, but must respect the senior, 1864, rights
reserved by the United States for the Hoopa Valley Tribe in order to
support a moderate living based upon the taking of salmon and other
aquatic species in California. See Parravano v. Babbitt, 70 F.3d 539
(9th Cir.1995).
The Department of the Interior understands the water supply needs
for Klamath fishery purposes in California. The United States retained
Utah State University and Dr. Thomas Hardy to investigate those needs.
Dr. Hardy's Evaluation of In-Stream Flow Needs in the Lower Klamath
River--Phase 2--Final Report (July 31, 2006) represents the best
science available as to the water required to satisfy the Hoopa Valley
Tribe's senior water rights. This peer-reviewed science document has
not been used as a basis for water planning, but instead has been
simply set aside without explanation. The Tribe requests the Committee
to ask the Department why that was done.
The diversions of Klamath River water to the Klamath Reclamation
Project in Oregon provided for in KBRA Appendix E-1 will leave too
little water in the River to support anadromous fish runs in
California, setting up degraded habitat conditions year after-year like
those that occurred in the 2002 fish kill, the largest in history.
How much water will be needed for fisheries in California after
removal of four dams on the Klamath River cannot now be known. What is
known is that the Bureau of Reclamation's studies prepared in support
of the Environmental Impact Statement on the Secretarial Determination
show that in dry water years the KBRA will provide less water to the
Klamath River than the amount currently required by the Biological
Opinion issued pursuant to the Endangered Species Act (``ESA'').\2\ The
KBRA parties deal with this reality by pledging among themselves to
lobby the National Marine Fisheries Service to reduce the ESA flow
requirements. See KBRA Sec. 21.3.1.B. Using political pressure to
repudiate the best available science is a recipe for disaster. The
Hoopa Valley Tribe's experience with the Trinity River shows that
scientific investigation is essential to determination of flows needed
for fish restoration. The needs of species cannot be determined by a
political compromise among a few interested parties.
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\2\ See Technical Report No. SRH-2011-02, Hydrology, Hydraulic and
Sediment Transport Studies for the Secretary's Determination on Klamath
River Dam Removal and Basin Restoration and Appendix F of that document
(``the 90% exceedence [dry year] flows are similar for the two
alternatives from March through September, but for the months of
October to February the No Action Alternative [current flows] 90%
exceedence flows are about 20% to 30% larger.'').
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2. Basin-Wide Management.
It was apparent by the early 1980s that the Klamath and Trinity
fishery and watershed management activities were in need to being
coordinated if proper fishery, habitat and water management were to be
successful. In 1986, we worked with the States of California and
Oregon, the Departments of the Interior and Commerce through the
Pacific Fishery Management Council to coordinate fishery management,
fish habitat, and water management that would complement our work on
the Trinity. The Tribe was instrumental in enacting Pub. L. 99-552, the
Klamath River Basin Fisheries Task Force (Task Force), which created
the Klamath Fishery Management Council and Klamath Task Force. The
Klamath Fishery Management Council worked to bring together resource
managers from the States and Federal agencies, while the Task Force
focused its attention on habitat and water management issues.
Pub. L. 99-552 provided a framework to:
1) ensure more effective long-term coordination of
Klamath-Trinity River fisheries under sound
conservation and management principles that ensure
adequate spawning escapement and monitoring;
2) improve area hatcheries to assist in rebuilding
natural fish populations and maintaining genetic
integrity and diversity among subbasin stocks;
3) improve upstream and downstream migration by
removal of obstacles to fish passage; and
4) rehabilitate watersheds.
The Act was amended to provide for the expansion of restoration and
management activities in areas above the Iron Gate Dam and added
members to the Task Force representing the Klamath Tribes and
Commissioners of Klamath County in Oregon.
The Klamath Fisheries Management Council successfully worked among
the agencies and stakeholders to establish a balanced harvest and
spawning escapement management structure that remains in place for
Klamath River Fall Chinook Salmon. See Pacific Fisheries Management
Council Amendment 9. The Task Force's reports, findings and
recommendations on habitat and restoration are posted on line by the
U.S. Fish and Wildlife Service's Office in Yreka, California. The Task
Force has attempted to bring balanced management to Klamath and Trinity
fishery restoration activities and water quality and quantity concerns.
Unfortunately, Pub. L. 99-552 expired in 2006 and was not reauthorized.
In 1996, Pub. L. 104-143, the Trinity River Basin Fish Management
Reauthorization Act of 1995, was enacted to expand the definition of
Trinity River fishery habitat to include the 42-mile reach of the
Klamath River from the Trinity confluence to the Pacific Ocean. Pub. L.
104-143 also required improvements in the Trinity River Fish Hatchery
so that it can best serve its purpose of mitigation of fish habitat
above Lewiston Dam while not impairing efforts to restore and maintain
naturally reproducing anadromous fish stocks within the basin.
Basin-wide management, based on the Trinity River Restoration
Program model, is important for an additional reason. The Trinity River
stands as the sole safety net for the Klamath River Basin. As
demonstrated in 2003, 2004, 2012, and 2013, the Trinity River has been
the only source of available water to address low flow, warm water, and
disease conditions that have come to characterize the Klamath River
Basin. In order to keep the Trinity River in a position of being able
to meet Lower Klamath River fishery needs, not only must the Trinity
River Restoration Program be fully implemented but the other supplies
of CVP water from the Trinity Division dedicated to the Klamath basin
must remain available.
The National Research Council Report on Klamath (2007)\3\ urged
establishment of a Basin-wide management structure. The National
Research Council Report pointed to the final Trinity River Mainstem
Fishery Restoration EIS/EIR [2000] as:
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\3\ Committee on Hydrology, Ecology, and Fishes of the Klamath
River Basin, National Research Council (2007), (Chap. 6 ``Applying
Science to Management'').
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[A] governance structure that is explicitly intended to facilitate
the program's Adaptive Environmental Assessment and Management efforts
. . . [T]his governance structure appears to provide clear paths for
bringing information that is critical to land, water and species
management to those who can use it. Adaptive management in the greater
Klamath River Basin would benefit substantially by adopting
organizational and process approaches that are being used to support
restoration planning in the Trinity River sub-Basin.\4\
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\4\ Hydrology, Ecology, and Fishes of the Klamath River Basin (NRC
2007) at 141.
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In response to this recommendation, the Hoopa Valley Tribe has
proposed a Joint Directorate that would similarly provide for
management of the remainder of the Klamath Basin, and recognize the
role of state, federal and tribal governments in resource management.
Our ideas for a comprehensive management structure for the Klamath
basin are based on our work in recent decades to coordinate management
in the Klamath and Trinity Basins.
Rather than continuing a coordinated Klamath-Trinity basin
approach, the parties to KBRA adopted a structure called the Klamath
Basin Coordinating Committee (``KBCC'') which also includes a technical
team. But the KBCC is made up solely of the signatory parties to the
KBRA which, for example, excludes the Hoopa Valley Tribe and the
federal agencies, and also fails to address management issues arising
in the California portion of the Klamath Basin, which is more than half
of the watershed.
3. Water Rights in the Oregon Portion of the Basin.
Dry conditions during 2013 have again illustrated that too much
water is promised to too many parties in the Oregon portion of the
Klamath Basin. The good news is that the Final Orders issued by the
Oregon Water Resources Department in the Klamath Basin adjudication
have finally created enforceable water rights in Oregon. While these
Orders are subject to appeal, they are sufficiently identified to
enable parties to develop forbearance agreements and otherwise use
contracts to reflect market forces for allocation of valuable water.
The Bureau of Reclamation in the past has made forbearance
agreements with landowners in the Klamath Reclamation Project and
appears to have authority under existing law to extend that practice.
Another available alternative is provided by 25 U.S.C. Sec. 465, which
authorizes the Secretary of the Interior to acquire through purchase,
relinquishment, exchange, or assignment ``any interest in water
rights.'' Because of the Indian trust water and fishery resources at
stake, that statute would authorize acquisition of necessary water
rights, if Congress provides the financial support necessary.
4. Rehabilitate the Wildlife Refuges.
One of the essential ecological functions of the Lower Klamath
Wildlife Refuge and the Tule Lake Wildlife Refuge is to filter water
through marshes and wetlands. Those processes have been severely
disrupted by the Bureau of Reclamation and railroad construction
projects. The Wildlife Refuges have been so dewatered by management
practices in the Upper Basin, that they fail to effectively address the
needs of wildlife and fall far short of providing the filtering and
water quality improvement functions that historically have made the
Klamath River such a bountiful source of salmon and other fish and
wildlife. These functions must be restored, both for water quality
purposes and to serve the original purposes for which the Wildlife
Refuges were created. The KBRA does nothing to achieve these
objectives, instead it binds the parties to support continued farming
in large portions of the Refuges. KBRA Sec. 15.4.3. Farming is
inconsistent with the purposes for which the Refuges were created and
those activities frustrate the water quality improvement functions that
would ordinarily be performed by those wetlands.
5. Avoid Abrogating the United States' Trust Responsibility
to Indians.
The KBRA limits tribal water and fishing rights. Under existing
law, the United States and the Bureau of Reclamation are obligated to
ensure that irrigation projects do not interfere with the tribes'
senior water rights.\5\ The United States has a trust responsibility to
ensure that its activities would not adversely affect the tribes'
fishing rights. The KBRA, if approved by Congress, would change this
because in Sec. 15.3.9 the United States agrees that it will not
assert tribal water or fishing rights in a manner that interferes with
the diversion of water for the Klamath Irrigation Project as authorized
by the KBRA.
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\5\ See Memorandum of Regional Solicitor, Pacific Southwest Region
to Regional Director, Bureau of Reclamation Mid-Pacific Region re
Certain Legal Rights and Obligations Related to the U.S. Bureau of
Reclamation, Klamath Project (July 25, 1995) and Memorandum to Regional
Director from Regional Solicitor, Pacific Southwest Region re Oregon
Assistant Attorney General's March 18, 1996 Letter (January 9, 1997).
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KBRA Sec. 15.3.9 was approved by three tribes that agreed to
related provisions of the KBRA. However, it is unclear how these
waivers will be enforced in the future. It is important to note that
the waivers have very broad applications. For example, among other
things they will prohibit the signatory tribes from bringing trust
challenges against the United States for losses related to water
diversions that are associated with the U.S. Bureau of Reclamation's
operation of the Klamath Project. They also will limit tribal
challenges to loss of harvest opportunities that are associated with
the Phase I and II fish restoration activities above Iron Gate Dam and
Link Dam, respectively. The KBRA also provides that harvest
restrictions will continue until the fish stocks have been rebuilt,
which may mean permanent harvest restrictions. The Hoopa Valley Tribe
must be assured that these waivers by signatory tribes are in fact
enforceable by regulatory harvest restrictions, and not result in
transferring harvest pressure to Trinity and other fish stocks.
Shifting harvest pressure would undermine the Trinity River fishery
restoration program . We are concerned that the KBRA does not provide a
way of ensuring that the Federal Government will take the necessary
actions to develop regulations and establish needed enforcement
programs.
The second problem with the tribal waiver provisions of the KBRA is
the unilateral termination or limitation of the government's trust
responsibility to non-signatory tribes that would become lawful by
enacting KBRA ratification legislation. The National Congress of
American Indians and the Northwest Affiliated Tribes have enacted
resolutions opposing such unilateral abrogation of federal trust
responsibility.\6\ Both the National Congress of American Indians and
Affiliated Tribes of Northwest Indians do not oppose any tribe
exercising its rights to waive its trust obligations; however the
organizations adamantly oppose a non-consensual waiver that is being
imposed against a tribe's objections. Most tribes believe this is a
modern version of historic termination policies that have been used
against tribes and believe that this, if enacted, will re-open wounds
between tribes and the United States that have long since been declared
as improper and dishonorable U.S. policies toward Native people. We ask
this Committee to assure us that no such provision will be enacted into
law.
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\6\ See National Congress of American Indians Resolution PSP-09-051
and Affiliated Tribes of Northwest Indians Resolution ATNI-res-09-63.
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6. Separate FERC Licensing From Water Rights.
The KBRA and the Klamath Hydroelectric Settlement Agreement
(``KHSA'') contain provisions tying the two Agreements together such
that neither can proceed without enactment of legislation that ratifies
both. The two Agreements should not be linked. The proposed ratifying
legislation (e.g., S. 1851 in the 112th Congress) is, among other
things, unnecessarily expensive and damaging. Existing statutes and
regulations provide for hydroelectric licenses that incorporate modern
environmental laws and protections. Such modern licenses lead to dam
removal when dam owners conclude that they can no longer economically
operate dams under contemporary environmental laws, as illustrated by
removal of the Condit Project near Portland, Oregon in 2011. The
parties' agreement in the KHSA to suspend the FERC licensing process
indefinitely pending ratification of both Agreements and funding by
Congress undermines the environmental benefits promised by existing law
and shifts the cost of dam removal from PacifiCorp, on which it rests
under existing law, to the public.
The FERC licensing process has been suspended with the tacit
participation of California and Oregon and the benign neglect of FERC.
Clean Water Act Sec. 401 Certification delay is the means by which
FERC has been given a fig leaf to hide its inaction. A Sec. 401
Certification contains standards that the federal licensee must meet in
order for the project to meet state water quality standards. A FERC
license cannot normally be issued without a Sec. 401 Certification.
However, the Act requires that a certification must be issued within
one year of license application. Where, as here, the States have
entered into a contract to halt preparation of Sec. 401 certification
for ten years or more, they have waived their certification right. See
KHSA Sec. 6.5. Here, the fish passage and operational conditions
already prescribed by the National Marine Fisheries Service and the
U.S. Fish and Wildlife Service (and upheld by an administrative law
judge) impose environmental remediation costs that exceed the benefit
of future dam operations under a modern FERC license. Thus, issuance of
a new FERC license will produce either dam removal or retrofitting of a
project which will provide genuine environmental benefits to the
Klamath River system.
Thank you for the opportunity to testify in this matter.
The Chairman. Thank you very much. Very helpful.
Mr. Troy Fletcher, Executive Director of the Yurok Tribe in
Klamath, California.
STATEMENT OF TROY FLETCHER, EXECUTIVE DIRECTOR, YUROK TRIBE,
KLAMATH, CA
Mr. Fletcher. Thank you, Chairman Wyden and Senator
Murkowski for the opportunity to provide testimony. My name is
Troy Fletcher. I'm a member and Executive Director with the
Yurok Tribe. I'm here today with Council Members Mattz and
Hendrix and our Chairman, Mr. Thomas O'Rourke.
The Yurok reservation is located on the lower 44 miles of
the Klamath River. Everything that happens in the Klamath Basin
impacts Yurok people. It impacts the health of our fishery, the
health of the river.
For Yurok the river is central to who we are and who we are
as a people. We provided more detail in our written testimony
for your consideration about our dependence. The Yurok are the
largest harvester of Klamath River salmon.
For us when it comes to the trust responsibility the United
States does have a trust responsibility, but we can wait around
for decades asking the United States to fulfill that trust
responsibility or we could reach out and try to resolve issues.
We know about conflict in the Basin.
We've been a part of the revolving conflict in the Basin.
We've been in litigation in the Basin.
We've experienced a fish kill in 2002 after the 2001
curtailment at the Upper Basin. That fish kill happened in our
home, on our river, on the Yurok Indian reservation. Our people
witnessed that carnage first hand. We know what loss is about.
We know what impact is about.
Because we know what that's about we sought out an
opportunity to work with others in the Basin to try to resolve
some of this long term conflict.
We sought out partnerships with the company.
We sought out partnerships with off-project irrigators,
with project irrigators, with other tribes, with NGO's.
The Klamath Basin agreements represent an opportunity, a
pathway forward, to resolve many of these outstanding issues.
It's an opportunity. It's an opportunity we hope we don't lose,
that we're able to take advantage of.
We understand that people didn't make it across the finish
line. Many people around this table and nearly everybody that I
can see were part of those negotiations. Some people couldn't
make it. But I ask you to look at those who couldn't make it.
Many people are entrenched. I think you provided some wise
council when in your opening statements about moving off
entrenchment, moving off entrenchment. So it's one thing to
talk to people who are like minded and to get people who are
like minded to say, yes, we agree with you.
It's another thing to reach across the table to those that
may not be from your position or see things in your perspective
and get those people to say, yes, we agree with you.
We're proud to say that we struck strong partnerships.
We support our partners throughout the Basin.
We're concerned about the opportunity and the conditions
this year for example, could lead to another fish kill in the
Lower Basin. We're going to continue to work with the
Department of the Interior and other interests to make sure
that doesn't happen. We'll take whatever steps we need to to
make sure that doesn't happen.
The KBRA presents an opportunity for us to work together
into the future and to resolve some long standing issues. We
hope that you will work with us to make sure that that gets
passed. We're willing to work with and speak to anybody about
anything else and about coming to the table and working with us
collaboratively.
But people have got to move off their entrenched positions.
It's not going to work.
With that, thank you for the opportunity. We look forward
to more questions.
[The prepared statement of Mr. Fletcher follows:]
Prepared Statement of Troy Fletcher, Executive Director, Yurok Tribe,
Klamath, CA
The Yurok Tribe provides this written testimony regarding water
issues in the Klamath River Basin.
The Yurok Reservation is located on the lower 44 miles of the
Klamath River extending from the Pacific Ocean upstream to above the
confluence of the Trinity and Klamath Rivers. Yurok people have lived
in this area since time immemorial. Any activities within the Klamath
River Basin that affect the health of the Klamath River and its fishery
resources have a direct impact upon the Yurok Tribe. The Klamath River
Basin includes the Trinity, Scott, Shasta, Salmon, Williamson, Wood and
Sprague Rivers including all connected tributaries.
The following principles must be applied when the United States is
involved in any issue that affects Klamath River Basin fish, water or
other resources:
1) That the United States fully and properly protect and
restore all trust resources of the Yurok Tribe. This principle
includes the need to manage Klamath River Basin resources such
that the Yurok Tribe can fully participate in the subsistence,
commercial and ceremonial harvest of all species and races of
anadromous and other fish;
2) That the United States abide by and honor the commitments
made in the Cooperative Agreement between United States
Department of the Interior and Yurok Tribe for the Cooperative
Management of Tribal and Federal Lands and Resources in the
Klamath River Basin of California [June 26, 2006];
3) That any activities which affect fish and/or water
resources within the Klamath River Basin affect the Yurok Tribe
Reservation and the Yurok Tribe whether such activities occur
in California or Oregon;
4) That the United States, including the Department of the
Interior, must provide the Yurok Tribe with any proposal,
initiative or other concept that affects the interests and
resources of the Yurok Tribe;
5) That the United States, including the Department of the
Interior, pursuant to the cooperative management agreement
mentioned above, principles of the government-to-government
relationship, and in proper recognition of the dependence of
the Yurok Tribe upon Klamath River Basin fish, water and other
resources, will not take any action affecting Yurok interests
without the full, timely, and meaningful participation of the
Yurok Tribe in all decision and other processes;
6) That the United States and the Department of the Interior
recognize that the Yurok Tribe harvests the vast majority of
Klamath River Basin fish as demonstrated by the Tribe's past
harvest;
7) That the United States recognize and respect the Yurok
Tribe fishery interests as specifically recognized by the 1993
Opinion of the Solicitor, the 1988 Hoopa Yurok Settlement Act
and its legislative history and other appropriate sources.
What follows is a description of the Yurok Tribe's dependence upon
the Klamath River and its fisheries, including attached rights.
The Yurok Tribe's message is that there is a continuing and
substantial impact to the Yurok Tribe's fisheries and other resources.
That impact has dire social and economic consequences on the lives of
Tribal members, their families and Tribal communities. Any process
regarding the management of Klamath River Basin fish, water or other
resources must include the Yurok Tribe. The United States, including
the Department of the Interior, must properly share all relevant
information in its possession . Any decisions regarding tribal
resources must be based upon the Tribe's unique circumstances and
strengthen Tribal culture and related priorities.
The Yurok Tribe Dependence on Klamath River Basin Fish
Klamath River fish are irreplaceable to the Yurok Tribe's culture,
religion and economy. From time immemorial, Yurok people have depended
on the Klamath River and all of its streams and tributaries. The River
is central to Yurok society by providing food, transportation,
commercial trade, and numerous other activities essential to Yurok
life. Throughout history and today, the identity of the Yurok people
has been intricately woven into natural environment including the
Klamath Basin watershed. Tribal religious and ceremonial practices
focus on the health of the world; the Klamath River and its fisheries
are a priority. The Yurok Tribe's obligation to protect the fishery has
always been understood by Yurok people. The ancestral territory of the
Yurok Tribe included coastal lagoons, marshes, ocean waters, tidal
areas, redwood and other ancient forests, prairies and the Klamath
River. The Preamble of the Constitution of the Yurok Tribe identifies:
Our people have always lived on this sacred and
wondrous land along the Pacific Coast and inland on the
Klamath River, since the Spirit People, Wo'ge' made
things ready for us and the Creator, Ko-won-no-ekc-on
Ne ka-nup-ceo, placed us here. From the beginning, we
have followed all the laws of the Creator, which became
the whole fabric of our tribal sovereignty. In times
past and now Yurok people bless the deep river, the
tall redwood trees, the rocks, the mounds, and the
trails. We pray for the health of all the animals, and
prudently harvest and manage the great salmon runs and
herds of deer and elk. We never waste and use every bit
of the salmon, deer, elk, sturgeon, eels, seaweed,
mussels, candlefish, otters, sea lions, seals, whales,
and other ocean and river animals. We also have
practiced our stewardship of the land in the prairies
and forests through controlled burns that improve
wildlife habitat and enhance the health and growth of
the tan oak acorns, hazelnuts, pepperwood nuts,
berries, grasses and bushes, all of which are used and
provide materials for baskets, fabrics, and utensils.
(Yurok Tribe Constitution 1993)
The Yurok Reservation extends for a mile on each side of the
Klamath River from the Pacific Ocean to above the confluence of the
Klamath and Trinity Rivers. The Reservation stretches for a distance of
approximately 44 miles.
Because of the rivers' importance, one of the Tribe's highest
priorities is to protect and preserve the resources of the rivers, and
in particular, to restore the anadromous fish runs to levels that can
sustain Yurok people. When the original Klamath Reservation was
established in 1855, the rivers were filled with abundant stocks of
salmon, steelhead, eulachon, lamprey, and green sturgeon. Today, the
abundance of fish in the Klamath River and its tributaries are only a
small fraction of their historic levels. Many species of fish have gone
extinct, many other species, such as fall Chinook, are in serious
trouble. Nonetheless, anadromous fish continue to form the core of the
Yurok Tribal fishery. The Yurok Tribe is pursuing its fishery
restoration goals through a fish management and regulatory program,
participation in various forums to reach long term solutions to Basin
problems and when necessary, litigation. The Tribe has devoted a large
share of scarce funding resources to budgets for fishery management and
regulation. The Tribe has enacted a fisheries ordinance to ensure that
the fishery is managed responsibly and in a sustainable manner and has
a longstanding record of resource protection. The Tribe's fisheries
department is well respected and recognized as a knowledgeable and
experienced fisheries entity in the Klamath Basin. The Yurok Tribal
Council and the Tribal members they represent are well known for taking
and supporting responsible actions to protect fisheries resources.
The Yurok Tribe's dependence upon Klamath River fish is supported
by Tribal harvest data. Since the passage of the Hoopa Yurok Settlement
Act in 1988, the Yurok Tribe harvest of Klamath River fall Chinook
represents approximately 87% of the 50% Tribal allocation (see Figure
1.).* In terms of the overall allocation of Klamath River fall Chinook,
comprised of Tribal and non-Tribal fishing groups, the allocation of
fall Chinook for the Yurok Tribe is the largest single allocation of
any group, tribal or non-tribal, harvesting Klamath River fall Chinook.
The Tribe's allocation is 80% of the Tribal allocation, or 40% of the
total allocation of harvestable surplus of Klamath fish.
---------------------------------------------------------------------------
* All figures have been retained in committee file.
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The Tribe's dependence on Klamath River fish and the expectation
that the Tribe would have significant economic opportunities from the
fishery was identified by Congress during passage of the 1988 Hoopa
Yurok Settlement Act. Unfortunately, the lack of Klamath River fish has
prevented the Yurok Tribe from realizing the benefits of the Klamath
fishery as intended by Congress. The legislative history confirms that
Congress intended to vest in the Tribe property rights to the fishery
on the Klamath River. The Committee noted that the Act ``will also
establish and confirm the property interests of the Yurok Tribe in the
Extension, including its interest in the fishery. Senate Report No.
564, 100 Cong., 2d sess. (1988).
Legal Basis of Yurok Fishing Rights
The fishing rights of the Yurok Tribe are well-established as a
matter of federal law. The Yurok Reservation, created pursuant to an
1855 act of Congress, was established within the Yurok Tribe's
aboriginal homeland primarily to provide a territory in which the
Tribe's fishing-based culture and way of life could thrive and continue
to exist. This fact has been recognized repeatedly since the
Reservation was established--by the Departments of the Interior and
Commerce, the United States Supreme Court, the lower federal courts,
and the California courts. See, e.g., Mattz v. Arnett, 412 U.S. 481,
487 (1973); Donnelly v. United States, 228 U.S. 243, 259 (1913);
Parravano v. Masten, 70 F.3d 539, 545-46 (9th Cir. 1995), cert. denied,
116 S. Ct. 2546 (1996); Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.
1981). As Justice Blackmun observed in Mattz v. Arnett, the original
Klamath River Reservation, the precursor to the current Yurok
Reservation, ``abounded in salmon and other fish'' and was in all ways
``ideally suited for the Yuroks.'' 412 U.S. at 487.
The Yurok Tribe's right to take fish on the Klamath River is
protected and guaranteed by federal law. The Ninth Circuit Court of
Appeals confirmed that the executive orders that created the Yurok
Reservation vested the Yurok Tribe with ``federally reserved fishing
rights.'' Parravano v. Masten, 70 F.3d 539, 541 (9th Cir. 1995), cert,
denied, 518 U.S. 1016 (1996). The same court has aptly observed that
the salmon fishery of the Yurok Tribe is ``not much less necessary to
the existence of the Indians than the atmosphere they breathed.'' Blake
v. Arnett, supra, at 909. The Solicitor of the Department of the
Interior has determined that the Yurok Tribe is entitled to a
sufficient quantity of fish to support a moderate standard of living,
or 50% of the Klamath fishery harvest in any given year, whichever is
less. Memorandum from Solicitor to Secretary of the Interior, No. M-
36979, October 4, 1993. The right includes fishing for subsistence,
commercial and cultural purposes. As the court in Parravano noted, the
purpose of the Yurok Reservation was to enable the Yurok people to
continue their fishing way of life. The River and its fish are
undeniably the cultural heart of the Yurok people.
The Klamath Agreements
The Yurok Tribe has been involved in Klamath Basin conflict since
the Tribe formally organized in the early 1990's. The Tribe's interest
flows from the reliance and responsibilities Yurok people have on and
to the Klamath River and its fish. The Tribe's social and economic
structure has been decimated, in large part, due to the decimation of
the Tribe's fisheries. The Yurok Tribe is the single largest harvester
of Klamath River fish. No one single factor accounts for the loss of
our fish; these factors have combined with each other to result in the
poor situation we find today.
The Yurok Tribe has worked hard with environmental, agricultural,
county, tribal, State and Federal interests to address many of the long
standing issues that cause conflict in the Klamath Basin. The result of
hard work by all the Parties was the historic signing of the Klamath
Agreements in Salem Oregon in 2010 by these parties; the Klamath
Hydropower Settlement Agreement and the Klamath Basin Restoration
Agreement.
Combined, these agreements address the need to remove Klamath River
dams, provide funding for fisheries restoration and provide more water
for environmental purposes (fish, wildlife, refuges, etc.). These
agreements in turn provide more reliable water for agriculture in the
upper Klamath Basin and more certainty to the power company regarding
the fate and operation of the Klamath hydropower project.
The Tribe urges the Congress to pass legislation that authorizes
and implements the Klamath Agreements.
It is critical that the foundation of the Klamath Agreements remain
intact through the legislative process. The Yurok and other Parties
negotiated agreements to resolve a number of complex issues that have
been the center of conflict in the Klamath Basin for many years. These
agreements contain support for funding various activities necessary to
address issues of conflict. If the budget or other obligations attached
to these agreements change, then the Yurok support for these agreements
change as well. It is important that any legislation to authorize and
implement the Klamath Agreements not change the timing or other actions
necessary to implement the agreements signed by the Yurok Tribe and
other Parties.
The Klamath Agreements do not solve all the water and fisheries
issues in the Klamath River Basin. They were never intended to do so.
The Parties realized that it would not be possible to solve the issues
on the Shasta, Scott and Trinity Rivers. What the agreements do is to
begin to address some of the most immediate and serious issues in the
Klamath Basin. The Yurok Tribe will continue to work with other
interests to address outstanding issues on these rivers.
Some interests claim that the Klamath Agreements terminate tribal
rights and the federal trust responsibility to Klamath Basin Tribes. As
these positions are considered we ask that individuals appreciated that
the Klamath Tribes with the most significant reliance on fish from the
Klamath side of the Klamath River Basin support these agreements. The
agreements are an expression of tribal sovereignty and self-
determination. Attached to this testimony is a review of the Klamath
Agreements as it pertains to tribal rights. A number of sections in the
Klamath Restoration Agreement address tribal rights. Below is an
important section for the Yurok Tribe:
2.2.11. No Determination of Water Rights by the
Agreement
No water rights or water rights claims of any Party
are determined or quantified herein. No water rights or
potential water rights claims of any non-party to the
Agreement are determined herein. No provision of this
Agreement shall be construed as a waiver or release of
any tribal water or fishing rights in the Klamath River
Basin in California, including claims to such water or
fishing rights that have not yet been determined or
quantified. The Secretary will not take any action in
any proceeding within the adjudication of Klamath Basin
water rights in the State of Oregon that eliminates the
existence or quantifies the amount of any tribal water
or fishing rights in California.
Trinity River Issues
The Yurok Tribe depends upon the health of the Trinity River and
its fisheries resources, as it is the largest Tributary to the Klamath
River.
The Yurok Tribe supports that no less than 50,000 acre-feet shall
be released annually from the Trinity and made available to Humboldt
County and downstream users as was provided for in the 1955 Act
regarding the Trinity River.
It is critical that water from the Trinity River be made available
during dry water years when in-river run size of Fall Chinook is
projected to be large. The Yurok Tribe and others have a serious
concern that water from the Trinity River is necessary to protect ESA
and other species of fish as they enter the Klamath River this fall.
Projected Fall Chinook run size returning to the Klamath River will be
the second largest. At the same time, the Klamath Basin is in a dry
water year. This combination of factors is a concern to the Yurok
Tribe, as there is a risk of another fish kill in the Klamath River
similar to 2002. Everyone associated with the Klamath Basin should
share that concern.
The Chairman. Very good. Thank you.
Commissioner Mallams, you're next. I appreciate you making
the trip. I also want to tell you I was very appreciative of
the meeting that we had after the town hall meeting in Klamath
Falls when you and several colleagues filled me in to a greater
extent on your point of view. So we appreciate that.
Please proceed.
STATEMENT OF TOM MALLAMS, COMMISSIONER, POSITION ONE, KLAMATH
COUNTY, KLAMATH FALLS, OR
Mr. Mallams. Thank you for the opportunity to speak today
and especially, Senator Murkowski also, for being here to
address this very important issue.
Today I want to make sure that I recognize that some
people.
The Chairman. Commissioner, do you have your microphone on
or you may just have a soft voice.
Mr. Mallams. I need it to be closer.
The Chairman. Pull it a bit closer.
Mr. Mallams. OK. Is that better?
The Chairman. Yes. Good.
Mr. Mallams. Thank you.
Now I do have to recognize that some people say I have a
conflict of interest here because I am an irrigator, a very
small irrigator. I pump water out of the ground. So I want to
make sure to people to recognize that.
But I'm here as an elected County Commissioner. I am very
frustrated with the division that has happened in our community
for many, many years. One of the people, one of the
stakeholders that have been left out of this is the citizens in
whole.
I represent all the citizens of Klamath County and do other
elected representatives. In last 4 years have been many
elections held in our area. The common denominator has been
those that support dam removal and the KBRA.
The Chairman. I can barely hear you which makes me think
that a bunch of other people may have a challenge too.
Mr. Mallams. Yes.
The Chairman. So if you can speak right into it.
Mr. Mallams. OK.
The Chairman. There we go.
Mr. Mallams. That's better. OK.
The Chairman. Good.
Mr. Mallams. Anyway there have been many elections
happening in our area that have shown that the people do not
want this direction right now. They are not in favor of this.
The votes have been anywhere from 65 to 80 percent in Northern
California and Southern Oregon.
We do believe there's no doubt we need a settlement. The
current direction with dam removal and the current KBRA just
doesn't fit the bill. I recognize, hopefully recognize, all the
very good relationships that have been forged through this
process. I understand that. I don't think that has to go away.
I think if they are very strong relationships they will be
able to weather a slight deviation from the course that they've
been taking. The KBRA, by itself, was a very noble cause and
still is. I believe it still is and still can be. This
settlement has to happen for us.
So from our perspective what did--we've been asked what our
next step? There are other options out there that have been
systematically ignored through this whole process. That's--
there's lots of off stream storage. The Federal Government
getting out of the Federal project which was originally
designed that way.
There's lots of other options out there. Dredging the lake
in certain areas and juniper removal and removing the Caspian
Terns and the birds that feast on the sucker fish. Until the
current direction changes though, these other options will
never be allowed. In those KBRA meetings it was a very, very
definite direction. KBRA, as it was in dam removal, was the
only option that was being put on the table.
I look at this as like a big family. Our Klamath Basin is a
large family with very different structures within our many
people whether tribal members, project irrigators or whatever.
We're all aunts and uncles, cousins, whatever. We need to get
together and continue this dialog and make sure that this
agreement really does happen that we can all get together and
make sure that we all get something out of this.
Everybody has to give, I understand that. I'm
wholeheartedly on that side. It just has to be a balanced
approach. I don't feel it's there yet. I still am an optimist
that it can happen and it must happen.
Thank you again for holding this hearing.
[The prepared statement of Mr. Mallams follows:]
Prepared Statement of Tom Mallams, Commissioners Position One, Klamath
County, Klamath Falls, OR
First, I want to thank Oregon's Senator Ron Wyden for putting this
Committee Hearing together. Bringing interested parties together can
implement positive discussion seeking that illusive settlement on
generational water conflicts. In 200 I, our community was united when
water was shut off in the Reclamation Project. U.S. Congressman Walden,
along with over 15,000 citizens, helped with buckets of water being
pulled out of the Lake Ewauna, and poured into the ``A'' Canal,
protesting this action.
As a Klamath County Commissioner, I watch in total frustration, as
our community has been divided by the age old method of ``divide and
conquer.'' As far as the dam removal and KBRA is concerned, the great
majority or the Klamath River Basin , has been very consistent in the
direction they DO NOT want to go.
The areas elections in the last four years have proven this beyond
any doubt. All three County Comm issioners have been replaced, local
State Senator Doug Whitsett and State Representative Bill Garrard
retained their seats. Gail Whitsett as a newly elected State
Representative. All these elections were won by a margin between 65-73
percent. The common denominator was that the winners opposed dam
removal and the KBRA. Yes, there were other issues, but this was the
most prominent issue that was the main focus. Siskiyou County Measure G
also passed opposing dam removal by 80 percent.
As we speak, irrigators in the upper basin are now being denied the
irrigation water needed to keep their crops and animals alive.
The Klamath River Basin is comprised of families of all shapes and
sizes. Our communities are full of families that love our basin. They
want, more than anything else, to stay here, working and raising their
families as the generations before have done.
Our Communities have seen the devastation of the timber industry.
Even with this loss, our citizens continued on, refusing to give in or
giving up. Our sometimes harsh environment and numerous conflicts help
create a very resilient people. The true spirit of the ``American Way''
still prevails in the Klamath River Basin. Often times, it seems as
though the Klamath River Basin is ``ground zero'' for out of control
regulation on our ability to use our Natural Resources. What ultimately
happens here in the Klamath Basin will affect our entire nation.
So what is the next step?
In many ways, our Klamath River Basin is like a very large,
extended family. We have many diverse members, with different
strengths, weaknesses, life experiences, and desired outcomes for the
issues facing all of us. Just because we may not agree with one another
100 percent of the time, does not mean that we cannot find common
ground. Just like families do, we must focus on moving forward, finding
that elusive balance.
The KBRA itself began as a noble cause. Numerous improved
relationships came out of the KBRA process. Unfortunately, dam removal
and the KBRA have obviously, failed to deliver what is ultimately
necessary for a true, comprehensive settlement, embraced with Basin
Wide and Congressional support. In its present form, it cannot go
anywhere!
There are numerous options that can address the water issues in the
Klamath Basin besides dam removal and the current KBRA. Unfortunately,
all these viable options were systematically ignored. Being forced to
accept dam removal and the KBRA as the absolute only option, ignoring
all other directions is unacceptable. Deep, Off stream storage,
dredging Klamath lake, juniper removal and the list goes on and on.
We must regroup! We must keep striving ahead especially in these
troubled times. We must follow the example of our ``Founding Fathers''
in never giving up.
The Chairman. Thank you. I very much like your analogy to
family. I won't break into song, but that's constructive.
[Laughter.]
Mr. Mallams. You don't want to hear me sing. So I guarantee
you.
The Chairman. Alright.
Let's go next to Michael Kobseff, Supervisor, District 3,
Siskiyou County Board of Supervisors.
Let's see that would put Michael up there. OK.
Your mic isn't on either.
STATEMENT OF MICHAEL KOBSEFF, VICE-CHAIR, BOARD OF SUPERVISORS,
SISKIYOU COUNTY, CA
Mr. Kobseff. How about that?
The Chairman. There.
Mr. Kobseff. There we go?
The Chairman. Yes.
Mr. Kobseff. Thank you, Senator Wyden for extending this
opportunity to participate in this hearing.
For Mt. Shasta this past year has been the driest year for
the past century. Emphasizing as forcefully as nature can, that
water and water quality are vital for agriculture, salmon and
our very existence. But there is no connection between dam
removal and the Upper Basin water supplies.
Three of the 4 dams on the Klamath River proposed for
removal are in Siskiyou County which is why our county is
leading the pursuit of alternative solutions that will actually
provide more water for farms, more fish for tribes and
fishermen while retaining our existing source of clean
hydroelectric power. There are options other than dam removal
to pursue. New mitigation measures have been implemented by
PacifiCorp since 2010 and these measures have been--are
improving water quality and fish habitat.
These improvements are evidenced by population trends with
nearly 30 thousand Chinook salmon returning to the Shasta River
in 2012, the highest number since Basin wide monitoring began
in 1978. The subsequent result was a record out migration this
year of nearly 5 million juvenile salmon.
However there are more ambitious and promising actions that
can be taken into benefit for fisheries and water supplies. As
an example, for 15 years Siskiyou County has advanced the Five
County Salmonid Conservation Program which has contributed to
the turnaround in fish population trends. Siskiyou County has
been working with NOAA fisheries and key stakeholders to
develop a Coho supplementation program on the Shasta River, a
major tributary of the Klamath River.
Siskiyou County supports the development of a trap and haul
pilot project for fish and passage, for fish passage, around
the Lower Klamath dams. Trap and haul is currently being
pursued by NOAA fisheries in the Bureau of Reclamation on the
other side of our county on the Sacramento River. The potential
of existing prime salmon habitat should be maximized by
properly managing national forest system lands in the Klamath
River watershed.
The Long Lake Valley Water Project, storage project, with
350 thousand acre feet of water storage should be reconsidered
with a review of the cost benefit analysis in context with the
cost of dam removal and the watershed restoration. The interim
measures that PacifiCorp has already implemented should be
continued and expanded.
As the committee considers how to address Klamath Basin
issues it should not overlook the effects of forest management
on water supply and water quality. The overgrown forest
conditions that result in bark beetle infestations and
catastrophic fires are the same conditions that are stealing
more water from our streams and rivers, water that would
otherwise benefit farms and fish.
Thank you.
[The prepared statement of Mr. Kobseff follows:]
Statement of Michael Kobseff, Vice-Chair, Board of Supervisors,
Siskiyou County, CA
Siskiyou County, home to approximately 150 miles of the Klamath
River and three of the four dams that were proposed for removal, fully
recognizes that there are longstanding water issues that must be
addressed in the Klamath Basin. Our county is leading the pursuit to
find alternative solutions to dam removal that will provide farms with
more water, tribes and commercial and recreational fishing interests
with more fish, and still retain our existing sources of renewable,
clean hydroelectric power.
The Klamath Hydroelectric Settlement Agreement (KHSA) and the
Klamath Basin Restoration Agreement (KBRA), the two agreements reached
by certain stakeholders in 2010 to address some of the longstanding
water issues in the Klamath Basin, raised great expectations about
finally achieving ``peace on the river.'' However, with implementation
of these proposals at a standstill, the agreements have actually become
an impediment to addressing the basin's water issues when they are
pointed to as the one-and-only Klamath River solution.
Alternatives to Dam Removal
A Klamath River solution must equitably spread its costs and risks
among the many stakeholders. As currently proposed, the risks and
burdens of mitigating any failings of a dam removal experiment will
fall upon the water users in Siskiyou County's Scott and Shasta
Valleys. A viable solution must also achieve its goals through
scientifically defensible means. Here, there is no connection between
dam removal and Upper Basin water supplies, except for that
artificially created by the KHSA and KBRA. For these and many other
reasons, it is time to advance alternatives to dam removal and to move
toward measures that will be able to garner the degree of popular
support required to finally get something done for the Klamath Basin.
The new mitigation measures implemented by PacifiCorp under the
KHSA are a starting point for reassessing alternate means of improving
Klamath water quality and fisheries. These measures are improving both
water quality and fish habitat and are a reminder that there are
options other than dam removal yet to be pursued. PacifiCorp's
``interim'' mitigation measures include:
A Habitat Conservation Plan under the Endangered Species Act
that will minimize the effects of project operations on coho
salmon, which includes:
--Habitat enhancement through a Coho Enhancement Fund and grant
program
--Iron Gate Reservoir turbine venting to increase downstream levels
of dissolved oxygen
--Increase the variability of downstream releases from Iron Gate
oResearch on Klamath River fish disease
A similar Habitat Conservation Plan for sucker species,
including
--A Sucker Conservation Fund
--Reoperation of the East Side/West Side development to avoid take
A hatchery and genetics management plan to support coho
recovery by conserving genetic and behavioral diversity
Gravel enhancement on the Klamath River between J.C. Boyle
Dam and Copco Lake
Nutrient reduction projects in the Klamath watershed
PacifiCorp's June 2012 Implementation Report encouragingly reports
progress is being made with ``various measures that are resulting in
improvements to water quality and fish habitat.'' This observation is
supported quantitatively by trends in fish populations. Nearly 30,000
Chinook returned to the Shasta River in 2012, the highest number since
basin-wide monitoring began in 1978. The subsequent result was a record
out-migration of nearly 5 million juvenile salmon this year.
Beyond the ``interim'' measures that are already evidencing
successful effect in the watershed, there are a range of much more
ambitious and promising actions that can be taken to benefit fisheries
and water quality. As examples:
for 15 years, Siskiyou County has advanced the Five Counties
Salmonid Conservation Program, which has contributed to the
turn-around in fish population trends;
Siskiyou County has been working with NOAA Fisheries and key
stakeholders to develop a coho supplementation program on the
Shasta River, a major tributary of the Klamath River;
Siskiyou County supports the development of a trap and haul
pilot project for fish passage around the lower Klamath dams.
Trap and haul is currently being pursued by NOAA Fisheries and
the Bureau of Reclamation on the other side of our county for
the Sacramento River;
the potential of existing prime salmon habitat should be
maximized by properly managing National Forest System lands in
the Klamath River Watershed;
the Long Lake Valley water storage project with 350,000
acre-feet of water storage should be reconsidered, with review
of the cost/benefit analysis in the context of the costs of dam
removal and watershed restoration; and
the ``interim measures'' that PacifiCorp has already
implemented should be continued and expanded.
Value of Klamath River Dams
In considering alternatives to dam removal, it is important to
remember that there are important reasons to maintain the dams. The
dams are valuable, existing sources of renewable, clean electrical
power. The dams, being practically immune to increases in the cost of
fossil fuels, have kept electricity costs down for our region's farmers
and ranchers.
These dams also provide local and regional recreational
opportunities, which attract tourists to the area. The dams transformed
former marginal habitat into world-class fisheries. The lakes behind
the dams also provide substantial sanctuary to many kinds of birds.
This habitat will be lost with the removal of the dams. The dams serve
an important health and safety function, allowing the County to control
potentially hazardous flooding of its river valleys and to flush the
river in times of drought. Before the dams had been constructed,
Siskiyou County suffered both immense flooding problems and drought.
The dams have provided the County with an important mechanism to
control peak flood conditions, saving lives and property from
catastrophic flooding events, and reducing the cost of insurance for
our residents. In times of drought these dams allow the flushing of the
river to reduce algae and to provide instream flows for salmon and
other aquatic life. If the dams are removed this important function
will be lost.
The dams improve water quality generally by providing a settlement
basin for naturally occurring phosphates and other detrimental elements
products in the water. The dams also cool warm water coming in from the
upper high desert basin in Oregon.
The effectiveness of the hatchery at Iron Gate is dependent on the
use of cold water that is obtained by drawing water from the lower
levels of the reservoir. The stratification of layers of water in the
dam is an important adjunct function of the dam and is responsible for
the hatchery's historically acknowledged success in producing
consistently enhanced salmon populations. The hatchery at Iron Gate
produces over six million salmon smolts annually.
Finally, an important cultural function of the dams is the
protection they provide for historic Native American gravesites.
Leaving the dams in place will protect the historic gravesites of the
Shasta Tribe from the elements and from potential pillaging. Removal
will violate both the cultural aspects of the Shasta Nation and federal
policy.
Beyond the loss of important functions served by the dams, Siskiyou
County remains concerned about other potentially negative impacts of
dam removal on the region. In a recent election, nearly 80% of voters
in Siskiyou County expressed their opinion that the dams should not be
removed.
Siskiyou County continues to have grave concerns about the release
of nearly 20 million cubic yards of sediments behind the dams, which is
loaded with toxic minerals. This release may result in massive
destruction of the ecosystem, a fact recognized by the Department of
the Interior (DOI), as well as its studies, although DOI claims the
damage may be short lived. DOI's studies acknowledge that we will not
know if restoration through dam removal is successful until possibly
2050. Although on considerably smaller scales, one need only look to
the damage done by the removal of other dams (Elwha, Condit, Gold Ray,
Savage Rapids) to see the destructive consequences of dam removal. This
damage to the environment from sediment release is rationalized on the
basis that salmon will have ``access'' to approximately 35 miles of
historically inconsistent and marginal habitat.
Loss of the dams, and their water storage, will ultimately result
in demands being made on farmers and ranchers to further reduce their
use of water, eventually curtailing late season uses, resulting in
uneconomic ranch practices. Except for a minority of agricultural
interests receiving promises of water, the majority of agriculture and
ranchers will suffer significant losses.
Issues of Scientific and Scholarly Integrity
The KHSA requires the Secretary of the Interior to make a
``Secretarial Determination'' as to whether dam removal should proceed.
The agreement promised that the Secretarial Determination would be made
only after thorough review and careful scientific scrutiny. Section 3
of the KHSA requires the Secretary to review existing studies and data,
undertake new ``appropriate'' studies, and comply with the National
Environmental Policy Act (NEPA), among other things. Since this review
began, more than 200 studies, reports, and other documents have been
presented to the public on the klamathrestoration.gov website. All of
this information was supposedly synthesized and summarized in the
Klamath Dam Removal Overview Report for the Secretary of the Interior:
An Assessment of Science and Technical Information (Overview Report).
Despite the tremendous amount of time and taxpayer money that has
been devoted to this process, the Overview Report and underlying
materials are completely overshadowed and tainted by former Secretary
Ken Salazar's publicly-announced, predetermined outcome: dam removal
will not fail! Staff from the Interior Department and its subsidiary
agencies received clear direction as to where they needed to end up.
Lest there be any doubt, others need only look to the examples of the
Bureau of Reclamation's removal of its scientific integrity officer or
the proposal to terminate the science unit in the Klamath Area Office.
The Overview Report is replete with examples of bias, distortion,
and circumvention of legal, scientific, and scholarly standards,
including the following examples:
1. False Choices Under the Dams-In Scenario.--The Overview
Report compares two scenarios described as the ``dams in'' and
the ``dams out'' alternatives. However, a false choice is
presented by defining the dams-in scenario as indefinite
operation under annual FERC licenses without implementation of
any of the protection, mitigation, and enhancement measures
that have already been prescribed for a new license. This false
choice makes the dams-out scenario seem far better by
comparison than it actually is and is an over-arching example
of the bias that runs throughout the Overview Report.
2 Adaptive Management vs. Inflexible Management.--The dams-
out scenario makes great fanfare about its ``commitment to
`adaptive management.''' In stark contrast, the dams-in
scenario is constrained to a locked-in, minimalist approach.
Once again, a false choice is presented to shade the report
toward dam removal.
3. False Assumption of Status Quo Fish Populations with Dams
In.--The Overview Report goes to great lengths to emphasize the
uncertainty of trends in fish populations under a dams-in
scenario. Based upon that uncertainty, the report then leaps to
the assumption that the ``current status'' of ``markedly
declined'' fish populations will continue into the future. The
past year's record-level returns of Chinook salmon belie that
erroneous assumption. The report ignores the reality of
improving population trends resulting from TMDL implementation,
fish flows, and basin-wide habitat enhancement efforts,
including installation of fish screens on water diversions and
the Five Counties Salmon Program implementing best management
practices for road construction and maintenance.
4. Omission of Ocean Conditions from Analysis.--The Interior
Department has taken the position that ocean conditions that
affect salmon populations are beyond the scope of analysis for
the determination regarding dam removal. The intentional
omission of this predominant element further skews the equation
in favor of dam removal. As evidenced by the record numbers of
salmon that returned to the Klamath system last year, factors
such as the Pacific decadal oscillation have a much greater
influence on population trends than having the dams in or out.
5. Nonuse Values and Net Economic Benefit.--The Overview
Reports paints a picture of net economic benefit of between $14
billion and $84 billion will full facilities removal. However,
the only reason a net benefit can be claimed is by including
``nonuse values'' that are claimed to be over $98 billion
dollars. Without these phantom benefits, the proposal for full
facilities removal has negative economic results.
6. Inflated Benefit Estimates.--While making passing
reference to varied results from different studies, the
Overview Report states that there will be an 81 percent
increase in Chinook Salmon. In reality, the expert panel that
reviewed Chinook provided a list of independent factors that
would all have to be successfully addressed to achieve
substantial gains in Chinook populations, including water
quality, disease, colonization of the upper basin, harvest and
escapement, hatchery influences, predation, climate change,
fall flows, and dam removal impacts. This list does not even
include ocean conditions which, as noted above, are a
predominant factor.
The Overview Report is only the latest example of how the KHSA and
KBRA have sacrificed science and an honest assessment of ecosystem
conditions and processes in favor of a predetermined outcome based on a
belief that removal of the lower four dams on the Klamath River is a
condition precedent to enhancing fisheries. That is clearly not the
case, as the population trends discussed above firmly demonstrate.
The Chairman. Thank you very much.
Our next witness will be Mark Lovelace, 3rd District
Supervisor of Humboldt County in Eureka.
STATEMENT OF MARK LOVELACE, HUMBOLDT COUNTY SUPERVISORS,
EUREKA, CA
Mr. Lovelace. Good morning, Chairman Wyden. I appreciate
the opportunity to provide testimony on behalf of our county's
135 thousand residents.
Humboldt County lies on the rugged far northern coast of
California, much closer to Oregon than we are to San Francisco.
Virtually the entire 16 thousand square mile Klamath Basin
drains through Humboldt County for a distance of 50 miles
before it meets the sea. That's an area larger than 9 States.
Everything that happens in the Upper Basin impacts our
downstream communities.
The mighty Klamath River has historically been the third
most productive salmon fishery in the United States outside of
Alaska. This powerful economic engine drove the coastal
economies of Northern California and Southern Oregon and
blessed us with abundant salmon that supported our commercial,
sport and tribal fisheries. Today, however, over 90 percent of
the river's salmon habitat has been destroyed or blocked by
aging dams with more than 420 miles of historic stream habitat
completely inaccessible.
Our once abundant Klamath Chinook salmon have declined
sharply from nearly 900 thousand to as few as 35 thousand or
less in some years. With this decline has come the shuttering
of commercial processing facilities, the loss of onshore jobs
and a dwindling fishing fleet. With each boat lost an
independent, family owned, small business now gone.
It's important to note that our downstream communities did
not have the benefit of environmental impact studies, economic
analyses and Senate hearings before our natural wealth, in the
form of water, was taken from us. The Klamath Basin has
suffered through decades of conflict, chaos and crisis as a
result of these dams with no stability for either the
downstream fisheries or the Upper Basin farmers. Demand for
water exceeds supply resulting in abrupt water shut offs to
irrigators, devastating fish kills and commercial fishing
closures.
The Federal Government has had to pick up the tab for these
conflicts spending hundreds of millions of dollars on drought
relief, disaster assistance and lawsuits just to manage an
ongoing crisis that leaves no one happy. If nothing is done,
the Federal Government should reasonably expect to spend more
over time than is proposed by these agreements without fixing
the underlying problems and with nothing to show for it in the
end.
Humboldt County worked with a broad coalition of some 30
other Klamath stakeholders for 5 years to develop a cooperative
approach to managing the Basin's resources and permanently
fixing these unresolved problems. These Klamath agreements do
far more than remove the 4 dams. They create a comprehensive
framework to share resources to improve river flows, to restore
this vital river and to end the persistent cycle of crisis,
conflict and fiscal waste of unending spending without an end
goal.
These agreements are the very model of a well crafted
compromise. No one party gets everything they want. But the
broad majority gets something they can live with. The entire
Basin, for the first time ever, gets stability.
Humboldt County is committed to supporting the Klamath
agreements, to maintaining the partnerships we've built
throughout the Basin and assisting with the implementation of
these agreements over the next 50 years.
I thank you for the opportunity to provide this testimony.
[The prepared statement of Mr. Lovelace follows:]
Prepared Statement of Mark Lovelace, Humboldt County Supervisor,
Eureka, CA
The County of Humboldt appreciates the opportunity to provide this
statement for the record on water resources issues in the Klamath
Basin. Our County is a signatory party to both the Klamath Hydropower
Settlement Agreement (KHSA) and the Klamath Basin Restoration Agreement
(KBRA). Federal implementation of these agreements would result in
removal of the four lower-most dams on the Klamath River by 2020 and
would create a comprehensive framework and mechanisms to achieve major
watershed restoration through improved river flow regimes, habitat
rehabilitation, improved water quality, and fisheries reintroduction.
The County of Humboldt strongly supports the Klamath settlement
agreements, as they provide an unprecedented opportunity to resolve
longstanding disputes involving dams, water diversions, and salmon runs
in the Klamath Basin.
Humboldt County
Humboldt County lies on the rugged coast of far-northern
California, some 270 miles north of San Francisco. Humboldt is isolated
from the rest of the State by mountainous terrain carved with steep
river canyons, accessed only across twisting and temperamental mountain
roads. Our isolation earns our region its nickname, ``the Lost Coast'',
and endows us with a strong sense of self-reliance. Our economy has
long been dependent upon our natural wealth, the hard work of our
multi-generational timber, farming and ranching families, and our
prosperous coastal fisheries.
More than half of the County's 135,000 residents live in
unincorporated rural areas, with the remainder dispersed across seven
small cities, including the seaport city of Eureka (population 27,191)
and the tiny fishing village of Trinidad (population 367), the fifth
smallest city in California.
The Klamath Basin spreads across 15,751 square-miles of southern
Oregon and northern California; an area larger than nine states.
Virtually the entire basin drains through Humboldt County for the last
50 miles of its 254 mile journey from its Oregon headwaters to the
Pacific Ocean. Whatever happens to the Klamath River in the upper basin
impacts our downstream coastal communities.
Klamath Fisheries History
The mighty Klamath River has historically been the third-most-
productive salmon fishery in the U.S, outside of Alaska, surpassed only
by the Columbia River in Oregon and the Sacramento-San Joaquin Rivers
in California. The Klamath's location provides an important mid-point
linkage between the aforementioned West Coast river systems. This
powerful economic engine drove the coastal economies of northern
California and southern Oregon, blessing us with abundant salmon that
supported our commercial, recreational and tribal fisheries.
Beginning in 1918 and continuing through 1962, the Klamath
Hydroelectric Project constructed a series of dams on the Klamath
River, none of which included any provision for fish passage,
effectively cutting off hundreds of miles of Fall and Spring Chinook
and steelhead spawning habitat in the Upper Basin.
In the reservoirs behind the dams, the cold, swift-running waters
of the Klamath are brought to a standstill, allowing the water
temperature to warm well above tolerable levels for cold-water salmon.
The still, warm waters also serve to concentrate nutrients and to
encourage the explosive growth of toxic blue-green algae blooms and
other fish pathogens, which are now endemic in the Klamath Basin. These
pathogens were implicated in the September 2002 fish kill in which as
many as 64,000 Chinook salmon were killed in the lower Klamath. This
preventable disaster was the largest fish kill in the history of the
Northwest.
Today, however, over 90 percent of the river's salmon habitat has
been destroyed or blocked by these aging and obsolete dams. More than
420 miles of historic stream habitat is now completely inaccessible to
returning salmon. Over the past 60 years, once-abundant Klamath Chinook
salmon have declined sharply, from a historic average of nearly 900,000
to as few as 35,000 or less in some years. Coho salmon are listed as
endangered under the Endangered Species Act (ESA), and other species -
such as green sturgeon and Pacific lamprey-are declining as well.
In the late 1970's, commercial troll ocean fisheries in the Klamath
Management Zone landed an average of over 3.6 million pounds of salmon.
For the period from 2005 through 2009, that number had plummeted to an
average of just 124,000 pounds, representing a decline of 92 percent
for the Port of Brookings, and 98 percent for the ports of Eureka and
Crescent City (see Table 1).
This precipitous decline has brought the shuttering of commercial
processing facilities, the loss of on-shore jobs, an ever-dwindling
fishing fleet, and pain and suffering among the families in our fishing
communities. Each fishing boat lost represents an independent, family-
owned small business that is now gone. Coastal communities in Northern
California and Southern Oregon have had to deal with the environmental
and economic impact of these dams for many decades, yet these
communities did not have the benefit of environmental impact studies,
economic analyses, and Senate hearings before their natural wealth, in
the form of water, was taken from them.
The impact of the decline in Klamath salmon is felt far beyond the
ports of Eureka, Crescent City and Brookings. As previously stated, the
Klamath River creates a `bridge' between salmon populations from the
Columbia and Sacramento-San Joaquin River systems. Additionally,
Klamath salmon inter-mingle in the ocean with other salmon stocks from
as far away as Monterey, CA to central Washington. In this way,
declines in Klamath Chinook salmon stocks can affect fisheries across
the entire West Coast, triggering ocean salmon season closures over
most of the northern California and Oregon coastline and other
restrictions as far away as southern Washington.
The PacifiCorp Dams
The lower four dams on the Klamath River (Iron Gate, Copco 1, Copco
2, and JC Boyle) are not a Federal project. Rather, these dams are
owned by PacifiCorp, a privately-owned utility company. These low-power
hydroelectric dams do not provide any irrigation water, nor do they
provide flood control. They are neither large nor particularly
powerful, generating a combined annual average of just 78 megawatts
(MW) for some 70,000 customers in northern California and southern
Oregon, and representing less than two percent of PacifiCorp's
electricity portfolio. By comparison, a single, more-modern facility
could be expected to generate 1,000 MW or more.
As noted previously, these dams were all built without any
provision for fish passage, which would make them illegal by any modern
standards. The license to operate these dams expired in 2006 and, as a
part of the Federal Energy Regulatory Commission's (FERC's) relicensing
process, PacifiCorp would be required to retrofit all four dams with
fish passage and make other upgrades, at a cost of at least $350
million. Fish passage would also further limit the dams' energy
production capacity, as it would reduce the amount of water available
for energy generation.
The cost of full dam removal is estimated to be $291 million,
making it a far-better proposition for PacifiCorp's ratepayers.
PacifiCorp continues to operate these dams under a year-to-year
license, pending Congressional approval and implementation of the
Klamath Agreements. Under the agreements, PacifiCorp and its ratepayers
would bear full responsibility for the costs of dam removal, up to $200
million. PacifiCorp has already begun collecting a surcharge from its
ratepayers to cover this anticipated cost. Any costs beyond that amount
would be borne by the State of California. No Federal money would be
used for dam removal.
History of Conflict
As with many waterways in the western United States, water rights
in the Klamath basin have been oversubscribed. In most years, there is
not enough water to meet the demands of all users and still provide for
the needs of salmon and downstream communities. This essential truth
has led to many decades of fighting in the Klamath basin, but all of
that conflict has failed to yield more water.
Klamath water conflicts have been the focus of regulatory
proceedings and litigation in various venues, without resolution. These
conflicts intensified in the late 1980s and early 2000s with listings
of threatened and endangered fish species, abrupt water shut-offs to
irrigators, blooms of toxic algae, water disease outbreaks, devastating
fish kills, and commercial fishing closures.
In the midst of the 2001 drought, the Bureau of Reclamation (BoR)
terminated irrigation contracts to some 1,400 upper basin farmers to
protect the endangered coho on the basis of biological opinions issued
under the ESA. The farmers and their supporters staged street protests
in Klamath Falls, Oregon, and some took control of the head gates on
the project's canals. When local police refused to arrest them, federal
agents had to patrol the canals to prevent further water seizures.
A year later, the Bush administration issued a controversial new
biological opinion in which it determined that water diversions were
"not likely to adversely affect" coho salmon for a below-average water
year. BoR subsequently reduced the amount of water it would release
downriver by half, diverting the balance to farmers through the
project's canals.
By September of 2002, the low flows, warm water temperatures, and
an exploding population of parasites killed as many as 64,000 fish in
the lower Klamath. It was the largest fish kill in the history of the
Northwest.
Responding to these recurrent crises, the Federal government has
spent at least $181.4 million since 2001 on emergency drought relief
and disaster assistance. This amounts to an average of over $18 million
per year:
2001-$46 million on Klamath disaster relief and other
government outlays
2002-2004-$62 million-Special allocation through the Farm
Bill and BOR to support water conservation infrastructure and
water banking
2006 - $61.4 million in State of Oregon disaster relief and
Commercial Fishery Disaster Assistance
2010-$12 million on drought relief and conservation
The Klamath Basin has suffered through decades of conflict, chaos
and crisis, with no stability for either the farmers or the downstream
fisheries. The Federal government has historically had to pick up the
tab, spending hundreds of millions of dollars on drought relief,
disaster assistance, and lawsuits just to manage an ongoing crisis that
leaves everyone unhappy.
Left unchecked, the Federal government could reasonably be expected
to spend far more over time than is proposed by these agreements
without fixing the underlying problems, and have nothing to show for
it.
The Klamath Negotiations
Following the disasters of 2001-2002, President George W. Bush
convened a Cabinet-level Workgroup to focus on Klamath issues. In 2003,
Interior Secretary Gale Norton highlighted the Klamath Basin as the
poster child for water conflicts in the west and advocated for the
development of a locally driven solution to be implemented by Federal
and State agencies. Informal meetings and conferences were convened
between tribal leaders, irrigators, conservationists, commercial
fishermen, elected officials and concerned residents throughout the
Basin, with the support of the Department of the Interior, BoR,
National Oceanic and Atmospheric Administration, and the US. Fish and
Wildlife Service.
In 2004, with the support of President Bush, Oregon Governor Ted
Kulongoski and California Governor Arnold Schwarzenegger, Klamath
stakeholders began a five-year process of negotiation that resulted in
``the Klamath Agreements,'' a cooperative approach to managing the
Basin's resources and permanently fixing unresolved problems. Humboldt
County, along with other local governments, State and Federal agencies,
tribes, irrigators, fishermen, conservation groups, and a private
utility, was among the nearly 30 parties that actively participated in
the negotiation process leading to the development of the agreements.
Through compromise, planning, transparency, and fairness, these
resource-sharing agreements are designed to end the persistent cycle of
crisis, conflict, and financial waste.
These voluntary agreements offer balanced solutions for realizing
better water certainty and water sharing, restoring imperiled fish and
wildlife, and sustaining a strong natural resource-based economy in the
region. The agreements are supported by the majority of basin interests
who depend upon surface water, and who were able to put aside their own
ideology and vision of the perfect outcome, to embrace a collaborative
path that they believe is in the best interest of the entire basin.
Benefits of the Klamath Agreements
As previously noted, the cost of continued inaction in the Klamath
watershed has been very high, with the Federal government, alone,
spending over $181 million dollars since 2001 managing an ongoing
crisis, with no endpoint in sight. If the Klamath agreements are not
implemented, there is no reason to believe that this pattern of
sporadic, uncoordinated emergency relief will not continue or even
increase indefinitely into the future.
The Klamath Agreements propose to end this repeated cycle of
throwing federal money at an ongoing crisis and to instead invest in
long-term solutions that actually prevent future economic disasters.
Implementation of the Klamath Agreements will:
Re-program and more efficiently use $17 million per year
that is already and routinely being spent on federal programs
in the Basin by linking these currently disconnected programs
together as part of an overall restoration plan;
For a fifteen year period, re-direct $36 million per year of
federal resources to establish long-term solutions, instead of
continuing ad-hoc and emergency measures that have totaled over
$180 million since 2001; and,
Leverage significant state and private (PacifiCorp &
ratepayer) funding for habitat restoration and dam removal--
capping ratepayer expenses as compared to the unknown costs of
relicensing the dams.
The Klamath Agreements bring certainty and predictability to a
region that has not previously known what to expect from one year to
the next. These agreements protect, stabilize and grow essential jobs
and businesses in the region's core natural resources industries of
agriculture and fishing. The economic impact of these agreements in the
basin is significant, creating both near-term and long-term jobs
throughout the basin. Studies prepared as part of the economic impacts
documentation demonstrate that the agreements will:
Protect or create 4,600 additional temporary or permanent
jobs in restoration, agriculture and recreation, and increase
regional economic activity by at least $445 million;
Create over 1,600 short-term jobs and nearly $200 million in
economic output based on dam removal and associated mitigation
activity;
Provide a permanent average annual increase of more than 450
new jobs in commercial fishing between California and Oregon;
and,
Support significant increases in jobs, from 70 to 700
depending on the year, in Upper Basin agriculture.
Additionally, watershed restoration and improved water supply are
expected to create millions of dollars and new local jobs from
increased recreational fishing, hunting and bird-watching on National
Wildlife Refuges and private lands.
Investment in the Klamath is a small price to help protect a $750
million per year farming and fishing industry, sustain or grow over
4,500 jobs, restore the third largest and most valuable salmon run in
the lower 48 states, and spark the revitalization of communities facing
some of the highest unemployment and poverty in the region.
Conclusion
Humboldt County strongly supports the Klamath agreements because
they provide an unprecedented opportunity to bring long-needed
stability to the basin, resolve long-standing disputes, and provide
assurances of water, for the first time ever, for both the fish and the
farmers. Beyond removal of the four lower-most dams, these agreements
create a comprehensive framework to achieve major watershed restoration
through improved flow regimes, habitat rehabilitation, improved water
quality, and fisheries reintroduction.
These agreements are the very model of a well-crafted compromise;
neither side gets everything they want, but the broad majority gets
something they can live with. And the entire basin gets stability.
Humboldt County respectfully requests the Committee's assistance in
enacting these agreements through enabling legislation. Our county is
committed to supporting the Klamath settlement agreements, maintaining
the strong, underlying partnerships we've built throughout the basin,
and assisting with implementation of these agreements over the next 50
years. We look forward to working with the Energy and Natural Resources
Committee on this issue, and we thank Chairman Wyden, Ranking Member
Murkowski, and the entire Committee for the opportunity to provide
these comments for the record.
The Chairman. Mr. Lovelace, thank you.
Dean Brockbank, Vice President, General Counsel,
PacifiCorp.
STATEMENT OF DEAN S. BROCKBANK, PACIFICORP ENERGY, VICE
PRESIDENT AND GENERAL COUNSEL, PORTLAND, OR
Mr. Brockbank. Yes, thank you. Good morning. Thank you for
holding these important hearings, Chairman Wyden.
My name is Dean Brockbank, Vice President and General
Counsel for PacifiCorp Energy. We provide electricity to 1.8
million customers in portions of 6 Western States including 600
thousand customers in Oregon and Northern California. The
company owns and operates the Klamath Hydroelectric project
which covers 64 miles on the Upper Klamath River along the
Oregon/California border.
Four of the project's dams would likely be removed under
the Hydroelectric Settlement Agreement. This settlement
represents a serious collaborative attempt to resolve Klamath
Basin resource issues. These agreements are not perfect to be
sure, but the status quo is simply not an option.
We've also heard your admonition this morning, Senator, to
continue thinking creatively to solve these issues. We commit
to be a part of this ongoing dialog.
PacifiCorp supports the KHSA primarily as a business
decision. Settlement represents the best balance between the
various interests of our electricity customers and other
stakeholders. The public policy preference of both the Bush and
Obama Administrations as well as 2 States and 4 separate
Governors is that dam removal be a key element in this Klamath
settlement.
While PacifiCorp favors a settlement of these issues, we've
been clear that we could only put dam removal on the table if
it was a fair deal for our electricity customers. The Public
Utility Commissions in both Oregon and California agree that
the company's decision to sign the KHSA is in the best interest
of our customers. The company is not for or against dam removal
as a matter of policy. Our key objective in this process is to
minimize the cost and the risks that our customers will face.
Simply put the settlement is what makes dam removal possible.
I want to touch on 2 final issues.
First, the drought this year in the Klamath Basin is of
great concern for all of us. In response to this crisis we have
offered to operate our hydro project to make available up to 20
thousand acre feet of water this year to help alleviate drought
conditions. We believe that we can do this while also
maintaining river flows sufficient for and protective of fish.
Second, PacifiCorp is committed to continue carrying out
the many interim commitments under the KHSA which are helping
to improve environmental conditions and fish habitat during the
period before the dams would be removed in 2020.
We look forward to working with you, Senator Wyden and this
committee, to solve these problems.
Thank you.
[The prepared statement of Mr. Brockbank follows:]
Staement of Dean S. Brockbank, PacifiCorp Energy, Vice President and
General Counsel, Portland, OR
My name is Dean Brockbank, and I serve as PacifiCorp Energy's vice
president and general counsel.
Thank you for the opportunity to appear before the Committee today
and present the views of PacifiCorp on an issue of importance to our
customers, the Klamath Basin and the region.
I also applaud the committee for its interest in seeking solutions
to the complex natural resource issues and conflicts that have
unfortunately been a part of living and doing business in the Klamath
Basin for more than a century. Like many before you toda -Basin tribes,
farmers, agencies, and other stakeholders-PacifiCorp has been embroiled
in the resource-related conflicts and litigation that have marked the
Klamath Basin, an important part of the company's service territory.
PacifiCorp is a regulated utility that generates and provides
electricity to 1.8 million customers in portions of six Western states,
including nearly 600,000 in Oregon and Northern California.
The company also owns and operates the Klamath Hydroelectric
Project (Project) dams on the Klamath River that would be removed under
the Klamath Hydroelectric Settlement Agreement, or KHSA, which the
company signed in 2010 along with more than 40 parties that include
federal agencies, the states of Oregon and California, Tribes,
irrigators, commercial fishing interests and several environmental
groups.
The Klamath Hydroelectric Project is a 169 megawatt hydroelectric
facility on the Klamath River in southern Oregon and northern
California. It consists of eight developments including seven
powerhouses, five mainstem dams on the Klamath River (Iron Gate, Copco
No. 1, Copco No. 2, J.C. Boyle, and Keno), as well as two small
diversion dams on Spring Creek and Fall Creek, tributaries to the
Klamath River. The Project as currently licensed includes the East Side
and West Side generating facilities, which use water diverted by the
Link River Dam, a facility owned by the Bureau of Reclamation that
regulates the elevation and releases of water from Upper Klamath Lake
and which is not included in the Project. The Project also includes
Keno Dam, which has no hydroelectric generation facilities, but which
serves to regulate water levels in Keno Reservoir as required by the
Project license and for the benefit of Klamath irrigators and in
support of the Bureau of Reclamation's Klamath Project. The Company
operates all eight developments under one FERC license (FERC Project
No. 2082). The Project is partially located on federal lands
administered by the Bureau of Land Management and the Bureau of
Reclamation. The first hydroelectric development, Fall Creek, was
completed in 1903 and Iron Gate, the last hydroelectric development,
was completed in 1962. Keno Dam was completed in 1968. A map of the
Project is included as an exhibit with my testimony.
In 2000, PacifiCorp began the process of seeking a new long-term
federal license for the company's Klamath Hydroelectric Project. The
50-year license for the project expired in 2006 and it was the
proceedings around relicensing the dams that led state and federal
agencies, Tribes, irrigators, commercial fishermen, environmental
interests and other basin stakeholders to eventually negotiate and
release for public comment the Klamath Basin Restoration Agreement, or
KBRA in January 2008. The KBRA seeks to resolve the water allocation
issues that have so divided the various communities and interests in
the Klamath Basin. The KBRA also seeks to restore fish habitat, achieve
much-needed water quality improvements in the Upper Klamath Basin, and
support local communities and economies by providing more certainty
regarding water allocation, addressing power cost issues for basin
irrigators, and implementing other programs to assist basin communities
in better managing and restoring the limited resources within the
basin.
Although the company did not participate in the negotiation of the
KBRA, the policy preference of the federal resource agencies and the
states of Oregon and California was made clear during the relicensing
process and with the release of the KBRA-which called for an agreement
with PacifiCorp that would result in the removal of the Company's
hydroelectric project. This state and federal policy view-shared by
many basin stakeholders, though certainly not all-has been that removal
of the Company's hydroelectric dams is a key component to their efforts
to resolve the broader resource-based conflicts that are beyond the
scope of the Company's relicensing process.
PacifiCorp is not in the business of removing dams. In fact, the
company continues to value hydropower, including the Klamath Project,
as a carbon-free and highly flexible power source that helps meet
electricity demand in peak hours and assists with the integration of
variable renewable energy resources. However, at the time of the
release of the draft KBRA in 2008, the relicensing process had advanced
to the point where the improvements to the facilities that would be
necessary to secure another 40- to 50-year license to operate the dams
under current laws and regulations were largely known.
Although the Company advanced and defended other means to restore
fish passage to the upper basin through a trap and haul program, the
agency terms and conditions for a new license required the installation
of fish passage at each and every project facility. These facilities
would require significant capital investment, and other conditions of a
new license would mandate reduced river flows through the powerhouses,
impacting the economics of the project.
Thus, the company realized that doing nothing regarding the dams
was not an option. But despite the costs and impacts from the
requirements of a new license, making those improvements so that the
project could continue to serve our customers into the future remained
the best available option.
The company is not for or against dam removal as a matter of
policy. We have both removed and relicensed hydro projects in recent
years. The company approaches these decisions on a case-by-case basis
and in the case of Klamath-which to our knowledge would be the biggest
dam removal project in the history of the world-the company simply
concluded that it could not support a dam removal outcome absent a
settlement agreement that would provide key protections to the Company
and its customers from the unknown costs and risks of such an endeavor.
And though PacifiCorp generally favors balanced settlement over costly
and uncertain litigation to resolve complex issues such as the
relicensing of the Klamath project, the company also made it very clear
that we could only support dam removal if it was a fair deal for our
customers.
And as a state-regulated utility, we are obligated to evaluate and
pursue the available alternative that presents the least cost and risk
to our customers. With that in mind, the Company negotiated with the
state and federal governments, and ultimately other Klamath Basin
stakeholders, to develop the KHSA. What ultimately made certain the
company's support for a settlement that would result in dam removal is
the inclusion of terms in the agreement that ensured removing the dams
and replacing the carbon-free power they provide would cost less and
present less risk for our customers than relicensing. Those terms
include:
A customer cost cap of $200 million that protects customers
from uncertain and potentially escalating costs related to dam
removal;
The transfer of the dams and related project lands to a
third party for removal;
Liability protection for the Company and its customers
should dam removal result in unintended consequences or create
unforeseen problems; and
The ability for our customers to continue to benefit from
the low-cost power provided by the facilities until their
planned removal in 2020.
The inclusion of these terms into the KHSA allowed the Company to
conclude that the KHSA presented a better outcome for customers than
continuing to relicense the project. The Company has presented its
conclusion to the public utility commissions in both Oregon and
California and they have agreed that the Company's decision to sign the
KHSA is in the best interest of our electricity customers based upon
these key terms. It is important here to note that neither PacifiCorp
nor the public utility commissions have concluded that dam removal by
itself is in the best interests of customers or a better alternative
than relicensing. Rather, it is the KHSA - along with its protections
for the Company and its customers - that represents the better
alternative to relicensing.
Thus, the terms and protections of the KHSA allows the policy
preference of the federal and state signatories, as well as the
priority of the tribes, fishermen, and environmental stakeholders, to
proceed and for dam removal to be a core component of their broader
settlement-while also making certain that dam removal is the better
outcome for customers as compared to relicensing.
However, without terms such as those in the KHSA, the company would
not support removal of its dams and could not justify doing so as being
in the best interest of customers, which is the top priority in our
decision-making as a rate-regulated utility.
That's a point I want to emphasize-that absent the terms of the
KHSA or a similar settlement that ensures a fair deal for our
customers, the company would not pursue removal of our Klamath dams.
It is the company's hope and intent to be part of a broader
settlement that will hopefully address the priorities of other
stakeholders and our neighbors in the Basin. We cannot make decisions,
however, that expose customers and the company to unacceptable cost and
risk.
PacifiCorp's role in efforts to find solutions to Klamath Basin
resource issues is primarily connected to the future and ongoing
operation of our hydro project-which is how Klamath issues can affect
customers in all of our six states. But before concluding I want to
touch on a few other issues I know are of concern to the committee and
PacifiCorp as well.
The company is well aware of the angst among the irrigation
community in the Klamath Basin surrounding the increase in irrigation
power rates that have occurred with the expiration of the special
contract rates that were tied to our expired hydro license. The company
knows that the transition to higher rates under retail tariffs that
have been approved by the Oregon and California public utility
commissions presents a challenge for many irrigation customers.
The company is bound by statutes and regulations that do not permit
special contracts, cost shifts between different classes of customers,
and other restrictions regarding costs we are allowed to charge
customers without the approval of our regulatory commissions - but we
will continue to work with our customers in the Basin, federal
agencies, members and staff of this committee and anyone else who can
contribute to finding a way to alleviate the pressure of power costs on
Klamath Basin irrigators.
To that end, PacifiCorp and affected stakeholders have held recent
discussions with the Klamath Basin irrigators, the Bureau of
Reclamation, Bonneville Power Administration, and the Oregon Public
Utility Commission staff on how to move this program forward. We
believe that we can lay out a path forward to achieve the objective of
the settlements of delivering federal power to Klamath Basin irrigators
and are proceeding to develop an agreement in principle that would
outline how such a program would work and be treated by the respective
agencies with discrete authority over its federal and state components-
Bonneville Power, Reclamation, Western Area Power Administration, and
the state public utility commissions. We look forward to working with
all interested stakeholders in the development of this agreement in
principle and are committed to making the necessary regulatory filings
to advance this program such that the program is ready to be
implemented when the federal legislation enacting the settlements -
which is necessary for this program to be extended to all eligible
Klamath Basin irrigators-has been enacted. PacifiCorp alone can't solve
the power cost issue, but we are willing to play a helpful role
consistent with the rules and regulations we must follow as a rate-
regulated utility.
PacifiCorp's Water Sharing Proposal
The drought this year in the Klamath Basin is obviously also a
great cause for concern for Basin farmers, ranchers, Tribes, fishermen
and others.
While we obviously can't change the weather, the company has looked
hard at creative ways to operate our hydroelectric project to assist
with this developing crisis. To this end, the company has determined
that a drawdown of water storage from our hydroelectric project could
provide an additional 20,000 acre-feet of water supply in the Upper
Klamath Basin by reducing withdrawals from Upper Klamath Lake necessary
to achieve Reclamation's flow requirements below PacifiCorp's Iron Gate
Dam-the furthest downstream facility on the Klamath River. While there
is 85,000 acre-feet of available storage within our reservoirs, not all
of that water volume can be immediately tapped without changes to the
facilities or creating operational or water quality issues. However, we
do believe that we can provide 20,000 acre feet of water on an
immediate basi-while still ensuring that Reclamation's minimum flow
requirements below Iron Gate Dam are delivered consistent with the
flows directed by the National Marine Fisheries Service in the
recently-issued joint biological opinion for Reclamation's Project.
Using the Company's reservoir storage to increase water supply
availability during this year's drought situation could reduce the need
for water shutoffs that may otherwise be required to attain desired
Upper Klamath Lake levels. Alternatively, this water could be used to
increase water supplies for thousands of acres of irrigated agriculture
and pastureland, or for other beneficial uses including fish and
wildlife purposes. Although this action would certainly help to ease
the situation, it would not fill the entire gap of water shortfalls.
PacifiCorp and the Bureau of Reclamation have a long history of
coordinating our operations on the Klamath River for the benefit of
water users and electricity customers, while also complying with
regulatory requirements. Given the dire conditions that are developing
in the Klamath Basin, PacifiCorp believes it is prudent to immediately
explore creative ways to alleviate the situation and lessen the impact
on Klamath Basin communities-many of which are comprised of
PacifiCorp's customers.
PacifiCorp has communicated this proposal to the Bureau of
Reclamation and looks forward to further discussions with Reclamation,
state and federal agencies, Klamath Basin irrigators, and other
stakeholders regarding how our hydroelectric project may provide a
stop-gap water supply during this critical drought period.
KHSA Implementation
PacifiCorp also will continue carrying out our many
responsibilities under the KHSA and other voluntary actions to improve
environmental conditions within the Klamath Basin. These efforts have
been ongoing since the agreement was signed and don't require
authorization by Congress or further action by the Secretary of the
Interior. I've included with my testimony PacifiCorp's annual report on
its implementation efforts pursuant to the KHSA. The report highlights
the many activities that PacifiCorp is undertaking in collaboration
with our settlement partners and state and federal agencies to
implement our obligations under the KHSA and advance the settlement
process.
Among these actions are approximately $80 million the company has
committed to spend to implement the KHSA and implement a series of
interim measures to improve environmental conditions during the interim
period prior to anticipated dam removal in 2020. These actions are
focused on improving water quality within the hydroelectric project as
well as in the Upper Klamath Basin, working with the California
Department of Fish and Wildlife to update and improve the
infrastructure and operations of the Company's Iron Gate Hatchery, and
working with the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service on actions to enhance fish habitat within the Klamath
Basin to benefit and speed the recovery of threatened and endangered
fish species. Working with these agencies and our many other partners
in the settlement process is resulting in meaningful improvements that
would not be occurring but for the collaboration and relationships that
have been formed and strengthened over the past several years.
I would like to thank the committee once again for its attention to
these important issues and I would be happy to answer any questions you
may have.
The Chairman. Thank you very much. As I indicated in my
opening statement, we very much appreciate the commitment to
the rate relief that was discussed today. Obviously we have
more to do. Congressman Walden and Senator Merkley and I will
be following up with you on those matters very quickly.
Our next witness will be Roger Nicholson, President of
Resource Conservancy and Fort Klamath Critical Habitat
Landowners.
Mr. Nicholson, I also want to thank you for that meeting
that we had after the town hall meeting in Klamath Falls that I
referenced with the Commissioner and appreciated your interest
in working on these issues now and getting a solution.
STATEMENT OF ROGER NICHOLSON, PRESIDENT, RESOURCE CONSERVANCY
AND FORT KLAMATH CRITICAL HABITAT LANDOWNERS, FT. KLAMATH, OR
Mr. Nicholson. I guess this is on.
Senator Wyden, I wanted to thank you personally for your
interest. Yes, indeed, we are one of the groups that you
referenced in your preliminary comments that have not been
involved in the KBRA process. A group that wanted to be
involved with the KBRA process.
We went to the KBRA and we were turned down from
representation of the KBRA. My group represents literally tens
of thousands of acres of irrigated ranch lands in the Upper
Klamath Basin. A lot of those lands have been irrigated since
the 1870s and 1880s continual with previously adjudicated water
rights.
Right today some of our membership is being shut down that
has 1872 water rights. Those are family ranches have irrigated
continually since that time with the assurances from the State
of Oregon that would be a continual process. They would always
have that priority. Then we had another adjudication.
In the other adjudication, of course, the Klamath tribe was
granted the rights that they should have always been. Time
immemorial rights. Pontification of those rights is very
questionable in our minds, very, very questionable. All being
dictated by the former Adair decision which quite clearly said
there will not be a wilderness servitude on those agricultural
lands.
To rapid forward to where we are now, we want a settlement.
We desire a settlement. We are in the process of meeting with
the tribes. Hopefully we can forge ahead and become part of a
settlement process even though we probably will not even be
allowed to be signator on the Basin Restoration Agreement, the
KBRA. Perhaps that we can have a parallel agreement that would
work with all parties.
I have to say a couple things about restoration activities.
Restoration activities were so big within such an important
part of the KBRA our people have instigated those restoration
projects for years. What we're seeing right now is actually a
major step backward.
There's been some 40 some miles of Sprague River restored.
The Wood River we've tried to make it a model watershed all the
way from bright bearing fencing to fish greening to other
activities for years. With the simple lack of feed, lack of
stock water, by losing our irrigation water, I'm fearful that
we're going to take a major setback in restoration activities
which I personally don't want. I've been out in front for a
long, long time on those issues.
Anyway, in closing I'd like to say that I commend everybody
that has worked on the KBRA. You have worked long and hard. We
want to be part of that process. We want to be part of a
settlement process today.
Thank you.
[The prepared statement of Mr. Nicholson follows:]
Prepared Statement of Roger Nicholson, President, Resource Conservancy
and Fort Klamath Critical Habitat Landowners, Ft. Klamath, OR
I am Roger Nicholson. I irrigate in the Wood River valley on a
family ranch, which has operated since the 1890's. I am representing
irrigators above Upper Klamath Lake. Our umbrella organization,
Resource Conservancy, represents the Fort Klamath Critical Habitat
irrigators and the Sprague River Water Resource Foundation irrigators.
Resource Conservancy supports the concept of a basin wide
settlement agreement. Furthermore, Resource Conservancy appreciates the
efforts and time spent in developing the Klamath Basin Restoration
Agreement or KBRA.
Unfortunately, the KBRA promotes the taking of large quantities of
Upper Klamath Basin water, with no assurances any will be left for our
irrigation usage. For this reason, we cannot support the KBRA as
written, until such time as equity through water assurances can be
provided to all stakeholders.
Resource Conservancy is concerned with the KBRA for the following
reasons:
1. It calls for the diminishment of irrigated acreage in the
Upper Klamath Basin.
2. It provides no water delivery assurances for the remaining
irrigated acreage in the Upper Klamath Basin.
3. It provides for a new environmental water right in the
Upper Klamath Lake, which was created from a portion of the
Klamath Project waterusers water right. This portion of the
waterusers water right has not been used historically. The
result is a call on the Upper Basin irrigators to provide water
which has been used historically by the Upper Basin irrigators.
4. It also reduces the storage capacity dedicated to the
Klamath Project waterusers, thereby making a live flow call on
the Upper Basin irrigators more likely to fulfill the storage
shortfall.
5. Settlement under the KBRA does not reflect the realities
of the Klamath adjudication.
For years there was a balance in water use, providing irrigation
water for the Klamath Project waterusers, Upper Basin irrigators and
water in the streams for fish habitat and downstream flows. With
today's environmental constraints and increased understanding of
downstream flow needs, this balance has been upset and there is not
enough water to go around. Resource Conservancy recognizes the need for
balance in water distribution, and thereby is asking that an equitable
portion of the water be provided to the Upper Basin irrigators in the
process of achieving this balance under the current operating
parameters.
Resource Conservancy supports the KBRA's ecosystem and riparian
restoration efforts. We recognize the importance of having a healthy
ecosystem and riparian areas not only for fish and wildlife habitat,
but also for increased agricultural production. Healthy functioning
ecosystems provide for sustainable agriculture, while also creates
quality fish and wildlife habitat. As ranchers in the Upper Klamath
Basin, we have implemented many river restoration projects, fenced
miles of riparian area, provided off-site livestock watering, installed
fish screens, and practiced best management practices for grazing and
livestock management. These improvements, over more than the past three
decades, have improved water quality, increased stream flows, and
decreased sediment and nutrient loading. We look forward to continuing
these conservation trends, but need to be economically whole to have
the time and financial resources to continue making improvements to our
operations and their ecosystems.
As KBRA suggests, all retiring irrigated acreage needs financial
compensation while remaining acreages need water delivery assurances.
Purchasing priority should be provided to junior water rights. In
return, landowners can continue restoration efforts.
Resource Conservancy is very interested in working toward a
comprehensive agreement. This comprehensive agreement can be structured
such that it will parallel the KBRA and not contradict other parameters
and benefits set forth in the KBRA. We appreciate the opportunity to
continue settlement discussions, in an amicable arena which will lead
to a solution for all parties relying on water and living in Klamath
Basin. We would eagerly await the day when water wars and legal
processes become a thing of the past and we can move forward to rebuild
a productive community.
The Chairman. Thank you. That's the whole point of the
discussion to have everybody at the table and see if we can
finally get this resolved now. I appreciate your willingness to
be part of those discussions.
Ms. Becky Hyde, Board Member of the Upper Klamath Water
Users Association, Chiloquin.
STATEMENT OF BECKY HYDE, BOARD MEMBER, UPPER KLAMATH WATER
USERS ASSOCIATION, CHILOQUIN, OR
Ms. Hyde. Alright, guess this is on.
Senator Wyden, I'm grateful for your leadership in holding
this important hearing. My name is Becky Hyde, speaking today
on behalf of the Upper Klamath Water Users Association. We seek
power, water and regulatory security through settlement for
family farms and ranches that irrigate in the tributaries above
Klamath Lake, the same community Roger is talking about.
I ranch on the Sycan with my husband and 4 children. We
also run cattle on the Upper Williamson which has stayed in our
family for over 100 years. Unfortunately the Klamath Basin is
known for its water crisis, not for the healthy food the hard
working families grow, our amazing wildlife refuges or the
tribes whose ancestors have lived in our Basin for thousands of
years.
This year that water crisis is affecting around 96 thousand
irrigated acres of family farm and ranch land in my home
community. Just last Wednesday the water master delivered the
news to my 9 year old son at home while my--his dad was out
irrigating, that our water which enjoys some of the best
priority dates in the Basin, 1864, would be shut off. The
adjudication creates winners and losers and our family and
others like us are on the losing end. That is why a Basin wide
settlement and what we felt the KBRA, not adjudication,
provides certainty for our operations.
The Klamath Basin's $550 million a year Ag economy will be
crippled this summer. Please imagine the spiral effects. The
local timber industry, our other large economic driver is slow
to recover from hard times. Tourism, while helpful, only
generates $20 million.
We have already shipped a load of cows and a load of
yearlings off of our ranch. The remaining grass will dry out
quickly forcing us to move more of our herd. 70 thousand
animals could be without feed because of the enforcement of the
adjudication, maybe more.
To emergency feed hay, just for 4 months, could cost $27
million. Fighting an alternative forge will be difficult and we
will experience millions of dollars in loss take crops and
available livestock forage. We can't afford this.
I'm disappointed because we saw this crisis coming. We
worked for years on compromise and collaborative agreements to
avoid this suffering. If the Klamath Basin Restoration
Agreement were in place today with it would come a reasoned
plan for coping with the crisis of drought and also a bedrock
vision for long term stability. I care because a clear plan
helps our children build communities based on following the
golden rule rather than responding with violence and blame for
decades on end.
I want my 9 year old son to remember this as the summer
when we, as a community, worked through tough times together
and not as the event that ended our ability to ranch near the
Sycan. Our Klamath Basin is a national treasure. I hope
everybody will repeat that today.
Waiting for your attention. Please join me in choosing to
end the water wars and rotating crisis that has come to define
this special place.
[The prepared statement of Ms. Hyde follows:]
Prepared Statement of Becky Hyde, Board Member, Upper Klamath Water
Users Association, Chiloquin, OR
Thank you, Chairman Wyden, Ranking Member Murkowski and Members of
the Committee:
Senator Wyden I'm grateful for your leadership in organizing this
important roundtable. My name is Becky Hyde speaking today on behalf of
the Upper Klamath Water Users Association. We seek power, water and
regulatory security through settlement for family farms and ranches
that irrigate in the tributaries above Klamath Lake. I ranch on the
Sycan with my husband and four children, and we also run cattle on the
Upper Williamson, which has stayed in our family for over 100 years.
Unfortunately, the Klamath basin is known for its water crisis, not
for the healthy food that hardworking families grow, our amazing
wildlife refuges, or the tribes whose ancestors have lived in our basin
for thousands of years. This year that water crisis is affecting around
96,000 irrigated acres of family farm and ranch land in my home
community.
Just last Wednesday the water master delivered the news to my nine-
year-old son at home while his dad was out irrigating, that our water,
which enjoys some of the best priority dates in the basin, 1864, would
be shut off. The adjudication creates winners and losers-and our family
and others like us are on the losing end. That is why the Klamath Basin
Restoration Agreement--not adjudication--provides certainty for our
operations.
The Klamath basins' $550 million dollar a year Ag economy will be
crippled this summer, and please imagine the spiral affect. The local
timber industry, our other large economic driver, is slow to recover
from hard times. Tourism, while helpful only generates $20 million. We
have already shipped a load of cows, and a load of yearlings off our
ranch. The remaining grass will dry out quickly, forcing us to move
more of our herd. Seventy thousand animals could be without feed
because of the enforcement of the adjudication. To emergency feed hay
just for four months could cost $27 million dollars. Finding
alternative forage will be difficult. We will experience millions of
dollars in lost hay crops and available livestock forage. We can't
afford this.
I'm disappointed because we saw this crisis coming. We worked for
years on a compromise and collaborative agreement, to avoid this
suffering. If the Klamath Basin Restoration Agreement were in place
today, with it would come a reasoned plan for coping with the crisis of
drought, and also a bedrock vision for long-term stability.
I care because a clear plan helps our children build communities
based on following the ``Golden Rule'' rather than responding with
violence and blame for decades on end. I want my nine year-old son to
remember this as the summer when we, as a community, worked through
tough times together, and not as the event that ended our ability to
ranch near the Sycan.
Our Klamath Basin is a national treasure desperately waiting for
your attention. Please join me in choosing to end the water wars and
rotating crisis that has come to define this special place.
Sources of Information
Klamath County Agriculture 2012 Report--William W. Riggs, Director
OSU Klamath Basin Research and Extension Center-this short report was
prepared at the request of Klamath County Commissioner Tom Mallams in
regards to the Farm Gate Value of Agriculture in Klamath County Oregon.
Data sources include Oregon Agricultural Information Network, (OAIN),
Modified IMPLAN for Klamath County 2007, and Methodology utilized in
Riggs Testimony to Governor Kulongoski March 9, 2010.
Upper Klamath Water Users, Association--Danette Watson, consultant
to the Upper Klamath Water Users, Association--has compiled GIS data
from the Oregon Water Resources Department to estimate the number of
surface water irrigators. UKWUA created a basic tally of minimum
livestock numbers using local landowner knowledge. Emergency feed
numbers were calculated by estimating the feed needed for 70,000
animals for four months at $225. per ton, feeding each animal + a ton
per month.
Klamath Basin Restoration Agreement, (KBRA)--available at
edsheets.com Sections in the KBRA that provide alternatives to
adjudication include; Section 16, Off-Project Water Program. 16.2.1
calls for an Off Project Water Settlement. Section 16.2.2 B Water Use
Retirement Program. Section 17.3.2 outlines the Off-Project Power
Users, making off-project eligible to receive the benefits of the
(KBRA) Power for Water Management Program. Section 19.5 Off Project
Reliance Program, outlines a program intended to mitigate unforeseen
circumstances in the off project like drought. Activities may include
funding water leasing to increase water availability for irrigation in
the Upper Klamath Basin, or mitigating the economic impacts of lost
agricultural production. Section 22.2.2 General Conservation Plan for
Use in Application for Section 10 (a)(1) (B) Permit. Intended to
provide the best regulatory protections for landowners to cope with the
Endangered Species Act available under current law.
Golden Rule--Matthew 7.12, Whatever you wish that men would do to
you, do so to them.
The Chairman. Thank you, Ms. Hyde. To you and Greg
Addington, our next witness, the Executive Director of the
Klamath Water Users, I also got a lot out of the session that
we had before the town hall meeting. I appreciate both of you
and the constructive way in which you're trying to address
these questions.
So, Mr. Addington, welcome.
STATEMENT OF GREG ADDINGTON, EXECUTIVE DIRECTOR, KLAMATH WATER
USERS, ASSOCIATION, KLAMATH FALLS, OR
Mr. Addington. Thank you, Mr. Chairman. Thank you for your
leadership in holding this hearing today.
My name is Greg Addington. I'm the Executive Director for
the Klamath Water Users Association and with me today is Mr.
Luther Horsley. Luther is a third generation Klamath farmer and
a member of our Board of Directors. Our members supply water to
approximately 1,200 family farms and ranches on 170 thousand
acres served by the Klamath Reclamation Project.
The Klamath Basin is in crisis yet again. Our on-project
members may not have enough water to last the season. Some of
our off-project neighbors have no water now.
We believe the Klamath Agreements offer the best, most
durable approach to end what has become a constant cycle of
crisis. They form a coordinated solution that meets the needs
of small communities throughout the 16 thousand square mile
watershed. They are the only proposal derived from consensus
and the only plan that doesn't seek to advantage one community
over others.
We ask the committee to fully examine these agreements and
to advance legislation that capitalizes on the efforts that so
many diverse interests have put in to resolving one of the
West's most intractable water conflicts.
Mr. Chairman, you know better than most the contentious
nature of these issues. For many years we argued the science
with other stakeholders. We tried to have our public relations
efforts out do theirs.
We talked to commercial fishermen, tribes and conservation
groups only from opposite sides of a courtroom. You and other
members offered constructive ideas but told us that for any
solution to work it had to come from the Basin. That meant
working with each other instead of against each other. That's
what we did.
Some interests came and went from the table. Others decided
to draw lines in the sand and not negotiate. But most of us
hung in there. The results are before you today.
These agreements benefit fish, wildlife refuges,
commercial, sport and tribal fisheries and the farms and
ranches that are the backbone of a nearly $600 million
agricultural sector. Our members gave up water in some years in
order to gain increased certainty and predictability in our
annual operations and to keep our rural communities intact.
I hear people say these agreements aren't perfect. I
disagree. I think they're as perfect as 42 diverse parties, who
historically have not liked each other, could make them.
However, we understand that Congress must consider our proposed
solution in light of many factors and limitations. There's
still work to be done before Congress can enact legislation to
implement a viable consensus based solution.
We are willing and eager to do that work with the
committee, the States, the Federal agencies and those opponents
of the agreement, who respect all interests and genuinely seek
compromise.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Addington follows:]
Statement of Greg Addington, Executive Director, Klamath Water Users
Association, Klamath Falls, OR
Thank you for the opportunity to be here today, and thank you for
your leadership in holding this hearing on an issue that is so
important to so many people. My name is Greg Addington and I am the
Executive Director for the Klamath Water Users Association (KWUA). With
me today is Mr. Luther Horsley. Mr. Horsley is a third-generation
Klamath Project farmer and a member of the KWUA Board of Directors. He
served as President of KWUA during the difficult negotiations and
ultimate signing of the two agreements that you will hear about today.
KWUA is a non-profit organization whose members are primarily
irrigation districts and similar entities holding contracts with the
federal Bureau of Reclamation for the diversion, delivery and use of
water from the Klamath Reclamation Project (Klamath Project). Thus, my
testimony focuses primarily on the circumstances and interests
associated with the Klamath Project. KWUA members operate on more than
170,000 acres sustaining approximately 1,200 farms and ranches that
depend on the Upper Klamath Lake/ Klamath River system for their water
supply.
Introduction
KWUA is a party to the Klamath Basin Restoration Agreement (KBRA)
and the Klamath Hydroelectric Settlement Agreement (KHSA).
Additionally, KWUA member districts have been actively engaged in the
ongoing Klamath River Basin Adjudication process and work daily with
federal agencies, tribes and other stakeholders in determining water
supply availability, consistent with the Biological Opinions that
ensure that the operation of the Klamath Project is in compliance with
the federal Endangered Species Act (ESA).
The Klamath River watershed covers nearly 16,000 square miles and
it often seems like there are about 16,000 interests with their own
individual opinions about how to solve the difficult problems of the
Klamath Basin. Every person at this table today agrees that the Klamath
Basin is in trouble and I believe that everyone here wants to fix that.
This year's desperate water situation is just the latest installment of
a continuing, slow-motion disaster that is grinding away at our
communities and ways of life. All of us are encouraged by Committee's
willingness to examine the complex water resources problems of the
Klamath Basin, where federal actions and responsibilities influence
almost everything we do. Congress needs to be part of the solution.
And we need a solution urgently. As we meet here today for this
hearing, farmers and ranchers on thousands of acres in the federal
Klamath Project face the possibility having their water cut off mid-
season, drying up crops before they can be harvested. Ranchers and
farmers outside the Project may have no water at all to sustain their
operations, causing tensions with irrigators within the Project and
with tribal communities who themselves are struggling to protect
fishery resources that have sustained them for generations. Federal
wildlife refuges are enduring another too-dry year. Added to all of
this are unprecedented increases in energy costs. In sum, 2013 looks
like a very bleak year for the Klamath Basin. Another year of crisis.
Another year of severe stress for our economy, communities, natural
resources and people.
We believe that the KBRA and the KHSA (Klamath Settlement
Agreements or `Agreements') together offer the best, most durable
approach to end this cycle of crisis and decline. They form a
comprehensive solution that is intended to meet the needs of all the
communities in the Basin. They constitute the only proposal derived
from consensus and the only plan that doesn't seek to advantage one
community or point of view at the expense of others. We ask the
Committee to fully examine the Klamath Settlement Agreements and to
advance legislation that capitalizes on the efforts that so many
diverse interests have put into finding a meaningful resolution to one
of the West's most intractable water conflicts.
Mr. Chairman, you know better than most the contentious nature of
these issues. You have witnessed it firsthand. For many years we
``argued the science'' with the agencies and other stakeholders. We
tried to have our public relations efforts outdo theirs. We talked to
commercial fishermen, tribes and conservation groups only from opposite
sides of a courtroom, and we often dueled from different sides of the
political aisle through our elected Representatives at Congressional
field hearings and in Washington. Nothing got better. You and other
Members offered constructive ideas, but told us that for any solution
to work it had to come from the Basin, and that meant doing things
differently. It meant working with each other, instead of against each
other. And that's what we did. Some interests came and went from the
table, others decided to draw a line in the sand and not negotiate, but
most of us hung in there and did the hard work of finding common ground
and a common purpose. The result was the Klamath Settlement Agreements.
The remainder of my testimony will outline the recent and
contentious history of water resources issues in the Klamath Basin and
then discuss how Klamath Project water users and our former adversaries
arrived at the Klamath Settlement Agreements; what water users gave and
gained to make the Agreements work for us; and identify the elements
that should be part of any viable solution advanced by Congress. I will
also outline my view of what continuing the status quo will mean for
irrigated agriculture in the Basin. But mostly I want to emphasize to
you how these Agreements, despite what you will hear from interests on
the extremes, offer a positive and productive path forward that will
allow us to begin to repair our fractured community.
Admittedly, my emphasis is on the Klamath Project and we believe
that the Klamath Settlement Agreements are, for Klamath Project
interests, superior to other alternatives and their attendant
uncertainty, risks, costs and conflict. Others will speak to the
Agreements from their own perspectives. Clearly, the Agreements do not
solve every problem or address every possible concern. No plan can fix
everything or make everyone happy. The Parties to the Agreements have
always been, and continue to be, absolutely willing to consider
constructive ideas that would expand the benefits of the Agreements and
broaden the consensus behind them. We offer the Committee our
assistance in crafting viable legislation to implement a consensus-
based solution for the Basin. And we respectfully request that you act
soon. The future of our communities is at stake and multiple crises are
already upon us.
Background and Status Quo
Klamath Project Development
Irrigation development in the area now constituting the Klamath
Project began in the last part of the 19th century. Individuals
initiated appropriations of water under state laws and began the
development of irrigation systems as more settlers moved into the
region. In 1902, Congress enacted the Reclamation Act to encourage and
facilitate irrigation systems that would expand food production for a
growing nation and provide water and electric power to promote
settlement and development of the West. The Klamath Project was
authorized in 1905, as one of the earliest projects under the
Reclamation Act. Project lands lie in Klamath County, Oregon, and in
Modoc and Siskiyou Counties, California. Individuals and later
irrigation districts entered into contracts with the Bureau of
Reclamation (Reclamation) for the delivery of water in exchange for
repayment of project construction costs (Klamath Project costs have
been repaid) and payment of costs associated with operation and
maintenance of federal facilities. In the Klamath Project, the
responsibility for operation and maintenance of federally-constructed
diversion and delivery facilities has been permanently transferred to
irrigation districts. Also, districts and individuals constructed and
own substantial components of the works that divert and deliver Project
water.
The agricultural production of Klamath Project lands is a pillar of
the local economy and the reason for the existence of several towns and
small communities. Farms and ranches served through the Project produce
grains, hay, potatoes, onions, mint, horseradish, livestock, dairy, and
numerous other crops. Overall agriculture in Klamath County and the
Klamath Project (Oregon and California lands) represents a nearly $600
million dollar impact to the local and regional economy.
Operational Changes
For decades, irrigation water supplies available to the federal
Klamath Project proved sufficient to meet the needs of our area's
burgeoning farming and ranching communities. But starting in the
1990's, regulatory and policy demands began to negatively affect water
availability in the Klamath Project. In 1988, the shortnose sucker and
the Lost River sucker, two species found in Upper Klamath Lake, were
designated as endangered under the Endangered Species Act (ESA).
Biological opinions (BiOps) issued by the U.S. Fish and Wildlife
Service (USFWS) in the early 1990s concerning operation of the Klamath
Project identified Reasonable and Prudent Alternatives (RPAs) to avoid
jeopardy to suckers. The BiOps included minimum reservoir elevations
aimed at protecting the listed sucker species. These operating
elevations were ultimately adopted by Reclamation. At that time, the
reservoir elevations pertaining to Upper Klamath Lake generally allowed
the Project to operate for its intended purposes in all but very dry
years.
By the mid 1990s, there were demands for Reclamation to
reprioritize and reallocate water from irrigation to environmental
uses. In particular, Reclamation was asked to take steps to increase
both Klamath River flows (as measured at Iron Gate Dam in California)
and Upper Klamath Lake reservoir elevations above and beyond previously
adopted ESA lake levels. The result was that new flow requirements and
lake elevations were set and meeting these criteria became the first
priority of Klamath Project operations. Water for irrigation and the
federal wildlife refuges associated with the Klamath Project was made
available only if and when the flow and lake level requirements were
met. For a number of years, there were annual debates about who would
get what, an exercise that one of our settlement partners has aptly
characterized as ``March Madness.'' Klamath Project irrigators were
never sure whether, when or how much water they would receive each year
or from year to year.
The 2001 Water Crisis and Subsequent Years
On April 6, 2001, Reclamation announced another change in the
historic operation of the Project. On that day, the USFWS and the
National Marine Fisheries Service (NMFS) each issued new BiOps (for the
two species of suckers and the 1997-listed Klamath River coho salmon,
respectively) for Klamath Project operations. Achieving the Klamath
River flows and the Upper Klamath Lake elevations specified in these
BiOps would result in no 2001 water deliveries from the Klamath system
to the 170,000 acres in the Klamath Project service area. Reclamation
immediately adopted the BiOp standards for 2001 Project operations,
triggering a disaster. The hardship, conflict and controversy
associated with the 2001 water curtailment were heavily publicized and
are well known. Our communities remember the pain as if it were
yesterday.
Since the ESA listing of these aquatic species as endangered or
threatened in the Klamath Basin, water shortages or curtailments to
irrigation water users in the Klamath Project have occurred in 1992,
1994, 2001 (complete shut off), 2009, 2010, 2012 and 2013. The national
wildlife refuges that receive water through Klamath Project facilities
have also experienced shortage in these years and others. The trend is
not a good one.
In the meantime, as you know, there have been problems for Basin
fisheries, including a large die-off of salmon near the mouth of the
Klamath River in late summer of 2002. While there are different points
of view on the cause or causes of the die-off, there is no disagreement
that various fisheries have generally declined, and population numbers
of some species are very low.
A new ESA BiOp and related operations plan for the Klamath Project
have just been released. Although the new BiOp provides a more common-
sense, real-time approach to system management than earlier BiOps, the
Project cannot, in a year like this, divert sufficient amounts of water
to meet the needs of our irrigators. This is to some degree a function
of transition from previous, disconnected BiOps to the new BiOp, but it
is also indicative of the difficulties and uncertainties we face on an
ongoing basis. Farmers have to make planting and business decisions in
the spring, and as a result, 2013 crops are in the ground and
investments have been made in seed, fuel, fertilizer, labor and other
inputs.
If the KBRA were fully implemented today, things would still be
tough but we would not be facing the strong possibility of a disastrous
cut-off of water supplies in mid-season. As it stands now, we're doing
what we can to offset and reduce our water demand to stretch supplies
through the whole season, hoping to avoid another catastrophe, but the
fact is that there may not be enough water or adequate tools to manage
the shortage . . . again.
Further, irrigators in the watersheds tributaries to Upper Klamath
Lake are also experiencing hardship this year, as a result of the bad
water conditions and the effect on their water availability of senior
water rights as determined in March by the Oregon Water Resources
Department (the agency responsible for regulating water). There is
tension within and among irrigation communities, a regrettable
circumstance that no one enjoys.
In the past, KWUA has testified before Congress about deficiencies
and inequities associated with the ESA and other matters, and we have
supported legislative efforts to address these issues. Our support for
the KBRA grows from these experiences. KWUA also was the principal
advocate for review by the National Academy of Sciences, National
Research Council (NRC), of the scientific basis for regulatory actions
taken in the Klamath Basin under the ESA. The NRC called for a
watershed-wide approach to management of the Klamath system, a concept
widely supported in the local community. This approach is the
foundation for the KBRA.
How We Got to Settlement
When Reclamation evaluated the proposed Klamath Project in the
early 1900s, it had planned to install hydroelectric facilities to
generate inexpensive power to benefit the Project and to distribute to
nearby farms and communities. Other Reclamation projects built
throughout the West incorporated power generation as part of the
development. However, instead of building its own hydro plants at the
Klamath Project, Reclamation entered in to a hydroelectric supply
contract with PacifiCorp's predecessor, the California Oregon Power
Company (COPCO), in 1917. The company had built one dam on the river
(COPCO I) and wanted to build more. In exchange for various benefits,
the company agreed to provide at-cost power to Reclamation's Klamath
Project. The original contract with COPCO was renegotiated in 1956, and
extended to cover a 50-year period ending in 2006. In that contract,
COPCO actually lowered the rate that Reclamation and irrigators had
paid for power between 1917 and 1956. The 1956 contract with COPCO was,
in our view, clearly a condition of the company's Federal Energy
Regulatory Commission (FERC) license to operate in the Klamath River.
By 2004-2005, PacifiCorp had begun the process for renewal of its
FERC license, which was to expire in 2006. It also took steps to bring
Klamath Project (and off-project) power rates up to what the company
deemed to be ``market levels,'' which are many times higher than the
agricultural rates negotiated in 1956. In fact, by and large, the
Klamath Basin is the agricultural market for the company in the region.
At the same time, increasingly restricted federal water deliveries have
forced Klamath farmers into more energy-intensive on-farm operations in
order to mitigate the loss of water supply by increasing the efficiency
of how they use, reuse and recycle water.
The KWUA was an intervener in the FERC license proceeding because
of our interest in power rates and as the ultimate beneficiaries of the
1956 power contract. Other parties, most of who ended up as signatories
to the Settlement Agreements, also were interveners in that process for
other reasons. PacifiCorp facilitated confidential settlement
discussions as it pertained to their license renewal. This led to the
discussions that eventually produced the KBRA and KHSA.
During the FERC process, relationships developed among competing
interests and discussions began to focus more on the overall watershed
and the communities within it. We realized that this could well be our
only realistic opportunity to address issues that had divided us.
Slowly but surely common ground was formed among many previously
adversarial parties, particularly among the signatory tribal parties
and Klamath Project irrigators. Fishermen, conservation groups, federal
and state agencies were also critical in this process. What finally
brought these competing interests together, and what has kept them
together, is the recognition that the Basin's various rural communities
share many similarities, not the least of which is their ties to the
Klamath River.
For KWUA, the priority was to find a practical approach to solving
both the water supply and power cost issues. Other parties had
objectives that challenged KWUA's perspective, including for example
their desire that four Klamath River dams be removed. But at the end of
the day, all parties took an ``interest-based'' approach, and found
ways to meet the other parties' real needs as they defined them. This
was a key to success for all concerned, and we appreciated the respect
for our interests shown by the other parties and are committed to
supporting others' interests as well.
Ultimately, trust was built amongst parties that had never trusted
each other. KWUA knew that it wasn't enough to just work out a
settlement with Upper Basin interests and tribes. We knew that it also
was important to have the Lower Klamath River tribes that catch Klamath
River fish and coastal fishermen be part of any agreement. The
contributions of the members of the conservation community who chose to
be part of a productive process, while at times quite challenging for
our interests, also were significant to making things work.
Key Elements for the Klamath Project Irrigation Community
As I discussed above, a key for KWUA and others in these Agreements
was to maintain an interest-based approach to negotiation. At the same
time, KWUA made it clear to other parties that its important interests
included water supply certainty, regulatory assurances related to
introduction or re-introduction of aquatic species in the Upper Klamath
Basin, maintenance of the agricultural base and economy in the Klamath
Project, and low-cost power consistent with the development of the
Klamath Project. The Klamath Settlement Agreements address these
interests in the manner discussed below.
Water Supply Certainty and Planning
Other parties respected these interests, including recognizing that
any deal would have to provide a significant degree of water supply
predictability and certainty. The ability to know what our water supply
will be, even if it is less than what might be needed, is critically
important to effective and efficient water management. Farmers,
ranchers and irrigation districts can be creative and manage water if
they know what they have to work with. What is untenable is not knowing
how much water is needed, how much we will get, when we can start using
it, and if or when it will be shut off.
The three main sources of uncertainty of irrigation water supply
are hydrologic variability, known and unknown senior rights, and
regulatory requirements of laws such as the ESA. The KBRA-in
interrelated ways-addresses the uncertainty associated with each of
these variables in order to achieve reliability of irrigation supply.
(More details on these elements can be found in the chart on the last
page of this statement, and in Appendix A*, Klamath Agreement Benefits-
Commitments and Risk of Doing Nothing Table.)
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* All Appendices have been retained in committee file.
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Klamath Project Diversions
The KBRA creates a structure under which the irrigators on the
Klamath Project will know, on March 1, the quantity of water that will
be available for irrigation in that year. The quantity, agreed to by
all the parties, will vary from year to year, based on the forecast of
inflow to the lake. In average to wet years, the Klamath Project can
divert up to 445,000 acre feet from Klamath Lake and the Klamath River
during the irrigation season for irrigation and wildlife refuge
supplies. The quantity declines with less favorable hydrologic
conditions, and during dry years, diversions are limited to 378,000-
388,000 acre feet during the irrigation season. This approach is a
significant change from paradigms advocated by others under which water
management is driven by calendar-based minimum in-stream requirements
for Upper Klamath Lake and the Klamath River, a paradigm that has not
benefitted fisheries or refuges and that threatens irrigation shortage,
and sometimes even threatening mid-season curtailments after crops have
been planted.
The agreed-upon limitations on diversions permanently free up water
that can be managed for fisheries purposes. But, and when coupled with
refuge delivery commitments, the result will be that the availability
of Klamath Project water will be insufficient to meet irrigation demand
in a number of years, with the deficiency ranging up to about 100,000
acre-feet. The KBRA will address this shortage with the ``On-Project
Plan,'' a user-controlled program to enhance water supply management in
order that irrigators in the Project can ``live with'' the diversion
limitations.
On-Project Plan
The Klamath Water and Power Agency (KWAPA), a joint powers or
intergovernmental agency composed of Project irrigation districts, is
charged with developing and implementing the On-Project Plan, and
thereafter will administer the Plan on an annual basis in response to
the given year's hydrologic conditions. The KBRA provides that KWAPA is
to consider, in the development of the Plan, conservation easements,
forbearance agreements, conjunctive use programs, efficiency measures,
groundwater substitution, and other measures. It also provides terms to
limit the effects of groundwater use on springs considered important
for fisheries. (See Appendix B, Summary: On Project Plan)
After the Plan has been developed and approved, KWAPA will
implement it over a period of about ten years, subject to the adequacy
of funding. The KBRA parties express that, ``implementation may
include, for example, completion of measures to enhance water
management and efficiency, or entering a long-term or permanent
agreement with a landowner which would afford KWAPA the right to direct
the landowner to forebear from use of water from Upper Klamath Lake or
the Klamath River in specified future circumstances.'' After the 10-
year implementation phase, KWAPA will administer the Plan annually,
employing the tools that have been developed in the implementation
phase.
KBRA Tribal/Irrigator Water Rights Settlements
The KBRA is structured to settle water rights issues between the
Klamath Project and three tribes in the Klamath Basin and the United
States as trustee for tribes in the Basin. As described above, under
the KBRA water users in the Project will limit the quantity of water
diverted by the Project from Upper Klamath Lake and the Klamath River.
In exchange for the reduced Project diversions, the Klamath Tribes,
Yurok Tribe, and Karuk Tribe (collectively, Party Tribes), and the
United States as the trustee for Klamath Basin tribes, agree not to
assert tribal rights so as to interfere with the agreed-upon water
supply for the Klamath Project. The KBRA's terms are implemented
through documents filed with the State of Oregon as part of its Klamath
Basin Adjudication, where claims of the Klamath Tribes and others
parties are being litigated, and for which the Oregon Water Resources
Department has just issued its ``order of determination'' reflecting
its determination of the scope of these rights.
The KBRA would not result in granting any tribal water rights to
any tribe or affect the ability of any opponent of tribal claims other
than Project water users to contest any claims of the Party Tribes. The
KBRA only deals with: whether and to what extent the Klamath Tribes can
make a call against, or demand water from, the Klamath Project based on
the Klamath Tribes' rights in Upper Klamath Lake and the Klamath River,
whatever those rights may be; and whether the Yurok or Karuk Tribe, or
the United States as trustee for Basin tribes, based on water rights or
federal trust obligations, can demand that the Project use less water
than what is agreed upon. In both cases, the answer is no. No one else
is precluded from asserting any position about their own water rights
or opposing any assertion by others.
There are, in the meantime, various interim protections for the
Project. Until the water users have implemented their On-Project Plan
described in the KBRA (anticipated to be roughly 2022), the Party
Tribes would not be able to assert a demand based on tribal water
rights against any water use in the Klamath Project. There are also
various provisions that ensure that, if the agreement is not
implemented, Klamath Project irrigators and the Party Tribes can simply
return to their positions as they exist today and assert their
arguments against one another. (See Appendix C, Water Settlements
between Basin Tribes and Klamath Project)
Regulatory Assurances Concerning Water Supply and New
Species
Although the KBRA does not amend or waive the ESA or other
regulatory statutes, it deals with the risks to irrigators posed by
those laws. The Agreement explains that a purpose of the Project water
diversion limitations agreed to by the irrigators is to ``ensure
durable and effective compliance'' with the ESA and other laws. The
non-federal parties (who do not have obligations to enforce regulatory
laws) have committed to support regulatory approvals based on the
agreed-upon water quantities, including revised biological opinions.
The regulatory approvals that the parties support under the ESA also
include a long-term permit covering a period ``substantially beyond the
[50 year] term of the Agreement[.]'' There are also interim assurances
over the period between the present and the date on which critical
programs are completed.
The KBRA does not guarantee that the ESA or other laws will not
result in further water supply limitations. However, certainty for
irrigators is greatly enhanced by the KBRA, consistent with the
parties' expressed objective that further limitations on Klamath
Project diversions would be a ``last and temporary resort.'' The
parties to the KBRA also commit to take every reasonable and legally-
permissible step to avoid or minimize any adverse impact, in the form
of new regulation or other legal or funding obligation that might occur
to users of water or land upstream of Iron Gate Dam, associated with
introduction or reintroduction of aquatic species to currently
unoccupied habitats or areas. (See Appendix A)
Power for Water Management
Power has always been critical for movement of water in the Klamath
Project where limited supplies are reused and moved around to maximize
efficiency. Power rates for irrigators have skyrocketed since 2006 when
PacifiCorp concluded that it could not renew the 50-year contracts that
had provided low-cost power to the Klamath Project and to other water
users in the Upper Klamath Basin. Instead, this mutually beneficial
arrangement was replaced with a new structure that phased in much
higher power rates over the last 4-7 years.
The current cost of power for Klamath Project (and off-project)
irrigators is, by our calculation, the highest in the Northwest\1\ and
significantly higher than rates paid by irrigators at comparable
Reclamation project elsewhere in the West. For Tulelake Irrigation
District, a KWUA member agency, power costs for the 67 pumps that it
operates increased by more than 2,700% between 2006 and 2011\2\,
despite a significant reduction in power consumption during the same
period because of efficiency investments. Shasta View Irrigation
District, another KWUA member agency, also reduced its power
consumption, but nevertheless saw electric power rates climb from less
than $7.00 per acre in 2005, to nearly $70 per acre in 20122.
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\1\ See Appendix E, Agriculture-Irrigation Power Rate Comparison
\2\ See Appendix D, LTID-SVID Power Rate Increase Charts
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These rates, in a project that pumps water multiple times and at
different levels (on farm, district, and Project-wide drainage),
seriously disadvantage Klamath Project irrigators in the marketplace.
The critical importance of reducing and stabilizing power costs is
recognized by the parties in the KBRA, which states (section 17.1) that
affordable power is needed to allow efficient use and management of
water for irrigation, and delivery to national wildlife refuges, to
facilitate return of water to the Klamath River, implement KBRA
conservation programs, and maintain sustainable agricultural
communities. Reducing and stabilizing power rates in the Upper Klamath
Basin is critically important to the long-term viability of irrigated
agriculture both on and off the Klamath Project and to other
objectives.
In other Reclamation projects, low-cost ``reserved'' or ``project
use'' power is made available for certain loads, including the pumping
and conveyance of irrigation water and drainage. The goal of the KBRA
is bring Klamath Project power rates to a level ``at or below the
average cost for similarly situated Reclamation irrigation and drainage
projects in the surrounding area.'' The KBRA would achieve this goal
with the ``Power for Water Management Program'' consisting of three
elements.
First, for the short-term, funding would be provided to stabilize
total power costs as other components of the program are brought on
line. Second, power generated at other Bureau of Reclamation facilities
would address part of the program's objectives. Power can, for example,
be marketed by the Bonneville Power Authority (BPA) to serve eligible
loads in the upper Klamath Basin in Oregon, and by the Western Area
Power Authority (WAPA) to Klamath Project districts in California.
Under the KBRA and KHSA, Reclamation commits to acquire a contract
consistent with applicable law and standards of service to serve
eligible loads, and PacifiCorp agrees to cooperate in delivery of power
to the loads. Third, the KBRA provides for federal funding for energy
efficiency, conservation and renewable generation opportunities and
investment. The activities to be pursued could include installation of
additional efficiency improvements in water pumping and piping, solar
photovoltaic development and net metering programs, investment in
renewable generation on a broader scale, and other practices. (For more
details, see Appendix F, Power for Water Management Program)
The KBRA also contemplates the potential development of joint
projects with the Klamath Tribes and irrigators under the umbrella of
the renewable energy element. As with other elements, the benefits and
objectives of this piece are designed to serve both irrigation
interests inside the Klamath Reclamation Project and the Off-Project
area in the Upper Klamath Basin.
Other Issues
Refuges and Lease Lands in the Klamath Reclamation Project
The KBRA advances the partnership between the Tule Lake and Lower
Klamath National Wildlife Refuges (Refuges) and the agricultural
community. The Refuges would become a purpose of the Klamath Project
and receive a reliable supply of water with first-time-ever delivery
commitments provided for Lower Klamath National Wildlife Refuge. Local
family farming operations will continue to farm on specified portions
of the Refuges working with Refuge managers to meet the energy and
habitat needs of waterfowl and wildlife. Both functionally and
historically, these lands exemplify co-existence of agriculture and
wildlife in the Klamath Reclamation Project. The lands are part of the
traditional ``reclamation'' project authorized in 1905, and they are
also within national wildlife refuges and within the boundaries of
irrigation districts.
This productive farmland has been leased to growers for
generations. Unlike other public land developed under the Reclamation
Project, the lease lands were not homesteaded, and thus provide
expansive open space as well as substantial benefit for wildlife. This
unique arrangement is addressed in the KBRA. Under the agreement, the
non-federal parties: (i) recognize the unique history and circumstances
of the lease lands, (ii) recognize practices such as ``walking
wetlands'' and others that enhance waterfowl management while
maximizing ``lease revenues'' and optimizing agricultural use, (iii)
seek to further the beneficial partnerships that have developed between
growers and wildlife refuges. These Parties express their support for
continued lease land farming managed as described in (ii). The KBRA
provides support for legislation that would dedicate revenue received
from the Refuge lease agreements to benefit the Refuge and the Refuge
water delivery system. (See Appendix G-Lease Lands within the Klamath
Project)
Dam Removal Not a Precedent for Other Areas
The KBRA and KHSA were designed specifically to address the unique
set of circumstances that are specific to the Klamath system. As such,
the agreement is not precedent-setting for other regions. Supporters
and signatory parties to the agreement explicitly recognize and agree
to this in section 8.1 of the KBRA, which states in part: `` . . . the
Parties acknowledge that the hydroelectric settlement is based on facts
and circumstances unique to the Klamath Basin, and they do not intend
to establish precedent for other basins or hydroelectric generation
generally.'' In fact, in the Klamath Project alone, Reclamation
contractors (irrigation districts) depend on, and operate, up to eight
diversions or other dams for water supply delivery. KWUA views the KBRA
as a means of protecting these important structures into the future.
Local Support
Despite assertions made by some persons, local support for the KBRA
is strong, particularly among those whose livelihoods are at stake.
Support for settling long-standing water rights disputes and avoiding
catastrophes such as the 2001 water shut-off is unwavering. Water
managers and irrigation district board members, who are hired and
elected by their peers and represent over 97% of Klamath Reclamation
Project acres that are dependent upon the Klamath River system, support
the agreements. The list of parties to the agreements includes 17
irrigation and water user entities. This does not include additional
local support such as city governments, Chambers of Commerce, other
business and economic development organizations, individual family
farms, processing facilities, farmer-owned cooperatives and other local
merchants. Finally, support for the KBRA is also strong regionally and
nationally as is evidenced by the diverse list of signatory and other
supporting organizations.
Essential Elements
I often hear people say the KBRA isn't perfect. I disagree. I think
this agreement is as perfect as 42 diverse parties who have had
severely divergent perspectives could make it. However, we understand
that Congress must consider our proposed solution in light of many
factors and limitations, and there is still work to be done to develop
legislation to implement a viable consensus-based solution that is in
the public interest. We and our partners in the Klamath Settlement
Agreements are willing and eager to do that work with the Committee,
the States, federal agencies and those opponents of the Agreements who
genuinely seek compromise.
For issues related to the Klamath Project, KWUA believes that any
Klamath Basin legislation will need to address the following elements,
all of which are within the KBRA:
Increased certainty and predictability for Klamath Project
water supplies
``Regulatory Assurances'' so that reintroduced species do
not impair agreed upon water diversions and that costs
associated with reintroduction do not negatively impact
irrigators
Support and adequate funding to implement programs to reduce
demand on the Klamath system, without permanent downsizing of
Klamath Project agriculture or negative impacts on small rural
communities
Link River and Keno Dams will continue operation to support
and facilitate water deliveries to agriculture
Implementation of a program to develop renewable energy and
acquire a modest block of federal power to serve Upper Klamath
Basin irrigation loads at a net cost that is at or below rates
in similarly situated Reclamation irrigation and drainage
reclamation projects in the west
Acknowledgement of and support for the unique relationship
between wildlife and agriculture
Conclusion
This hearing is for the purpose of considering water resource
issues in the Klamath Basin, which is to say the matters that have been
the source of continuing conflict and hardship for several years. 2013
will be one of the most challenging years, if not the most challenging
year in the history of the Klamath Basin. The combined effects of dry
conditions and the past inflexible water management of the system have
again this year led to severely and unnecessarily restricted water
supplies to irrigators on the Klamath Project. Because of the recent
rulings in the Klamath Basin water rights adjudication, farms outside
the Klamath Project in Oregon will also feel the sting of water
regulation as western water law is implemented in the Basin. As each
year passes, lenders, commodity buyers, input dealers and other vendors
become increasingly leery about doing business in the Klamath Basin as
a result of the water uncertainty.
The 2013 drought and the potential for multiple crises is the very
best argument for why change is needed - why a negotiated settlement
with the preceding key elements is needed. Without a new rational plan,
we can look forward to more of the same every few years--lurching from
one crisis to the next. The KBRA would transform the management of the
Klamath system for the better. It will result in foreseeable and
reliable amounts of surface water in years like this for all irrigators
dependent upon Upper Klamath Lake, its tributaries and the Klamath
River-because the system will be managed differently. It will, without
question, provide significantly more water to the national wildlife
refuges in the Klamath Project. It will avoid unnecessary demand on our
groundwater system, and it will provide jobs, stability and economic
benefit to this entire region.
The amount of bad information in circulation about the Klamath
Settlement Agreements is staggering. Here are the facts: The KBRA does
not infringe on any individual's ``right'' to water or ``take''
anything from anyone. The KBRA ends costly litigation between the
Klamath Tribes and the Project irrigators and will avoid future legal
battles. We chose negotiation over litigation, others did not. The KBRA
does not change or alter any individual's right to due process. It is
built on market-driven approaches and on unprecedented system-wide
management that address other stressors to fish. No longer would there
only be a narrow focus on how much water is diverted through the ``A''
canal of the Klamath Reclamation Project. The KBRA provides for
improved management of the lake and river and provides protections
under any necessary Biological Opinions based on this new watershed-
wide approach to management. The KBRA does in fact provide meaningful
protection from uncertainty associated with ESA regulations including
through the development of Conservation Plans for all irrigators in the
region, if they choose to participate. The KBRA also provides for
economic mitigation to county governments and is the best possible
outcome for the national wildlife refuges that we all value.
Water managers, full-time farmers and ranchers, local businesses
and other professionals are committed to finding a better way to do
business. It is these people and organizations that are the strongest
proponents for the KBRA.
We hope others can begin to see the positive economic benefits that
the Agreements can provide to the region. KWUA will not stop pushing
for real change because we understand what it means to keep things the
same. Time is of the essence and Congress must have a sense of urgency
as it considers next steps. The people most affected by these resource
issues support the consensus approach of the Agreements. Other
interests must quickly and constructively engage on legislation to
implement a consensus solution, or get out of the way. We look to the
leadership of this Committee to start the process that is needed to
authorize these Agreements before there is nothing left to save.
Thank you for the opportunity to provide this testimony.
The Chairman. Thank you very much, Mr. Addington.
Mr. McCarthy.
STATEMENT OF JIM MCCARTHY, COMMUNICATIONS DIRECTOR AND SOUTHERN
OREGON PROGRAM MANAGER, WATERWATCH OF OREGON, PORTLAND, OR
Mr. McCarthy. Thank you, Senator.
Is this on?
Thank you, Senator. I'm Jim McCarthy, Communications
Director for WaterWatch of Oregon. Thank you very much and
everyone else who came here today to discuss water resource
issues in the Klamath Basin.
WaterWatch is a State wide, nonprofit conservation group
dedicated to the protection and restoration of natural flows in
Oregon's rivers.
In the short term I would urge Congress to work quickly to
ensure there's enough water this year to prevent serious harm
to the region's critical national wildlife refuges and valuable
salmon runs. Finding water now to sustain these resources will
avert the ripple effects of greater harm that have resulted
from Klamath water mismanagement in the past. Just last year
the lack of water on the refuges sparked a disease outbreak
that killed some 20 thousand water fowl. In 2002, as we all
know, low flows in the Klamath River sparked a mass of adult
kill that eventually forced fishing closures and created an
economic disaster along the Pacific Coast.
So please do what you can to avert a repeat of those
situations.
When considering long term Klamath solutions 2 facts are
certain.
First, the government has promised too much water to too
many interests.
Two, the Nation cannot afford to allow the Klamath Basin to
keep lurching from one water crisis to the next.
We urge Congress to make a significant investment in the
Basin to end this long standing problem and to protect the
Basin's incredible natural resources. Any legislation must meet
tribal trust responsibilities, support valuable commercial and
recreational fisheries, secure water supplies for the region's
national wildlife refuges and make a fair and equitable
transition to sustainable levels of agriculture.
WaterWatch supported the 2002 Klamath Amendment in the Farm
bill passed through the Senate with $175 million in funding,
thanks to your leadership, Chairman. Klamath communities would
be far better off now if this measure had become law. In the
future we hope to support similar legislation and recommend the
incorporation of the following important solutions.
To recover up to 100 thousand acre feet of natural water
storage capacity and reduce irrigation water demand by some 50
thousand acre feet we recommend phasing out the Federal program
leasing the sum of 22 thousand acres of publicly owned lake bed
for commercial agriculture within Tule Lake in Lower Klamath
National Wildlife Refuges. These significant improvements in
the Basin's water balance would be achieved without
transferring one acre of private land to public ownership. It
would also shift farmland rental business from a government
program to the private sector boosting the local economy. This
step could also decrease the costs and private property impacts
of another key solution for the Basin, a Basin wide, voluntary
water demand reduction program.
We also note that the water rights adjudication process in
Oregon has created new opportunities for addressing the Basin's
water issues, paving the way for durable, market oriented
transactions to become a critical part of the solution through
the work of water trusts and others. Other key solutions
include implementing water conservation measures and improving
water management Basin wide. That's very important, again,
Basin wide. Amending the statuary purposes of the Klamath
project to include providing the water necessary for fish,
wildlife and tribal trust needs and a Basin wide 20 year
program to restore fish, wildlife and water quality ideally
under the use of the U.S. Fish and Wildlife Service.
The removal of PacifiCorp's 4 lower dams on the Lower
Klamath River is also essential to Basin restoration. However,
we do not believe that this requires Federal legislation and
oppose holding dam removal hostage to try to leverage
implementation of the excessively expensive and complex and
controversial Klamath agreements. WaterWatch supports swift
return the Federal Energy Regulatory Commission relicensing
process for these dams.
I should note that WaterWatch does not support the KBRA and
does not support linking the KBRA to the Klamath Hydropower
Agreement.
WaterWatch has provided some detail on solutions to some of
the serious problems with these agreements in our written
testimony. We'd be happy to provide further analysis, if
requested, by this committee or other interested Members of
Congress.
Thank you again, Senator, for the opportunity to testify.
Thank you for focusing attention on the important water
challenges of the Klamath River Basin. We hope this hearing
will serve as catalyst for restarting the kind of dialog
between Klamath stakeholders and Congress that is sorely needed
to find true common ground to build for viable, equitable and
science based solutions.
WaterWatch stands ready to work with you toward this end. I
will be happy to answer any questions and look forward to more
discussion.
[The prepared statement of Mr. McCarthy follows:]
Statement of Jim McCarthy, Communication Director and Southern Oregon
Program Manager, WaterWatch of Oregon, Ashland, OR
Thank you for the opportunity to present testimony on behalf of
WaterWatch of Oregon concerning Water Resource Issues in the Klamath
River Basin. Founded in 1985, WaterWatch is a non-profit river
conservation group dedicated to the protection and restoration of
natural flows in Oregon's rivers. WaterWatch works to ensure that
enough water is protected in Oregon's rivers to sustain fish, wildlife,
recreation and other public uses of Oregon's rivers, lakes, and
streams. We also work for balanced water laws and policies. WaterWatch
has members across Oregon who care deeply about our rivers, their
inhabitants, and the effects of water laws and policies on these
resources.
The Klamath River Basin is one of the nation's great ecological
treasures. Considered a western Everglades, this area in southern
Oregon and northern California once contained some 350,000 acres of
shallow lakes and wetlands. Only 75,000 acres of these wetlands exist
today, and significant portions of these wetlands now lack enough water
in many years to keep them viable. The upper basin is home to
remarkably large native trout, and once contained thriving populations
of spring chinook salmon, steelhead, and Kuptu and Tshuam (Lost River
and Shortnose suckers). These fish once provided a major source of food
for Native Americans. The Klamath Basin attracts nearly 80% of the
birds migrating in the Pacific Flyway and supports the largest seasonal
concentration of bald eagles in the lower 48 states. As Secretary of
the Interior Stewart Udall stated in 1962, ``There is probably no more
important waterfowl area in the country than these refuges in the Upper
Klamath Basin.''
While water is vital to maintaining the ecological integrity of the
Klamath Basin, fishery- dependent economies, and tribal trust
resources, irrigated agriculture became the dominant use of water in
the Klamath Basin over the last century. To date, more than 75% of the
basin's wetlands have been drained and converted to agriculture.
Damming and diversion of rivers and draining of wetlands have taken an
enormous toll on the basin's ecology. The hydrology of the basin has
been radically altered and water quality has been severely degraded.
These conditions have contributed to the decline of federal Endangered
Species Act-listed species, the failure of streams and lakes to meet
water quality and temperature standards, the failure to meet Native
American hunting and fishing rights, the failure to protect valuable
commercial and recreational fisheries, and insufficient water to
maintain the wetlands on the basin's national wildlife refuges.
The Klamath once was, and still remains, the third most productive
salmon river in the western United States. For decades, Klamath salmon
declines impaired salmon harvest opportunities both in-river and along
the Oregon and California coast. Thousands of fishing dependent jobs,
tens of millions of pounds of seafood production, and years of world-
class recreational enjoyment have been lost as a direct result of the
water problems in the Klamath Basin. A devastating 2002 fish kill in
the lower Klamath River-sparked by low flows-led to a further collapse
in salmon populations and disastrous fishing closures along hundreds of
miles of coastline. This marked one of the lowest points in the
Klamath's recent history. Since a court order was entered in 2006
enforcing science-based flow management in the Klamath River for
threatened coho salmon, we have witnessed a dramatic positive
biological response from the Klamath's non- endangered, commercially-
valuable fall chinook salmon run. Now, fishing-dependent communities in
Oregon and California are enjoying new economic vitality as a result of
resurgent Klamath fall chinook. This example underscores the benefits
of science-based management, and should encourage us to continue to
follow the best available science in addressing the many facets of the
Klamath's ongoing water woes and species declines.
Two facts are absolutely certain in the Klamath debate: 1) The
government has promised too much water to too many interests; and 2)
The nation cannot afford to allow the Klamath Basin's fish, wildlife,
and human communities to continue lurching from one water crisis to the
next. In order to protect and restore the basin's incredible fish and
wildlife resources, meet tribal trust responsibilities, obtain secure
water supplies for the basin's wildlife refuges, and to make a
transition to a sustainable level of agricultural and fisheries
production in a fair and equitable manner, it is necessary for the
federal government to make a significant financial investment in the
basin.
WaterWatch has supported federal legislation in the past, such as
the 2002 Farm Bill's Klamath amendment, passed through the United
States Senate with the leadership of Senator Wyden. This measure would
have provided $175 million in funding, and sought to achieve adequate
stream flows to meet long-term recovery needs for Klamath fish and
other wildlife through reduced water use and better water management.
If this measure had passed into law the Klamath Basin's communities
would be on much better footing to address this year's drought. We hope
to support similar legislation in the near future, and WaterWatch
believes that any new legislation should implement the following
concepts:
1. Phase-out Commercial Farming on the Basin's National
Wildlife Refuges.--The federal government leases over 22,000
acres of publicly-owned lakebed within the Tule Lake and Lower
Klamath National Wildlife Refuges for commercial agriculture.
Phasing-out this lease land program and restoring these 22,000
acres of refuge to wildlife habitat would allow recovery of up
to 100,000 additional acre-feet of much-needed water storage
capacity, reduce irrigation water demand by some 50,000 acre-
feet, improve habitat, food production, and water quality for
fish and wildlife, reduce toxic pesticide use, and reduce
refuge dependence upon polluted agricultural runoff as a water
supply. This solution could also increase aquifer recharge and
reduce pumping costs for well users in the Tule Lake sub-basin,
an area plagued by dramatically dropping groundwater levels due
to over-reliance on groundwater pumping to compensate for over-
appropriated surface water supplies. Removing the government
from the local farmland rental market would end unfair
competition with private landowners, and shift lease revenues
from federal government coffers to local farmland owners,
boosting the local economy. As refuge habitat, these lands
could provide comparable levels of county tax revenue as
currently provided by the leaselands program. This significant
step towards sustainability could be achieved administratively,
at low cost in comparison with other options, and without
transferring any private lands to the public domain. Indeed, we
believe that dollar-for-dollar, acre-for-acre, there is no more
beneficial option available for addressing the Klamath's water
woes than ending the damaging commercial use of the basin's
National Wildlife Refuges and restoring these areas of
publicly- owned lakebed.
2. Fund and Implement a Voluntary Demand Reduction Program.--
Water has been severely over allocated in the Klamath Basin.
Any meaningful long-term solution will require some downsizing
of the Klamath Irrigation Project and the retirement of other
water rights throughout the basin. A voluntary program to give
one-time financial assistance to agricultural landowners, by
buying their lands or water rights at a fair price would be an
equitable way to reduce agricultural demand, while giving more
security to those who want to stay in business. A federally
funded buyout program should be developed and implemented in
this regard. The water rights adjudication process in Oregon,
where the state completed the Final Orders of Determination in
March, 2013, has created new opportunities for demand reduction
solutions in the basin. For the first time, the details of who
holds Klamath Basin water rights in Oregon - and in what
quantities - has been formally recognized, allowing durable
market-oriented transactions through the work of water trusts
and others to become a critical part of the solution.
3. Reform Management of the Klamath Project.--The statutory
purposes of the Klamath Project should be amended to include
providing the water necessary for recovering threatened and
endangered species, recovering salmonid and sucker populations
to harvestable levels, meeting the needs of other fish and
wildlife, meeting tribal trust responsibilities, meeting the
needs of the basin's national wildlife refuges, and meeting
water quality standards.
4. Restore Fish and Wildlife Habitats and Meet Water Quality
Standards.--Although fish and wildlife habitats have been
degraded throughout the Klamath Basin, it remains one of the
few major river systems in the United State where substantial
restoration is still possible. Reclaiming and restoring
wetlands, especially in the publicly-owned Lower Klamath and
Tule Lake National Wildlife Refuge areas and around Upper
Klamath Lake, are important to obtaining a more natural
hydrological regime, improving and increasing fish and wildlife
habitat, and improving water quality. Riparian areas need to be
protected and restored. Dams and diversions need to be screened
and provided with appropriate fish passage facilities, or
removed. The water retention and flow regulation capability of
upland forested ecosystems need to be restored through
reforestation, canopy retention and work to reduce the impact
of extensive unpaved road systems. A basin-wide, twenty-year
restoration program under the direction of the Fish and
Wildlife Service should be established, funded, and
implemented.
5. Implement Water Conservation Measures and Improve Water
Management.--There should be a thorough analysis of irrigation
needs in the basin. Opportunities for saving water and
improving conveyance systems and on-farm efficiencies should be
carefully assessed, funded, and implemented within and outside
of the Klamath Irrigation Project.
Dam Removal
Removal of the PacifiCorp's four lower hydropower dams on the
Klamath River is essential to basin restoration. WaterWatch supports
the removal of these dams, and urges a swift return to the Federal
Energy Regulatory Commission relicensing process for these facilities-
now suspended by the Klamath Hydroelectric Settlement Agreement (KHSA).
Because it is more economically sound to remove the dams than to try
and relicense them, there is a high degree of likelihood this process
will end in dam removal, without requiring federal legislation. We do
not support holding needed dam removal hostage to try to leverage
passage through Congress of the hopelessly expensive, complex, and
controversial Klamath Basin Restoration Agreement (KBRA).
Key Problems with the Klamath River Basin Restoration Agreement
While WaterWatch fully supports Klamath dam removal, WaterWatch
does not support the KBRA and does not support linking the KBRA to the
KHSA for the following reasons:
1. The KBRA attempts to guarantee water deliveries for the
Klamath Project Irrigators first, without requiring any water
guarantees or minimum stream flow levels for fish (including
three fish species listed under the Endangered Species Act).
This clearly undermines the Endangered Species Act. The KBRA
water guarantees for the Klamath Project Irrigators in wet
years would deliver more water to the irrigators than they
historically used in wet years, and in dry years would deliver
more water to the irrigators than allowed under current
Endangered Species Act protections for coho salmon;
2. The Klamath River flows which are predicted by KBRA
proponents to result from the KBRA would be at levels below
those needed for salmon, including the river flow levels
currently required under the Biological Opinion for coho salmon
and the flows recommended for salmon by the best available
science;
3. The KBRA perpetuates and intensifies Klamath water
conflicts by failing to downsize the Klamath Irrigation
Project, continuing to over-promise water, and by placing undue
political pressure upon Endangered Species Act enforcement and
implementation;
4. The Klamath Project Irrigators would receive $92.5 million
under the KBRA to develop and implement their own private water
plan without appropriate guidelines or public oversight. A
significant concern is that much of this money could be used
for unsustainable groundwater development rather than
meaningful demand reduction;
5. The KBRA requires all non-federal KBRA parties to support
commercial farming on 22,000 acres of Lower Klamath and Tule
Lake National Wildlife Refuges for another 50 years, when this
practice should be phased out as soon as possible, for the
reasons described above. The KBRA creates undo pressure on
refuge officials to continue to allow commercial farming under
the Comprehensive Conservation Plan now under development;
6. The KBRA's attempted water allocation to Lower Klamath
National Wildlife Refuge may never occur, is insufficient, and
puts a heavy burden on the refuge during droughts.
7. The KBRA would eliminate the best options to secure water
for Lower Klamath National Wildlife Refuge. These options
include: 1) Phasing out commercial farming on the refuges; 2)
Using those lands to store winter water; and 3) Using the 1905
priority date water rights associated with the leaselands for
refuge habitat purposes;
8. The KBRA limits the ability of the refuges to increase
their water supplies through development of other water sources
by purchase, lease, or storage. These provisions conflict with
common sense, and with the National Wildlife Systems
Improvement Act's requirement that the Secretary of Interior
secure needed water supplies for all refuges.
9. Klamath Project Irrigators would receive $41 million in
power subsidies, plus lower cost Bonneville Power
Administration power, plus special contracts that allow them to
continue to drain important National Wildlife Refuge lands for
commercial agriculture; and
10. The KBRA's price tag is nearly $1 billion, yet it fails
to address key problems in the basin and none of this money is
for dam removal, which is to be funded separately by
PacifiCorp's Oregon and California ratepayers and California
state bond monies.
Key Problems With The Klamath Hydroelectric Settlement Agreement (KHSA)
Though the KHSA could theoretically lead to dam removal, it is not
an agreement to remove any dams, but to study whether or not the dams
should be removed. The KHSA is hobbled by the following problems:
1. Dam removal is unnecessarily linked to the damaging
provisions and unrealistic budget of the KBRA and if KBRA
legislation does not pass, dam removal would be derailed;
2. There is no concrete agreement to remove dams, only to go
through a new process to determine whether dams should be
removed or not. The Department of the Interior initiated this
new process, but has been prevented from completing it by the
many preconditions of the KBRA and KHSA;
3. No dam removal would occur before 2020, while PacifiCorp
would be allowed to continue operations that degrade water
quality and harm salmon, including Endangered Species Act
listed coho with minimal operational changes in the interim;
4. There are a large number preconditions that provide
PacifiCorp with many opportunities to abandon dam removal; and
5. There is no definite date to return to the Federal Energy
Regulatory Commission dam relicensing process-now suspended by
the KHSA-even if the agreements do not become law.
Further Detail on KBRA/KHSA Problems
WaterWatch would be happy to provide a more detailed written
critique on specific problem points of both these agreements, and
previously introduced legislation, if requested by this committee or
interested members of Congress.
In Closing
Thank you again for the opportunity to testify, and thank you for
focusing attention on the important water challenges of the Klamath
River Basin. We hope this hearing will serve as a catalyst for
restarting the kind of dialogue between Klamath stakeholders and
Congress that is sorely needed to find true common ground and build
support for viable, equitable, and science-based solutions. WaterWatch
stands ready to work with you towards this end. I would be happy to
answer any of your questions and look forward to the roundtable
discussion.
The Chairman. Mr. McCarthy, thank you. Very helpful. I will
tell the group I don't believe I've had very many more
exasperating experiences than we had a decade ago on that Farm
bill where Senator Smith and I teamed up and we were able to
get Senate support for $175 million for the kind of
collaborative effort that we're still talking about a decade
ago. So it just kind of reaffirms how much effort has gone into
this for so long. Why this time has got to be different.
So I'm not going to gnash my teeth this morning over that
lost opportunity. The Farm bill, I guess, would be the 2002
Farm bill. But it sure reaffirms how important it is to thread
the needle this time and get a solution.
Mr. Roos-Collins, Conservation Groups, Berkeley,
California, welcome.
While we're getting set up, Mr. Johnson, you're with the
Bonneville Power Administration. We've already commended you
all for the good work that you've done in terms of the
announcement today in terms of rate relief. I gather that
you're here just in case there are questions in discussion.
You'd rather not offer testimony. Is that right?
STATEMENT OF TIM JOHNSON, ASSISTANT GENERAL COUNSEL FOR POWER,
BONNEVILLE POWER ADMINISTRATION, PORTLAND, OR
Mr. Johnson. Yes, we didn't present testimony.
The Chairman. Right.
Mr. Johnson. Other than the statement that gave our
position and support for what's going on here with the
collaborative nature.
The Chairman. Very good. Then our last witness and then
we'll go right to questions.
Mr. Collins.
STATEMENT OF RICHARD ROOS-COLLINS, WATER AND POWER LAW GROUP
PC, BERKELEY, CA
Mr. Roos-Collins: Chairman Wyden, thank you for your
leadership, this hearing and the opportunity to testify. I'm
here for American rivers, California trout, Trout Unlimited,
Pacific Coast Federation and Fishermen's Associations,
Institute for Fisheries Resources, Salmon River Restoration
Council and the Federation of Fly Fishers, all signatories of
the Klamath Agreements.
The Klamath Basin plainly has national value. One of the
earliest Reclamation projects on other farms and ranches, 6
national wildlife refuges which are among the most productive
on the Pacific Flyway, 6 national forests, a national wild and
scenic river, 6 federally recognized tribes and one of the
largest salmon fisheries in the Lower 48. These extraordinary
natural resources are the basis for the foundation for these
communities. There just isn't enough water, however, for all
uses in most years.
Current laws regulate uses in a manner that permits
competition and results in routine shortages rotating between
farms, fisheries and tribes. Without a long term solution, as
you stated in your opening comments, the future will be the
same or worse.
Diverse stakeholders gathered in 2004 to answer the
question, can we agree to a better future? Conventional wisdom
was that these negotiations would certainly fail. In hundreds
of meetings we made hard compromises on hard issues. More than
40 of these participating stakeholders signed the Klamath
Agreements and are represented here today.
These agreements are the first comprehensive management
program of these water resources. Parties will implement
contractual and other voluntary arrangements to allocate water
to enhance supply reliability for all beneficial uses.
Farming here already produces more than $560 million a year
in economic value and including some of the world's best
potatoes, horseradish, mint and beef. That value will increase
as a result of a more secure water supply. Refuges will have
sufficient water supply under these agreements 88 percent of
the time verses 12 percent today. Salmon and other native
fishes will recover having declined of 10 percent or less of
historic condition.
Mr. Chairman, to answer the question that I heard in your
opening statement, are we flexible and prepared to work with
the committee to develop the exact terms of legislation to in
effect a long term solution?
Of course, yes. Let's start today.
The Chairman. Very good.
Mr. Roos-Collins. Are we willing to meet with opponents and
others to consider potential amendments to these agreements.
Yes.
We are ready to meet with others also willing to compromise
and discuss specific proposals to enhance the net benefits for
all affected communities. Like Mr. Whitman, I've been
encouraged by the testimony today that reflects this spirit of
cooperation.
We respectfully request that this committee advance
legislation to implement a long term solution based on these
agreements.
Thank you.
[The prepared statement of Mr. Roos-Collins follows:]
Statement of Richard Roos-Collins, Water and Power Law Group PC
Chairman Wyden, Ranking Member Murkowski, and Members:
Thank you for this opportunity to testify. I am Richard Roos-
Collins, appearing on behalf of American Rivers, California Trout,
Trout Unlimited, Pacific Coast Federation of Fishermen's Associations,
the Institute for Fisheries Resources, Salmon River Restoration
Council, and the Northern California Council of the Federation of Fly
Fishers. All are signatories of the Klamath Basin and Hydropower
Agreements. We respectfully request that this Committee draft and
favorably report legislation to authorize full implementation of these
agreements.
The water resources of the Klamath Basin have significant national
value and federal interest. The Klamath Reclamation Project, authorized
in 1905, is one of the oldest in the Reclamation program. Its farmers
and the upstream ranchers today produce more than $560 million annually
in economic value,\1\ including some of the world's best potatoes,
horseradish, mint, and beef. There are six National Wildlife Refuges
there, the first dedicated by President Teddy Roosevelt in 1908. These
are among the most productive waterfowl habitats in the Pacific
Flyway,\2\ supporting 80% of the migratory waterfowl and the largest
population of bald eagles in the lower 48.\3\ The Forest Service
administers six National Forests which are more than half of the land
in the basin, plus the Klamath National Wild and Scenic River. The
salmon fisheries of this basin are the third largest in the Lower 48\4\
and today support commercial fishing which produces $32 million
annually in economic value.\5\ There are six federally recognized
tribes which occupy their time-immemorial lands and waters.
Unfortunately, in most years, there isn't enough water in the
Klamath River Basin for all legal uses. Over the past century, federal
and state laws have regulated individual uses in a manner that has not
prevented significant shortages. These shortages have rotated between
farming and fisheries. 2013 is a true crisis for Upper Basin ranchers.
Litigation and political conflict are a constant for the water
resources in the Klamath Basin.\6\ If we muddle through, the future of
this basin will be more water shortages, more litigation, and
associated hardships.
Diverse stakeholders gathered in 2004 to answer the question: ``Can
we agree to a better future?'' We held hundreds of meetings across a
six-year period, in the face of a widespread view that we would
certainly fail. After hard compromises, more than forty of these
participating stakeholders signed the Klamath Agreements. Some, who are
here today to oppose the agreements, left the negotiation table.
Why did we sign? The Klamath Agreements are the first-ever
comprehensive program for management of these water resources at a
basin scale. Implementation will restore sustainable water supply for
all beneficial uses. The agreements will provide a better future for
the many communities in this extraordinary basin.
To achieve that goal, the signatory parties committed to
unprecedented cooperation to implement fundamental changes in current
management arrangements over a 50-year term. The parties making these
commitments, subject to Congressional authorization, include: the
United States, both states, three of the four participating tribes,
Reclamation contractors and many upstream ranchers, commercial
fishermen, PacifiCorp, and other stakeholders.
The Klamath Reclamation Project will be modernized. The commitments
and improvements will reduce river diversions, improve irrigation
techniques, prevent groundwater overdraft, and prepare for drought and
emergency. Tribes will resolve their trust claims against the Project
and the United States upon performance of these and other measures. In
turn, Upper Basin ranchers may voluntarily agree to increase flows for
the benefit of native fishes in downstream Upper Klamath Lake. In
consideration, tribes will not make calls against junior water rights.
The future will be far more secure for these farms and ranches.
The National Wildlife Refuges in the basin will receive a lifeline.
For the first time, these refuges will have a reliable water supply.
The authorized purposes of the Klamath Reclamation Project will be
expanded to permit this use. Refuges will receive an adequate supply
88% of the years under the Klamath Agreements, versus 12% today.\7\
These measures will enhance habitat in these six refuges. Wildlife
viewing and hunting, now at 89,000 visits per year, will increase
substantially-hunting by nearly 50%.\8\
The salmon fisheries in this basin will be restored to good
condition. These have 1declined more than 90% over this century,\9\
resulting in periodic limitations on commercial catch from Cape Falcon,
Oregon to Monterey, California under the Pacific Fishery Management
Council's weak-stock management rules.\10\ Under the Basin Agreement,
these and other native fisheries will receive enough clean water for
spawning and rearing, due to reduced diversions by the Klamath
Reclamation Project and Upper Basin ranchers. That agreement also
establishes the first comprehensive program to address all non-flow
stressors from mountains to sea.
PacifiCorp's power-only dams, which have blocked fish passage to
more than 420 miles of spawning habitat\11\ since 1918, will be
removed. The economic value of commercial and ocean sport fishing will
increase by $185 million over the term of the Klamath Agreements,\12\
as these fisheries recover--salmon populations nearly doubling.\13\
What do the settling parties seek from this Committee and Congress?
We respectfully request that Congress enact statutory authorities
to implement certain measures necessary for the comprehensive program.
For example, National Wildlife Refuges will be authorized as a new
purpose of the Klamath Reclamation Project. Another authority will
permit the Interior Secretary, rather than the Federal Energy
Regulatory Commission, to decide whether removal of PacifiCorp's four
dams is in the public interest. According to the Public Utilities
Commissions of California and Oregon (PUCs), dam removal under the
conditions specified in the Hydropower Agreement will be less costly
and risky for power customers than relicensing under the Federal Power
Act.\14\ The PUCs approved PacifiCorp's application for a 12% rate
surcharge to generate $200 million for dam removal, and no federal
funds will be used.
Implementation of the Basin Agreement is proposed to involve just
under $40 million per year of new federal appropriation over the next
15 years.\15\ Is that a fiscally prudent investment? The Basin
Agreement will avoid substantial federal liabilities under tribal trust
doctrine, resulting from near loss of the fisheries which were
essential to tribal sustenance, culture, and religion. It will also
reduce the need for emergency relief resulting from water shortages. In
the past decade, such relief for farmers or fishermen averaged $17
million and reached as high as $60 million in a single year.\16\
Most importantly, the future of farming and fishing communities in
this basin will be much more secure. Even in the face of water
shortages, these communities produce economic value each year
comparable to the entire 15-year budget proposal under the Basin
Agreement. That value will increase substantially through this proposed
investment.
This Committee is rightly known for your pragmatic and bipartisan
approach to resources management. The Klamath Agreements are an
unprecedented opportunity for this Committee and Congress to help local
communities resolve these water shortages and restore the
sustainability of fishing, farming, and tribal uses in the Klamath
Basin.
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endnotes
1 U.S. Department of the Interior, Bureau of Reclamation,
Economics and Tribal Summary Technical Report (2012), p. 2-26.
2 U.S. Department of the Interior and U.S. Department of
Commerce, Klamath Dam Removal: Overview Report for the
Secretary of Interior (2012), pp. 58, 321 - 324; Dave Mauser,
U.S. Fish and Wildlife Service, Effects of the Klamath Basin
Restoration Agreement on Lower Klamath, Tule Lake, and Upper
Klamath National Wildlife Refuges (2012), p. 9.
3 Overview Report, p. 58.
4 Overview Report, p. 58.
5 Economics and Tribal Summary Technical Report, pp. 2-44 -
2-46.
6 Congressional Research Service, Klamath River Basin:
Background and Issues (Report 7-5700) (2012), p. 1.
7 Overview Report, pp. 321-324.
8 Edward Maillett, U.S. Fish and Wildlife Service, Refuge
Recreation Economics: Technical Report for the Secretarial
Determination on whether to Remove Four Dams on the Klamath
River in California and Oregon (2011), pp. 25-26 (comparing
50th percentile scenarios).
9 Overview Report, pp. 4, 58.
10 Cynthia Thomson, National Marine Fisheries Service,
Commercial Fishing Economics: Technical Report for the
Secretarial Determination on whether to Remove Four Dams on the
Klamath River in California and Oregon (2012), pp. 7-9.
11 Overview Report, p. 14.
12 Economics and Tribal Summary Technical Report, p. ES-4;
Commercial Fishing Economics, p. 30.
13 Overview Report, p. 17.
14 Oregon Public Utilities Commission, Order No. 10-364
(2010), pp. 8-13; California Public Utilities Commission,
Decision 11-05-002 (Approving a Rate Increase for PacifiCorp
Pursuant to Klamath Hydroelectric Settlement Agreement) (2011),
pp. 11-13; Overview Report, p. 42.
15 CRS, Klamath River Basin, p. 26; Overview Report, p. 218.
16 CRS, Klamath River Basin, p. 10.
The Chairman. Thank you very much.
We now have a number of statements that have to be
submitted for the record.
The Hoopa Valley Tribal Council.
The Pacific Coast Federation of Fisherman's Association.
From Tule Lake, Earl Janoski of the Irrigation District.
Luke Robison of the Malin and Shasta View Irrigation
Districts.
Steve Kandra, the President of the Westside Improvement
District.
Also Jared Huffman, who is a Congressman from the area.
So for the recorder, let's put those into the record at
this point.
The Chairman. So here's where we are. On my count we've got
at least these issues to address: water, agriculture, the
tribal concerns, fishing matters, energy, and wildlife refuges.
Those are all part of the mix.
I want to begin the questions by saying lots of good work
has clearly gone into the agreements that have been discussed
this morning. I was struck, particularly by, Mr. Mallams?
comments and Mr. Nicholson's comments, when they said we have
not been for the agreements. Yet, Mr. Mallams called the work a
noble cause, I believe those were your words. Mr. Nicholson
commended the group as well.
So we're starting this discussion from that vantage point.
In reality, in my view, that no matter how each of you feels
about these agreements, if there was a political consensus we
wouldn't be here this morning wrestling with this topic. We
would have gotten a bill out of the Committee and possibly have
it well launched by this morning.
So what I'm going to do now is ask some questions designed
specifically to try to find a way to start bridging the gap and
see what we can do to get a long-term, Basin-wide, solution.
Now, you all heard me say at the outset that I thought there
were 4 goals. A number of you have touched on them.
Certainty for the irrigators for water.
Federal Government's role with respect to dam removal.
PacifiCorp's role with respect to a business decision.
Making sure the tribes are part of the solution.
Addressing the fish runs.
So from the standpoint of having those 4 goals, I think I'd
like to open this up to the group around the idea that let's
have some suggestions, at this point, on how we can continue to
bring the parties together and do it in a way that can shave
some of the cost to taxpayers. Make it easier for us in a tough
financial climate to build a consensus.
So I'm going to throw it open. I should have worn my
glasses today so I may miss a name or 2. But let's start with
that.
Suggestions for how to bring the parties together and
particularly with a focus toward saving some money.
Who wants to start?
Mr. Nicholson.
Mr. Nicholson. Thank you, Senator Wyden.
In order to bring the Upper Klamath Basin in, fully in to
settlement process there has to be a respect for its necessity
and how it fits in the economy and in the community. Right
today somewhat in disagreement with what Becky said. You're
going to see the displacement of a hundred thousand head of
cattle in the Upper Klamath Basin.
In order to avoid that we need water assurances like the
project and other people have gained. Right today we have no
water assurances.
Just a little bit of perspective. Klamath County is in the
top 2 percent of all counties in the whole country for cattle
production for yearling and cow calf production with the States
of California and Washington very much dependent upon those
with across State line transportation. In order to avoid an
economic catastrophe the Upper Klamath Basin needs water
assurances and just the same as everybody else has gotten in
this process.
Thank you.
The Chairman. The only thing I'd say is if we restate
positions that we've stated it's not going to be as fruitful as
trying to offer suggestions that help us to break new ground.
There's no question that you're right, Mr. Nicholson, about
the need for those Ag interests to be able to secure the water.
You had me at `hello' on that point. What we've got to do is
try to find a way to break some new ground today.
So if there are any of you that would like to offer up
suggestions that move beyond what you've said in your initial
statement, I think that would be particularly helpful.
Who'd like to go next?
Mr. Connor. Mr. Chairman.
The Chairman. Yes?
Mr. Connor. With respect to the question you're focused on
cost I want to provide a little context.
The Chairman. Good.
Mr. Connor. Then maybe think a little outside the box here.
So initially the way the agreements were structured the
cost estimated between the various activities and actions that
need to be taken to implement the agreements was about $1
billion. We, at the Federal level, we are not signatories at
the KBRA, to I think you know. So in the aftermath of the
agreements being signed we took that figure and worked with the
parties and basically tried to reevaluate how we could
accomplish those items and maybe do it at a lower cost.
Still trying to focus on ensuring that the progress----
The Chairman. What's your best ball park now in terms of
the cost?
Mr. Connor. Get to the bottom line?
The Chairman. Yes.
Mr. Connor. OK. $800 million.
So we think that through that process of scrutinizing that
budget, still trying to accomplish the same actions, we've
shaved $200 million off of that budget. Put it over a 15 year
period as opposed to a 10-year period.
Also with respect to that----
The Chairman. For those of you that want perspective, this
is one issue that we've spent a lot of time on.
In fact, we saw successful action in committee on it, with
respect to the Secure Rural Schools bill, which helps
communities where there's Federal land and it's been very
challenging with respect to trying to make sure they had money
for police and roads and basic services. That $800 million
figure that Mr. Connor just cited is twice the size of the
entire Secure Rural Schools program for more than 40 States in
the country.
Mr. Connor. Wow.
So it just puts it in perspective.
Mr. Connor. Another data point that I would just add is we
looked at our existing programs that are currently authorized
amongst the Federal agencies. We think that we are investing
amongst the different agencies, certainly Reclamation has a
large share of that, about--between $15 and $20 million per
year that we think are applicable to those types of activities
that are contemplated in the KBRA.
So that's something around $250 million over that 15 year
period that----
The Chairman. Does that take down the $800 million down?
The $800 million less the 250?
Mr. Connor. I think you could represent--that's what I'm
looking at it as is what is the new set of resources that we
would need to accomplish those activities?
The Chairman. You'd need $800 million, or $800 million less
250?
Mr. Connor. Minus 250 is what--we need to scrutinize a
little bit more. But that's the big picture analysis that we're
doing. I want to make sure that those----
The Chairman. You're then talking about $550 million in
terms of new resources.
Mr. Connor. That's the ball park figure that we're
thinking.
The Chairman. Very good.
Mr. Laird, just one point. I don't want to belabor just the
cost question.
What do you envision the timeline in California to be for
bond passage so that we can, again, try to flush out some of
these cost questions?
Mr. Laird. The bond right now is $11.1 billion. The Klamath
amount is $250 million of it. It is scheduled to appear on the
November 2014 statewide ballot.
The drop dead point for changing the bond or deciding to
postpone or doing anything is in the middle of August 2014. If
this is, obviously, central to this hearing today but there's
$1.7 billion for wetlands restoration in the delta area.
There's $3 billion for storage, new dams in California. There's
money to go across the State for other things.
There is an ongoing debate that is whether or not to reduce
the bond to make it more palatable to the voters and in
reducing it do you just go to each line item and reduce it
proportionately or do you fundamentally change the priorities
of the bond. That is very much an open question right now.
So what we are trying to do is listen to this hearing in
the process and the cost estimates and try to reflect that in
whatever our negotiating position is on. Quite frankly if it
pulls really poorly there's always the option of moving it to
2016 at a time there's a Presidential election and much higher
turnout. So all those things are in the mix which is why I
thought it was important to say we are good for a commitment so
that people don't get lost in the mechanizations of the bond
and read into that, a feeling, of the commitment.
But it is looking at all those issues together and deciding
the best path forward and a best path forward that gets us two-
thirds in each house as well.
The Chairman. So let's stay with this. This is the topic,
suggestions for bringing the parties together.
Ms. Hyde.
Ms. Hyde. Senator Wyden, I just want to point out that the
Klamath Reclamation Project irrigators organized into
Irrigation Districts. Greg sort of laughed at me when I was
talking about the other day I said, that means we can get a
hold of you and they can make decisions based on their elected
boards coming to the table.
In the off-project we have a fierce and delightful
independence which is also part of our downfall. We need the
off-project water community, each family farming ranch to see a
clear path to how they become a part of this settlement. It's
kind of a public square issue. So it's a lot less about what we
might be able to bring to the table to settle these issues and
a lot more about process.
So a fair process----
The Chairman. What's the process that's going to help bring
people together? As I indicated if we do another round of
meetings where in effect we restate positions that we've
already----
Ms. Hyde. Right.
The Chairman. Stated multiple times I'm going to feel
really badly that we haven't used your time as well as we
might.
So you've said it's a process issue. What kind of processes
could be used that haven't been used before?
Ms. Hyde. I think we're almost on to one. So if I could
have----
The Chairman. Are you guys like the Senate? You want to
yield to Mr. Whitman?
Ms. Hyde. Yes, I would like to yield to Mr. Whitman.
The Chairman. Why don't we yield to your good friend, Mr.
Whitman?
Mr. Whitman. Thank you, Ms. Hyde. Thank you, Chair Wyden.
In terms of process I think it's useful to try to slip this
very complex issue up into some of its key constituent parts.
So I'm going to focus really on the Upper Basin water use issue
and not speak right now to dam removal which is really a
separate issue as is the refuge issue to some degree.
But in the Upper Basin we have a framework in place for how
to approach a compromise in the Upper Basin. Essentially what
that involves is getting a critical mass of the off-project,
fiercely independent community to sign up to agree to permanent
riparian restoration in the Upper Basin to improve water
quality and to allow the restoration of those fisheries in the
Upper Basin. If we can get that critical mass of fiercely,
independent land owners I believe that we can get to a
resolution of the water right issues that provide the sorts of
assurances that the off-project irrigators are looking for in
terms of what will happen in dry years in terms of regulation
of water rights.
The Chairman. Let's do this.
Mr. Mallams, what do you think of what Mr. Whitman said? Is
that going to help spring this loose?
Mr. Mallams. I think it's a good concept but it's going to
be a very hard thing to do because we're looking here for a
part of the process and everything is a long term, permanent
solution. Restoration is fine. But in the past we've had years
and years of restoration and not a lot of real, concrete,
proven results.
I would rather see to help this process along is to have
something permanently in place, off stream storage, be in the
Bureau of Reclamation in their biological opinions that came
out. They talked we need more water. We need more water.
Restoration doesn't create more water. Off stream storage
will create more water when we need the water. It's very
doable. There's like a dozen spots in our Basin that's doable
for off stream storage. That's something that's eliminated
completely in the KBRA the way it's written. Any excess water
will be environmental water.
The Chairman. So what do you think of Mr. Mallams point
with respect to storage because I frankly have always been
attracted to that idea. Members of Congress aren't real good at
making more water, but storage issues and similar kinds of
concepts clearly open up an opportunity.
What do you think of that concept, Mr. Whitman, to sort of
take your new idea which picks up on what Ms. Hyde was saying
with respect to a process and incorporating what Mr. Mallams is
talking about with respect to storage?
Mr. Whitman. Chair Wyden, it's very easy to go to storage
as a magic solution for the water shortage over allocation that
we have in the Upper Basin. I am perfectly happy to have water
storage be a part of the conversation. But these are not new
ideas.
There has been examination of storage opportunities in the
Upper Basin over, well, since 2001 in particular. The cost of
significant new storage in the Upper Basin, at least based on
the analyses done to date is very expensive. So if you're
concerned about the cost of this package already I think once
you start looking at the cost of additional hard storage for
wintertime flows in the Upper Basin while it's an attractive
option in theory. In terms of the practice and the cost, I
think is going to be difficult.
That said, there are, I think, some opportunities on the
margin for increase in storage. Some of that work has already
been done in the Upper Basin in terms of restoration, wetlands
around the lake and above the lake that effectively provides
additional storage. So we're willing to have it on the table,
but caution in terms of the cost.
The Chairman. Let's just operate under the assumption that
Mr. Whitman is talking about a process idea that Mr. Mallams
said in concept; I think the words you used was, attractive.
You're interested in having storage incorporated. Mr.
Whitman said, gee, I'm not sure we can figure out a way to do
this economically. But the point is I think there's something
to work with here on the process question.
So let's consider that.
I went to school on a basketball scholarship and dreamed
about playing in the pros which was ridiculous because I was
too small and I made up for it by being slow.
[Laughter.]
The Chairman. The point was to try to find a way to put
some points on the board. Clearly Mr. Whitman is talking
conceptually about a process that might have some potential.
Other ideas for bringing the parties together and hopefully
addressing this question of the price tag?
Mr. Gentry, welcome.
Mr. Gentry. It's a risk of sounding like I'm restating
positions. The framework for what we're talking about here, the
off-project water settlement, comprehensive, well focused
restoration that's in the KBRA. It's within that framework.
There's opportunity for settlement within the framework of
the KBRA. There's flexibility there. The KBRA does have
provision for amendment as we took advantage of at the end of
2012.
So there is opportunity for flexibility. The parties to
consider settlement, to address the comprehensive, our need for
comprehensive, well focused, efficient use of dollars for
restoration and to address the real core problems that have
brought about the situation that we're dealing with here.
It even helps to provide relief in this transition from
unregulated water use, you know, that's been a result of
decades of failed Federal and State policies. That's so----
The Chairman. Let me ask you this. Again, because I so
admire the good work that you've done. What I want to keep
focusing on are suggestions and possibilities for the future.
I gather, Mr. Whitman, you're talking about trading
improved water quality for a share of water for the off-project
users. Now, the Tribe has been generally interested, to their
credit, in this idea. They have the water.
Is there a way that we can break some new progress here out
of these concepts for either of you?
Mr. Whitman. Chair Wyden, I think there is a way. There is
some precedent for this already in the context of the Klamath
water right adjudication. We have agreements between the
Klamath tribes and the Klamath project and also with at least
several Upper Basin water users.
So that sort of agreement where a landowner/land manager
agrees to participate in repairing and restoration, improving
water quality in return for some certainty in terms of water
rights I think is the basic model that we need to work in the
Upper Basin.
Again, a critical issue here is that we get enough of
participation from the landowning community in the Upper Basin
that we can, you know, that the tribes have some assurance that
conditions actually will improve in terms of water quality, in
terms of the fisheries in the Upper Basin because ultimately
it's that resource that's really key, I think, in terms of the
long term stability of the Upper Basin.
The Chairman. Do you want to comment on that concept
specifically, Mr. Gentry?
Mr. Gentry. Conceptually--well making a call on water is
the only tool that we have to protect our treaty resources at
this point. You know, conceptually there's avenues to explore
that, I mean, if our fisheries are restored and well on the way
to recovery and we had harvestable levels there could be
opportunity.
The Chairman. I'm just going to say conceptually there's
some possibility here.
[Laughter.]
The Chairman. Listen, let's do this. I want to let anybody
else take a crack at the initial kind of question. Suggestions
for bringing the parties, together because if we had a
political consensus we wouldn't be here. So we've still got to
keep coming back to that.
Mr. Collins.
Mr. Roos-Collins. Mr. Chairman, 2 recommendations for the
go forward process.
First, please give us some guidance on what's affordable.
In 2010 we signed agreements, one of which involves Federal
funding approaching a billion dollars. We heard from you and
other members that was unaffordable.
So we took a 20 percent haircut in our proposal. We hear
today that it's unaffordable.
I believe you.
I think that the Interior study which Mr. Besdeck led has
already shown that the national benefits exceed the cost. But I
accept that the costs are unaffordable.
We need some guidance on budget for the Basin agreement
understanding that the hydropower agreement runs on ratepayers
and to the extent necessary, California funding. So that's my
first recommendation.
My second----
The Chairman. I mean, obviously if you cut it substantially
that is going to increase our prospects. If you can cut it a
quarter. I mean, if you can cut it a third that automatically
helps to start a different kind of conversation.
I mean, the political consensus and the costs go hand in
hand. When you have a political consensus you don't have people
putting stuff on the ballot and saying they're against this and
they're against that. What you do with a political consensus is
you tell people in Congress there's really something to work
with here.
I mean, we're passing a lot of measures, like last night's
14 public lands bills, passed by unanimous consent literally
100 United States Senators said we're going to support. Some of
those bills have gone on for years.
So what this is about is getting that consensus and you cut
this substantially. You cut it a quarter. You cut it a third.
You cut it in half and all of a sudden people in the Congress
say, you know, they're really working very hard to try to bring
us something that's viable. That's what this is about.
In terms of where I think you go? Those 4 principles which
were largely worked out when we had the meeting in Klamath
Falls town hall meeting and I ran it by both-sides the people
who largely were for the agreements, and the people who were
against them. Both said that they could live with it.
So that's my sense of it.
So absent any other suggestions for----
Mr. Roos-Collins. Mr. Chairman.
The Chairman. Yes.
Mr. Roos-Collins. If I could add a second specific
recommendation?
The Chairman. OK.
Mr. Roos-Collins. Which is you need to convene this table.
I mentioned hundreds of meetings across 6 years. The human
investment in these agreements exceeds hundreds of thousands of
hours. We can't repeat that.
A time, the crisis in the Klamath Basin doesn't permit
that. We need to be on a clock that works for you.
The Chairman. That's why we're here.
Let's see if we can continue on the suggestion front for
breaking some new ground.
Mr. Fletcher. Actually Mr. Chairman, that's--I was going
to. Let me amplify that point because that was my point as
well.
There aren't going to be any new issues we haven't
thoroughly thrashed and we haven't kicked around. What is new
is your enthusiasm for getting past stalemate. It would be
great to have some type of assistance in working to get past
stalemate, working to get past positions, not to restate
positions, but what are you going to do to solve something.
That expectation and to be firm on that, I think, would
assist this process greatly.
The Chairman. I'll bring all the enthusiasm you need.
Mr. Fletcher. There you go.
The Chairman. But we're going to have to do again is try to
see if we can distill out and we heard a little bit of progress
today on the cost. We heard a little bit of progress on this
process question and whether there were, you know, ways to pick
up on Mr. Whitman's, you know, point about trading improved
water quality for a share of the water for off-project users.
Mr. Gentry, to his credit said, conceptually there's
something to work with.
So we're going to keep trying to pull these kinds of
concepts out. I think what I'd like to go to next is a question
for the off-project people, again by way of trying to see about
some prospects for compromise.
Now you all, Mr. Mallams and Mr. Nicholson, to your credit
when I was there, told me that you agree with most of the
agreement that's been reached to date. Those were your words
with respect to the agreements reached to date. You agreed with
most of it.
Could you lay out for the group what that means? Because I
think if we can get on the record what most of the agreement
means to you all, because you've indicated that you support it.
That's means that we've got, hopefully, a handful of other
issues we've got to resolve.
So why don't you take a crack at that, Mr. Mallams, because
I thought that was constructive when you all said it in Klamath
Falls. It would, again, give us something to work with this
morning.
Mr. Mallams. Thank you.
I guess what I'd ask is maybe can I have a very large
eraser to work on a little bit.
The Chairman. But before you use your eraser. State what
you are supportive of and what your comment meant that you
support most of it before you start erasing it because I'd like
to hear what it means when you say you support most of it.
Because I thought that was very constructive. It would be good
to have that on the public record.
Look, this is not a star chamber proceeding here. Alright?
We're not grilling you like you're under oath.
But I think all of you understand that-coming here for a
hearing like this-words mean something. The whole idea is to
try to see if we can come up with some new ways to crack this
open and get this resolved.
So if you would, Mr. Mallams, like you did in Klamath
Falls, tell me what it means when you say you're for most of
the agreement.
Mr. Mallams. I think the basis of the whole agreement is
that the parties got together. That's where my biggest optimism
is. They came to the table and they got together and they have
relationships that have been built that I think will withstand
some changes yet to be made.
Everybody says that this is not a perfect agreement.
The Chairman. But you don't want to go into the features of
the agreements so we can have that on the record that you're
supportive of?
Mr. Mallams. I'm supportive of the prospect of having the
same type of program in the Upper Basin that the project has in
their area, certainty of water to an extent. The difference
would be the project certainty comes off the back of the Upper
Basin irrigators. So that needs to be realigned.
But the prospect or the concept of that certainty of water
did exist in the 2007 version of the KBRA. That was all taken
out. We need to go back to that to where----
The Chairman. So what was in the 2007 version of the KBRA
that you'd like put back?
I'm trying to get us to talk more specifically.
Mr. Mallams. I'd like to defer to Roger Nicholson. He was
involved intimately and knows that part.
The Chairman. OK, Roger.
What was in the KBRA, the 2007 version that you and Mr.
Mallams would like put back?
Mr. Nicholson. I think that what was in the KBRA for the
parties that participated was water surety restoration and
meeting the needs of the various stakeholders and with
everybody compromising. I think those are very important
points.
But I have to add that there are first, Senator, in our
Klamath Falls meeting I said I probably could support 50
percent, not the majority of what was in KBRA. What I can't
support----
The Chairman. Tell us the 50 percent you're for because I
was quite certain and wrote it down that you supported most of
it. But for purposes of government work if we want to have a
debate between 50 percent and most, fine.
Tell me the 50 percent of the KBRA-to the extent you would-
the specific features that you support because it will help us,
in effect, take those off the table.
Mr. Nicholson. I would definitely support the 30 thousand
acre foot as a contribution from the Upper Basin as called for
in the KBRA document. But I want to point out that under a
great deal of heat I carried that message forward to the Upper
Basin, even though we were denied representation, I carried
that forward. I got approval of our people to support that 30
thousand acre feet.
But I wanted to point out when we carried forward and got
that approval the settlement concepts that were approved by the
consensus group called for water assurances there would be no
more further calls on the Upper Basin. We definitely supported
that concept.
The Chairman. OK. We will put that down and when you're for
it, if you could, please tick off the 50 percent that you want
to say you're for.
Mr. Nicholson. Say I'm for?
The Chairman. Yes.
Mr. Nicholson. Providing surety for water for all the
various parties and all the various parties giving and taking
and those provisions within the KBRA that do incorporate that.
As far as Section 16 which is huge for us, specifically
restoration is good, but it's vague. If it can be pinned down,
we could be supportive of a lot of 16, of Section 16.
The Chairman. Alright. Anything else? That's a couple of
provisions that you've indicated you feel comfortable with.
Keep going to the 50 percent.
Mr. Nicholson. If I would, could I speak of one that I'm
not comfortable with?
The Chairman. First, again, I have had a chance on a number
of occasions to hear what you're not comfortable with. What I'm
trying to do is see if we can go back and forth to try to find
some areas for common ground. So why don't we do this?
I'll make you a deal. You list what you're for and then you
can list what you're against.
Mr. Nicholson. I'm for restoration.
The Chairman. I thought that was the last point.
Mr. Nicholson. I'm for the provisions of that as far as it
goes for affordable power.
I'm for whatever relief the document did offer for, I
think, habitat conservation programs or whatever that would
provide some relief from Endangered Species Act.
Enforcement, I don't know how far they would go. I would go
further.
I'm for all of those 3 basic principles. That's what we had
hoped to gain from the document itself was water assurances,
affordable power and protection for Endangered Species Act.
The Chairman. Let's--do you want to add anything about what
you were not for? Because I said if you----
Mr. Nicholson. Yes, I would.
The Chairman. Go ahead.
Mr. Nicholson. Certainly the new environmental water right
that was called for under the KBRA. It is our view that that
project was afforded a water right in adjudication which was to
reflect historical usages. Adjudications are far and above what
they've ever used.
That environmental water right has turned around and become
an instant nightmare for the Upper Basin people on the basis of
calls there was 200 thousand acre feet given. The same people
from the State of Oregon, the exact same people that turned
around and were at that settlement table created an
environmental water right. Then went to adjudication and back
failed in our opinion, back failed to that, exactly the same
people, back failed to that.
Presently it's being enforced at the request of one of the
tribes. It's being enforced. It's being enforced with limited
licenses which we think is a misuse of limited licenses within
the State processes.
It's a nightmare that we warned about. I think it is here.
Who suffers meeting those obligations? Upper Basin people
suffer 100 percent of the time.
The Chairman. I was going to get into the, sort of, legal
processes relating to adjudication going forward with Mr.
Whitman, but in effect that was just touched on by Mr.
Nicholson.
So why don't you see if you can respond to Mr. Nicholson
and then describe the legal process relating to adjudication
going forward.
Mr. Whitman. Chairman Wyden, let me speak to the legal
process going forward first.
The comprehensive water right adjudication in the State of
Oregon has completed its first phase which is an administrative
phase. That phase included multiple opportunities for all
parties to put on their cases as to what their pre-1909 and
federally reserved water rights are.
First of all before an independent hearing officer,
completely independent from the Oregon Water Resources
Department and then again, before the adjudicator in the Oregon
Water Resources Department, who was separated from the Water
Resources Director and the folks working on Klamath Basin
restoration agreement.
So that's the administrative process that just completed in
March of this year.
The Chairman. How about bonds? What are the requirements
for posting bonds? People have been asking about that as well.
Mr. Whitman. Yes. Under Oregon law with the final order
from the Department, the State is now required to enforce the
rights that were determined in the adjudication.
There is a second judicial phase of the adjudication which
is just starting and which will likely take multiple years.
In the meantime there is an opportunity to put the final
order in the administrative phase of the adjudication on hold
through a stay and briefing on the stay has currently been
filed in Klamath County State Circuit Court. Essentially what
Oregon law requires----
The Chairman. That's, in effect, moving to the timeframe
for the court proceedings.
Mr. Whitman. Yes, that's right.
Oregon law basically requires that in order to get a stay
that the parties seeking the stay post a bond in the amount of
damages to the water rights that would essentially be put on
hold as a result of the stay. The parties are currently arguing
both about the legal aspects of that and the dollar amount
involved in that. The court will make a determination in the
next couple of months on that.
The Chairman. Let me go to you, Chairman Gentry, with
respect to some of these issues relating to adjudication. You
have succeeded in the adjudication process. To your credit,
when I was in Klamath Falls recently you indicated that you're
going to honor the agreement with the on-project water users
that guarantees them certain minimum water deliveries.
Given those senior water rights that you have, I think it
would be helpful to have you explain why you're willing to do
that.
Mr. Gentry. This is something that was certainly
deliberated amongst our members and our folks for quite a
while. We agreed very strategically to, in a real specific set
of circumstances and conditions, to apply our water rights in a
manner that would help us achieve our long term goals for
restoration.
The Chairman. OK.
So, as of today have you offered to enter into an agreement
with the off-project water users like the one that you have
with the on-project users?
Mr. Gentry. In previous discussions because of
confidentiality agreements, I'm not sure I'm at liberty to
really discuss the details, what we've discussed in previous
discussions to talk about it.
The Chairman. But generally, I mean, I'm sort of a lawyer
in name only.
Mr. Gentry. OK.
The Chairman. So, let's kind of operate with those limits.
Generally have you offered to enter into an agreement in
the past with the off-project users?
Mr. Gentry. I'm going to have to confer with--because I'm
recent to the council and I don't know some of the exact
discussions.
The Chairman. But, OK, then let me ask a different way. I
know that this can be asked.
Are you all still trying to get an agreement with the off-
project users?
Mr. Gentry. Yes, yes, we're, yes, we definitely were.
The Chairman. Good, that's encouraging.
What assurances and if you'd like to bring--is that the
lawyer in the back there? OK.
What assurances and benefits would the tribe need in order
to get an agreement with the off-project users?
Mr. Gentry. We would need continued support for the
elements of the KBRA that we negotiated. Removing the dams is
important to us. We'd need those assurances.
The Chairman. So, in effect, you're saying that the off-
project people would just have to support the KBRA in its
present form?
Mr. Gentry. Yes. I mean currently that's what our members
voted for and that's what we, and I as a representative of the
Klamath tribe, have authority to discuss. You know, as I
pointed out the KBRA does have that flexibility. We will
entertain----
The Chairman. I have the drift in terms of your position. I
got that.
Let me do a couple of other things as we try to move
through it.
Some questions for you, Commissioner Connor. When we had
the hearing on drought in this committee, you told us that it
was your high expectation that water will not be shut off to
the Klamath project this summer. Just so we can have it on the
record, is that still your view?
Mr. Connor. That is still my view.
The caveat when we had the earlier proceedings was whether
we were going to get a new biological in covering project
operations. We did secure that new biological opinion. It's a
joint opinion from NOAA fisheries and the Fish and Wildlife
Service, the first of its kind in its allowing project
operations to continue at a reduced level, but they will
continue and not be shut off.
The Chairman. OK.
What is DOI doing to help the off-project users? I hope you
can see a little bit of the symmetry in all this. You know,
we're trying to see if we can nail down to the greatest extent
possible ways in which we can try to help all the farmers in
the Basin.
It's almost along the lines of, you know, Mr. Brockbank, of
what we were talking about yesterday and discussed with
Congressman Walden. You know, our delegation wants to help all
the farmers in the Basin. So we've heard some encouraging news
with respect to the on-project folks that their water will not
be shut off. What are you all doing as of now to help the off-
project users?
Mr. Connor. Quite frankly today our authorities are fairly
limited on what we can do for off-project folks. I think some
of the steps we're taking with rate relief for on-project water
users could be, with authority----
The Chairman. I know your authority may be limited. But
tell us how you might creatively use those limited authorities
to help the off-project users, given how serious this situation
is and Mr. Mallams and Mr. Nicholson have talked about.
Mr. Connor. I still think we're looking at, with respect to
the shut offs and the lack of access to pasture land, there's
limited opportunities. I still think we're evaluating things
from the Fish and Wildlife Service's perspective that may be
available as far as use of lands.
The Chairman. Tell us what may be available. Again we're
kind of trying to tease out all the possibilities so that we
can get them on the table.
Mr. Connor. It's pretty limited. I think we've looked at
BLM lands where there's some cattle could be moved there or
Forest Service. I don't know that we're finding the good
opportunities there. I think we're still looking at the service
lands.
The Chairman. OK.
Now with respect to the refuge, what's the situation there
and what are the possibilities for dealing with the refuge and
the concern there?
Mr. Connor. The refuge has no guaranteed water this year
because of the hydrologic conditions. We will still look for
opportunities there. The lease lands within the refuge have
access to some project level supply so we'll get some water
there.
We will continue to look operationally if there is some
available water. That's what we've historically done over the
last couple years. It will be limited. The refuge will suffer.
It's in one of its driest conditions over the last 70 years.
The Chairman. OK.
Ms. Hyde, given the realities that you've heard this debate
bring once again this morning, what do you think the next steps
are for trying to bring people together? You indicated to me
when I was in Klamath Falls. You said it again this morning
that you want to be somebody who helps to bring people
together. I think given your family's history, and I noted your
comments trying to make peace for your 9-year-old to have that
kind of role model . . .
Ms. Hyde. Yes.
The Chairman. What do you think you can do to help us break
some new ground and move ahead?
Ms. Hyde. I think we have a historic opportunity right now
to move ahead. I think I'm encouraged. There's meetings with
Mr. Nicholson and myself and folks in the Klamath tribes even
today with--that I think John Besdeck from Interior will be in.
I'm encouraged by that. But I do not want that to become
some sort of an isolated----
The Chairman. What are the ideas you're discussing in these
meetings that you're most encouraged about?
Ms. Hyde. I think what I'm most encouraged about is first
of all, that there's attention. One of the other problems we've
had in the off-project is we have fallen into the back waters
behind biological opinions, the ongoing crisis elsewhere. So
maybe we haven't gotten the same level of attention that other
parts of the Basin have. Not out of ill intent, anyone's ill
intent, but just out of the reality of limited resources to
deal with stuff.
So I think what's happened is it's become extremely clear
that we are, kind of, a target zone that needs to be dealt
with. So I'm encouraged that we have a lot of principles that I
think we can agree on. I know that, for example, Mr. Nicholson
has provided some very good ideas to settlement approaches in
the past that are some of the basis----
The Chairman. What are his settlement ideas that he's
proposed in the past that would be attractive to you this
morning?
Ms. Hyde. I think the number, the water use retirement that
he mentioned is something that has pretty, you know, at that
level of 30 thousand acre feet, has a pretty good consensus
across different factions in the off-project. I think the fact
that we're coming together and have the full attention of you,
of the Governor, of Interior and also this very serious
situation of, you know, potentially many animals going without
feed this summer. I think it's very right for us to address.
I think that I'm encouraged by the riparian restoration
component of this because it's not that onerous for us as land
owners, as Roger has mentioned. They've done amazing work in
the Wood River Valley on fencing and well, how do you say it?
Help me.
Fish screens, thank you.
Chairman Wyden. It's always a good sign when one side says
to the other, how do you say it?
Ms. Hyde. How do you say it? I know.
The Chairman. Have you worked out how you want to describe
it?
Ms. Hyde. Fish screens.
The Chairman. Fish screens, yes.
Ms. Hyde. Yes.
But anyway, I mean, I think some of these things that we
have allowed to divide us don't need to because they're based
on best management practices that those of us who are in
ranching and are awake today, understand need to happen along
our streams. They dove tail very well in with things like
general conservation plans where we do the best that we can
under the Endangered Species Act to protect ourselves under the
law, to the best of our ability. Those things are built in also
to this riparian restoration type thing.
So I'm just encouraged though, and I'm--but again back to
how do we reach everyone? Because Roger doesn't reach everyone
in the off-project and neither does my group.
So my concern is is that there are very concerned families
out there today and we're getting messages from them back from
home, you know. Shutting down Whiskey Creek. We're, you know,
we've got people saying I won't make it through the summer.
People are very scared. How do we bring them into the--how
do we bring those families in and let their fiercely
independent selves represent their private property rights,
their water rights in a fair process that gets us to a
settlement?
It is absolutely doable. We have worked for years with the
Klamath tribes. The fact that they have shown the good will
that they have to the Klamath project, to settle, just is
another reason why I believe that they fully intend to work
fairly with us within the water balance and the KBRA. I hate to
say it.
The Chairman. We're going to bring those folks at home who
are hurting, just as you've described, into the discussion. I
can have as many town hall meetings as people think are
helpful.
What we're going to have to do is find some additional
kinds of steps. We've been able to get a few out already in the
last couple of hours in order to really bring people into that
discussion and stay in the discussion until we get this done.
That's what I'm committed to doing.
I want to give some people on some issues that we haven't
had a chance to get into.
I want to ask you, Mr. Brockbank, on the dam removal
question. My understanding is the company is making what
amounts to a business decision here. That this is not some kind
of ideological kind of judgment, but a business decision that
is in the best interest of the company and the rate payers for
the long-term.
Can you just walk everybody through how it is that you all
reached that point?
Mr. Brockbank. Sure, Senator.
As you probably know the colleagues around the table
certainly know, for several years we set out to relicense this
project. But in the spirit of collaboration after many years
with lots of input from 2 different Administrations and
Governors of Oregon and California, it became apparent that the
policy decision and the policy preference of these government
parties that regulate our project, they wanted to see dam
removal. To their credit they said, how can you, as in a
regulated utility, get comfortable from a business perspective
with dam removal?
So we laid out several criteria that were important to us,
fundamentally, making sure that the decisions that were made
would protect our rate paying customers from unforeseen costs
and risks. We were able to do that through the Klamath
Hydroelectric Settlement Agreement. We're quite comfortable. We
believe it's preferable to the alternative.
The Chairman. Alright.
Mr. Addington, we really haven't brought you in to the
question part of this. I think it would be helpful to have on
the record why you all, with the water users, decided that
negotiation and the settlement and the previous, you know,
agreements we've been discussing today was the way to go on
these issues.
Mr. Addington. Thank you, Mr. Chairman.
You know, as been noted and noted by yourself, 2001 our
water supply was shut off completely due to the, excuse me, the
Endangered Species Act. We were angry about that. There were
many hard feelings and hard feelings with people in this room.
We went through many efforts to try to change that. We
litigated. We came back to people like yourself and pounded on
your desk and demanded that something be done to solve our
problem. Then we watched as the tribes and the conservation
groups and the other parties did the same thing independently.
We didn't see progress being made. We tried public
relations. We tried a number of things to get our water, to get
what our need was, independently.
I think at some point you start looking around. We were,
you know, we were back here testifying for reform of the
Endangered Species Act. We thought that was the solution to our
problem.
You know, that did not occur. Then we started thinking, big
picture. You have an adjudication. So water supply is not just
about Endangered Species Act, it's about water rights. It's
about who has a priority date.
So to sum it up we sat down in a room and we looked around
that room and there is every party in there that has anything
to do with our ability to get water. We said, now's our chance
to try to work something out. We have to be a lot more
practical.
I give a lot of credit to my board of directors, who lived
through some terrible times and who made the decision to be
more practical about it.
The Chairman. So here's where we are, folks.
We're going to have a vote in just a couple of minutes, in
fact a series of votes on immigration. I want to just reflect a
little bit on where we are.
At a minimum, apart from the fact that I've again seen a
lot of good will around here, I can find 4 positive
developments in terms of where we've been in the last 2 and a
half hours.
PacifiCorp helping to lower rate payer costs. That is
helpful.
The California commitment on the funding question.
Mr. Whitman's discussion about the opportunity to trade
water quality for a share of the water.
Mr. Connor on telling us we can find, in effect, reduced
costs and that he's looked at some ways to lower this $250
million, essentially, from where things were originally
projected. Based on the question I was asked earlier about what
it would take to help move things along, nobody seemed to jump
up in violent protest at the idea of maybe a quarter or a third
of the cost being further reduced. We can do that.
Here's the point. A lot of you have said Ron, I'd really
like you to crack heads. Just bring us all in and crack heads
until everybody just sort of screams no mas.
That certainly is part of the legislative discussion. We
are going to have these discussions. We're going to be
accelerating them. They're beginning immediately.
Ms. Hyde noted that there were some additional ones that I
wasn't even aware of.
I'm going to bring in the Oregon delegation just as you all
have asked for.
I said I'd talk with Congressman Walden specifically last
night, Mr. Brockbank, with respect to this rate payer issue
because the Congressman has a great interest in this. This is
his District. He has correctly said, we don't have a solution
until we address the needs of the entire Basin.
So we're going to continue in that kind of way.
But we've got to and I didn't mean to give everybody a bad
time. I guess I probably started by inflicting some of that on
Mr. Nicholson when he gave his first position with respect to
needing water as off-project users because I understand that.
I'm there. You've got me. It's not a debatable kind of
proposition.
But we cannot accelerate what we need to do to get a
solution if we just rehash all the stuff we've already said.
It's why, when I believe it was Mr. McCarthy brought up the
Farm bill in 2002, I could have basically done a filibuster of
how incredibly exacerbating it was that we had a chance for
$175 million, not to be prescribed from Washington, DC, but to
bring parties together and do everything that all of you are
talking about.
Mr. Mallams, you mentioned the part about storage. Mr.
Whitman and you were having a very constructive discussion
about what could be done and what couldn't be done. I think it
was fair to say we were all intoxicated more than 10 years ago
about the possibilities for water storage. The idea was to use
that money and get going.
But the point is that's been done. That's been done. Where
I come to this now is, as I talked about with all of you in
Klamath Falls.
With Chairman Gentry.
Ms. Hyde, the night before the town hall meetings.
Mr. Mallams, Mr. Nicholson, after the meeting.
I think a lot of good work has been done already. I just
want that understood. A lot of good work has been done.
If we had achieved political consensus, however, no matter
how you feel about that, we wouldn't be here this morning. So
we've got more to do. I want to commend all of you for making
the long trek here. I think we've made some tangible progress
this morning.
We obviously have a lot more to do. But a couple of you
were wondering about my enthusiasm for this cause. I hope you
can see on the enthusiasm scorecard, my rating would probably
be off the chart. I mean, this has gone on long enough.
Just as you all have said, and as Mr. Nicholson and Mr.
Mallams have said, there are a lot of families hurting right
now. They are probably watching some of this being streamed
live and saying who is going to stand up for me. Who is going
to try to really bring people together and get this done?
I think all of us, with the good--will, particularly of
Senator Merkley, Congressman Walden.
Senator Murkowski had a lot to do here this morning, but
she wanted to put in an hour because she understands that this
is a proxy. This is a proxy for some of the huge water issues
in our country.
So if you all will continue to stay at it despite whatever
position you've taken in the past, this Committee is going to
help bring people together and get a solution to this.
So I thank you for it. The meetings, the follow up
meetings, as you all know, are going to begin virtually
immediately.
With that, the Committee on Energy and Natural Resources is
adjourned.
[Whereupon, at 12:07 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Gregg Addington to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. For better or worse, resource management in the Klamath
Basin is substantially a product of federal actions and policies over
the last 150 years, and the federal government must play a significant
role in implementing a path going forward. Our region--like other parts
of the American West--contains vast tracts of government-owned land,
generally open to all Americans, and land and water resources
management has been defined by federal policies to a significant
extent. Specific reasons why I believe there is and will remain a
federal responsibility in the Basin include:
The Federal Government, through the U.S. Forest Service and
(to a lesser degree) Bureau of Land Management, owns and
manages much of the land resource throughout the Klamath River
watershed.
The Federal Government entered into a treaty with the
Klamath Tribes in 1864 making certain concessions and
commitments that do not expire. The Federal Government
established two other Indian reservations by executive order,
and overall there are six federally recognized tribes in the
Basin. There are fishing and/or water rights for fish
recognized for some of these tribes in some locations. Under
Federal law, parts of the Klamath Tribes' reservation were
allotted to tribal members for agriculture and are now used by
both tribal and non-tribal persons for that purpose.
The Federal Government authorized the Klamath Reclamation
Project in 1905, under the authority of the Reclamation Act of
1902. Federal policies actively encouraged settlement in the
area and the development of irrigated agriculture. Water is
managed by irrigation districts and other public and private
entities that hold repayment contracts with the United States.
The Upper Basin's communities rely on the agricultural
development and economy supported by this activity.
The Federal Power Agency (predecessor of the Federal Energy
Regulatory Commission) granted a license to PacifiCorp's
predecessor, the California/Oregon Power Company to operate a
hydroelectric project in the Klamath River. The hydroelectric
project consists of multiple dams and appurtenant facilities,
over which FERC has jurisdiction.
Congress and/or Presidents created six national wildlife
refuges in the Upper Basin that co-exist and are, for the most
part, managed in conjunction with surrounding agricultural
operations.
The Klamath River Basin Compact was ratified by the states
of Oregon and California in 1957 and the 85th Congress of the
United States consented to the compact in Public Law 85-222,
which was signed by the President on August 30, 1957.
Generally, the Compact sought to address then-current issues
concerning water rights and priorities between certain uses and
concerning further exports of water from the Basin.
In 1964 Congress enacted The Kuchel Act (Public Law 88 567)
that disallowed homesteading of the ``lease lands'' (lands that
had been conveyed to the United States by Oregon and California
and that were originally intended for homesteads) within
refuges in the Klamath Reclamation Project area in order to
``stabilize ownership'' of land within the Klamath Project and
to ``preserve intact the necessary existing habitat for
migratory waterfowl.'' The Kuchel Act provided that certain
public lands within refuge boundaries would, consistent with
proper waterfowl management, continue to be leased for
agriculture. Additionally the Act generally provided that all
of the lands within four refuges were to be ``administered for
the major purpose of waterfowl management but with full
consideration to the optimum agricultural use that is
consistent therewith.'' The Kuchel Act and its history
represent a unique, successful, federal-nonfederal partnership,
but unfortunately one that is poorly understood.
Congress has designated a stretch of the Klamath River under
the Federal Wild and Scenic Rivers Act.
Federal laws and regulations such as the ESA and Clean Water
Act have broad implications for the use of land, water and
hydroelectric resource in the Basin. The implementation of
these laws alone constitutes a major federal presence in the
Basin.
The above federal actions are sources of conflict. Over time,
acting under independent policy initiatives, the federal government has
promised too many things to too many interests, undercutting
implementation of some policies with the implementation of others. The
resulting conflicts among resource users regularly generates a crisis
of some kind in the Basin, and the federal government is called upon to
help manage or mitigate the adverse effects of its policy decisions--
often by providing funded disaster relief to one community or another.
It would seem to be a prudent use of time and resources to try to fix
problems for the long-term, thereby ultimately saving the taxpayer a
significant amount of money over time. Achieving a comprehensive
solution to the Basin's problems is impractical without federal
authorization, participation and financial support.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. Best Case--The best case scenario for the Basin for the
future would be rapid approval and implementation of a consensus-based,
legally binding, durable and enforceable settlement agreement that
establishes what each group of affected stakeholders can expect for the
long-term, particularly related to water resources. The KBRA is such an
agreement.
From the standpoint of Klamath Project irrigators, the KBRA
includes provisions for an On-Project Plan (OPP), which provides an
opportunity for these family farmers and ranchers to move from a
``reactive'' mode, focused on addressing regulatory concerns, to a
strategic mode that provides a defensible road map for accommodating
variations in Klamath River water supply. This will support and promote
viable agriculture (on and off Project) in the Basin, which in turn
will boost the local economy and the environment. The OPP is intended
to provide or facilitate the utilization of predictable and reliable
water supplies, albeit with limitations (which should be manageable) on
the total amount of Klamath River water available, particularly in the
drier years.
It is essential that there be a clear path for allocating water
equitably that is not constantly influenced by the changing regulatory
dynamics or personnel and priorities of the day. This is not to say
there won't be some conflict and ongoing dialogue about how best to do
things. But it would mean significantly better predictability and
security, for everyone, and would create processes whereby disagreement
could be managed effectively and efficiently.
Worst Case--As far as I am concerned, the worst case scenario is
that we continue doing what we are doing today, which amounts to death
by a thousand cuts and a progressive downward spiral for the Basin's
small rural communities.
Certainly irrigated agriculture cannot assume it will fare well
without a significant change of course in the Basin, but most likely
neither will any other interest including refuges and listed species.
Today the Klamath Reclamation Project faces annual uncertainty and
shortages of varying magnitude. With the onset of the Klamath Basin
Adjudication's Final Order of Determination, the Upper Basin ``Off-
Project'' agricultural community is also facing severe hardship for the
first time.
The Klamath Project annual operations are historically and
currently characterized by insecurity. As things stand, irrigators may
not know what their water supply will be until April (or even much
later, as has been the case in years since 2001), and uncertainty can
persist through the season. This makes planning for the growing season
very difficult. Further, if there is a water shortage, it is not
allocated according to any particular plan or logic (other than
contractual priorities that the Bureau of Reclamation has identified,
which foster internal conflict). Additionally, for decades, local water
users have spent significant time and financial resources monitoring
and challenging annual Klamath Project operations plans influenced by
agency biological opinions, as have others.
The status quo--rooted in regulatory uncertainty--remains, with
potentially greater risk to Project water users. Irrigation districts
and their water users will be left with (a) addressing ESA issues year
to year, likely through conflict and litigation (initiated by
themselves or others), as they have in the past; and (b) exposure to
greater uncertainty with respect to future effect of tribal rights, a
point driven home by recent developments in the Klamath Basin
Adjudication.
Under the status quo, or worst case scenario, detractors of
irrigated agriculture will continue to hound Congress about permanent
downsizing (i.e. fewer family farmers) as the solution. Extremist
groups from outside the Basin will continue to demand that National
Wildlife Refuges receive a priority on water over agriculture, even
though this is not consistent with state water law. Ultimately everyone
will lose.
Question 3. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. In my view, other practical methods to make better use of
water supplies have not been identified. Some have tried to make a case
for other alternatives, but they are less than compelling arguments
given the situation in the Basin. The assumption by some appears to be
that if you just say there are alternatives, then that will simply
suffice. Who supports these ``alternatives''? Is the necessary
political support from other key stakeholders, states, and the federal
agencies in place to make these options a practical reality? I will
address a couple of specific alternatives below:
Storage--New water storage could increase the water available for
diversion during the irrigation season by creating additional supplies
under a new (junior) water right. Klamath Water Users Association
strongly supports new water storage, as do I personally. However, we
have become realistic, and there is no basis to believe that our
current problems can or will be addressed through new water storage.
Although increasing the ability to store water appears to be a
straightforward proposition, developing storage today is complicated by
significantly high planning and construction costs; challenges with
state and federal regulatory laws; lengthy, expensive, litigious and
uncertain state and federal permitting processes; lack of sufficient
local, state and federal funding; and a lack of water to store.
The competing interests for water in the Basin--irrigation (on-
and-off Project), the National Wildlife Refuges, instream use for
tribal resources, specifically rights for the benefit of the Klamath
Tribes identified in the Order of Determination in the Klamath Basin
Adjudication, instream use for endangered Lost River and Short nose
suckers and threatened coho salmon-- have created a situation where
there appears to be no extra water to store except in the wettest of
years. Additionally, building storage without addressing other issues
that affect water availability would solve nothing and cost billions.
Several reports have been prepared regarding potential storage
projects within the Upper Klamath Basin. Two key reports were compiled
by Reclamation:
Bureau of Reclamation (Reclamation). 2011. Initial
Alternatives Information Report, Upper Klamath Basin Offstream
Storage Investigation. Available at: http://www.usbr.gov/mp/
kbao/projects/
Upper__Klamath__Basin__Offstream__StorageInvestigation.pdf
Bureau of Reclamation (Reclamation). 2010. Appraisal Report-
Long Lake Valley Offstream Storage, Klamath Project, Oregon and
California, Upper Klamath Basin Offstream Storage (UKBOS) Study
Many additional reports and information have been compiled and
reviewed for storage projects and facilities within and near the
Klamath Reclamation Project. Most of these reports and projects have
been summarized in the two reports identified above.
One of the most popular and common storage projects talked about in
the Basin is Long Lake Valley (LLV). As previously described, appraisal
level studies were completed by Reclamation for LLV Reservoir in 2010.
These studies recommended a potential reservoir capable of storing
350,000 acre-feet of water. The LLV Reservoir was identified as a
third-tier (low) priority item with additional barriers. Reclamation
acknowledged that an alternative scenario may be a potentially viable
storage option; however, this scenario would not provide additional
supplies to meet agricultural demand. The preliminary benefit/cost
ratios identified by Reclamation were ``very poor'', ranging from
0.01:1 to 0.04 to 1, and Reclamation did not recommend that the LLV
alternative move forward to feasibility-level studies.
In addition, the water right permit filed by Reclamation for
storage at LLV Reservoir was recently dismissed by the Oregon Water
Resources Department due to the limited likelihood that this storage
project would proceed. The appraisal report did not discuss how the
state process of adjudicating water in the Basin would likely further
limit the amount of water legally available to be stored.
In addition to LLV Reservoir, dozens of other potential storage
projects have been investigated by Reclamation and others. One of those
studies--completed over 50 years ago--suggested that the proposed
Boundary Dam, on the Lost River, could provide additional water supply
and power benefits to Klamath Project irrigators. This study was
included as an attachment to testimony provided by Klamath County
Commissioner Tom Mallams for the recent Senate Energy and Natural
Resources Committee hearing. Unfortunately, this report was completed
in 1962, a decade before significant federal environmental laws--
including the ESA, CWA and NEPA--were enacted. Thus, the feasibility of
building a new dam now--five decades later--in an era of intense
regulatory oversight and expense, in a watershed that hosts ESA-
protected Lost River suckers--was not conducted, which casts
significant doubt on the applicability of that report in the modern
era.
Dredging Upper Klamath Lake--Many studies have been conducted for
dredging Upper Klamath Lake (UKL). Environmental implications for the
endangered Lost River sucker and shortnose sucker, water quality
impacts, and significant costs are most commonly identified as
complicating factors associated with implementation of this option. A
Storage Investigation recently conducted by the Klamath Water and Power
Agency determined this storage option as ``not currently viable''.
Still, some argue this is a simple solution to the problem. For
example, Klamath County Commissioner Tom Mallams included as an
attachment to his testimony to the Senate Energy and Natural Resource
Committee, a thesis from a Washington State University graduate student
regarding dredging of Upper Klamath Lake. Mr. Mallams suggests this as
a viable water supply enhancement alternative, along with cutting
Juniper trees in the region.
While this student paper provides an interesting theoretical
discussion about the potential economic benefits of a massive dredging
project, several key engineering, regulatory and other technical
questions remain unanswered. Some of these critical issues include:
Enormity and questionable yield of the proposal--The student
paper assesses scenarios where 250,000--350,000 acre-feet of
sediment would be dredged from the bottom of the lake. This is
an enormous project--equal to between 400 and 565 MILLION cubic
yards. A typical dump truck can carry about 8 cubic yards,
which means that 50-70 MILLION dump truck loads would be
required to develop new, lake bottom storage that would
essentially be ``dead storage'' (i.e. below the existing outlet
of Link River Dam, which controls the existing storage in UKL).
Questionable disposal location of spoils--Where would these
tens of millions of truck loads of dredged material be
deposited? The study assumes that the ``sparsely populated''
areas north and west of UKL would work for this purpose. These
lands are owned by the Forest Service, for the most part, and
the study assumes that those lands will be available--100,000
acres--to place several feet of lake-bottom sediments. Also, no
discussion is made of the potential obstacles such a proposal--
on federal lands--would face. Environmental organizations in
the past 20 years successfully stopped a proposed ski resort in
this same location, based in large part of perceived impacts to
species protected by the ESA. Assuming that 100,000 acres of
U.S. Forest Service land would be available at no cost and with
little or no obstacles is wishful thinking.
High project cost--The paper estimates the cost for this
scenario is in the range of $1 billion (environmental
mitigation and realistic spoil disposal costs not included),
far more than the price tag associated with the KBRA and with
no additional key components to water supply security such as
addressing tribal rights, ESA and state water right
adjudication outcomes, or other issues addressed by the KBRA.
Environmental compliance challenges and costs--While the
paper discussed the impacts of the ESA on management of UKL, no
discussion or detailed analysis addresses the incredible costs
and challenges associated with complying with the National
Environmental Policy Act (NEPA), satisfying Clean Water Act
permitting requirements, and securing an ESA ``take'' permit
for this project. The U.S. Fish and Wildlife Service, Klamath
Tribes, State of Oregon, and environmental organizations would
likely be very apprehensive about the potential impact that 50
dredges would inflict on lakebed habitat that supports two
endangered fish species. The likelihood and costs associated
with securing federal permits for this very ambitious project
are not assessed in the student's paper.
Questionable storage benefits--A limiting factor to Klamath
Project water supply has been the need to maintain surface lake
elevations for two ESA listed species in Upper Klamath Lake.
Similarly, in the Order of Determination in the Klamath Basin
Adjudication adopted this year, tribal water rights are
recognized based on surface elevations in Upper Klamath Lake;
in other words there are water rights to the maintenance of
lake levels, which could constrain irrigation water
availability. The stated reasons for these minimum elevations
include access to spawning and other habitat. Dredging would
make the lake deeper but would not obviously remove the need to
maintain surface elevations, and would not alter any rights the
Klamath Tribes have to the maintenance of water surface
elevations. In other words there could still be restrictions on
lake elevations and the additional storage would be of no
benefit. If a billion dollars is spent to dredge Upper Klamath
Lake and create more storage, it would seem like it ought to
solve a problem. It may simply create more water in storage
that could not be used.
None of the previously motioned ``alternatives'' provides any
analysis about how building more storage would affect the Klamath Basin
Adjudication outcomes that are currently causing water to be curtailed
to off-project irrigators. These alternatives do not address ESA
issues, nor do they speak to the stipulated settlement that the Klamath
Project has with the Klamath Tribes that provides assurance related to
water supply. These so-called ``alternatives'' also do not address
other critically important issues that affect water supply such as
federal tribal trust obligations or extreme drought years.
Other often mentioned alternatives include repeal of the ESA and
Clean Water Act. The family farms and ranches in the Klamath Basin
don't have the luxury of pretending that such actions will occur and
solve our problems. We must--and will--continue to work with our
federal elected officials and urge that they find ways to modernize the
ESA and CWA. However, in our view, sweeping changes to the ESA will not
be made in Washington, D.C. any time soon. Saying one doesn't like the
ESA or the CWA is a sentiment, not a strategy. Sentiment should not be
the basis for formulating public policy and it cannot be the basis for
the day-to-day economic decisions of farmers and ranchers. We have
chosen to deal with the ESA on its own terms, not pretend that it is
going away. The critical water challenges we face here in the Klamath
River watershed remain, and we need to be looking at real solutions
that help solve those problems--now.
Question 4. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. The agreements themselves do not automatically terminate at
a given point in time. They exist as binding agreements on parties. We
support the agreements and have seen benefit from being part of the
process that it took to develop them. Realistically, although our
coalition remains strong, it is strained due to the lack of progress in
Washington. There are time-sensitive activities in the agreements, and
we will not be able to find ``work-arounds'' indefinitely. At some time
in the future, if Congress does not act, things will likely break down
and parties will revert to defending their own interests at the expense
of others. I can't define for certain when that would happen. A major
concern is that it will become ``too late'' without any advance notice.
Question 5. What is the likely outcome of the recent call on water
made by the federal government and the tribes? For instance, how would
it affect project irrigation allocations for the remainder of the water
year? How might it affect off-project irrigators and ranchers?
Answer. In brief, the water right calls made this year for
enforcement of senior water rights have adversely affected surface
water supplies in ``off-project'' areas. The Project calls are expected
to have a positive affect for irrigation allocations on lands in the
Klamath Project that are served with water from the Klamath River and/
or Lake, although the magnitude of that benefit has not yet been
determined.
The water right calls are based on senior rights recognized in the
Oregon Water Resources Department's ``Order of Determination'' issued
in March of 2013. The calls implement the ``first in time is first in
right' principle of western water law. It is most widely known and
reported that the Bureau of Indian Affairs and the Klamath Tribes have
made ``calls'' based on instream water rights that the Order recognizes
for the benefit of the Klamath Tribes. In addition, many of the
irrigation districts in the Project, particularly those that divert
water from the Klamath system, also exercised their senior water rights
under state law by making ``calls'' and the Bureau of Reclamation made
essentially the same calls based on its interests in Project water.
Many hundreds of thousands of dollars (at least) have been invested to
protect and prove these rights against others who opposed them. We
believe that water that enters the system as a result of water rights
enforcement should be available for senior appropriators, in this case,
Project irrigators. The challenge is in properly accounting for any
additional inflow as a result of a call. It is our understanding that
the U.S. Geological Survey will be using information from their gauging
stations to analyze the inflow and determine what this quantity of
water is.
We believe that increased water to the system must be added to the
Project allocation, which this year is likely 30 percent less than what
is needed. The Project call that has been made is for live flow and we
expect that a specific call of this nature can be enforced when inflows
are below Project demand. We believe that the Klamath Project water
right is senior to approximately 82,000 acres in the Upper Basin, out
of an estimated 150,000 total irrigated acres in the Upper Basin off-
project area.
Certainly the exercising of water right calls for the first time
ever in the Upper Basin is having a negative effect on water users with
junior water right priority dates. It is clear that all parties
involved should do all we can to avoid or minimize this kind of impact.
The outcome of the Adjudication should not have surprised anyone
after 38 years of processes and proceedings in the administrative
phase, including Administrative Law Judges' proposed order that
occurred over a period concluding nearly 18 months ago, and a final
order from the state this March. Nevertheless, some parties were
surprised by the outcome, notably the opponents of the KBRA-KHSA,
including leadership from Upper Basin off-project groups. These
individuals have vehemently rejected the settlement approach and
instead demanded that state water right adjudication be the mechanism
that dictates how to share water. Many of the family farmers and
ranchers who are now experiencing adjudication-related water
curtailments heeded the advice of these leaders.
KWUA supports a comprehensive settlement agreement that improves
predictability and certainty for all irrigators, including those ``off-
project''. We always have. This does not mean that everyone does not
continue to have some risk associated with water supply. For example,
the most junior right holders may always have some amount of risk no
matter what kind of arrangements are reached, but that risk can be
dramatically reduced so as to be much less than it is today. We believe
the Klamath Settlement agreements provide the best, and frankly the
only, mechanism to permanently improve a currently intolerable
situation related to agricultural water supplies.
Question 6. Please summarize the proposed ESA listing and recent
decision regarding the Upper Klamath Chinook salmon. What was the
reasoning for this decision by NMFS? Do you agree or disagree?
Answer. In their petition to NMFS, the Center for Biological
Diversity, Oregon Wild, the Environmental Protection Information
Center, and The Larch Company alleged:
That new genetic evidence indicates spring-run Chinook
warrant distinction as separate Evolutionally Significant Units
(ESUs) from that of fall-run Chinook populations. Petitioners
reported that in the Central Valley, spring and fall-run have
already been designated as separate ESUs thus ``setting
precedent'' for designation in the Klamath-Trinity basins;
That the spring-run Chinook in the Upper Klamath and Trinity
Rivers ESU meet criteria (discreteness and significance) to be
considered a Distinct Population Segment (DPS);
That spring-run Chinook populations are important to the
overall viability of the Upper Klamath and Trinity Rivers
Chinook salmon ESUs to such an extent that poor conditions of
the spring-runs warrants listing the entire fall/spring-run
populations under the ESA.
After a significant review period, NMFS concluded that a listing
was not warranted. As for NMFS's reasoning, I would refer you to its
federal register notice which contains significant detail. However, to
summarize, NMFS concluded that after considering the best scientific
and commercial data available, the petitioned action (to list) was not
warranted. In reaching this conclusion, NMFS determined that spring-run
and fall-run Chinook salmon in the Upper Klamath and Trinity River
Basin (UKTR) constitute a single Evolutionary Significant Unit (ESU).
Further, based on a comprehensive review of the best data available and
consistent with a 1998 status review and listing determination for the
UKTR Chinook salmon ESU, the overall extinction risk of the ESU was
considered to be low over the next 100 years.
I believe these considerations and others were the basis for the
finding that the listing was not warranted.
Question 7. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative?
Answer. I believe that the effect of the settlement agreements on
the recently released biological opinion was an improved level of
cooperation and communication amongst federal agencies and
stakeholders, which resulted in an improved biological opinion. This
cooperation enabled the fishery agencies to develop a single
coordinated opinion from two regulatory agencies for three listed
species in the Basin. The settlement agreements relied on an atmosphere
in which parties with different interests or missions found ways to
work with one another respectfully and constructively. This extended to
federal agencies, and we perceive that it carried over into an improved
working environment amongst the agencies involved in the development of
the biological opinion. Aside from that, we believe the settlement
agreements are distinct and unrelated to the new biological opinion for
operations of the Klamath Project.
______
Responses of Troy Fletcher to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government has a trust responsibility in the
Klamath River Basin to the Yurok Tribe. This responsibility includes,
but is not limited to, protecting the Yurok Tribe's senior water and
fishing rights. Any activity within the Klamath River Basin has the
potential to affect the health of the Klamath River and its fisheries
resources. Any water diversions, habitat degradation, other land or
water management actions are of interest to the federal government and
the Yurok Tribe. The Congress and the Courts have acted to protect the
Tribe's senior interests in the Klamath River Basin (see Hoopa Yurok
Settlement Act 1988).
We also agree with the information provided by other witnesses who
have provided more detail as to the federal government responsibilities
(other than its trust responsibility) in the Klamath River Basin.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario would be one where the Klamath River
and the fisheries and other resources that depend upon it are healthy
and thriving. One where interests of up-stream communities could co-
exist with those of the Yurok Tribe and the conditions necessary to
improve the health of the Klamath River for benefit of everyone in the
Basin. The Yurok Tribe believes that the best path forward to achieve
this is through the Klamath Agreements. A best case scenario would also
be one where the entrenched opponents on all sides of various issues
come to the table once again and work to join those parties that have
provided a vision forward.
The worst case scenario is the status quo. We know what the status
quo means; uncertainty for all the Klamath Basin communities. It means
a continuing decline of the health of the Klamath River and the
resources that depend upon it. It means more crises throughout all the
Basin communities.
Question 3. What is the current status of tribal fisheries? Has
there been improvement in these fisheries in recent years?
Answer. The status of the species the Tribe depends upon varies by
species and year. The Basin's fishery has declined from different
species/runs returning in abundance through-out the year, to occasional
years when there is an abundance of one species (fall chinook) for
about 4 weeks out of year. The Yurok Tribe has only been able to have a
moderate or better fall chinook commercial fishery in five of the past
30 years. By any measure that opportunity is woefully inadequate. All
the other species of fish that the Tribe depends upon are in trouble.
Historically, there was an abundance of spring, fall, and late-fall
chinook salmon; coho salmon, summer and winter-run steelhead; lamprey;
eulachon, green sturgeon; and cutthroat trout. The run timing of these
species was so diverse that Yurok People could harvest anadromous fish
migrating through the lower reservation throughout most of the year.
Currently:
Spring chinook salmon have been blocked from most of their
historic spawning grounds by dams that have no fish passage.
One of the primary goals of the Klamath Hydroelectric
Settlement Agreement and the Klamath Basin Restoration
Agreement, is to return spring chinook to their historic cold
water habitat above the Klamath River dams.
Most of the current spring chinook production in the basin is
driven by Trinity River Hatchery production. The only remnant wild runs
left are in the Salmon and South Fork Trinity Rivers (SFTR); abundance
of these rivers has been at extremely low levels several most recent
years. For example, in 1964 the SFTR had more than 11,000 spawners
return, during several recent years abundance has fluctuated between
less than 100 to a couple hundred spawners.
Coho salmon are listed as threatened under the Federal and
state Endangered Species Acts (ESA). The abundance of coho
salmon is on an alarming trajectory toward extinction if
circumstances don't change.
Eulachon (also known as Candlefish) have nearly been
extirpated from the Basin and have been listed as
``threatened'' under the Federal ESA. Currently fishing for
these fish does not occur due to their extremely low abundance;
during several recent years no eulachon have been observed in
the river.
There is not an abundance estimate for green sturgeon,
however given the degraded condition of the mainstem Klamath
River and the extended period of time that sturgeon spend in
the river, there is much concern regarding their status.
There is also not an abundance estimate for lamprey
(commonly referred to as eels). Anecdotal information indicates
a substantial decline in their abundance. For example, Tribal
members fishing with a simple eel hook at the mouth of the
river historically harvested well over 100 lamprey in one trip
to the river. Currently 15 lampreys in a trip is exceptional,
with much fewer being the norm.
An abundance estimate for steelhead is also lacking, however
there is much concern regarding the status of summer-run
steelhead.
Question 4. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. At the request of Rep. Walden and others, the original cost
estimate of $1 billion for KBRA expenditures was reduced in 2010 by
$200 million (to $798 million), and the implementation period was
extended from ten years to 15. In fact, the Congress is now being asked
for only $300 million in new authority over the 15-year period, or $20
million annually. As Commissioner Connor has testified, and the
Congressional Research Service reported, the Government currently
spends $17-20 million annually on Klamath programs. If these funds were
expended instead to implement the KBRA, the Congress and the Department
of the Interior would contribute to restoration of the Basin, including
its fishery, and permanent resolution of long-standing competition for
its resources, including water. In addition, CRS has estimated that the
Department expends $17 million annually to address recurring resource
crises in the Basin. These expenditures could be avoided through
reliance instead on the balanced, flexible provisions of the KBRA. The
modest additional expenditures contemplated by the KBRA represent an
appropriate Federal commitment to the long-term health of the Basin and
its resource-dependent populations in Oregon and California. And, even
the $300 million figure could be further reduced if Secretary Jewell
and other Cabinet officials could be persuaded to make an even greater
effort to expand the list of existing government programs that could be
re-programmed to support the KBRA. It would be reasonable for Chairman
Wyden to make a direct appeal along these lines to Secretaries Jewell
and Vilsack and OMB Director Burwell and encourage them to try harder
and use their discretion, to re-direct funds accordingly.
Question 5. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. There are other agricultural diversions within the Basin,
especially within the Scott and Shasta Rivers, which have a substantial
impact upon fish habitat and associated fish populations. The effect of
these diversions upon the quantity of water in the main-stem Klamath
River is less extreme, but not trivial.
The ESA and State Fish and Game code are existing authorities that
could be used to minimize the negative effects of these diversions upon
fish populations.
The Yurok Tribe supports that no less than 50,000 acre-feet shall
be released annually from the Trinity and made available to Humboldt
County and downstream users as was provided for in the 1955 Act
regarding the Trinity River.
It is critical that water from the Trinity River be made available
during dry water years when in-river run size of Fall Chinook is
projected to be large. The Yurok Tribe and others have a serious
concern that water from the Trinity River is necessary to protect ESA
and other species of fish as they enter the Klamath River this fall.
Projected Fall Chinook run size returning to the Klamath River will be
the second largest. At the same time there the Klamath Basin is in a
dry water year. This combination of factors is a concern to the Yurok
Tribe that there is a risk of another fish kill in the Klamath River
similar to 2002. Everyone associated with the Klamath Basin should
share that concern.
Question 6. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. For the most part, the dam removal studies supported the
hypotheses that our biologists held regarding their effect to the river
and to fish production. For example, we believed, based on the
scientific evidence we had before the studies, that dam removal would
be of immense benefit to fish production and long-term viability
because of the expanded geographic range and access to areas of cold
water during the warm summer period. This was supported by the peer-
reviewed Chinook and coho salmon production computer modeling that was
done.
We also believed that the impacts from sediment would be moderate
to severe in the short term, but the effects would be short-lived. This
was also supported by the peer-reviewed scientific analysis done for
DOI.
Perhaps the most surprising finding was the finding that the
sediments did not contain significant amounts of any toxic substance.
Given the legacy upstream (lumber mills, etc. in the Klamath Falls
area), it was plausible that toxic substances of various types might be
found in the reservoir sediments. Thankfully, despite a rigorous
sampling protocol, no significant amounts of toxic materials were found
in the reservoir sediments, which greatly simplifies the removal
process.
Another surprise was that the Chinook models showed a very
significant response in production from opening areas under and above
the existing hydropower reservoirs, while at the same time, providing
flows under KBRA conditions. While a positive response was expected,
the Chinook modeling showed that it was possible that the increase in
Chinook salmon production from the Klamath might be greater than anyone
expected (80 percent increase in Klamath/Trinity basin Chinook salmon
production with dam removal and KBRA flows for the period 2021-2061
when compared with the no action alternative) This same study concluded
that there was a 97 percent chance of improvement of Chinook salmon
production under the dam removal with KBRA flows scenario compared to
the no-action. This study was important because it indicates that not
only will the fish benefit from dam removal and KBRA implementation,
but the benefit is likely to be very significant.
Question 7. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. The Yurok Tribe stands by the Klamath Agreements. The
relationships that the Yurok Tribe and others have created will
continue. At the same time, as the health of the Klamath River and the
resources that depend upon it decline, the Yurok Tribe will take
whatever actions necessary to restore and protect the Klamath River.
______
Responses of Leaf G. Hillman to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government has a legal and moral responsibility
to resolve the Klamath Crisis which it played a fundamental role in
creating.
The federal government owns and manages about half of the Klamath
Basin's 15,000 square miles. For the past 150 years, the federal
government has allowed and encouraged large scale resource extraction
industries such as gold mining and timber harvesting. The federal
government led and financed the development of irrigated agriculture
and provided incentives such as homesteads to non-native settlers to
the area. Irrigation projects led to a dramatic alteration of native
wetlands, river channels, and natural lakes forever affecting water
quality and fisheries. Over the course of the last 100 years, the
federal government permitted the construction of a series of dams that
comprise the Klamath Hydroelectric project that further damage water
quality and fisheries.
At the same time, the federal government permitted and encouraged
the displacement of the Klamath Basin's native tribes with policies of
forced relocation and the seizure of tribal lands.
Today, because of a 150 year track record of poor policy decisions
by the federal government, the Klamath Basin's diverse communities live
in a state of perpetual crisis. Put simply, the federal government made
too many promises to too many people. The Klamath's natural systems
have been asked to do too much. The result is an over allocation of
water and an ecosystem that has been degraded to its breaking point.
This point is evidenced by regular fish kills and blooms of toxic
algae. In recent decades, this has led neighboring communities to
engage in political and legal fights for their own survival with no
clear winner.
We assert that the federal government has a moral as well as a
legal obligation to address the problems that it played a fundamental
role in creating.
In recent years, the Klamath's diverse communities came to realize
that we all share a common destiny. This realization led community
leaders to map out a strategy to balance water use, restore fisheries
resources and water quality, but to do so in a manner that allowed both
fishing and agricultural communities to thrive. This strategy is
embodied by the Klamath Basin Restoration Agreement and Klamath
Hydroelectric Settlement Agreement.
We assert that enactment of the Klamath Agreements would be a
meaningful step towards meeting federal obligations and
responsibilities to Klamath communities as well as all Americans who
share in ownership of this national treasure.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario for the Klamath Basin is the
enactment of the Klamath Agreements. This would balance water use
between the environment and agriculture, dramatically enhance sport,
tribal, and commercial fisheries, and improve living conditions for
Klamath River tribes. The Agreements would stabilize local and regional
economies by reducing the uncertainties currently associated with
fisheries and agricultural enterprises in the region.
The worst case scenario is that Klamath communities continue down
the current path of seasonal crises of ever increasing intensity. Many
Klamath Basin businesses and families are already one drought or fish
kill away from economic ruin. Extinctions of rare and endemic species
will lead to the irreplaceable loss of our shared natural heritage and
biodiversity. Similarly, the cultural diversity of area tribes will be
at risk as cultural practices dependent on access to specific species
of plants and animals could be lost.
Question 3. What is the current status of tribal fisheries? Has
there been improvement in these fisheries in recent years?
Answer. The Karuk Tribe harvests salmon with traditional dip nets
at one location. Our fishery is gear limited and time and work
intensive. Last year and again this year, runs of fall run Chinook are
strong as compared to runs in recent decades. However, it should be
noted that the magnitude of fish runs naturally fluctuate with ocean
cycles that in large part explain the recent large runs of fish. We
also note that even these years of relative abundance are low as
compared to historic runs of fish.
What has not improved is the diversity of fish runs. Karuk are
dependent not only on fall run Chinook, but spring run Chinook, coho
salmon, summer and winter runs of steelhead, green sturgeon, and
Pacific lamprey. Runs of these species continue to decline. Spring run
Chinook and coho salmon can no longer be fished at all due to low
abundance. This means we have very limited fishing opportunities as we
can only fish for one seasonal run of fish. So whereas Karuk once
fished nearly continuously throughout the year, today we are limited to
about three or four weeks of fishing a year.
Question 4. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Yes. However, Parties to the Klamath Agreements have been
hesitant to engage in additional efforts to cut the KBRA budget without
some guidance from congress or the administration regarding the size of
the cuts deemed necessary. The KBRA is carefully constructed to address
the needs of as many stakeholders as possible. Cuts to one program
could threaten a specific Party's commitment the agreements.
At the urging the Administration as well as members of Congress, we
did reduce the original budget proposed in the 2010 agreements by
nearly 20 percent. It is also of note that in cooperation with federal
negotiators, the non-federal parties have estimated that at least $261
million in the 2011 budget proposal is covered under base funding for
existing programs.
The Karuk Tribe is willing to consider further reductions in the
budget proposal. We are mindful that the nation's economic recovery is
fragile and of the general need to reduce federal spending. We do hope
that efforts to reduce the KBRA budget remain committed to the
Agreement's core principals and that cost cutting measures will be
shared equitably among parties.
In regards to non-federal contributions, we note that the KHSA is
exclusively non-federal dollars and that many elements of KBRA programs
are funded by Oregon and California. In all, Parties estimate that the
non-federal funding for the Agreements is $549 million over 15 years.
We are eager and willing to explore partnerships with non-governmental
organizations to further reduce federal costs.
Question 5. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. This is largely a subjective question. From our perspective
and that of the fishery, we believe that there are existing authorities
and statutes that allow federal agencies to increase flows in the
Klamath River and its tributaries. We note that these actions would not
address the water needs of agricultural communities and would
undoubtedly lead to years of litigation between Parties. We are unaware
of alternatives to the Klamath Agreements that would make better use of
water supplies in a manner that a large majority of stakeholders would
agree to.
Question 6. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. Among the most surprising, and encouraging, findings was
that the studies concluded that the most probable cost of dam removal
was $292 million-$158 million less than the $450 million cost cap
contained in the KHSA. This suggests that the cost-cap negotiated in
the KHSA is adequate to cover dam removal costs and that California's
contribution may be more affordable and therefore politically tenable
than originally contemplated. Similarly surprising was the willingness-
to-pay estimates developed from the nonuse valuation studies used in
the economic analysis. The discounted present value estimates from the
Klamath River Basin Restoration Nonuse Value Survey concluded that the
public was willing to pay $84 billion to see the Klamath Basin
restored. This demonstrates that the public is well aware of Klamath
Basin issues and that it cares deeply about this iconic American
landscape.
Question 7. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. Yes. Tribal support, similar to that of other governments
at the table, can change as new leaders are elected. It is possible
that a future council may view the Klamath Agreements less favorably
than the current Tribal Council. Also, we cannot wait indefinitely for
congressional action while water quality and fisheries continue to
suffer. If congressional action is delayed to the point that we cannot
meet the timelines established in the KHSA for dam removal, we will
forced to consider pursuing dam removal through other means. Similarly,
we will be forced to pursue other means to improve Klamath River flows.
Given the magnitude of the current crisis and the broad base of
support for the Agreements, we think the time is uniquely ripe for
congress to act. If this opportunity is lost, it's difficult to believe
that our opportunities for congressional action will improve in the
near future.
______
Responses on behalf of Hoopa Valley Tribe to Questions
From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal responsibility in the Klamath basin should be
guided by the following principles and facts:
a) The Klamath River is an interstate stream; the United
States has interests in and responsibilities on behalf of
Indian tribes and other federal programs in both Oregon and
California. A settlement of disputes over federal interests in
Oregon should not come at the expense of federal interests and
other rights in California.
b) Any action by Congress to reconcile tribal, non-Indian
development and fishery/environmental needs must be carried out
subject to the federal Indian trust responsibility that
requires all federal agency heads to exercise their discretion
in program management in a way that provides full protection to
tribal fishery and other trust assets. This fiduciary standard
requires that decisions be based on the best available
scientific information. For example, in the case of anadromous
fishery needs in the Klamath River, the best available
information, and thus the starting point for any decision
making is the peer-reviewed Klamath River Basin Instream Flow
Study conducted by Hardy et al. (2006). That study was prepared
at the request of the federal government in consultation with
tribal trust beneficiaries. Substitution of guess work or
assumptions that rely on future congressional actions for which
there is no present policy or funding support are not credible
scientifically and are not acceptable.
c) No legislative proposal to address Klamath basin water
issues will include a modification of the federal trust
relationship to which an Indian tribe has not consented. The
Indian tribes of the Klamath/Trinity Basin have rights that
arise from aboriginal law, treaties, executive orders and
statutes. Each tribe has its own relationship with the United
States based on those documents. The United States has
recognized rights in some tribes but has refused to recognize
fishing and water rights claims of other tribes.
d) Any tribe that agrees to waive its rights in exchange for
a settlement benefit must do so on the record and recognize
that the waivers will be subject to enforcement by the federal
trustee and non-waiving tribes, among others. For example,
where one tribe has agreed to restrict its harvest in
expectation of future settlement benefits it cannot shift its
fishing effort to stocks to which a non-waiving tribe is
entitled. Any settlement of Klamath basin water issues must
recognize senior tribal rights, involve consensual settlement
terms and not make guarantees to junior interests at the
expense of non-consenting senior right holders.
e) No legislative proposal will be based on the substitution
theory of Indian trust resources set out in Three Affiliated
Tribes of the Fort Berthold Reservation v. United States, 182
Ct. Cl. 543, 390 F. 2d 686 (1968).
f) The Klamath basin's ecology, hydrology, fish stocks and
environmental health are interrelated; they are not susceptible
of being artificially segregated and isolated by political
boundaries or political decisions. The legal and geographic
reality is that the Klamath River and its largest tributary,
the Trinity River, are part of a single integrated Klamath
Basin watershed and must be managed in an integrated and
coordinated manner. One of the main reasons why the Klamath
Basin Restoration Agreement (KBRA) has not advanced is because
it rejects or ignores this reality. Today, the Klamath River
water users in Oregon are relying on Trinity River water to
offset potentially devastating impacts from uncoordinated
basin-wide water management that is occurring in the Upper
Klamath River.
g) Operate in compliance with Indian treaties and trust
obligations that are set forth in law, including the mandate
that the lower Klamath River be managed consistent with the Law
of the Trinity River, (the statutes, permits, judicial
decisions, agreements, and administrative decisions that govern
the use of Trinity water, including Pub. L. 104-143, section
3(b)). The Tribe has submitted a proposal to accomplish this in
our Joint Directorate Proposal that is described in the
response to question 2, below and as designed in our work on
Pub. L. 99-552.
--The actions of the federal government historically have
resulted in ``giving away the river'' multiple times to
numerous conflicting interests. For example, first the federal
government reserved rights to water and fish in the river to
the tribes in Oregon and California. Subsequently it developed
irrigation projects (Klamath Irrigation Project and Central
Valley Project) that appropriated Klamath River basin water.
Then it created wildlife refuges and opened land to
homesteaders for private irrigation development. It also
licensed hydroelectric generation. The grants by the United
States substantially exceed the water supply available to meet
the needs of those who relied on the United States' grants. The
federal government has the responsibility to mitigate the
consequences of its actions, but in doing so, it may not favor
junior rights over senior rights unless there is a mutually
agreeable means and terms for doing so.
h) The law is well-established that federal agencies are
bound by their trust responsibility to Indian tribes to limit
their discretionary actions in managing federal resources in a
way that does not impair the tribal property rights that the
United States holds in trust.
i) The law is well established for licensing hydroelectric
projects. Whatever merits the Klamath Hydro Settlement
Agreement (KHSA) may have had as an alternative to the FERC
licensing process, the indefinite delay in implementing the
KHSA because of inaction on legislation to authorize the KBRA
results in a damaging status quo for the environment and tribal
trust resources affected by the PacifiCorp project.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case for the basin would be based on the
principles that:
a) all needed Klamath/Trinity Basin water supplies would
remain in the Klamath basin to serve Klamath basin needs prior
to any diversion being made to California's Central Valley and
that the Bureau of Reclamation's management of the Klamath
River and Central Valley/Bay Delta plans be done in a manner
that is consistent with the Law of the Trinity River. Today,
the Klamath and Trinity water supplies are being managed as
isolated water sources, creating conflict between Oregon and
California, as well as within each State. These actions have
resulted in crisis water management that is inefficient, costly
and often unsuccessful in protecting either environmental or
economic values. One river system's over allocated water supply
issues cannot be solved by stealing water from another.
To address these problems, the Tribe has provided the
Department of the Interior its Joint Directorate Proposal that
would integrate a Klamath/Trinity Basin-wide management
structure coordinating the management responsibilities of
tribal/State/federal governments. The Tribe worked to establish
a similar structure in 1986 when Pub. L. 99 552 was enacted.
Unfortunately, Pub. L. 99-552 expired in 2006 and was not
reauthorized. The advantage of the Pub. L 99 552 and Joint
Directorate approach is that the Klamath/Trinity Basin would be
managed as an integrated whole consistent with the Law of the
Trinity River in a way that provides opportunities to design
and implement planned water allocation schedules that are based
on real time scientific requirements for water to supply
fishery, environmental, and other beneficial uses. This
proposal includes mandatory modeling requirements of available
Trinity water for the Bay Delta Plan and other diversions to
the Central valley Project (CVP).
This process would also be designed to produce science-
based and financially feasible options for irrigation users for
short and long term deliveries based on varying water year
classifications.
The Joint Directorate would also provide a meaningful
process for looking at the fiscal realities of present-day
federal budgetary concerns. In contrast, the KBRA negotiators
developed a settlement concept plan that is heavily dependent
on federal appropriations. The Hoopa Valley Tribe tried to warn
the settlement parties about this in the negotiations but our
concerns were dismissed. Unfortunately, the federal
government's representatives at the KBRA/KHSA negotiations did
not provide any guidance that would have helped to facilitate
the development of a plan based on federal fiscal realities.
This conduct has led to Senators Wyden and Merkley having to
identify in their July 3 letter convening the Klamath basin
task force the major task of reducing federal costs of a
Klamath settlement.
b) water management decisions in Oregon would be made with
full regard for Klamath/Trinity basin needs in California and
vice versa.
c)establishment of a joint directorate/Pub. L. 99-552 process
for Klamath basin water management that includes water and
resource management structures for federal, state and tribal
management agencies, coupled with transparent scientific review
and public and stakeholder input.
The worst case for the basin would be if current settlement terms
were to become enacted, which: (1) are not brought into alignment with
the realities that Chairman Wyden identified at the June 20 hearing,
including the political and financial obstacles that stand in the way
of the KBRA, and (2) do not promote Klamath/Trinity Basin integrated
management.
The KBRA was signed in February, 2010. Since then, we have faced
annual fisheries crises in the Klamath River. In 2012 and 2013, fish-
kill conditions in the Lower Klamath River called for preventive
measures by the Bureau of Reclamation. Yet, Commissioner Connor stated
at the June 20 hearing that, under the KBRA, more water would have been
delivered to Upper Klamath than was provided in those years. Where
would that water come from? Promises of more water to irrigation in
Oregon and calls for less funding for fishery protection create the
appearance of a political shell game that no one can win. It also
leaves residents of the Klamath/Trinity basin lurching from water
crisis to water crisis. Chaos is no substitute for well thought out,
scientifically based resource management. Certainly, month-by-month
short term crisis management of the Klamath/Trinity Basin is far from
being a solution for tribes, States, stakeholders, and the Federal
Government.
Under the fiscal realities described by Chairman Wyden, should the
reinstatement of the obligation of Klamath water users to contribute to
restoration be reconsidered? Water development and withdrawals of water
supplies from any water system have their impacts and mitigation
responsibilities. Taxpayer subsidy of these obligations appears to be
an unsustainable policy.
Klamath legislation was not introduced in the 111th Congress.
Legislation was introduced in the 112th Congress, but died. We are now
into the 113th Congress and Chairman Wyden has concluded that the KBRA
cannot be enacted in this political climate. The federal government's
water management decisions in 2013, as in years past, leave the Bureau
of Reclamation with no water from the Klamath Project facilities for
fishery protection in the lower Klamath River. Central Valley Project
contractors filed letters of opposition to using Trinity Division water
for fishery protection because of Klamath management. See letter to
Bureau of Reclamation Mid-Pacific Regional Director David Murillo from
the San Luis & Delta Mendota Water Authority (May 31, 2013). Conditions
are ripe for a catastrophic fish kill this year. This is not only the
worst case scenario; it is on the verge of becoming the worst case
reality that can reoccur annually under the KBRA plan.
The Law of the Trinity River cannot be fulfilled by obligating
Trinity water to Central Valley and Bay Delta in amounts that are
required to preserve and propagate Trinity and lower Klamath River
fisheries. Yet, the Administration continues to deliver Trinity water
to Central California and Klamath River water to southern Oregon in
disregard of those obligations. By far, the worst case scenario for
future Klamath/Trinity Basin management would be to enact short term,
unrealistic plans that degrade water and fishery/environmental
management to a year by year and month by month seasonal approach.
Question 3. What is the current status of tribal fisheries? Has
there been improvement in these fisheries in recent years?
Answer. The Hoopa Tribal Fishery historically provided sustenance
to the Hupa people 12 months of the year. The annual cycling of a
diversity of species and run timing provided a dietary wealth to the
indigenous people. Today, the fishery is typified by moderate runs of
fall Chinook, followed by a much lesser abundance of spring-run
Chinook. In early spring, the Hupa People traditionally would access
strong runs of green sturgeon and Pacific lamprey, both of which remain
severely depressed since the completion of the Trinity Division of the
Central Valley Project (1963). Coho salmon, which dominated Hoopa
harvest in the fall, remain listed as ``threatened'' under ESA.
Finally, natural populations of winter and fall steelhead remain at
depressed levels of abundance and are largely replaced by hatchery
production.
The Tribe has fought for decades to overcome the devastating
impacts of federal actions that have been destructive to our fishery.
Restoration works when it is based on sound science and faithful
adherence to prescriptions for fishery restoration.
Thus far, however, restoration of Coho salmon is not occurring. The
Southern Oregon/Northern California Coastal (SONCC) Coho salmon were
listed as a threatened species under the Endangered Species Act (ESA)
in 1997. A public review draft recovery plan was published by the
National Marine Fisheries Service in January 2012, but has not yet been
completed. Klamath River Coho salmon stocks are at extreme risk of
extinction.
The fact that Coho salmon are a threatened species continues to
cause adverse effects for the Hoopa Valley Reservation. Activities that
potentially affect water quality or quantity must be evaluated to
determine if they would adversely affect Coho salmon. Where a
construction project, or timber harvest is planned, for example, and it
is likely that the activity could adversely affect Coho salmon, the
lengthy consultation process leading to preparation of a Biological
Opinion is triggered. The consultation process, which is made necessary
only by the depressed status of Coho salmon stock, severely impedes our
Reservation economy.
Discussions have continued for decades with Federal managers
regarding Klamath Project and Central Valley Project management of
Trinity River Division water supplies, designing integrated hatchery/
natural stock fishery management plans, and statutory mandates for fish
restoration activities that have produced less than optimal forward
movement.
But, improvements are being made, including:
A scientifically-based hatchery review that is presently
being negotiated with federal managers for integration into the
Trinity and Iron Gate fish hatcheries;
After years of underfunding, the previous Reclamation Mid-
Pacific Regional Director, Don Glaser, took major steps to
carry out federal fish restoration in the Trinity River by
providing nearly full funding for the Trinity River Restoration
Record of Decision (2000);
Pub. L. 99-552 provided for Klamath/Trinity Basin management
actions that included the Klamath River Task Force and the
beginning of a communication and coordination framework for
Klamath and Trinity River activities. These positive steps led
to legislation in 1984, 1992, 1996, and 1998 designed to build
a coordinated management framework for the Klamath and Trinity
Rivers that is still providing benefit today. The unfortunate
lack of reauthorization of Pub. L. 99 552 in 1996 has left
management and coordination voids that have not been filled by
integrated federal agency management in their Klamath, Trinity
and CVP offices.
Question 4. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Although the Hoopa Valley Tribe's vested rights under
federal law in the Klamath basin are beyond dispute, the Tribe has been
excluded from discussion about the KBRA since 2010 because it is not a
party to the agreement. The Tribe declined to sign the agreement
because it identified many of the problems that Chairman Wyden now
acknowledges prevent the KBRA from proceeding. Rather than punish the
Tribe for its insight, the KBRA parties should invite the Tribe back
into the discussion. We appreciate Chairman Wyden speaking on our
behalf in that regard.
As discussed above, it is unfortunate that federal representatives
who participated in the negotiations were not forthcoming about the
United States' financial situation while the KBRA was being developed.
It is just as unfortunate that ``paring down'' is the only option that
is available, especially since the intent seems to be to pare at the
expense of fishery restoration plans. The United States' financial
problems are not likely to vanish soon, therefore a paring down effort
will continue at least over the next decade or more. We would prefer to
participate in the design of a plan that is based on realistic funding
levels and reliable water supplies. As the federal representatives in
the KBRA negotiations stood silent, the KBRA parties developed funding
proposals that in many cases masked hard choices those federal
officials needed to make about scarce water supplies. We fear that the
federal representatives may do the same in the paring down process;
that is, they will stand by while others make representations that
fishery restoration can be done on the cheap and with less water. The
fact is that paring down of water deliveries is going to be a critical
component of any revised from of a KBRA.
Question 5. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. The extensive irrigation development in the high desert
area surrounding Upper Klamath Lake is no longer sustainable. The KBRA
and KHSA fail to respond to this reality or to act with the realization
that climate shift is making more acute the problem of too much water
being promised to too many users.
The KBRA does not have a water quality plan and has an ill defined
strategy for cleanup of nutrient pollution in the Upper Klamath Basin.
The need for marsh and lake ecosystem functioning is not acknowledged.
Yet, to improve water quality in the Lower Klamath River and address
the current crises caused by toxic algae and fish disease, the
ecological function performed by the Lower Klamath Lake area must be
restored.
The Klamath Basin water supplies include, of course, the Trinity
River. Yet the contributions to the Lower Klamath River from the Upper
Basin cannot effectively be replaced by an injection of emergency water
from the Trinity River. Although emergency measures of that kind were
performed in 2002 and 2013, and are planned for 2014, those late summer
releases will not help restore fish populations in the Upper Klamath
River and are damaging to the tribal fishery on the Trinity. A basin
wide approach which controls both diversions from the Upper Klamath and
diversions from the Upper Trinity to the Central Valley project must be
used.
Question 6. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. The Environmental Impact Statement for Klamath facilities
removal prepared by the Interior Department was disappointing. The EIS
contained an incomplete evaluation of alternatives, failed to evaluate
the impacts of the KBRA, and ultimately failed to meet the purposes of
NEPA to facilitate informed decision making and public participation.
For example, the description of the no action alternative was
inaccurate and misleading because it presumed that the FERC licensing
process for the hydroelectric dams would remain stalled,
notwithstanding the requirements of law. The EIS failed to evaluate the
effects of the KBRA's guaranteed minimum irrigation diversions.
Throughout the EIS, the effect of the KBRA water diversion
``limitation'' was inaccurately described. Not only is 100,000 acre
feet not reduced from current demand through the KBRA, but the KBRA
water diversion results fall well below the ESA requirements
established in Biological Opinions. Buried in the EIS is Appendix F
``Exceedence Flows for No Action and Dam Removal Alternatives Based
Upon Index Sequential Hydrology.'' Appendix F makes clear that the EIS
proposed action (which includes KBRA flows) produces river flows well
below the Hardy, et al. (2006) recommendations for in stream fisheries
needs in all exceedence water year types except extremely wet
hydrological conditions.
The EIS alternative analysis was also inadequate because it failed
to evaluate a no KBRA alternative. Further, it failed to evaluate a
federal takeover alternative pursuant to the Federal Power Act. In
addition, it failed to evaluate--or even consider--a water quality
improvement strategy that would lead to compliance with the water
quality standards of the Hoopa Valley Tribe and the State of
California.
One of the most controversial parts of the EIS was its failure to
disclose that execution and implementation of the KBRA would result in
an historic termination of the United States' trust relationship with
the Klamath Basin Indian tribes who have not consented to provisions
subordinating their reserved water and fishing rights. In the KBRA, the
United States purports to provide assurances, without the consent or
approval of the Hoopa Valley Tribe, that the United States will not
assert the Hoopa Valley Tribe's tribal water, fishing, or trust rights
in a manner that will interfere with the Klamath Reclamation Project's
priority right to divert 330,000 acre feet or more of water from the
Klamath River. Those assurances would effectively terminate most of the
United States' fiduciary obligations to the Hoopa Valley Tribe.
Although this issue has been a highly publicized area of controversy,
the EIS fails to mention it.
One of the most striking parts of the Secretary's analysis is that
it is based on the unrealistic and un-fundable KBRA plan. Frankly,
there is no reason for federal managers and scientists to develop
``scientific'' analysis on plans that could never be implemented as
written. Again, the responsibility for this defect in the KBRA is
attributable to the federal managers of the KBRA/KHSA negotiation
process.
In addition, the KBRA ignores Trinity legal obligations.
Arbitrarily disconnecting the Trinity River, the largest tributary of
the Klamath River and producer of half of Klamath origin fish, from the
needs of the Klamath makes no sense and leaves management options for
the Klamath/Trinity basin with far fewer tools to address problems than
are available.
Also, the Secretary's dam removal plan ignores the Administration's
own policy and legal positions on the nature of tribal trust
obligations. The Secretary's plan treats all tribes as if all have
rights from a single legal source. As discussed above in Response 1(c),
this is not the case. Even the Department's own written legal positions
are inconsistent with positions it takes in the dam removal study.
Efforts to have the administrative record clarified regarding the
United States' formal positions on Klamath/Trinity Basin tribal trust
obligations were summarily dismissed.
Among the most controversial Indian policy provisions of the KBRA
and the related KHSA is that the Secretary has linked tribal trust
obligations regarding water management to the dam removal plan when
there never has been a legal connection between the two. The
Secretary's policy choice to benefit the Klamath Reclamation Project by
supporting congressional authorization to waive or abandon federal
trust obligations to any tribe that does not consent to the KBRA has
also created significant tribal concern around Indian Country. This
unilateral and adversarial change in the federal trust relationship is
in sharp contrast to presidential policy (Executive Order 13175, as
reaffirmed by President Obama on November 5, 2009). The Affiliated
Tribes of Northwest Indians (ATNI Resolution #09 63 and ATNI Resolution
#12 64) and the National Congress of American Indians (NCAI Resolution
#PSP 09 051 (2009) and NCAI Resolution #SAC 12 017) have already
reacted against this backsliding from the progressive and positive
Indian policies that we have experienced over the past 50 years.
Today, even though the problems associated with the KBRA are
manifest, the KBRA remains connected to the KHSA. It is unfortunate
that Federal Government officials spent thousands of dollars and
several years pursuing a Klamath basis solution that they either knew
or failed to understand was not able to be implemented. Under any other
circumstance, the Secretary would have had direct legal obligations to
deal with the problems associated with operation and relicensing of the
Klamath River hydro dams pursuant to the Indian provisions of the
Federal Power Act. Instead, the Administration is using the federal
trust relationship as a bargaining chip against the tribal trust
beneficiary.
Question 7. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. For the reasons stated in these responses, the KBRA cannot
be implemented in its present form. The Hoopa Valley Tribe has
constructive and creative proposals that it has repeatedly brought to
the KBRA discussions. Now that there appears to be a fresh appreciation
for the difficulties with the KBRA that have long since been identified
by the Tribe, maybe a new and successful approach can be taken. The
Tribe stands ready to participate in any such effort.
Certainly, the problems in the Klamath River must be fixed. Klamath
River water is over-allocated. Likewise, the Trinity water is over-
allocated. The Secretary has existing authority and responsibilities to
make the necessary adjustments to Klamath Reclamation Project and CVP
water operations as well as Delta Planning models to preserve the
integrity of the Trinity River Restoration Program, Trinity Dam cool
water pool, and meet Trinity River and Lower Klamath River needs and
rights. It also has the authority to bring the Trinity and Iron Gate
Fish Hatcheries in line with modern day mixed stock fisheries.
The Secretary, however, has no authority to satisfy the Klamath
Project demands for water at the expense of tribal trust obligations
and fishery and environmental responsibilities. We oppose the linkage
of the KBRA with the KHSA and will oppose legislation that would
maintain that linkage.
In summary, the Tribe has offered a comprehensive and sustainable
long term approach to Klamath Basin-wide management with the Joint
Directorate and use of concepts previously provided for in Pub. L. 99
552.In the meantime, the urgent need is for the Secretary to implement
measures in the next several weeks to protect the lower Klamath fishery
from a catastrophic die off in 2013 and beyond.
______
Responses of Becky Hyde to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government plays a significant role in the
rural Klamath Basins' economy from our headwaters to the ocean. Because
agriculture along with timber are the two pillars of our communities
economy today, decisions made by the federal government have a direct
tie to our regions financial stability, or lack of stability. For
agriculture water certainty, regulatory certainty and competitive power
remain the three drivers of stability. All three are dependent on
careful decision making by the federal government, and recognition of
the federal governments unique role and controlling interest in our
economy.
Reserved water rights and the Klamath Tribes' priority to instream
flows in the tributaries to Upper Klamath Lake are affecting the
certainty of agriculture water in the off project tributary
agricultural communities above the lake. During the current drought, a
minimum of 95,000 surface water irrigated acres, which primarily
produce grass necessary to support the basins' livestock industry, are
going dry or face water shut-offs because there is no settlement with
the Klamath Tribes, and their trustee, the federal government.
Settlement in the off project lands has been put on hold for years as
crisis on other fronts-- where the federal government has
responsibility namely around biological opinions relating to the
federal governments Endangered Species Act-- have taken time and
resources to deal with. These issues bubbled up to the surface when the
Klamath Reclamation Project had irrigation water shut off in 2001. The
off project communities lagged behind in creating a completed water
settlement and so their lands along with the refuges, another
responsibility of the federal government, are going dry today. The
Klamath Basin Restoration Agreement (KBRA) includes a section 16 that
was created with the intent is to settle the outstanding issues in the
off project tributaries. Other sections in the (KBRA) would address
federal responsibilities around the Endangered Species Act, Clean Water
Act and competitive agricultural power rates similar to other rural
agricultural communities in the West.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario for the Klamath Basin is to live
with a reasoned water balance, which provides water that sustains an
agricultural economy, while providing water and habitat restoration to
sustain a healthy fishery; and, adequate water to provide for the
health of the regions national wildlife refuges. Years of negotiation
have gone into developing a strategy for balancing the water to meet
the important outcomes above.
The worst case scenario is what the off-project community and the
refuges are experiencing this summer. No basin wide drought plan in
place to grapple with the unique ``drought year types'' and no long-
term water balance in place for the basin. This worst case scenario has
basically played itself out in a continuing rotating crisis throughout
the basin. In 2001 it effected the Project Farmers, in 2002 it effected
the Tribal communities with massive lower river fish die offs. The
ocean fishing community has been effected as well. When true solutions
are not implemented, like the water balance in the KBRA, we can expect
more crisis circumstances playing out from the headwaters to the ocean,
with the result being continued harm to the region's economy.
Question 3. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Parties to the KBRA did pare the agreements down by 18
percent in 2010 in response to feedback about the KBRA budget. It's
Upper Klamath Water Users belief that more cuts can be made to the
overall KBRA through careful consideration in the various line items.
However, this is at its heart an Indian Water Rights Settlement,
dealing with federal issues that have built up over decades. We cannot
simply kick the can down the road, and not solve the base problems. If
the goals can be met with less dollars, that will be acceptable.
It seems that with the renewed federal interest by political
leaders, other private dollars may be drawn to the solution. There's a
strong interest in the basin from the non-profit community, and I see
this gaining strength and momentum into the future. The state of Oregon
for example has committed to the basin through the Oregon Watershed
Enhancement Boards, (SIP) program. We should not rule out any partners
that can bring health to the Klamath Basin. Working toward a reasoned
solution helps guide private dollars. Nobody wants to invest in a train
wreck. Investment in building a future for one of the nations national
treasures, the Klamath Basin, based on a reasoned plan, is much more
compelling. The federal government sets a tone for how the basin is
viewed by its own willingness to engage.
Question 4. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. The water balance in the KBRA is designed to address in a
reasoned way the water supplies in the Klamath Basin. Years of work
have gone into the basic structure under the water balance.
Question 5. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. If Congress fails to act on agreements to move the basin
forward out of rotating crisis, that is not in our hands. We will
continue to support reasoned agreements that bring the basin out of
crisis and are thankful that leaders who can move this through Congress
are engaged.
Question 6. What is the likely outcome of the recent call on water
made by the federal government and the tribes? For instance, how would
it affect project irrigation allocations for the remainder of the water
year? How might it affect off-project irrigators and ranchers?
Answer. The outcome of the recent call on the water to the off
project by the federal government and the Tribes is that it's likely
that a minimum of 95,000 irrigated surface water acres will go dry.
Much of the off project has already been shut off, and is drying out.
The Project irrigators are best suited to speakabout the impacts this
year has on them. The off project is seeing families need to move
livestock, or sell animals early to deal with the impacts of the calls.
This potentially does millions of dollars worth of harm to the off
project community.
Question 7. You mentioned the need to bring these `fiercely
independent' off project families to the negotiation table and to get
them involved in this process. What do you think are some ways in
particular we could get them involved?
Answer. We have some ideas at Upper Klamath Water Users about how
our delightful and fiercely independent families in the off project can
be better drawn toward a settlement that brings power, regulatory and
water security to families irrigating in the off project.
I think the single most important factor that will bring families
to the table and get them involved in the process is if they believe
that our state and federal government are seriously engaging these
issues with an eye toward helping create water security, competitive
power rates and regulatory security. The families need to know that
they are engaging in a process that is moving toward an actual
settlement for their family. I believe the task force with solid across
the board convening from our elected officials is a good step forward
and helps send that message.
I also think education around how a settlement can be achieved in
the off project is important. A water settlement with the Klamath
Tribes will be achieved if a critical mass of individual farm and ranch
families representing their own private property rights and their own
water rights settle. So, one family does not create a settlement, but
many families together do. This structure is different than the Klamath
Project irrigators who have established irrigation district boards that
make the decisions, and were able to sign off on settlement many years
ago. Settlement with the off project is different, families maintain
control and independence, but will need to join together with other
families to create a critical mass and therefore a water settlement.
How to settle needs to be clear. The process needs to be transparent,
and inclusive.
There are various established groups in the off project that have
been at settlement tables on and off for years representing clusters of
landowners, and there are some families that as individuals have worked
to create settlement outside of an established group. None of these
groups have ever represented all of the off project irrigators. None of
these factions at this point even represent the majority of families,
as far as we can tell by looking at the data. The off project has been
roughly divided on these issues in the past with families either
affiliating more closely with a settlement approach or a litigation
approach with their time and dollars. Both approaches have been seen by
individuals as a serious path forward. Some families actually belong to
more than one group. Some families don't belong to any group. This has
created division and misunderstanding in the off project. At the end of
the day families have just tried to do the best they can to bring
stability to their farms and ranches.
I think we bring more people to the negotiation table, and get more
families involved when the groups that have been most involved in the
past put aside their bickering and get to work. Every family in the off
project should feel like they own a part of this settlement, and it's
in their best interest to participate. Regardless of what has happened
in the past-we should look forward to how we put the components
together to create a stable and healthy agricultural community. I've
talked to many families across the spectrum of groups over the last
several weeks since the hearing that Senator Wyden held. I believe
families in the off project want to get along with one another and be
comfortable as neighbors, and they want a settlement. Ranching
communities typically look out for one another, and the division has
been dispiriting for everyone. I have not heard any family say that
they don't want a settlement.
I also think it's critical that families and the interested
community at large understand what the alternative to settlement looks
like. We have a taste of it today, as we live with the early results of
the 35 plus year adjudication process playing itself out. Having your
water shut off and watching land even with very good water rights dry
up, is a painful testament to where we find ourselves today. If
families choose to continue on the litigation path what are the odds of
success? If we continue to fight, when will we see the fruits of our
labor? Will it bring greater or less security to the community? Will it
address other outstanding issues like the need for competitive power,
and the regulatory issues that face us?
The bickering in the off project has simply created confusion both
for landowners who are affected and need to make decisions, and also
for the community at large. Being transparent to each family about what
is happening as we move forward is critical, and yet not simple. How
can we best keep hundreds of landowners informed as we move forward?
All levels of government can help be a part of this transparency.
Neighbors can help one another by reaching out and trying to understand
the views on each side of the fence that has divided us. The concept of
what a settlement need to look like must circulate freely in the
community.
The Klamath Tribes have said repeatedly that they would like to
have a settlement with the off project operating under section 16 of
the KBRA. They have printed in the newspaper the basic framework of
what that settlement might look like. This is great time to get the off
project together, through whatever means we can to help create this
settlement.
______
Responses of John Laird to Questions From Lisa Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. At the turn of the 20th century, the federal government,
under the guise of the Reclamation Act, turned the wetlands of the
Klamath Basin into a series of dikes and canals for farming purposes.
It then encouraged WWI veterans and others to come to the region,
offering them free Klamath project parcels to farm. At that time, there
was a cultural ethos about going west to create greater opportunity and
populate the more barren corners of the nation and the federal
government actively cultivated this in the Klamath. This federally
incentivized migration created a new demand for electricity that drove
the development of the hydroelectric facilities Pacific Corp now
operates, including those dams considered for removal under the Klamath
Basin Settlement Agreements.
The first dam of the four at issue here was built in 1918, the last
in 1962 under federal license issued by the Federal Regulatory Energy
Commission (FERC). Subsequently, in 1966 a massive fish-kill was
recorded by the press, though Basin tribes chronicle a loss in their
harvest even earlier than this. Today the algae behind Copco I is so
severe it affects recreational users, prompting multiple federal
agencies to get involved in restoration and water quality efforts.
Pacific Corp's license having now lapsed, FERC finds itself once again
charged with relicensing these dams. Yet this time, it faces the
negative consequences of historic federal decisions, and the attendant
outcry from other water users in the Basin who seek retrofits and
upgrades that have the potential to be extremely expensive-an expense
that will be borne by ratepayers per federal law.
The federal government is also trustee for six recognized Basin
tribes and continues to have a fiduciary duty to promote their
sovereign rights as weighed and considered against the backdrop of the
public trust. This responsibility is underscored by a continual drought
crisis that impacts tribes, farmers and fisherman alike--resulting in
nearly constant demand for federal relief from all sectors. This
federal responsibility is also framed by a modern understanding of how
these historically inter-connected Basin uses implicate the environment
and sustainable management practices. Finally, though not least in
importance, an emerging body of scientific evidence contends that these
issues will only be exacerbated by climate change over the coming
century, an issue which will place the federal government in a key
emergency management role.
In short, the federal government continues to operate the Klamath
Project, manage and control the wildlife refuges, and exercise broad
public and tribal trust responsibilities which require significant work
and investment to ensure the continued viabil ity and health of the
Basin's diverse population with or without the dams. It also remains
responsible for ensuring compliance with a host of federal laws, not
the least of which is the Endangered Species Act, which set the stage
for these Agreements in 2001 when legally-driven water shut-offs caused
massive losses in the farming and iiTigated communities, and the
attendant rewatering in 2002 resulted in devastating fish kills. In
short, the federal government unwittingly laid the foundation for the
crisis in the Basin decades ago, and continues to control and determine
how the various interests are prioritized and protected. While
hindsight is of course 20/20 and no one party entirely shoulders the
responsibility for restoration of the Basin, there continues to be a
significant federal presence and control in this Basin that warrants it
being asked to lead the way given its historic role and its vast reach.
Question 2. In your opinion, what is the `` best case'' scenario
for the basin in the future? What is the ``worst case'' scenario?
Answer. Given the strife that has plagued the Basin, and the work
it took to reach this compromise, as well as the diversity of the
coalition, the best scenario at this point would be for Congress to
ratify the Klamath Settlement Agreements and support the coalition. The
worst case scenario would be to have the present coalition resort to
adversarial positions that would most likely result in long term
litigation at the expense of the environment, farmers, local
communities, state fisheries, tribal sovereignty, in the hopes that
untested legal theories will generate the same or similar good results.
Question 3. What is the s tatus of the California State Water Bond
which is intended to fu nd a large part of dam removal? How would dam
removal be funded without the California water bond?
Answer. The bond is scheduled to be on the November 2014 ballot. It
presently includes funds for dam removal. If it does not include funds
for dam removal when it actually goes before the voters, or if the bond
does not pass, California will examine other potential sources of
restoration funding for rivers and streams and water quality generally.
Question 4. Has there been any d iscussion of further pa ring down
the agreements? Has there been a ny d iscussion of non federal parties,
including non profits, states, or local entities, taking on a ny of the
actions that are currently envisioned as federal responsibilities?
The responsibilities in the Agreements were assigned based on the
issues plaguing the Basin and the realistic ability for them to be
resolved--all parties received benefits which continue to motivate them
to commit to the overall bargain and remain one committed Coalition, as
opposed to individually interested parties. Unhinging the careful
balance struck by the Agreements could threaten the entirety of the
deal. It is true that each party could contemplate hypothetical
approaches that would serve their unique needs better, and which
standing alone would seem less complex, but this is unlikely to result
in a practical outcome as successful as that which was achieved through
the Agreements. It is difficult to conceive of a piecemeal approach to
these Agreements that could achieve the same benefits.
That said, we do recognize that Congress has ultimately authority
to approve these Agreements and ensure the most effective use of public
dollars. Accordingly, we remain willing and able to discuss alternative
approaches in implementing the Agreements. Since there is a wide-
reaching federal obligation in the Basin presently, the concept behind
funding the obligations in the KBRA particularly, was simply to
leverage the $532 million infusion of funds already likely to be
programmed by Congress for the Basin in the next 15 years, and
repurpose those funds to meet real time needs as agreed upon by the
diverse Coalition, with as fey. additional federal dollars as possible,
and far fewer dollars than would be required in emergency spending if
problems become worse or remain unresolved in perpetuity. In fact, if
Congress were to fund the basin as it has been, and is likely to be for
the next two decades without these Agreements being ratified, the
number of federal dollars spent would far exceed the amount of new
federal appropriations the parties are seeking, and would only increase
over time with no end point in sight. We look forward to analyzing
these funding questions more closely and working with Congress to
achieve the results envisioned by the Agreements.
Question 5. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KIISA;
and 2) available and feasible under existing authorities?
No. In my view there is not another practical solution to legally
improving water quality and supply in the Basin in the same timeframe,
with the same level of community buy-in, or with such limited public
investment Any individual could conceivably imagine an approach that
would better serve his or her personal interests at the expense of
other users, but in terms of a collective agreement, there is no better
approach than this settlement.
Question 6. In your opinion, what were the most surprising findings
in DOl's dam removal studies? What were the most controversial parts?
Answer. There were no great surprises, as California has already
undertaken dam removal in an effort to improve water quality for
endangered fish. That said, there were two useful pieces of information
which support a positive determination and which suggest proceeding to
dam removal is in the interest of the public. First, the sediment that
is behind the dams is not toxic. Second, when that sediment is
released, if timed per the report's recommendation, major species will
be in tributaries and thus will not face the types of impacts they
otherwise might. It was also good to find that the creation of nearly
5,000 jobs and a $700 million interstate economy could result from the
implementation of the Agreements. Finally, it was good to see that the
actual removal will likely cost less than originally intended, and is
in fact as feasible if not more so than keeping the dams in place.
Question 7. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) pos itive or negative?
Answer. The biological opinions are distinct and not part of the
Agreements and the Agreements cannot legally change the federal
requirement to issue those opinions for purposes of species protection.
They are independent determinations the federal government must provide
in order to incidentally take endangered species through operations of
the Klamath Project, and are based on the best avai lable science as to
what level of flows are required to protect endangered fish. They will
continue to be required and apply to the Klamath Project operations
with or without the Agreements and the flow recommendations and other
management requirements of those opinions will govern how the
Agreements are implemented.
______
Responses of Michael Kobseff to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. Aside from commitments related to the Klamath Irrigation
Project, the federal government's primary responsibilities and
priorities in the Klamath Basin should be:
I. The honest and practical administration of the Federal
Power Act and connected environmental and administrative laws;
and
II. The effective and responsible management of federal
forest lands to restore forest health and mitigate negative
impacts to water supplies.
The KHSA and KBRA have been constructed upon flagrant violations of
the Federal Power Act and the Clean Water Act. The parties who have
entered into these agreements have contracted around federal law and
unilaterally created a 14 year extension of the license for the Klamath
Hydroelectric Project with the acquiescence of the Federal Energy
Regulatory Commission.
The normal processes under the Federal Power Act and Clean Water
Act should resume, and the Klamath Project should be relicensed with
the protection, mitigation, and enhancement measures that have already
been prescribed by the resource agencies. If PacifiCorp is no longer
interested in operating the project, it should be transferred to a new
joint powers authority that will operate the project for maximum
benefit to fisheries and water quality while maintaining hydroelectric
production and reasonable rates for power customers.
Management of the three million acres of National Forest System
lands in the Klamath River watershed is another ongoing tragedy. Not
only has the Northwest Forest Plan precipitated economic collapse and
ongoing distress, but the management prescriptions currently being
applied to federal forests are detrimental to water supplies, water
quality, and fisheries. The substantially overgrown conditions on much
of the National Forest lands are continuing the trend of ever larger
and more intense wildfires, while increased evapotranspiration reduces
quantities of water that were once available in the Klamath River
system to support native fisheries. Proactive management of National
Forest System lands must resume.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The ``best case'' scenario would be an acknowledgement that
upper basin water supplies are unrelated to the lower four dams on the
Klamath River. The focus of the upper basin should be on development of
new water storage, compliance with water quality standards, and the
completion of the judicial phase of the Oregon water rights
adjudication.
The ``worst case'' scenario would be to proceed with implementation
of the KBRA and KHSA based solely on the aspirations and self-interest
of the proponents and without scientific or financial groundings. There
are substantial uncertainties related to the ultimate effects of the
KBRA and KHSA on water quality and fisheries and the costs to
PacifiCorp ratepayers and state and federal taxpayers. If the massive
dam removal experiment is not successful, additional mitigation burdens
will fall on the landowners and water users on the major Klamath River
tributaries, particularly on the Shasta River and Scott River in
Siskiyou County.
Question 3. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. The removal of the PacifiCorp dams is detrimental to water
supplies in the middle and lower reaches of the Klamath River and does
nothing to benefit water supplies in the Upper Basin. In the current
dry water year, PacifiCorp has offered to reoperate its dams to provide
additional fish flows at critical times. This operational flexibility
and source of water will be lost with dam removal.
In the 1970s and 1980s, small dams were employed in parts of the
upper watersheds to retain early season runoff and supplement summer
water supplies. These dams have fallen into disrepair and are no longer
effective. The dams should be returned to their former operating
condition.
As noted above, improved management of National Forest System lands
will also increase the availability of water for consumptive uses and
instream flows.
Question 4. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. As outlined in the written testimony submitted by Siskiyou
County, there have been numerous and ongoing breaches of scientific and
scholarly integrity throughout DOI's process, which has been driven by
the self-interest of the proponents of the KBRA and KHSA and the
predetermined conclusion by former Secretary Ken Salazar that dam
removal is the one and only approach to improving water quality and
fisheries on the Klamath River.
Cost-Benefit Analysis--From a financial perspective, the most
egregious finding from DOI was the overall cost-benefit analysis, which
only determined that dam removal was beneficial by concocting a
hypothetical ``non-use'' valuation through a nationwide public survey.
Without this non-use valuation, the cost-benefit analysis for the KHSA
and KBRA result is negative.
Threatened Coho--The final EIS/EIR misstates the findings of the
expert scientific panel on Coho salmon. The panel pointed out that much
of the scientific data necessary for analysis is missing. It stated
that initial dam removal activities would kill 100 percent of Coho
populations in the Klamath River. Then any population increases would
be ``small'' for at least a decade. After that, increases could be
``moderate,'' but only if the KBRA is ``fully and effectively
implemented.'' The panel concluded that there was a ``high
uncertainty'' that this kind of implementation would happen, leading to
a ``low likelihood'' of even moderate population responses by Coho from
dam removal.
Steelhead Trout--The expert panel did state that steelhead
populations ``could'' increase due to access to new spawning and
rearing habitat. However, they had insufficient data to estimate
populations.
Chinook Salmon--The Iron Gate Fish hatchery would be closed eight
years after dam removal, but the EIS/EIR fails to analyze impacts on
the downstream and ocean fishery. The expert Chinook salmon panel
stated that they expected a possible increase of just 10 percent in the
average number of Chinook spawners, but the EIS/EIR mysteriously claims
an 81.4 percent increase. The panel also stated that increases in
spring Chinook were ``even more remote'' than for fall Chinook. Based
upon the wildly overstated projections, the EIS/EIR outrageously
projects increased harvest levels of about 50 percent.
Other Fish--he Resident Fish expert report forecasts an increase in
redband trout, which is a major predator to juvenile salmon and
steelhead. Because of increased sand/silt in the river bottom, the
expert panel report states that Pacific lamprey habitat capacity could
increase by 14 percent. The EIS/EIR seizes on this to assume that
lamprey production will also increase by 14 percent. The study fails to
fully analyze effects of competitive interactions among fish or to
analyze impacts on 16 resident native fish.
Sediment--Information in the EIS/EIR indicates that 8,430,000 cubic
yards or 3,540,600 tons of sediment could be released in the first year
after dam removal. However, sediment deposition is not expected to
exceed two feet. In their analysis, the coho/steelhead panel assumed
only 200-300,000 tons and the Chinook panel 300-400,000 tons of
sediment. The expert panel noted that the impacts of high sediment will
last two years. Coho have a three-year life span, so there are rotating
``cohorts'' or age-similar groups that cycle through every three years.
Two of the three cohorts will be decimated by two years of sediment
flows.
Water Quantity--The Coho expert panel notes that there will be
``potentially lower flows during the fall'' caused by dam removal which
``may reduce the ability of threatened Coho to migrate through the
mainstem in order to reach spawning areas in tributaries.''
Water Quality--The Coho expert panel indicated that while dam
removal may lower average daily temperatures, the ``highest
temperatures experienced by fish will increase.'' (Salmon experience
distress when temperatures exceed 20 C.)
The Klamath dams currently provide bioremediation for the high
nutrient content of the water as it passes though the reservoirs. The
water slows and the river self-cleanses much of the algae produced in
the volcanic and phosphorus-rich Upper Basin. The dead cells drop to
the bottom, which is why the sediment behind the dams has such a heavy
organic component.
Nutrient loading is currently a substantial limiting factor to
anadromous fish in the Klamath River. It stimulates algae growth that
can deprive water of oxygen and it provides habitat for the worms that
are hosts to fish-killing parasites that have fatally infected a major
percentage of the juvenile fish leaving the system. The Coho panel
report states that all the models recognize that ``total nutrient
concentrations in the Klamath River downstream of Iron Gate Dam would
increase.'' It recognizes that there will be ``long-term increases'' in
harmful algae and that this will have a ``significant impact,'' making
problems worse. Both the Coho and Chinook panels noted that dam removal
could spread fish-borne disease upstream.
The Chinook panel admits that reductions in nutrient loading and
water temperatures would be dependent on major upstream actions, such
as converting 40 percent of Upper Basin irrigated farms (44,479 acres)
to wetlands.
Floods--Currently, the Klamath dams reduce high peak flood flows
and delay them for about nine hours. The EIS/EIR seriously understates
the increased risk of flood due to dam removal by modeling 100-year
events using daily average flows rather than peak flows. It then
presumes no substantial increase in flood risk because its projected
average flows are comparable to current FEMA peak flows. In actuality,
this means that post-dam-removal flood levels would be substantially
higher than current flood levels. In addition, sediment deposit may
raise the bed of the river as high as two additional feet. The EIS/EIR
fails to assess the costs of removing the 30-some residences and
structures in the floodplain, and does not assess the costs of the
increased risk of inundation to bridges and other structures. Having
eliminated the liability of PacifiCorp and the federal and state
governments through the KHSA, addressing the impact of these exposures
is deferred to the future Dam Removal Entity.
Tributaries--The expert Coho fish panel analysis is predicated upon
the fact that in the tributaries the KBRA will accomplish: 13 miles of
floodplain rehabilitation; 198 river miles of large woody debris
placement; 153 river miles of cattle exclusion; 21,800 acres of
acquisitions or conservation easements; improvement of 73 fish passage
sites; planting of 346 riparian acres; securing of minimum instream
flows for fish (including purchase of water rights); 1,330 miles of
road decommissioning; and treatment of 240 sediment sources. It also
presumes the conversion of 40 percent of Upper Basin irrigated farms
(44,479 acres) to wetlands. The EIS/EIR fails to analyze the impacts or
costs of these actions.
Real Estate Evaluation--The year 2005 was the first year that
property values started to be affected by rumors of dam removal, yet
base year valuation for the study was 2008--years after some of the
damage had already been done. Structural and site improvements were
specifically excluded from the impact analysis and the parcels to be
valued were hand-picked through the scope of work. Impacts assumed that
the reservoirs had been fully restored in vegetation, which would in
actuality take many years. This substantially understated impacts. As
borne out by the recent Condit dam removal, homeowners could also be
required to deepen their wells. City of Yreka's Water Supply--Engineers
for the City of Yreka have determined that the cathodic intake process
for the city's water supply will be negatively impacted. Also, plans to
relocate supply pipes from below reservoir waters to suspension from a
bridge create new security risks and create increased maintenance
issues.
County Infrastructure--Dam removal will require tons of heavy waste
being transported to disposal sites. The roads and bridges in the area
have not been designed to bear such weight. In addition, the EIS/EIR
characterizes main roads (such as Copco Road) as paved and in good
condition, when 80 percent of the road is in very poor to failed
condition. The EIS/EIR admits that at Copco 2 ``[t]he existing access
roads would require substantial upgrades to handle the hauling of the
excavated concrete and provide access for a large, crawler-mounted
crane.'' The EIS/EIR acknowledges that ``[c]onstruction equipment could
damage existing roads'' and that three bridges along the route ``could
be incapable of supporting and withstanding the weight of heavy
deconstruction and hauling vehicles.'' Yet the EIS/EIR defers further
cost analysis of these very substantial and expensive ipacts ``until
later.''
The EIS/EIR indicates that 1,241,500 cubic yards of earth and
126,000 cubic yards of concrete will be disposed on or near site on
lands currently designated open space or conservation. 7,200 tons of
metal and 4,500 tons of rebar will be disposed offsite-some of which
will go to the Yreka or Klamath Falls landfill. The EIS/EIR is silent
as to the environmental effects or impacts on landfill capacity.
Other Impacts--The EIS/EIR makes no effort to calculate the loss of
county tax revenues from facilities removal, property devaluation and
farmland conversion, nor does it assess impacts to the integrity of the
fundamental tax base to support County services.
There is no analysis of impacts to exposed Shasta Indian cultural
resources.
Question 5. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative.
Answer. The only aspects of the settlement agreements that are
supported by Siskiyou County are the interim measures that are being
implemented to improve water quality and Klamath River fisheries. These
interim measures are recognized in the 2013 biological opinion and, in
conjunction with the conservation measures included in the opinion,
provide the basis for the non-jeopardy determination for Lost River and
shortnose suckers and Coho salmon. This conclusion by the National
Marine Fisheries Service and U.S. Fish and Wildlife Service
demonstrates that operation of the Klamath Irrigation Project can be
reconciled with the demands of the Endangered Species Act along with
the ongoing operation of all existing facilities on the mainstem of the
Klamath River.
______
Board of Supervisors,
County of Humboldt, Eureka, CA, July 11, 2013.
Hon. Ron Wyden,
Chair, Energy and Natural Resources Committee 304 Dirksen Senate
Building Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Energy and Natural Resources Committee 304 Dirksen
Senate Building Washington, DC.
Dear Chair Wyden and Ranking Member Murkowski,
Thank you for the opportunity to provide these clarifying responses
to your questions regarding water resources issues in the Klamath
Basin.
In broad terms, the two main concerns heard at the hearing were
that the cost of the agreements was too high and that there were too
many parties not yet on board. These opposing concerns posit a
conundrum, as bringing more parties to the table likely requires
providing more benefits to those parties, which likely adds to the cost
of the agreements. While this is perhaps a valid concern, we do not
believe it must be the case, as the cost of bringing other parties to
the table must be weighed against the cost of doing nothing.
The core decision here is whether the federal government should
continue an ongoing and endless cycle of unplanned disaster relief and
bailouts to maintain an ongoing crisis situation, or whether the
government should instead invest in this basin to fix the underlying
problems so as to bring sustainability and predictability to the basin.
As demonstrated in the attached answers, when the cost of these
agreements is balanced against those ongoing costs, it becomes clear
that these agreements truly pay for themselves over their 15-year
timeline, with less than $300 million in new federal spending
leveraging some $549 million from non-federal sources.
The County of Humboldt greatly appreciates your keen interest and
enthusiasm for working to resolve these long-standing water resource
issues in the Klamath Basin, and we look forward to working with you
and the Committee to improve these agreements where possible so as to
move forward towards implementation.
Sincerely,
Mark Lovelace
3rd District Supervisor.
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government has many enumerated responsibilities
in the Klamath basin, including protecting and controlling the waters
of the United States, managing fisheries, wildlife refuges, tribal
trust resources and public lands and authority over the basin's
hydropower project. These ongoing responsibilities, and their
associated ongoing spending of some $17.4 million per year, exist here
in the Klamath Basin regardless of the presence of the Klamath
Agreements. If these agreements fail, the federal government is still
obligated to these responsibilities and their commensurate spending on
into the future.
In addition, the federal government also has a moral responsibility
to provide relief for communities struck by natural disasters such as
drought or catastrophic fish kills. Since 2001, the federal government
has spent at least $181.4 million on emergency drought relief and
disaster assistance in this basin, for an average of over $17 million
per year. Combined with the ongoing spending that is regularly and
routinely spent on programs in the basin, this amounts to over $34.4
million per year, or more than $500 million over a 15-year period, just
to manage an ongoing crisis situation that leaves no one happy, with no
stability for either the farmers or the downstream fisheries, and with
no end goal in sight.
Effectively, the Klamath Basin is on public assistance, having
suffered through decades of conflict, chaos and crisis, with the
federal government having to pick up the pieces through ongoing
subsidies. Instead, the federal government's responsibility should be
to invest wisely to get this basin back to a more stable condition so
that it can get off public assistance and move towards self-
sufficiency.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. Any of the individual interests in the Klamath Basin might
well be able to project a ``best case'' scenario that meets their own,
individual needs better than the Klamath Agreements. However, it must
be assumed that increasing the benefits to any one party would almost
certainly come at the expense of other parties.
For the basin as a whole, the best case is an outcome that involves
the many, disparate parties working together to collaboratively resolve
these longstanding issues in a manner which creates the broadest-
possible agreement among the most parties. There is no value in
considering hypothetical ``perfect'' outcomes which are either not
possible or which are so unlikely as to be not worth pursuing. History
would thus suggest that the agreements, as they exist, might well be
the best-possible outcome that is realistically attainable. All that is
needed is for Congress to act.
The worst case scenario would be to see the various interests
abandon years of negotiation to retreat back to their own corners and
pursue only their own interests through litigation and conflict, rather
than working together as a coalition to pursue the greater interest of
the whole basin.
Question 3. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. The parties are willing to consider further changes to
reduce the cost of these agreements, so long as those changes are
consistent with the purposes of the agreements. These agreements are a
result of many years of negotiation between the diverse parties,
including input from a number of parties who participated in
discussions but who ultimately chose not to sign the final agreements.
The parties have already worked to create what they believe are the
broadest-possible agreements that provide the greatest benefit to the
most parties.
In 2011, the parties worked to find ways to reduce the cost of
these agreements, ultimately managing to reduce their cost by 18
percent, down to $798 million. The parties also agreed to extend the
budget for the agreements over a 15 year timeline, rather than the
original 10 years, reducing the amount of annual spending.
As noted in the response to question 1 (above), the pattern of
historic spending over the last 10 years or more in the Klamath Basin
would indicate that, without these agreements, the federal government
should nonetheless expect to spend well over $500 million dollars in
this basin over the next 15 years. The difference between implementing
these agreements and doing nothing is thus less than $300 million. That
funding, in turn, leverages up to $450 million from PacifiCorps
ratepayers and the State of California for dam removal, along with
additional funding from non-federal parties for other KBRA-related
activities, for a total non-federal match of some $549 million over 15
years.
Essentially, the federal contribution for this project has the
potential to pay for itself by redirecting existing program funds, by
ending the cycle of emergency spending and by leveraging non-federal
funding at a rate of nearly 2-to-1 for dam-removal and KBRA-related
activities.
Question 4. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. Many of the parties, whether members of the coalition or
those who chose not to participate or to sign the agreements, might
individually be able to propose methods that better serve their own
individual interests, but it is difficult to imagine other methods of
allocating finite water resources that better meet the needs of the
entire basin and which do not come with additional cost or at the
expense of one or more of the other interests in the basin.
Right now in the upper basin we are witnessing what happens if the
allocation of water is left up to ``existing authorities''. In such
scenarios, there will be winners and there will be losers. The only way
to resolve these types of water disputes amicably is through
negotiation, which is what led to the development of the Klamath
Agreements. Those non-signatory parties who are currently facing water
shut-offs would best be advised to come to the table and join with
these agreements so as to be a part of this basin-wide solution.
Question 5. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. Though the Klamath Agreements are built on a mountain of
data, the parties recognized the need for additional study before dam
removal could go forward, to identify and mitigate potential impacts,
to better predict costs and to improve the information base for
decision making so as to determine the best way to proceed.
Because of the pre-existing body of peer-reviewed science, these
studies by the Department of the Interior did not produce any
particularly surprising findings. Rather, the studies support and
reinforce the assumptions that have gone into these agreements,
confirming and validating the approach proposed by the parties.
Additionally, the studies found that the costs of dam removal are
quite reasonable, with the most probable cost identified as $292
million; a reduction of $158 million from the $450 million upper-limit
originally projected in the KHSA. These studies confirm that dam
removal is in fact less expensive and more cost-effective than
relicensing these dams, making dam removal the preferred approach for
both PacifiCorp and its ratepayers.
Question 6. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative.
Answer. The KBRA and KHSA are agreements only between the signatory
parties, and as such they did not, and cannot, supersede or otherwise
interfere with existing regulatory authorities such as the 2013
biological opinion (BiOp) issued under the Endangered Species Act.
Should Congress authorize and implement these agreements through
enabling legislation, the KBRA would still rely upon future biological
opinions to guide operations. In short, the KBRA/KHSA are responsive to
biological opinions; not the other way around.
The only indirect affect the agreements had on the BiOp was through
an improved working relationship between the various interests,
agencies and contractors, again validating the effectiveness of the
collaborative, negotiated approach of the Klamath Coalition.
______
Responses of Tom Mallams to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin
Answer. In a ``normal'' situation, I would say the Federal
Government would help in areas where State and local Government is not
able to provide necessary functions, (with consent of local governing
body). Currently, I feel the Federal Government has completely over
stepped it's authority with unreasonable, unproven and heavy handed
regulations, literally crippling our local and regional economies. With
no economic ``balance'' being part of the equation, within State and
Federal regulations, our ability to survive as individual communities
and as a State is becoming more and more doubtful. The wise, beneficial
use of Oregon's natural resources is essential to our very survival.
The devastation caused by loss of timber harvests along with the
current attack on irrigated agriculture will ultimately destroy any
chance of reversing our downward economic plight. Another ``case in
point'' is the Klamath Reclamation Project. The approximate 200,000
acres of irrigated farm ground was developed with the help of the
Federal Government. The Federal Government was NOT intended to have
control forever. The entire Project operation was to be turned over to
the local irrigation districts with zero debt. This has not happened.
In fact, the Bureau of Reclamation, (BOR), continues to add more
unproven debt upon the local irrigation districts, thus keeping the
Project under Federal control.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The ``best case'' scenario is for the local parties
actually sitting down and resolving the water allocation issues outside
of the adjudication, KBRA and dam removal. The dam removal and current
KBRA aspect will NEVER have the support of the citizens and Congress.
Any settlement by the local parties will be destined to fail if the
current KBRA and dam removal are attached in any way.
A possible starting point or model could be the 2005 settlement
concept reached with the Klamath Tribe and the upper basin irrigators.
This was signed in Congressman Greg Walden's office in Washington D.C.
by the duly elected Tribal Chairman and representatives from the upper
basin irrigators. The actual ``KBRA Framework'', 2007 draft is another
possible starting point. This was signed by all the KBRA stakeholders
in January of 2007.
The ``best case'' scenario would also include the BOR turning
control of the Klamath Reclamation Project over to the local irrigation
districts as was intended from the beginning. The actual structure to
do this already exists. The ``worst case'' scenario is doing nothing.
Question 3. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. Only Mother Nature can create additional water and or
snowpack. Continued conservation practices can help, but realize that
literally millions of dollars have already been spent on conservation
practices, many being done at landowner sacrifice and expense. Also, in
the upper basin, over 100,000 irrigated acres have been taken out of
agricultural production in approximately the last 25 years. Some of
this land has been put into wetlands which historically consume more
than four times as much water, per acre, as irrigated agriculture
ground.
The permanent solution should include deep cold off-stream storage.
There are about a dozen possible sites within the Klamath Basin that
would accomplish this. Adding up all the millions of dollars spent on
the KBRA, dam removal and other numerous studies, the obvious solution
could have been in place years ago. (Storage in shallow wetlands is not
a viable option) The KHSA and KBRA literally eliminate any future
possibility of meaningful off-stream storage, (section 20.5).
Selective dredging of Upper Klamath Lake is another option. This
has been done in other areas with remarkable success. Modern dredging
equipment and techniques can clean and cool the water by deepening the
lake bottom while also increasing the storage capacity. Attached to my
testimony on June 20th, 2013, is one study showing how the dredging
option can create a self-funding project.
Question 4. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. The DOI's dam removal study was nothing more than a
predetermined outcome, with bought and paid for ``best available
science'', attempting to justify it. I and Siskiyou County could go
into a lot more detail showing this to be the case.
A couple of short items:
a. Depending on only the positive aspects of numerous other
studies and totally ignoring the negatives,(BOR whistle blower
Chief Scientific Integrity Officer Paul Houser and eight
whistle blower BOR fish biologists in the Klamath office).
b. Using the ``Stillwater Science'' report which was funded
by American Rivers, and was proven to be grossly false.
c. Hiring River Design to do sediment modeling on the
movement downstream of 22 million cubic yards of sediment
behind the Klamath Dams, after their failed modeling of
sediment movement with removal of two dams on the Rogue River
in Southern Oregon already completed.
Question 5. What is the likely outcome of the recent call on water
made by the federal government and the tribes? For instance, how would
it affect project irrigation allocations for the remainder of the water
year? How might it affect off-project irrigators and ranchers?
Answer. The Project allocation of water will very likely be at risk
before this water season is over. The so called agreements do not
provide any meaningful protection for irrigators, citizens in general
and the wildlife that are even historically given preference over human
needs.
One of the critical impact differences between Project and off-
project irrigators is that when water is denied within the Federal
Project, there are mechanisms in place to supply economic offsets for
that loss. In off-project, there no such mechanisms of any type
whatsoever.
In the upper basin (off-project), the recent calls, (and continuing
calls), will have a massive, permanent negative impact on the economic
viability of the entire Klamath Basin. The calls this first year will
in many cases, be a permanent shut-off of water. The amount of water
demanded to be left in-stream will be literally unattainable in many
years. An agricultural business cannot survive with its necessary life
blood of water only being available periodically. The economic impact
to Klamath County has been estimated at approximately $500 million.
The eventual economic impact will be additionally multiplied by the
fact that Oregon Water Resources Department has admitted they will also
begin regulating,( shutting off),wells in the Klamath Basin. This is
being justified by non-proven ``modeling'' of our entire basin claiming
all wells are connected to surface water, thus subject to calls just as
surface water is. This is tied to the ``Scenic Water Way'' designation.
Question 6. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative.
Answer. Interestingly, the first 25 pages or so of the new joint
Biological Opinion actually stressed the lack of sufficient water
storage capacity in the Klamath Basin. The logical conclusion would be
constructing deep, cold water storage projects within the Klamath Basin
to increase storage capacity. This is in direct conflict with the KBRA,
which requires all excess water be designated as environmental water,
which has a non-consumptive use requirement.
In closing, water in the State of Oregon has always been a State
Rights issue. Water has always been a private property right. Now, the
control of the water within the State of Oregon has been handed over to
the Federal Government, thru the BIA and DOI.
______
Responses of Jim McCarthy to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The topline federal responsibilities in the Klamath Basin
related to water resource issues are to meet tribal trust
responsibilities, recover species listed under the federal Endangered
Species Act, support and protect commercial and recreational fisheries,
secure adequate water supplies for the region's national wildlife
refuges, and foster a productive and sustainable agricultural economy.
All of these responsibilities have not been met, and cannot be
achieved, without bringing the agricultural demand for water back into
balance with actual basin supplies. For this reason, it is essential
for the federal government to make a considerable investment in a
basin-wide, voluntary water demand reduction program to make a fair and
equitable transition to sustainable levels of agriculture. Completion
of the Klamath Basin water rights adjudication in Oregon provides
valuable new opportunities for this work.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario for the basin would involve prompt
removal of the lower four mainstem Klamath dams, combined with a
federally-led effort described on pages 2 and 3 in our submitted
testimony, to achieve a vibrant and viable Klamath Basin for all
communities involved. The worst case scenario would involve
continuation of the current status quo, which has resulted in
significant degradation of the region's national wildlife refuges,
water quality, and fish and wildlife populations, uncertainty regarding
the long-term prospects for fisheries recovery, an ongoing failure to
meet tribal trust responsibility, ongoing water supply instability for
the agricultural community, and significant social and economic costs
resulting from the region's chronic and increasing competition for
water. A poor scenario would also result from adoption of a water
budget for the basin like that included in the Klamath Basin
Restoration Agreement. Simply put, the amounts of water set aside for
irrigation in the Agreement make it impossible to meet other legitimate
water needs in the basin. This will perpetuate the cycle we see now
where the basic water needs of legitimate interests are not met in many
water year types and the federal government continues to make
substantial annual payments to irrigators most years for temporary
(one-season) demand reduction.
Question 3. Do you agree or disagree with the cost estimates in
DOI's dam removal study ($290 million)? Why or why not? In your
opinion, what is the likelihood of cost overruns? Who should bear the
responsibility for cost overruns during dam removal should they occur?
(e.g., federal government, states, PacifiCorp)
Answer. DOI's estimate is significantly higher than the four
previous estimates complied by FERC in its 2007 Final Environmental
Impact Statement, which ranged from $79.9 million to $102.4 million in
2006 dollars (see table 4-4, page 4-6). Given the range of available
estimates, there may be a relatively low risk of significant overruns
above $290 million. We believe that all costs of dam removal should be
borne by PacifiCorp and its ratepayers, as this is in accordance with
the law as well as basic fairness *- PacifiCorp and all its customers
have benefited from the power generated by these dams. The Oregon and
California PUCs have already approved ratepayer surcharges for dam
removal, and PacifiCorp has thus far collected some $54 million of a
total of $200 million intended to pay for this purpose.
Question 4. In your opinion, who is most likely to be the Dam
Removal Entity?
Answer. The U.S. Bureau of Reclamation would appear to be the most
likely dam removal entity under the current Klamath agreements,
although this is an entirely speculative assumption.
Question 5. In your view, what might have been the outcome of FERC
relicensing proceedings (i.e., absent the KHSA)? Similarly, where would
things stand at this point in time, and would it be preferable to where
the process currently stands under the KHSA?
Answer. Because it is more economically sound to remove
PacifiCorp's four lower mainstem Klamath dams than to try to relicense
them, there is a high degree of likelihood the FERC process would end
in removal for economic reasons. It is difficult to speculate where the
FERC process would stand at this point, but it may be instructive to
look to PacifiCorp's recent removal of Condit Dam on the White Salmon
River in Washington as an example. The Klamath dams face similar
economic viability problems as Condit faced. Condit's removal was also
the largest dam removal undertaken in the United States at the time,
just as the Klamath dams are likely to be the largest dam removal
undertaken in the country if it proceeds within the next several years.
At Condit, PacifiCorp filed for a new license with FERC in December
1991, and FERC issued an EIS in October 1996. By October 1999,
PacifiCorp had applied to FERC to remove the dams in late 2006. After
some delays, actual dam removal occurred in October 2011. For the
Klamath dams, PacifiCorp filed for a new license in February 2004, and
FERC issued an EIS in November 2007. If the Klamath dams had continued
through the FERC process instead of being suspended by the Klamath
agreements, it seems probable that PacifiCorp could have applied to
FERC for removal as early as 2010, and would now be proceeding towards
a removal sometime between 2017 and 2021.
Question 6. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. In our view, the most surprising and controversial part of
the DOI studies in the April 2013 EIS was the failure to analyze a
scenario where the Klamath dams are removed without implementation of
the Klamath settlement agreements. Not only was this a clear violation
of the NEPA requirement to analyze all reasonable alternatives, but it
denied decision makers and the public an important tool for evaluating
the extraordinarily costly Klamath settlement agreements. We believe
that this omitted alternative analysis would have shown that dam
removal without KBRA/KHSA would provide the greatest benefits at the
lowest cost.
______
Responses of Roger Nicholson to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government should assist in finding an
equitable solution to power and water issues in the Klamath Basin, as
the federal government played a role through federal agencies, a
Federal Project, and Treaty rights in creating the issues. The federal
government will ultimately need to agree with any proposed settlements
and possible assist in federal funding of settlement components.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario would be for the Klamath Basin to
reunite as one community, with each faction remaining economically
whole and able to continue with their way of life. This pertains to the
Upper Basin Irrigators, Project waterusers and the Klamath Tribes.
In contrast, the worst case scenario would be a fractured community
that does not have the economic stability and certainty to make long
term lifestyle and management decisions.
Question 3. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. Other available and feasible methods not covered in the
KBRA and KHSA would be to distribute Upper Basin water more equitably
among the parties. Each entity should give a little, including the
Klamath Project, Klamath Tribes and Upper Basin irrigators. By one
group carrying the burden of the entire water shortage, the KBRA does
not provide for an equitable solution.
Question 4. What is the likely outcome of the recent call on water
made by the federal government and the Tribes? For instance, how would
it affect project irrigation allocations for the remainder of the water
year? How might it affect off project irrigators and ranchers?
Answer. Off Project irrigators and ranchers are affected by no
longer have viable pastures and hay ground. Once not irrigated for a
season or more, the hay ground and pastures will potentially need to be
reseeded. The cattle will need to be sold early and without a strong
local market. Both of these things will reduce the viability of the
cattle industry in the Upper Klamath Basin, as the producers will earn
reduced revenues and increased expenses. Additionally, the cow-calf
producers will be selling some or all of their breeding stock which
many have worked years to breed and cultivate quality genetics.
Due to the decrease in irrigation, the property values will
diminish and therefore Klamath County will receive less tax revenue.
The decrease in property tax revenue and gross income will have a
devastating impact on the local economy. If the call continues over
multiple seasons, then the local community will dwindle and the
infrastructure for the cattle industry (i.e. veterinary clinics,
equipment dealerships, and feed stores) will be permanently lost.
Question 5. If the order is upheld and the state shuts off
deliveries, what are your preliminary expectations for impact on crops
(i.e., number of acres not irrigated and associated revenue loss)? For
water deliveries (i.e., number of acre-feet not available)?
Answer. 96,000-100,000 acres of pasture and hay ground are
estimated to be lost the first year. The associated property value lost
is estimated by the Klamath County Assessor to be $199-258 million. The
estimated revenue lost from this ground is estimated by the Klamath
County Assessor to be $398-516 million annually.
Question 6. Similarly, has or might the recent call on basin water
supplies affect your position on the agreements? Please explain why or
why not.
Answer. No, because our position is, as it has always been, to
support an equitable settlement for the Klamath Basin.
Question 7. Please summarize the proposed ESA listing and recent
decision regarding the Upper Klamath Chinook salmon. What was the
reasoning for this decision NMFS? Do you agree or disagree?
Answer. Any listing for a threatened or endangered fish within the
Klamath River system further complicates the water allocation. And
therefore, must be considered when looking at making an equitable
settlement including water allocation for the Upper Klamath Basin.
Question 8. Please explain the primary modifications and new
actions contemplated in the 2013 biological opinion.
Answer. No response.
Question 9. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative.
Answer. It is too early to tell how the Project operations
associated with the biological opinion will function and whether this
is a positive or negative impact on the overall water budget for the
Upper Basin. There is definitely concern regarding the limited license
water which is being provided to downstream obligations during the
irrigation season. As this has added an additional draw on Upper Basin
water, resulting in less available Project and Tribal water and an
increased call on Upper Basin irrigators.
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Responses of Richard Roos-Collins to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The United States has primary responsibilities for the
sustainable management of the Klamath Basin's water and other natural
resources.
The United States owns more than half of the basin lands. The
Interior Department administers the Klamath Irrigation Project, six
National Wildlife Refuges, and the Klamath National Wild and Scenic
River. The Agriculture Department administers six National Forests. The
United States has responsibilities to manage these reservations to
achieve the public-interest purposes established in organic statutes.
The United States also has trust responsibilities to protect the
culture, welfare, and economy of the six federally recognized tribes in
the basin. Further, the United States has responsibilities to regulate
natural resources under the Clean Water Act, Endangered Species Act,
and other federal statutes. These responsibilities extend beyond the
boundaries of the federal reservations to include non-federal
activities that affect these resources.
The Klamath Basin Restoration Agreement (KBRA) and Klamath Basin
Hydropower Agreement (KHSA) were drafted with the full participation of
federal negotiators in order to fulfill all of these responsibilities.
We also acknowledge that the States of Oregon and California have other
primary responsibilities for sustainable management of these water
resources.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario is that these water resources will
be managed systematically under voluntary agreements to assure water
supply reliability. The KBRA calls for two implementing agreements to
be reached: one to settle tribal trust claims against the Klamath
Irrigation Project; and the other, the Off-Project Water Settlement
(OPWAS), for ranchers in the Upper Klamath Basin. Water users will
agree to flow diversion or release schedules; seniors will forebear to
make otherwise permissible calls against juniors under the Oregon Water
Rights Adjudication and other water-rights law; and regulators will
confirm that these flow schedules comply with the Endangered Species
Act and other regulatory laws. This water supply reliability will allow
farming communities, tribes and other fishermen, and others to make
capital investments and other decisions that enhance the economy and
welfare dependent on these resources. In addition, the KBRA provides
for investigation of the feasibility of additional wetlands storage of
about 100,000 acre-feet, potentially enhancing inter-year water
availability.
The worst case scenario is that these water resources will continue
to be managed through a perpetual cycle of administrative rulings and
other litigation, impairing the welfare of basin communities. Per
practice throughout western states, the Oregon Adjudication established
a strict order of priority, authorizing senior water rights to cut off
junior altogether in 2013 or similar years. That has significantly
reduced water supply reliability for junior users in the Upper Klamath
Basin, impairing investment or even the feasibility of continued
operations. Absent authorization for the Klamath Agreements, it is
possible that similar litigation may occur in the lower basin in the
future, under authority of California law. Further, regulatory laws are
not effectively integrated with the water rights system, resulting in
an amorphous cloud on all titles. The Oregon Adjudication and
counterpart procedures in California do not provide a clear or
systematic answer to the question: which water users have what
responsibility to release flow for attainment of water quality
standards, conservation of endangered fish and wildlife species, or
compliance with other public trust obligations?
Question 3. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Parties to the Klamath Agreements have begun to re-examine
our budget proposal for the KBRA, in response to Senator Wyden's June
20 statement that a significant reduction may be necessary given
present budget rules and realities. The non-federal parties had
undertaken a similar effort in 2011. At that time, we reconsidered the
budget proposal in the 2010 agreements, reducing that by 18 percent. We
also agreed to extend the budget term from 10 to 15 years. And we
intended our budget proposal to be covered, in part, by redirecting
existing federal funding in the Klamath Basin.
The parties have never presumed to offer our budget proposal on a
take-it-or-leave-it basis. Our bottom line is that the authorized
budget must be sufficient for timely implementation of the measures
necessary to assure reliable water supply and the sustainability of the
basin communities.
Let me give one example which illustrates our thinking about your
question. The KBRA includes an Off-Project Water Program designed to
lease or purchase water rights from willing ranchers in the Upper
Klamath Basin. This has the goal of 30,000 acre-feet/year of new inflow
into Upper Klamath Lake to conserve listed species there. At the June
20 hearing, Senator Wyden emphasized that this measure is vitally
important to the welfare of the Upper Klamath Basin. The line items for
this measure in the 2011 budget proposal totaled $46 million over
fifteen years. That was based on our best estimate of market value of
the associated water rights. Given two years of additional experience,
the Conservation and Fishing Groups are prepared to reconsider what
funding is necessary for implementation on the scale and schedule
necessary for effectiveness. This applies to each measure in the KBRA.
You also ask about non-federal contributions. Most of the measures
in the KBRA will be performed cooperatively by federal and non-federal
parties. For example, the Fisheries Program will be a joint effort of
the California and Oregon Departments of Fish and Wildlife, tribes, and
the National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife
Service (FWS). Other measures will be performed entirely by non-
governmental organizations. Further, the KBRA requires efforts to
secure non-federal funding to assist with the implementation of all
programs. The Conservation and Fishing Groups are actively seeking such
funding, both public and private. Turning to the KHSA, PacifiCorp's
ratepayers and the State of California will fund dam removal at a total
cost of $450 million. Altogether, the non-federal funding for the
Klamath Agreements is estimated to total $549 million over 15 years.
Question 4. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. We are not aware of any measures that meet the question's
goal and criteria. Our answer is driven by the first criteria. The
Water Programs under the KBRA rely on local districts, farmers, and
ranchers to select those measures which improve irrigation efficiencies
or otherwise reduce diversions by specified amounts necessary for
conservation of fish in Upper Klamath Lake and downstream. These
programs will support assurances that the resulting flows will meet
tribal trust and regulatory obligations for fish conservation over
time. In sum, the KBRA already provides for flexibility in selection
and implementation of cost-effective measures which will achieve water
supply reliability.
Question 5. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. The most surprising finding is that dam removal is likely
to cost $292 million. In 2010 the KHSA had budgeted up to $450 million.
That was a conservative estimate reflecting (a) the unprecedented scale
and complexity of removing facilities in the remote river canyon and
(b) preliminary analysis of the risks of unintended adverse impacts,
such as discharge of accumulated sediments. Through its extensive
engineering and other studies, the Interior Department has now given us
a higher confidence that the costs and risks are well within the non-
federal budget specified by the KHSA. The studies have also confirmed
that removal of these power-only dams will not impact water supply or
flood control.
The Interior Department's studies did not resolve, or worsen, the
controversy in Siskiyou and Klamath Counties on the question whether
dam removal should occur. That controversy began well before the KHSA
was signed in 2010 and continues to this day. We continue to be
perplexed by the philosophical view, held by some opponents, that
PacifiCorp should not be allowed to pick among lawful options how to
manage its own property, and specifically should not be allowed to
proceed with removal of power-only dams even after the Oregon and
California Public Utilities Commissions expressly concluded that the
KHSA is better for ratepayers than relicensing. The KHSA commits to
further development of measures to mitigate any adverse impacts on the
water supply pipeline for Yreka, other public roads and facilities, and
property tax revenues. We support measures to address any loss in
property values for Copco Reservoir homeowners. We are hopeful that the
Task Force convened by Senators Wyden and Merkley, Representative
Walden, and Governor Kitzhaber will permit this discussion to advance
to closure.
Question 6. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. The KHSA is designed to result in dam removal, and the KBRA
is designed to result in implementation of the Water Resources and
other programs, by 2020. That target date is deliberate and reflects
our best judgment of a tipping point--when the Klamath Basin must
either turn towards sustainability or will be committed to systemic
shortage and litigation for the foreseeable future. We acknowledge
that, at some point, 2020 will not be possible to meet if Congress has
not authorized implementation of the Klamath Agreements. If we reach
that point, we will attempt to achieve the benefits of the agreements
through continued collaboration. We do not foresee a point when we
would voluntarily abandon these agreements and return to the past cycle
of litigation before regulatory agencies and courts, which simply do
not have the authorities to achieve a comprehensive solution.
Question 7. Please summarize the proposed ESA listing and recent
decision regarding the Upper Klamath Chinook salmon. What was the
reasoning for this decision by NMFS? Do you agree or disagree?
Answer. In January 2011, Oregon Wild and other groups who oppose
the KBRA petitioned NMFS to list the fall-run and spring-run of Upper
Klamath-Trinity River chinook under the Endangered Species Act. In
April 2012, NMFS denied the petition. It found that the fall-run
chinook population, while greatly reduced from historical numbers, is
among the strongest and most stable on the West Coast. It found that
the spring-run chinook, which was once the predominant run above
PacifiCorp's dams, is no longer sufficiently distinct from fall-run to
be classed as a separate sub-species. Conservation and Fishing Groups
believe that both decisions are based on sound science and may not be
the final word given further genetic analysis. More generally, we note
that NMFS took into account the anticipated benefits of implementing
the Klamath Agreements. We agree with that reasoning. Full
implementation will restore migration, and spawning and rearing habitat
for fall-run and spring-run chinook, in more than 420 stream-miles of
river and stream in the Upper Basin. That will contribute materially to
recovery of these fish.
Question 8. Please explain the primary modifications and new
actions contemplated in the 2013 biological opinion.
Answer. The 2013 Biological Opinion for the Klamath Irrigation
Project covers both suckers and coho salmon listed under the Endangered
Species Act. It replaces separate opinions for each species previously
issued by FWS and NMFS, respectively. The new opinion establishes
consistent water-year classifications, unified methods to predict water
availability early in each water year, and a collaborative process to
manage flows on a real-time basis to meet fish and irrigation needs,
including response to water shortages and emergencies. We note,
however, that this new Biological Opinion cannot achieve many of the
KBRA's benefits, including correction of the zero-sum competition
between water rights or adequate flows for the National Wildlife
Refuges.
Question 9. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative.
Answer. The 2013 Biological Opinion was issued under the ordinary
authority of the Endangered Species Act to cover the U.S. Bureau of
Reclamation's continued operation of the Klamath Irrigation Project. It
was not directly affected by the KBRA, which is not yet authorized.
Further, once authorized, the KBRA will provide for long-term Habitat
Conservation Plans for contractors and upper Basin ranchers, while
continuing to rely on future Biological Opinions for operation of the
federal project. That said, the Klamath Agreements indirectly affected
the 2013 Biological Opinion in several positive ways. The close working
relationships developed in successful negotiations permitted NMFS, FWS,
and the contractors to agree on innovative approaches for short-term
project operation, and the scientific record developed by the Interior
Department in its dam removal studies is a key scientific basis for
those approaches.
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Responses of Dean S. Brockbank to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government has a prominent role in the Klamath
Basin through its responsibility in overseeing federal interests and
applying federal laws that are of paramount importance in affecting the
resource-dependent economy of th e basin. These responsibilities have
played a prominent role in the area's resource allocation conflicts.
The federal responsibility starts with its control over the waters of
the United States, including: management and oversight of water
quality; management of hydroelectric power; management of fisheries and
listed species; management of six wildlife refuges and thousands of
acres of federal and public lands; management of the trust resources
for six federally recognized tribes; and, management and control of a
U.S. Bureau of Reclamation project. Going forward operation
ofReclamation's Klamath Project, coordination with PacifiCorp's
federally-licensed hydroelectric project, implementation of the
Endangered Species Act, and management of fisheries and federal lands
are all central to the issues and conflicts in the basin. The Klamath
Agreements represent a consensus achieved by a majority of basin
interests that are traditionally opposed to one another. Only the
federal government has the span of control necessary to implement the
agreements fully and fairly to help solve the region's problems.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future?What is the ``worst case'' scenario?
Answer. The best case scenario involves parties with divergent
interests setting aside decades of litigation and animosity and
deciding to compromise and reach settlement on issues that take into
account and provide for a range of competing stakeholder interests.
Congress can accomplish this objective by approving a long- term
Klamath solution.
The worst case scenario involves an abandonment of the desire to
compromise and reach accord on complex issues and a return to reliance
on litigation and division, and an insistence on narrow interests at
the expense of broader solutions. This outcome will result if Congress
fails to act.
Question 3. Do you agree or disagree with the cost estimates in
DOl's dam removal study ($290 million)? Why or why not? In your
opinion, what is the likelihood of cost overruns? Who should bear the
responsibility for cost overruns during dam removal should they occur?
Answer. The company has not seriously analyzed removing its Klamath
hydroelectric dams on its own so it has not approached the level of
analysis conducted by the federal agencies.From our view, the estimate
seems reasonable but we would consider it just that, a reasonable
estimate. It is not possible to know for sure at this point what full
removal of the four hydroelectric dams on the Klamath woul d entail or
cost as the conditions of permitting and other regulatory requirements
are not yet known.The agreement is designed to provide for up to $450
million for dam removal costs from non-federal sources. The company's
view, which is consistent with the terms of the KHSA, is that the
agreement should expire and not move forward without additional
direction from Congress, if it becomes clear the cost is likely to
exceed the $450 million cost cap set to be provided by PacifiCorp's
customers and the State of California.
Question 4. In your opinion, who is most likely to be the Dam
Removal Entity?
Answer. The selection of the Dam Removal Entity will be up to the
Secretary of the Interior. In our view, the federal government is among
the relatively few entities capable of such a task or with the
experience and span of control necessary to appoint and supervise a
non-federal Dam Removal Entity.
Question 5. In your view, what might have been the outcome ofFERC
relicensing proceedings (i.e., absent the KHSA)? Similarly, where would
things stand at this point in time, and would it be preferable to where
the process currently stands under the KHSA?
Answer. It is difficult to predict the outcome of the FERC
relicensing proceeding absent the KHSA. In fact, it is that uncertainty
for PacifiCorp and the other Settlement Parties that led to the KHSA.
While FERC had compl eted its Environmental Impact Statement and seemed
prepared to issue a new license to PacifiCorp, neither the State of
Oregon nor the State of California has issued water quality
certifications under section 401 of the Clean Water Act, which they
must do for FERC to act. Without the KHSA, PacifiCorp at this time
would likely be embroiled in contentious proceedings before the
California State Water ResourcesControl Board and the Oregon Department
of Environmental Quality related to the 401 certification process.
Litigation relating to these proceedings could continue potentially for
a couple of decades. FERC will not issue a new license until the401
certifications are issued, so PacifiCorp would be operating under FERC
annual licenses, as it is now. The principal difference is that
PacifiCorp, in collaboration with other settlement parties, is
currently focusing on implementing a broadly supported settlement that
includes an immediate and extensi ve program of interim environmental
measures that are now benefiting the natural resources of the Klamath
basin. Absent the KHSA, PacifiCorp would have no obligation to
implement these interim environmental measures under the FERC annual
license alone. Under the KHSA, PacifiCorp and the other settlement
parties benefit by not having to spend resources on litigation, and the
natural resources of the Klamath basin gain as a result of
environmental improvements being put in place now.
Question 6. In your opinion, what were the most surprising findings
in DOl's dam removal studies? What were the most controversial paiis?
Answer. Among the most surprising findings was that the studies
showed that the most probable cost of dam removal was $292 million-$158
million less than the $450 million cost cap contained in the KHSA. Also
surprising was the willingness-to-pay estimates developed from the
nonuse valuation studies used in the economic analysis. The discounted
present value estimates from the Klamath River Basin Restoration Nonuse
Value Survey concluded that the public was willing to pay $84 billion
to see the Klamath Basin restored.
One controversial part of the studies was that the Department of
the Interior mailed over 10,000 surveys and more than $20,000 in cash
to households across the United States to determine a ``willingness to
pay'' for the benefits associated with a ``comprehensive restoration
program for the Klamath River Basin.''
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Responses of Michael L. Connor to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the Federal
Government in the Klamath Basin?
Answer. The Federal government has multiple and diverse
responsibilities in the Klamath Basin. The Federal government has
responsibility to protect tribal trust resources in the Basin,
including, specifically, tribal fisheries. The Federal agencies also
manage water, land, fisheries, wildlife, and natural resources
associated with Federal interests. Agencies involved in the Klamath
Basin include Reclamation, the Bureau of Land Management, Forest
Service, Fish and Wildlife Service, National Marine Fisheries Service,
Environmental Protection Agency, and National Park Service. The Federal
government has many areas of responsibility in the Klamath Basin in
relation to enforcing laws enacted by Congress, such as the Clean Water
Act, Endangered Species Act, National Wild and Scenic Rivers Act,
National Environmental Policy Act and the Kuchel Act. The Federal
government also provides services to local governments and the public
through the operation of programs to help farmers, such as by the
Natural Resources Conservation Service (NRCS), programs to gather
scientific information and data to understand and better manage natural
resources, such as by the U.S. Geological Survey. Lastly, the Federal
Energy Regulatory Commission has a licensing responsibility to ensure
responsible development and operation of privately-owned hydropower
facilities in the Basin.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case'' scenario?
Answer. The best case scenario is implementation of a long-term,
durable, sustainable solution that is driven through collaboration by
those who are most directly affected at the local level. This is the
best and perhaps only opportunity to avoid the year-to-year crises that
are endemic to this Basin. Under such an approach, there is a mutual
commitment to a shared resource, the economy is strengthened, jobs are
created, and those who are most directly affected have a say in how the
resource is managed. The Klamath Hydropower Settlement Agreement (KHSA)
and Klamath Basin Restoration Agreement (KBRA) were crafted to achieve
this best case scenario by addressing ongoing impacts and risks to the
Basin's resources while strengthening communities that rely on these
resources by charting a path of collaboration and cooperation. If both
agreements are implemented, the local communities and entities in the
Basin that rely directly on Klamath River water would benefit
considerably over the status quo that constantly threaten the
livelihood of farmers, fishermen and Tribes. These agreements would
benefit these communities by creating a better approach to balancing
the available water in the Klamath Basin. This means more certainty for
irrigation water and affordable power rates for farmers, as well as
improved stream flows, habitat, and water quality for salmon and trout
fisheries beneficial to tribal, commercial, and recreational
communities. This means alleviating water quality problems within and
downstream of the Hydroelectric Reach (e.g. algal bloom toxins) that
affect fisheries and threaten human health. And it means more certainty
of water for our wildlife refuges, which are a critical link along the
Pacific Flyway. Badly needed restoration work would be completed to
improve water quality and fish habitat; voluntary water reduction
programs would make more water available to salmon and other fish
species. In addition, the costs associated with KHSA dam removal and
implementation of the KBRA is capped at a fixed amount so electricity
ratepayers know future costs in advance. As stated by the Public
Utilities Commissions of both Oregon and California, without these
agreements, the costs of relicensing could be much higher for
PacifiCorp's ratepayers in Oregon and California.
The worst case scenario is the continuation of the current
management by water crises in the Basin. The Klamath Basin has endured
conflicts among several communities, rampant and costly litigation,
depressed salmon runs, fish kills, and the potential for several fish
species to go extinct. In the Upper Klamath Basin, the Klamath Tribes
have had no salmon fishery for nearly 100 years; and they have not had
the culturally important sucker fishery for over 25 years. Many
families-fishing and farming-could be one dry year away from losing
everything they have worked for. Having to endure future drought years
without a plan on how to manage these crises could lead to even greater
divisions within the Basin. The Department's analysis shows that
climate change in the form of warmer water temperature and earlier
runoff could exacerbate a bad situation in the Klamath Basin with
negative impacts to tribes, fisheries, agriculture, and wildlife
refuges.
Question 3. What is your planned course of action if there is no
Congressional action on legislation by December 2014, the new
termination deadline? If there is no congressional action, are there
any new actions under existing authorities that could be carried out?
Answer. The parties that signed the KBRA would have to ``meet and
confer'' about the appropriate next steps. In such an instance, we
would be hopeful that there will continue to be broad support for a
solution to these ongoing problems in the Klamath Basin. We are
currently using our existing authorities to address the myriad needs
for water in the Klamath Basin to the maximum extent possible but these
authorities alone are insufficient to support the type of solution
needed to move beyond the on-going crises created by an over-allocated
watershed.
Question 4. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Following the June 20 hearing, members of the newly created
Klamath River Basin task force-consisting of representatives from
Oregon and California state agencies, Indian tribes, farming and
ranching communities, conservation groups, salmon fishing community and
electric power producers-are meeting to discuss efforts to pare down
the costs of the agreements. Previously, the Department led an effort
in 2010 to reduce KBRA costs while also ensuring the same level of
benefits to the Klamath Basin and its communities. Several efficiencies
were found which yielded a nearly 20 percent cost reduction from the
original KBRA budget. The funding scheduled was also distributed across
a 15-year program rather than a 10-year period, reducing costs on an
annual basis.
Under the current agreements, the non-federal funding for
implementing parts of the KBRA and the KHSA have also been identified.
California and Oregon will fund the KBRA counties program, the state
regulatory activities, and certain of the fisheries activities that
would not be funded by Federal agencies. The KHSA, which includes
potential removal of the Klamath dams, would be funded entirely by non-
federal sources. The non-federal cost of dam removal is capped at $450
million, per the KHSA, and the most current estimates indicate that it
will likely fall well under that. The first $200 million is paid
through a surcharge added to the electricity bills of PacifiCorp's
Oregon and California customers. These surcharges would be collected
until 2020, when the dams would potentially be removed.
If the cost of dam removal exceeds $200 million, the State of
California has committed to provide up to $250 million for the project.
Under the agreement, the United States is not liable or responsible for
costs of dam removal, whether such costs are identified prior to the
Secretarial Determination or arise at any time thereafter, including
during physical activities to accomplish dam removal. If the Secretary
determines that Interior or one of its agencies or bureaus is the Dam
Removal Entity (DRE), neither that decision nor performance of that
role will be the basis for holding the United States or any of its
agencies liable or responsible for any of the DRE's costs of Facilities
Removal (Section 4:10 KHSA). If dam removal costs were to exceed $450
million, the parties would meet and confer to determine appropriate
next steps. In addition, PacifiCorp, the owner of the Klamath dams, is
funding a series of interim measures that are being undertaken to
support and improve the resource prior to the potential removal of the
four dams at a cost of approximately $79M. These non-federal activities
total up to $529M (dam removal plus interim measures) and average
approximately $59 million per year through 2020. The states and local
governments have been unable to commit to any further contribution.
Question 5. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. The Department of the Interior believes that the only
solution that will work long-term in the Klamath Basin will be one that
addresses the core issue of water supply in light of the needs of
fisheries, agriculture, refuges, and Tribes. The Department of the
Interior has studied this issue extensively over the last few years.
The Department weighed numerous proposals and formally evaluated a
number of alternatives in the Klamath Dams Environmental Impact
Statement (EIS) that would help achieve long term solutions in the
Klamath. According to the EIS, facilities removal paired with
implementation of the KBRA provides a greater opportunity for advancing
salmonid fisheries when compared to the other alternatives, makes the
best use of the water supplies in the Klamath Basin for agriculture and
refuges, and resolves more societal hardships and conflicts that result
from over-allocation of scarce natural resources.
Question 6. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion?
Answer. While the settlement agreements are completely separate
from the Biological Opinion, the settlement process has produced an
improved spirit of cooperation. Prior to settlement, a number of key
stakeholders were at odds with one another. The settlement process has
brought parties together, including federal agencies, and has allowed
for more effective communication.
Question 7. You said that your authority is limited in its ability
to help off project water users. What would you need in order to
further your ability to help them? What's holding you back from
achieving this?
Answer. Reclamation's substantive authority is limited to the
operation and maintenance of the Klamath Project and activities that
benefit fish and wildlife affected by the Project. While Reclamation
potentially has the authority to study how power and water availability
might affect a resolution to the Klamath Basin Adjudication, this does
not allow for the development of water or power resources outside of
the Klamath Project. Reclamation would need new Congressional
authorization as well as funding to take actions that would offset
impacts to off-project ranching or farming operations.
Question 8. How is removal of the Klamath dams different than
removal of the Elwha dams? How does this project compare to other
large-scale dam removals? Please give a brief summary of some of the
federal government and private sector's major experiences with dam
removal, and lessons learned to date.
Answer. One of the unique aspects of the Klamath dams compared to
Elwha, Condit, Marmot, and several others in the western U.S. is the
position of the Klamath Hydroelectric Project's dams in the watershed.
Previous dam removals have had primarily forested lands upstream with
little human development. In contrast, the Klamath Dams are downstream
of significant human-affected landscapes including agricultural,
ranching, industrial, and urban areas. As a result, the Klamath Dams
receive incoming waters with worse water quality than other large
western dams that have been removed recently, and in turn the Klamath
Dams exacerbate those water quality problems within and downstream of
the reservoirs.
Most notable of these problems are: (1) altered water temperature
cycle of the Klamath River which delays fry emergence in the spring and
causes potentially lethal temperatures as well as delayed spawning for
adult salmon in the fall, (2) toxic algal blooms in Copco 1 and Iron
Gate reservoirs that result in conditions posing threats to public
health, pets and wildlife contacting water in the reservoirs and
downstream, and (3) increased fish disease in the river below Iron Gate
Dam. These problems have proven to be difficult to resolve with
reservoir operational changes alone and contribute to the difficulties
of meeting Endangered Species Act and Clean Water Act requirements for
relicensing. As a result of these factors, improvement of water quality
is a more important consideration for evaluating the potential removal
of the Klamath River dams than most other recent dam removals in the
west.
Similarities among recent western dam removals include the fact
that most of the dams removed to date have been privately owned
hydroelectric plants (like the Klamath dams) rather than public
facilities. Decisions to remove these dams have been primarily based on
economic considerations when dam removal is compared with retrofitting
facilities in order to obtain a long-term FERC license. The Elwha dams
were privately held until the 1990s when they were sold to the National
Park Service in the initial phases of the dam removal process. Neither
Elwhanor Condit (Washington State) dams had fish passage, and passage
at Marmot Dam and Savage Rapids Dam (Oregon) was inadequate and would
have needed significant and expensive upgrading.
The Klamath River dams, like the Elwha, Condit, Marmot, and Savage
Rapids dams, were built for hydroelectric power operations and were not
designed or operated to control downstream flooding.
The most important environmental issues related to dam removal are
the short-term and long-term impacts from the downstream transport of
reservoir bottom sediments. The four Klamath dams have trapped about 13
million cubic yards of sediment. That estimate is predicted to grow to
15 million cubic yards by 2020. This bottom sediment is mostly fine-
grained (i.e. small-diameter) silts derived from decaying algae and
agricultural runoff. In terms of the size of the dam removal projects,
the volume of trapped sediment place the Klamath dams behind Elwha (34
million cubic yards of mostly coarse sand, gravel and cobbles) and
ahead of Condit (1.3 million cubic yards of a mixture of silts, sands,
and gravels), and Marmot (950,000 cubic yards of coarse sand, gravel,
and cobbles). The proportion of bottom sediment actually eroded and
exported downstream (or predicted to be exported), varies among dams:
Elwha (greater than 50%), Klamath (about 57%), and Marmot (about 21%).
The Klamath Dams' sediment particles are smaller in size than those
behind other major dams removed in the west. The size of the sediment
particles is important in determining the rate and timing of erosion
and the ultimate downstream disposition of sediment during and after
dam removal. Computer modeling was used to predict the extent, timing,
and rate of erosion of the bottom sediments behind the Klamath dams to
optimize when dams should be removed to be most protective of sensitive
fish species in the basin (e.g. coho salmon).
The removal of the Klamath Dams would open up over 400 miles of new
habitat for fish in the upper basin. Recent dam removal experience has
shown that fish have rapidly colonized the newly created habitat both
below and upstream of other removed dams after the initial sediment
pulses have diminished; however, this has been poorly monitored or
documented in most places except in the Elwha.
In contrast to the critical infrastructures downstream of the Elwha
dams (a drinking water plant and fish hatchery), impacts to critical
downstream infrastructures on the Klamath are anticipated to be limited
to the City of Yreka drinking water supply pipeline, which could be
mitigated for, and several individual properties immediately downstream
of Iron Gate dam.
Question 9. What is the status of the replacement power envisioned
under the agreements? Have any initial steps been taken to secure this
power, including conversations with BPA? If congressional authorization
is necessary, please explain the reason and how much this would cost
under the agreements. Also, please explain any potential complications
associated with this power.
Answer. Senators Wyden and Merkley, Congressman Walden, and
Governor Kitzhaber have formed the Klamath Basin Task Force and asked
for recommendations on providing affordable and certain power supplies
for the Klamath Reclamation Project and the Upper Klamath Basin
irrigators. The workgroup formed to address this issue consists of the
Department of the Interior, Bureau of Reclamation, Bonneville Power
Administration, PacifiCorp, the Klamath Water Users Association, and
the Klamath Water and Power Agency. Recommendations from this
workgroup, including detailed steps needed to secure and deliver
preference power to the Oregon portion of the Klamath Project, are
expected in late September. Although Reclamation is already authorized
to acquire federal power for the Klamath Project, Congressional
authorization would be required to secure federal power for irrigation
for areas outside of the Klamath Project.
______
Responses of Richard Whitman to Questions From Senator Murkowski
Question 1. In your view, what is the responsibility of the federal
government in the Klamath Basin?
Answer. The federal government is responsible for at least four
sets of interests that are particular to the Klamath Basin. First, in
the 1800s, the federal government entered into a series of treaties
with Native American tribes with interests in the basin. Some of these
treaties expressly recognized that the tribes were reserving rights to
fish, hunt and gather. Other tribes retained, or were granted, lands in
reservations. These agreements between the United States and sovereign
tribes mean that the tribes retain rights to the water necessary for
those uses to continue. The federal government has a trust
responsibility to preserve these rights.
Second, beginning at the turn of the last century, in 1905, the
federal government authorized the Klamath Reclamation Project. Since
that date, the Bureau of Reclamation and other federal agencies have
actively promoted the development of irrigated farmland through federal
investments and contracts with districts, individuals and private
businesses. Irrigated agriculture is a continuing mainstay of the
economy of this area of Southern Oregon and Northern California. When
irrigation must be curtailed or stopped in order to protect fisheries,
as occurred in2001 and as is occurring to some degree this year,
substantial economic harm can occur in farming communities that were
built on the premise of reliable water supplies.
Third, the federal government is a co-manager of salmon fisheries
that depend on the Klamath Basin. Both Oregon and California coastal
communities rely on these fisheries as a key source of income. When
those fisheries must be closed or curtailed due to water management
problems on inland waters, as occurred in2002, there can be substantial
economic harm along the coasts of both states, as well as to tribal
fisheries on the Klamath River. In addition, through the licensing of
hydroelectric dams on the Klamath River, without providing for fish
passage, the federal government has allowed the substantial
diminishment of these fisheries.
Fourth, the federal government is the predominant land owner in
much of the Klamath Basin. The lands it manages include wildlife
refuges managed by the U.S. Fish and Wildlife Service, several national
forests, lands administered by the Bureau of Land Management, and a
portion of Crater Lake National Park.The federal government's
responsibilities in each of these arenas often conflict as a result of
there being too little water to fully satisfy demands for fisheries,
irrigation, refuges and other uses. As an example, the upper Klamath
Basin, water shortages this year have led to curtailment of irrigation
uses, water use in Crater Lake national park, and on lands managed for
wildlife, all in order to provide more water for fisheries.
The states of Oregon and California share some responsibility for
this over-allocation of water resources. In Oregon, the state recently
completed the first phase of a comprehensive adjudication of federal
and pre-1909 water rights (following periodic court challenges from the
federal government) in the Klamath basin. The completion of this phase
of the adjudication now makes it possible for the state to regulate
water use according to the prior appropriation doctrine. Up until this
time, upstream users of water were seldom affected by shortages, while
downstream users including the Klamath Irrigation Project and
fisheries, suffered in drought years. Over-allocation of water has
caused the Klamath Basin to careen from crisis to crisis, first
affecting the Klamath Irrigation Project (which was shut down in 2001),
then affecting lower basin tribal and non-tribal fisheries (including
coastal fisheries) in 2002 and 2004, and finally affecting upper basin
off-project irrigators this year (with a near-complete shut-off of
water for irrigation beginning in mid-June).
Under the current legal framework, including the water rights
adjudication, resources are allocated in ways in the Klamath Basin that
give no one interest what it needs for long-term economic and social
stability. Given its central role in creating this situation, the
federal government has the responsibility to lead the other interests
in the basin to a comprehensive long-term negotiated resolution of
these conflicting demands in a resolution that brings stability to the
region's economy, that meets its obligations to federally-recognized
tribes, and that meets its other national responsibilities for land,
water, and other resource management.
Question 2. In your opinion, what is the ``best case'' scenario for
the basin in the future? What is the ``worst case scenario?
Answer. The best case scenario is one where water resources are
shared more equitably between competing interests in years when water
is scarce, one where fisheries are restored and become available to
tribal and non-tribal interests for utilization, one where the Klamath
Tribes have a land base restored that provides an economic future, one
where irrigators have a greater level of predictability in knowing when
and how much water will be available, and one where lands and waters
are managed to provide for the needs of wildlife benefitting all
Americans.
The Klamath Basin Restoration Agreement (KBRA) provides a
foundation for many of these outcomes. However, there are some aspects
of a comprehensive settlement that have not been completed - notably a
water right settlement between the Klamath Tribes and upper basin off-
project irrigators.
The worst case outcome is a full reversion to management through
litigation in Oregon and in California, involving Central Valley water
as well as the Klamath, with incalculable costs and high levels of
unpredictability for all interests. For now, the KBRA has stabilized
conflicts between most of the competing interests, but that stability
could unravel quickly if Congress fails to provide necessary
authorizations for federal agencies, or fails to appropriate funds
required to implement the actions needed to restore the basin to
environmental and economic health.
Question 3. Has there been any discussion of further paring down
the agreements? Has there been any discussion of nonfederal parties,
including nonprofits, states, or local entities, taking on any of the
actions that are currently envisioned as federal responsibilities?
Answer. Yes, in answer to both questions. The KBRA parties
completed a significant review of programs and program costs in 2011.
That review reduced the costs of KBRA implementation by 18 percent.\1\
At that time, the States of Oregon and California also agreed to take
responsibility for funding programs to mitigate the local economic
effects of dam removal.
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\1\ Klamath Basin Restoration Agreement Revised Cost Estimates,
Klamath Basin Coordinating Council, June 17, 2011, at page 4.
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More recently, the parties to KBRA have discussed deferring some
elements of the agreements until a later time when there is a higher
level of certainty regarding some aspects of restoration such as water
quality. In addition, both the States of Oregon and California already
have committed to continuing and expandingcurrent activities in the
basin, and non-governmental entities are actively exploring non-federal
funding for some actions. Most recently, the National Fish and Wildlife
Foundation (NFWF) committed ten million dollars to funding restoration
work in the upper Klamath basin. Annual expenditures from non-federal
sources (state and non-governmental) to restore the Klamath over the
next seven years are expected to exceed federal expenditures over the
same period.\2\
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\2\ Klamath Basin Restoration Agreement Revised Cost Estimates,
Klamath Basin Coordinating Council, June 17, 2011, at pages4-5.
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Question 4. Are there other methods to make better use of water
supplies in the Klamath that are 1) not covered in the KBRA and KHSA;
and 2) available and feasible under existing authorities?
Answer. The hydrology of the Klamath basin is highly dependent on
temperature and precipitation, particularly in the winter and early
spring. If, as predicted, temperatures rise during this time period,
the proportion of precipitation falling as snow is expected to drop and
runoff will shift to earlier in the year while low flow periods will
lengthen. These trends, along with existing competing demands for
water, have led to continuing interest in increasing the amount of
water storage in the basin.
The Bureau of Reclamation recently completed an initial
investigation of 36 water storage options to identify the most
promising storage opportunities.\3\ The investigation supported
advancing only two options to appraisal studies at this time: (1) an
aquifer storage and recovery (ASR) groundwater option at Gerber
Reservoir and (2) a hybrid option involving ASR (groundwater) at Clear
Lake and surface storage at a new Boundary Dam and Reservoir. However,
even these two options were not found to have strong economic viability
at this point.\4\
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\3\ Initial Alternatives Information Report, Upper Klamath Basin,
Offstream Storage Investigations, Oregon and California, U.S. Bureau of
Reclamation, May 2011.
\4\ Id.
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It is likely that increased use of ground water, and improved
efficiency of water use are less expensive alternatives for improving
the use of water supplies. The USGS and the Oregon Water Resources
Department (OWRD) recently completed an analysis of the level of long-
term ground water use possible in the basin on a sustainable basis.\5\
In recent years, increased use of groundwater in both the Klamath
Irrigation Project and for off-project water users effectively has been
used as a storage source for dry years. However, it appears this source
is fully-allocated in Oregon, and OWRD has stopped issuing new
groundwater rights. Another problem with increased reliance on ground
water is the high electric costs associated with this use, costs that
have increased substantially since the expiration of the contract
between project irrigators and PacifiCorp.
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\5\ U.S. GEOLOGICAL SURVEY. Scientific Investigations Report 2007-
5050. Version 1.1, April 2010, Ground-Water Hydrology of the Upper
Klamath Basin, Oregon and California. Prepared in cooperation with the
Oregon Water Resources Department. By Marshall W. Gannett, Kenneth E.
Lite Jr., Jonathan L. La Marche, Bruce J. Fisher, and Danial J.
Polette.
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Increased water use efficiency could effectively stretch existing
water supplies between competing uses. Oregon has a conserved water
statute that allows water right holders to retain most conserved water,
while dedicating the remainder to instream uses. This mechanism
generally requires public funding, at least in part, to make water
conservation worthwhile for water right holders.
Question 5. In your opinion, what were the most surprising findings
in DOI's dam removal studies? What were the most controversial parts?
Answer. The most surprising findings were the projected costs of
dam removal. The studies found that the most likely cost of dam removal
was $292 million ($242 if portions of structures are left in place).
This cost is significantly lower that earlierestimates, and has raised
the possibility of some additional non-federal funding being devoted to
actions other than dam removal. The extent of employment increases
resulting from improved river conditions and increased reliability of
water supplies for irrigation was also higher than expected.
The amount and characteristics of sediment currently entrained
behind the dams continues to be controversial even though the studies
completed by the Department of the Interior have shown that adverse
impacts to fisheries would be short-term, and that concerns about other
impacts being significant are unwarranted.
Question 6. Is there a point in the future at which you would no
longer support this process going forward if Congress has yet to act?
Answer. No. Regardless of Congressional action or inaction, the
interests in the Klamath basin will need to continue coordinating
management of water, fisheries and economic matters. The close
coordination between federal agencies, irrigators and the Tribes in
developing the biological opinion for the Klamath Irrigation Project is
one example of how the relationships that have been built over the past
ten years are already benefitting the region.
Question 7. What is the likely outcome of the recent call on water
made by the federal government and the tribes? For instance, how would
it affect project irrigation allocations for the remainder of the water
year? How might it affect off-project irrigators and ranchers?
Answer. The calls for water regulation by the Klamath Tribes, the
federal government, and irrigators within the Klamath irrigation
project are resulting in all surface water diversions in the upper
Klamath basin, including irrigation around Klamath Lake, being shut
off. Minor exceptions have been granted for human consumption and water
for stock. The Klamath Irrigation Project made calls for regulation of
water diversions junior to 1905, and this call is affecting many water
users diverting from small streams that feed into Klamath Lake as well
as diversions from the lakeitself. The Tribes' call, made jointly with
the Bureau of Indian Affairs, is affecting water use in the main
tributaries above Upper Klamath Lake: the Wood River, the Williamson
River, the Sprague River, and the Sycan River.
The water calls have not affected the Klamath Irrigation Project.
Water diversions for the Klamath Project are set primarily by the
recent biological opinion issued by the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service (as long as such diversions
are within the water rights recently confirmed in the Klamath
Adjudication). Under the biological opinion, water use within the
Klamath Project has been curtailed through land idling and increased
use of groundwater.
Question 8. In your view, how did the settlement agreements affect
the recently released 2013 biological opinion? Was this influence (if
there was any) positive or negative?
Answer. The fundamental effect of the KBRA in terms of operations
of the Klamath Irrigation Project is that the KBRA parties, including
the Bureau of Reclamation, agreed to limit project diversions
(including the refuges) to no more than 378 thousand acre feet of water
in dry years (years when inflow into Upper Klamath Lake is projected to
be less than 287 thousand acre-feet for the March to October
period).\6\ In effect, this constrained the Bureau's (and the U.S. Fish
and Wildlife Service's) proposed action to this maximum quantity of
water diversion in dry years.
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\6\ KBRA, at E-25.
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The recent biological opinion further limited project diversions in
very dry years, based on inflow projections into Upper Klamath Lake. In
this year, the biological opinion limits project supply to 289,000
acre-feet, below the levels agreed to in KBRA.\7\ As a result, at least
for this year, it does not appear that the KBRA's limitations on water
diversions are the controlling factor in water use by the Klamath
Irrigation Project.
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\7\ Klamath Project 2013 Operations Plan, at 2, U.S. Bureau of
Reclamation, June 1, 2013.
---------------------------------------------------------------------------
More generally, the diversion limitations in KBRA reflect an
approach that balances water needs in the upper and lower portions of
the Klamath basin based on a range of water year types. The recent
Biological Opinion appears to be based on a refinement of that basic
balancing of water needs for upper and lower basin needs, including
those of the Klamath Irrigation Project.
Appendix II
Additional Material Submitted for the Record
----------
Statement for the Record Bonneville Power Administration
The U.S Department of the Interior's Bureau of Reclamation
(Reclamation) has approached the Bonneville Power Administration (BPA)
with a request to provide Federal power service to the Klamath Basin
Irrigation Project's load. This request was made to the Administrator
by letter received on August 27,2009, requesting a contract(s) for the
purchase and delivery of power to serve existing Reclamation load
within the Klamath Project in Oregon. The letter noted the load was
approximately 10 average megawatts and currently is served by
PacifiCorp. The Klamath Basin Project load has historically been served
by PacifiCorp. Reclamation also requested transmission service to an
interconnection point between BPA and PacifiCorp and stated Reclamation
would work directly with PacifiCorp to arrange for lower voltage
service over its distribution system. Costs would be recovered from
Reclamation's Klamath Project beneficiaries.
BPA markets and disposes Federal power to Federal agencies in the
Pacific Northwest, including Reclamation. BPA recognizes existing
service to Reclamation for Reclamation project loads as a qualified
customer and as meeting our standards of service for those projects. To
accommodate the requested service, Reclamation would have to
demonstrate an ability to purchase and Lise Federal power sold for
Klamath Project loads by developing a plan of service which would
include the following: I) demonstrate that PacifiCorp relinquishes its
service obligation for the Klamath Project loads; 2) identify and
provide details of specific loads, location, metering information, and
transmission; 3) detailed information on acceptable arrangements for
billing, collection, and payment for services provided. Acceptable
information would allow an offer of a standard Regional Dialogue
(current) BPA power sales contract for service to the Klamath Project.
BPA's response letter of November 9, 2009 pointed out additional
considerations in order for BPA to accommodate Reclamation's requested
service to the Klamath project, including:
1. BPA's Tiered Rates Methodology which provides Priority
Firm (PF) service at Tier 1 and Tier 2 rates. Tier 1 rates are
based on costs of the existing Federal system and Tier 2 rates
are based on costs of additional resources or purchases needed
to serve.
2. The size of the new load can affect the timing of service
charged at Tier 1 rates if the load is 10 average megawatts or
greater. lf greater than 10 average megawatts in a rate period,
service at the Tier 1 rate may be phased in over more than one
rate period and other PF rates may apply to a portion of the
service.
3. BPA would need a notice from Reclamation for a binding
commitment to purchase power so that the power purchases may be
included in load planning for BPA rates. Notice by July l of a
forecast year (or notice 3 years in advance of the new rates
being applicable if the load is 10 average megawatts or
greater) would allow service at the Tierl rate for the next
rate period based on Reclamation's BPA Regional Dialogue
contract including a Contract High Water Mark.\1\ Execution of
a Regional Dialogue contract itself would constitute binding
notice.
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\1\ Contract High Water Mark is a calculated amount of power
expressed in average megawatts that is used to determine the service
priced at BPA's Tier 1 Priority Firm Power Rate under its Tiered Rates
Methodology.
---------------------------------------------------------------------------
4. Service from BPA at an interim rate would be available but
the rate would reflect any additional incremental purchase
power costs that BPA incurs to provide the power service prior
to service being available at the Tier] rate. BPA has an
Unanticipated Load Service\2\ rate for interim service under
its Priority Firm Power \3\rates.
---------------------------------------------------------------------------
\2\ Unanticipated Load Service is an amount of power that BPA
provides to a qualified customer during a rate period that was not
included in the load forecasts used for setting rates for that rate
period. The load may be new load or load that was acquired by a
customer during a rate period of which BPA did not have notice to
include in its forecasts.
\3\ Priority Firm Power rates arc rates established by BPA under
section 7(b) of the Northwest Power Act of 1980 and available to BPA's
preference and federal agency customers.
Over the past four years BPA has engaged in discussion with
Reclamation, PacifiCorp and irrigation water users of the Klamath
project about the timing and implementation of BPA Federal power
service to Reclamation. In these discussions, BPA has made Reclamation,
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PacifiCorp and others aware of the following points:
1. BPA has the authority, but not the obligation, to serve
Federal agency loads in its marketing area, the Pacific
Northwest, by providing firm power under contract pursuant to
section 5(b)(3) of the Pacific Northwest Power Planning and
Conservation Act of 1980, P.L. 96-501.
2. Service to Federal agency load is at the discretion of the
Administrator and is provided at a priority firm power rate
under section 7 of the Pacific Northwest Power Planning and
Conservation Act of 1980, P.L. 96-501.
3. A Federal agency customer has to be qualified to take the
power under BPA Standards for Service adopted pursuant to
section 5(b)(4) of the Pacific Northwest Power Planning and
Conservation Act of 1980, P.L. 96-501. A Federal agency must be
ready, willing, and able to take the power provided for use in
load, meaning the agency must be able to accept delivery and
distribute the power to load and must have the technological
capability to allow accurate metering and billing. An agency
needs to have use of or access to distribution for end use but
does not need to own the distribution.
4. Reclamation is currently a customer of BPA for several
other end-use irrigation project loads that use nonfederal
distribution or transmission to provide delivery of service,
such as the ROZA project and the Minidoka project. While
Reclamation is not currently a customer for the Klamath
project, BPA has determined that Reclamation is a qualified
customer.
5. BPA cannot provide firm power service to Reclamation for
the Klamath Project loads which are outside of the Pacific
Northwest. Consistent with statutes, BPA could only provide
power that is sold on a surplus, recallable basis to out-of-
region Klamath Project loads under the Pacific Northwest
Consumer Power Preference Act, P.L. 88-552 and section 9(c) of
the Pacific Northwest Power Planning and Conservat.ion Act of
1980, P.L. 96-501. BPA surplus power is provided only when and
as available and is not guaranteed service.
6. For many years BPA has had an administrative policy that
it does not compete with its ntility customers for retail loads
served by those customers. PacifiCorp is the current serving
utility and before BPA provides service for Reclamation Klamath
Project loads, PacifiCorp must relinquish its service to those
loads, including conclusion of any Oregon Public Ut.ility
Commission (OPUC) approval process or finding needed by
PacifiCorp for this action.
To further the completion of the service to Reclamation for Klamath
Project load, BPA would need to have Reclamation provide the following
information and confirmations as preparation for BPA to execute
contracts with Reclamation for power and transmission services to this
load:
1. Reclamation must provide information identifying the exact
loads, pumps and equipment and the metering locations which
comprise the Klamath Project load to be served. Arrangements
must be made for EPA-approved metering of these loads. The
costs of metering and communications equipment necessary to
aggregate and electronically access essentially real-time
simultaneous demands of the Klamath Project loads are the
responsibility of Reclamation. In addition, a plan of service
which identifies distribution usc, transmission line service
and point(s) of delivery from BPA to the PacifiCorp system must
be created.
2. Reclamation must confirm that the Klamath Hydroelectric
Settlement Agreement (KHSA) is effective and implemented and
all contingencies have been met. The KHSA provides PacifiCorp's
agreement that the identified Klamath Project loads will be
served by Federal power. Any OPUC approval or review must be
completed. BPA will not duplicate service to these loads.
3. Transmission service for Federal power must be arranged.
Reclamation must arrange Network Transmission (NT) service with
BPA's Transmission Services suitable to deliver Federal power
to an agreeable interconnection point on PacifiCorp's
transmission system in southern Oregon. In 2010 BPA was able to
assist Reclamation in obtaining a NT Service Agreement.
Notwithstanding this agreement, Reclamation is aware that it
cannot make a Transmission Service Request under the agreement
until after Reclamation and BPA have executed a formal power
sales agreement, at which time Reclamation can designate BPA's
Federal power as its Network Resource to serve Klamath Project
load.
4. Once there is a signed Regional Dialogue contract in
place, BPA Power Services would arrange transfer service across
PacifiCorp's transmission system in southern Oregon to a Point
of Delivery on PacifiCorp's transmission system near the
Klamath Project loads. In order to schedule Reclamation loads,
BPA will need Reclamation to have a tool for aggregating all
the meter data from the irrigation loads.
5. Details needed for completing negotiation of a BPA power
service contract under BPA's Regional Dialogue Policy and
standard contract templates, would need to be provided.
6. Including binding notice of when power service would
commence, identification of applicable rates and services,
billing and metering processing, contact persons, and other
elections of applicable terms.
Once these steps have been taken and information provided, BPA
would undertake a public process on the execution of a contract for
service to Reclamation. BPA's Regional Dialogue policy allows for the
addition of new load service to both public agencies and Federal
agencies. BPA anticipates the ability to execute a standard form firm
power sales contract with Reclamation for service at BPA priority firm
power rates. The rate applicable for service to Project load will
depend upon the timing of the completion of these steps and
Reclamation's notice of a binding commitment to purchase power.
Although BPA might consider execution of a contract as early as
possible, BPA Regional Dialogue Policy does not allow execution of
contingent power sales contracts and execution of a contingent contract
would raise an additional issue for public review and modification of
current BPA power sales policy. Therefore BPA prefers to have
Reclamation, PacifiCorp and other parties complete the necessary steps
for the requested Federal service prior to the Administrator's final
execution of a Regional Dialogue power sales contract and transmission
agreements with Reclamation for service to the Klamath Project load.
Thank you for your consideration.
______
Statement for Pacific Coast Federation of Fishermen's Associations
The water crisis in the Upper Klamath Basin has major regional
impacts, including throughout much of the West Coast commercial ocean
salmon fisheries. The depressed fall-run chinook salmon stocks of the
Klamath are in the very center of the West Coast's ``Lower 48'' ocean
salmon commercial fishery, and thus intermingle in the ocean with all
other salmon stocks all the way from Monterey, CA to central Washington
(see APPENDIX 1 attached*). Yet in spite of a helpful upward spike in
escapement numbers for 2012, these Klamath-origin fall chinook stocks
still remain very weak.
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* All appendicies have been retained in committee file.
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One of the most important and most urgent actions that can be done
to restore the battered West Coast ocean commercial salmon fisheries in
the ``Lower 48'' is to restore the valuable and once-great salmon runs
of the Klamath River, once the third largest runs in the U.S. outside
of Alaska.
On February 18, 2010, after nearly 100 years of increasingly bitter
Klamath Basin ``water wars,'' including many lawsuits, and after
several disastrous Klamath-driven 2005, 2006 and 2007 partial or
complete shutdowns of ocean commercial salmon fisheries over more than
700 miles of coastline, some 43 major stakeholder groups and government
agencies (including two Governors, one a Republican and one a Democrat)
came together to announce that they had finally reached a ``Klamath
Settlement'' that gave real hope for stabilizing and restoring that key
West Coast salmon-producing basin-- and ultimately restoring thousands
of lost jobs.
Yet the ``Klamath Basin Economic Restoration Act'' (S. 1851 and
H.R. 3398), a bill which would have fully implemented that key
Settlement, was more or less ignored by the just ended 112th Congress,
and the bill never even got a hearing.
Now, more than three years after the Settlement was signed, and for
purely ideological reasons that fly in the face of all the facts,
certain members the U.S. House of Representatives continue to delay
House approval, trying to block it in Congress.
For the West Coast salmon-dependent communities of California,
Oregon and southern Washington, continued Congressional inaction on
solving the Klamath's salmon decline problems is simply not acceptable.
Failure to pass the necessary legislation to implement the landmark
Klamath Settlement Agreements puts the entire mixed-stock ocean
commercial fisheries of those three states--worth several hundred
million dollars a year--at continued risk of future Klamath-driven
coastwide closures.
Why the Klamath Matters to Commercial Fishermen
The Klamath Basin was historically the third-largest salmon
producing river system in the U.S. outside of Alaska, with its large
original salmon populations only surpassed by the Columbia and
Sacramento-San Joaquin Rivers. Before European development, the Klamath
produced an estimated average of 880,000 returning adults salmonids
each year. Today, however, more than 90 percent of its salmon habitat
has been destroyed or blocked by aging dams.
Lost salmon habitat means declining populations. In years like
2006, in which the fall-run chinook (the only healthy Klamath salmon
run still left) could not even meet its 35,000 ``minimum spawner
floor,'' (the minimum ocean escapement that allows any harvest), these
declines have meant widespread or total ``weak stock management'' ocean
salmon season closures over most of the northern California and Oregon
coastline, triggering severe restrictions even well into southern
Washington.
That 2006 closure alone cost the West Coast fishing industry more
than $100 million in economic losses, and required $60.4 million in
Congressional disaster assistance. Only slightly less depressed seasons
also occurred in 2005 and 2007 for the same reasons, also costing our
industry many tens of millions of dollars that has never been
compensated, and putting many coastal fishing jobs at risk.
And unless something is dramatically changed in the Klamath Basin,
such as the Congressional approval and implementation of the Klamath
Settlement Agreements, this perpetual boom-bust cycle of economic
losses and Congressional disaster assistance will occur every few
years, with no end in sight. Thousands of fishery jobs and dozens of
coastal communities will remain at risk.
Removing Fish-Killing Dams
Today the heaviest impact on Klamath salmon production by far comes
from a series of four small hydropower power dams originally all built
since 1918 without fish passage (a lack which would be illegal today),
along the Klamath River near the California-Oregon border. These dams
are owned by PacifiCorp (aka Pacific Power), a privately owned but
publicly regulated utility company providing power to about 560,000
Oregon and 40,000 California customers.
But these are not large dams, nor are they particularly valuable as
power producers. The four dams combined have in fact generated less
than 82 MW of electrical power on average (less than 2 percent of
PacifiCorp's total power portfolio) over the last 50-year Federal
Energy Regulatory Commission (FERC) license. By comparison, a single
modern power plant could reliably generate more than 1,000 MW of power.
Even off-the-shelf wind turbines can now generate up to 6 MW each. Just
very modest energy conservation investments could also very cost-
effectively make up the difference.
It would thus take relatively little additional investment to
replace the mere 82 MW these four dams combined actually generate, with
many such opportunities in PacifiCorp's massive six- state power grid.
In fact, PacifiCorp is already committed to bringing at least 1,400 MW
of brand new renewable (i.e., non-carbon) electrical power online by
2015 (See APPENDIX 2 attached* for citations). This is more than 17
times the total power losses from Klamath dam removal. The Company
actually expects to considerably exceed that goal.
Reservoirs behind the dams also create or greatly contribute to
serious river water quality problems, including slowing down and
warming the water above tolerance levels for cold-water salmon,
concentrating nutrients, curtailing natural gravel recruitment, and
encouraging the explosive growth of toxic blue-green algae as well as
encouraging the growth of fish pathogens downriver such as Ceratomyxa
shasta and Parvicapsula minibicornis. Toxic algae blooms and massive
outbreaks of these fish pathogens are both now endemic to the Klamath
Basin--all because of decreasing water quality traced largely to the
dams.
However, that 50-year FERC license to operate these four dams
expired in April 2006, and is only being extended annually while an
ultimate decision on whether to relicense them is pending. But fixing
these dams up to modern relicensing standards would likely cost more
than they are now worth, especially for such a small amount of power,
and especially under the terms of the portion of the Settlement dealing
with the dams, which is the ``Klamath Hydropower Settlement Agreement
(KHSA).''
Under the KHSA, therefore, PacifiCorp has agreed that these four
economically obsolete hydropower dams would be completely taken down in
2020-- and full salmon passage restored. This would restore access for
salmon to more than 420 stream-miles that were previously blocked,
nearly doubling the river's valuable salmon runs.
More Water For Klamath Salmon
The other major constraining factor for lower river salmon
production is sheer lack of water for fish. In the upper basin, about
220,000 acres of farmland is now irrigated as part of the federal
Bureau of Reclamation Klamath Irrigation Project. The Bureau's water
right claim is currently for effectively unlimited amounts of water, so
long as they can use it for irrigation. Prior to recent federal
Endangered Species Act (ESA) constraints, the Klamath Irrigation
Project typically diverted up to 435,000 acre-feet of water from Upper
Klamath Lake for this purpose, with its higher diversions in the driest
water years-- thus exacerbating the impacts of all droughts on lower
river salmon.
At least another 110,000 acres of irrigated lands also exist that
are hydrologically above the federal irrigation Project, along the
Williamson and Sprague Rivers which feed Upper Klamath Lake. These
lands either divert water directly from the flows to Upper Klamath Lake
or irrigate from groundwater pumping, some of which could be reducing
nearby stream flows by curtailing inflows from aquifer springs.
A big source of water conflicts in the upper Klamath basin revolves
around ESA protections both for resident fish in Upper Klamath Lake and
for ESA-listed Klamath coho salmon below the dams. Water over-
allocation led to a major confrontation between the federal ESA and
state- based water rights during the near-record drought of 2001. That
year many Klamath Project farmers who were dependent upon federal
Project water deliveries found themselves losing much of their
anticipated water deliveries (and their crops), causing serious
economic losses to these Project-dependent farmers and resulting in a
sharp political backlash.
Yet in a politically-driven effort to restore full irrigation
deliveries in the upper basin, in spite of continued drought, in 2002
the Bush Administration then severely cut back water to the lower basin
just as the adult salmon runs were returning to spawn, causing the
premature death of more than 70,000 adult spawners before they could
lay their eggs-- said to be the largest adult fish kill in U.S.
history.
These and similar back-to-back water, farming and fisheries crises
in 2001, 2002, 2005, 2006, 2007 and 2010 resulted in rotating economic
disasters throughout the Klamath basin, punctuated by nearly constant
litigation and political gridlock. These back-to-back crises also
required large amounts in federal disaster aid between the years 2001
and 2010--about $17 million in federal disaster aid per year average,
and in one year (2006) as much as $60.4 million. Similar rotating
economic disasters--and consequent need for ever more federal disaster
assistance-- would likely recur in the future unless the systemic
problems in the Klamath basin are ultimately fixed. The ``cost of doing
nothing'' in the Klamath is very high.
This past decade of disasters amply demonstrates the desperate need
for change in the Klamath basin for both farmers and fishermen alike.
The two parallel Klamath Settlement Agreements represent that much
needed change.
The Klamath Settlement Agreements were the result of nearly 10
years of hard fought efforts by all the basin's major stakeholder
groups, including PCFFA representing the interests of ocean salmon
fisheries, to finally resolve these problems and to restore the
Klamath's once-great salmon runs.
The Klamath Settlement is a bi-partisan, bottom-up, stakeholder-
driven and both biological and economic restoration plan. It is also
precisely the sort of long-term, locally-based restoration plan we were
told by previous Congress's was needed.
This once-in-a-lifetime economic restoration opportunity should not
be sabotaged by Congressional foot-dragging. The Klamath Basin will
most certainly return to the chaos and conflicts of the past if these
conflicts are not ultimately resolved through this Settlement. There is
no other viable alternative even remotely on the table.
How Klamath Restoration Benefits Commercial Fishermen And Coastal and
Farming Communities
For more than 90 years now, the four PacifiCorp-owned dams have
blocked access to more than 420 stream-miles of once fully occupied
salmonid habitat above the dams--habitat which fishery biologists
estimate could still support as many as 111,000 additional salmonids.
In other words, the salmon runs of the Klamath would nearly double
as a result of full implementation of both the habitat restoration and
dam removal components of the Klamath Settlement, restoring hundreds of
lost fishery-dependent jobs. Because the Settlement also provides more
water certainty, many more jobs would also be restored to upper basin
farming communities as well. Estimates under the recently completed
NEPA analysis indicated that full implementation of the Klamath
Settlement Agreements would mean about 4,600 additional jobs to the
basin and region (see APPENDIX 3 attached*). And most of those jobs in
both the farming and fisheries sectors would be permanent. In these
depressed rural economies this is no small economic benefit.
Once approved by Congress, the Klamath Settlement Agreements would,
among other benefits to salmon fisheries: (1) permanently restore
between 130,000 and 230,000 acre-feet of water back to the Klamath
River to benefit salmon, the total amount each year depending on
rainfall; (2) help ``drought proof'' the lower river and its salmon
runs as much as humanly possible, including implementing the
Settlement's first ever ``Drought Plan'' for the river; (3) restore
access for salmon to more than 420 stream-miles of previously occupied
habitat now blocked by the four obsolete Klamath dams; (4) greatly
improve Klamath River water quality, gravel recruitment and other
ecological functions necessary for maximizing salmon production; (5)
greatly diminish the incidence of various fish pathogens and diseases
that are exacerbated by current poor in-river water quality conditions;
(6) provide the Klamath and Tulelake National wildlife refuges a
guaranteed annual water supply for the first time, and; (7) authorize a
highly cost-effective and coordinated 50-year salmon habitat
restoration program to help fully restore the basin's damaged salmon
habitat over time.
A thorough scientific and economic NEPA analysis has already been
done on the likely impacts of the Klamath Settlement, including dam
removal, and those results are very encouraging. None of the various
``scare stories'' about toxic sediments, impacts on flood control or
irrigation impacts have been shown to have any merit. More than 50
studies were completed for this NEPA analysis, and the analysis was
subjected to highly unusual triple levels of independent peer review,
assuring that all potential biases have been eliminated. No complaints
of such bias have ever been upheld, nor found to have any merit.
______
Statement of Jill K. Duffy, Former Humboldt County Supervisor 5th
District, Orick, CA
As the former Humboldt County Supervisor-Fifth District (2003-
2010),I participated in and represented the County of Humboldt through
the five-year negotiation that resulted in ``the Klamath Agreements''.
Humboldt County, along with other local governments, state and federal
agencies,tribes, irrigators,fishermen, conservation groups, and
PacifiCorp, were among the nearly 30 parties that actively participated
in the negotiation process leading to the develop- ment of the Klamath
Hydroelectric Settlement Agreement and the Klamath Basin Restoration
Agreement.
I respectfully request your support of the KBRA because it
represents an unprecedented opportunity to resolve longstanding
disputes involving dams, water diversions, and salmon runs in the
Klamath Basin. Together,the KBRA and KHSA will create a comprehensive
framework and mechanisms to achieve major watershed restoration through
improved river flow regimes, habitat rehabilitation,improved water
quality,and fisheries restoration and re-introduction, long-term
sustainability and monitoring that will allow for adaptive management
to adjust during the next 50 years. The KBRA also will resolve a number
of water conflicts that have embroiled the basin in controversies and
lawsuits for decades. In light of the recent Oregon water adjudication
determinations,upper basin water users and the six Klamath Basin
national wildlife refuges need the water sharing provisions contained
in the KBRA to sustain their livelihoods and productivity.
The fact that the KBRA reflects compromise is a sign of its
strength. The settlement process brought together stakeholders and we
worked together- despite our differences--to find practical solutions
that benefit the basin as a whole.
I thank you for your efforts to facilitate the Klamath hearing
before the Energy and Natural Resources Committee, and respectfully
request the Committee favorably report legislation to authorize
implementation of the agreements.
______
Statement of Earl Danosky, General Manager, Tulelake Irrigation
District, Tulelake, CA
On behalf of the Tulelake Irrigation District (TID), I thank you
for your leadership in conducting this important oversight hearing.
This testimony has been prepared to provide the perspective of TID,
which has a long track record of addressing the water resources
challenges facing the Klamath River watershed.
Our testimony focuses primarily on TID's support for the Klamath
Settlement Agreements (Agreements). TID supports the Agreements because
they stabilize power costs and improve water supply reliability for
Klamath Reclamation Project (Klamath Project) irrigators like those
served by TID. Our district has been engaged in Klamath Basin water
management issues for decades. Just ten years ago, we were battling
with competing interests in the Klamath Basin in the court rooms,
newspapers, and scientific journals. We have learned that no amount of
fighting over the years has created more rain. Collaboration and
cooperation to us is a better path to success than litigation and
confrontation. Now, we have joined many of these same interests to
truly seek ``peace on the river''.
We commend the Committee's leadership in providing this oversight
hearing. The timing of this is critical, given that we are facing yet
another water crisis in the Upper Klamath Basin this year.
The Settlement Agreements represent years of intense negotiations
between the federal government, two states, three tribes, a power
utility, and agricultural, conservation and fishing interests. The
Agreements are complete, and represent the one true, comprehensive plan
that can be implemented now, with Congressional support. We cannot
afford to have a repeat of this year anytime soon.
Personal and Professional Background
I have worked at TID for the past 41 years and have been the
Manager since 1979. I have firsthand knowledge of the operations of TID
and the Klamath Project. My responsibilities include overseeing all
irrigation and drainage functions of TID, supervising all of its
employees, and reporting to and advising TID's Board of Directors. I am
also the custodian of TID's records.
About Tulelake Irrigation District
TID is a California irrigation district formed and existing under
California Irrigation District Law. Under California law, TID was
established by and represents landowners and water users in Siskiyou
and Modoc Counties, California. TID operates and maintains numerous
facilities for the delivery of water and drainage of lands within TID.
Located within the Upper Klamath Basin, TID's northern boundary is
contiguous to the border between California and Oregon and extends from
the Oregon-California state line south about 14 miles to the lava beds.
TID includes lands in both Modoc and Siskiyou Counties and is bounded
on the west by High Rim and Barn Top Mountains and extends east about
12 miles. The exterior boundary includes 96,000 acres. Tule Lake and
the Tule Lake National Wildlife Refuge (TLNWR) lie within the
boundaries of TID.
The irrigable acreage of TID is approximately 64,000 acres, of
which approximately 18,000 acres are Federal Lease Lands owned by the
United States; with most of this acreage leased to private growers for
crop production.
TID relies on water diverted in Oregon from the Klamath River
system. The majority of acres served by TID, in excess of 40,000 acres,
are lands that were homesteaded. Land that had been owned by California
was granted to the United States for disposition under the reclamation
and homesteading laws by state legislation adopted in 1905 and
homesteaders settled these lands. Homesteading of the current Federal
Lease Lands was precluded by the 1964 Kuchel Act. In addition to the
Federal Lease Lands, the Public Lands include certain areas utilized by
the U.S. Fish and Wildlife Service in farming and other uses.
TID charges landowners for the operation and maintenance of Klamath
Project facilities. Landowners are required to pay their annual
assessments whether or not they receive water.
Crops Grown in TID
Crops produced in TID in recent years have included potatoes,
grains (such as wheat, barley, oats, rye), alfalfa, pasture, grasses,
horseradish, onions, mint, peas, sugar beets, garlic, asparagus,
carrots, strawberries, trees, vegetables, fruits and field crops. The
total value of agricultural production within the District, including
the lease lands, was $85 million in 2012.
TID Infrastructure
The TID system includes 243 miles of canals and laterals, 334 miles
of drains, and 26 miles of dikes. The TID system also includes 36
pumping plants with 65 pump units. There is an ongoing process at
improving the overall efficiency of the TID water delivery system,
which includes 53 automated gates and 17 sites with full telemetry.
TID owns 10 wells that were constructed in 2001 as a means of
mitigating for that year's disastrous water curtailment. There are also
wells owned by some landowners. The TID and private wells cannot serve
all the demand in TID. Also, use of wells greatly increases operation
costs. There has also been a lowering of groundwater levels in the
Klamath Project area, as groundwater is increasingly relied upon by
irrigators to replace the once-steady surface water supplies that have
been re-directed in the past decade to meet fish requirements
recommended by federal agencies. In 2010, the city of Merrill ran out
of water due to lowered groundwater levels.
Lease Lands
A portion of the land served by TID is known as the ``lease
lands.'' Lease lands are owned by the United States but farmed and
irrigated by individual water users. TID delivers water to the lease
lands through the TID system. The lease lands are lands that were ceded
to the United States for reclamation purposes. Other ceded lands were
homesteaded. The lease lands remained in federal ownership. The lease
lands are within both TID and the Tule Lake National Wildlife Refuge
(TLNWR).
Impacts of Water Supply Uncertainty
In some past years, there has been inadequate water supply from the
Klamath system to meet demand within the Klamath Project that relies on
Klamath water. In recent years the available supply was inadequate in
1992, 1994, 2000, 2001, 2008, 2009, 2010, and 2012, and will be
inadequate in 2013. The shortages vary in magnitude.
In addition to adverse effects on the water users TID serves, water
shortages also have adverse effects on TID itself. For example, in 2001
when there was extremely little water available, dikes and canal banks
formed stress fractures and cracked with no water in the system. Also,
no seasonal employees were hired that year. TID also receives reduced
revenue from the lease lands if water supplies are short. Landowners
have difficulty paying their assessments also, which creates a variety
of problems.
The gross ``lease revenues'' (or rent) for the lease lands in TID
are related to water availability. In 2001, water was essentially
unavailable and the land was leased for $1 per acre. In 2010, water
availability was very limited and the gross lease revenues were less
than $1 million. In 2011, the gross lease revenues were $3.4 million
and in 2012 the gross lease revenues were $3.8 million. The net lease
revenue is usually about $.5 million less than the gross lease revenue.
Under the TID contract, TID is entitled to receive 10 percent of the
net lease revenues. Local counties receive 25 percent of the net lease
revenues. The value of crop production on the lease lands within TID
was $27.7 million in 2011 and $24.5 million in 2012.
Historic Low-Cost of Klamath Irrigation Project Power
The Bureau of Reclamation's Klamath Irrigation Project is unique
and has had a longstanding relationship with PacifiCorp's Hydroelectric
Project. Early plans for the Klamath Project contemplated the
development of power by the Bureau of Reclamation for use in the
Klamath Project. In 1917, PacifiCorp's predecessor entered an agreement
by which it constructed Link River Dam and agreed to sell power at low
cost to irrigators and Reclamation in lieu of Reclamation developing
power on the river. In the 1950s, when PacifiCorp's predecessor sought
a Federal Energy Regulatory Commission (FERC) license for PacifiCorp's
hydroelectric project including the planned J.C. Boyle facility,
Reclamation initially voiced objection that the license would preclude
development of low-cost federal power to benefit the Klamath Project.
This concern was resolved through a license term requiring extension of
the 1917 contract including its power terms, for at least the term of
the FERC license. (PacifiCorp's predecessor entered a similar contract
to provide low-cost power to Off-Project irrigators in Oregon.) The
long relationship was reflected and codified in the Klamath River Basin
Compact enacted by California and Oregon, and ratified by Congress, in
1957, which provides that it is the objective of the states, in
connection with the development of hydroelectric resources on the
Klamath River ``to secure . . . the lowest power rates which may be
reasonable for irrigation and drainage pumping, including pumping from
wells.''
The FERC license issued to PacifiCorp in the 1950s has expired, but
is automatically renewed for one-year terms pursuant to the Federal
Power Act. The historic power contract is not part of the annual
renewals. In the meantime, the FERC relicensing process has been
affected by settlement agreements that have been developed including
the Klamath Basin Restoration Agreement (KBRA) and companion Klamath
Hydroelectric Settlement Agreement (KHSA).
In other Reclamation Projects, low costs ``reserved'' or ``project
use'' power is made available for certain loads. Also, many irrigators
in the PacifiCorp Northwest have access to Bonneville Power
Administration (BPA) power or similar alternatives through PUDs or
similar entities. These types of arrangements were neither necessary
nor pursued in the history of the Klamath Project due to the long-
standing relationship with the hydroelectric project.
The plumbing of the Klamath Project is also unique; low cost power
is a part of its infrastructure. A significant portion of the power
goes to recirculate water (achieving efficiencies), to provide water to
national wildlife refuges, to pump water back into the Klamath River
for use by fish, and to operate pressurized sprinkler systems that use
less water than flood irrigation. These pumping operations are
essential for water efficiency and successful pursuit of other
components of the Power for Water Management Program.
Dramatic Rising Power Rates and Related Impacts
TID has been severely impacted by the increase in power rates that
have occurred since the FERC license expired. Between 2006 and 2011,
our annual power costs associated with our pumping infrastructure
dramatically increased. Due to conservation efforts, our power usage
has decreased by about 50 percent since the period prior to 2006, yet
our total cost of power has increased from $42,620 in 2005, to $625,897
in 2011. This drastic increase in total cost is due to an increase of
over 2700 percent in the unit price of power.
That would be similar to a homeowner's average power bill going
from $43 per month to $1,252 per month in a six-year period.
Already, TID, faced with considerable power cost increases, has
undertaken changes in water management practices that could reduce
historic water efficiencies. Dramatically increased power costs also
threaten the viability of some operations, including the critical role
of ``D'' Plant, which moves water from Tule Lake to the Lower Klamath
National Wildlife Refuge. The annual pumping costs associated with
``D'' Plant alone have increased from $28,129 in 2005 to $211,355 in
2011 with roughly a 70 percent reduction in power usage. These rising
costs have forced TID to take measures to minimize ``D'' Plant
operation, which has resulted in less water moving into Lower Klamath
NWR in recent years.
KBRA Solution to the Klamath Project Water Challenge
The KBRA contains provisions for local irrigation districts,
including TID, to develop and implement an ``On-Project Plan'' (OPP).
The purpose of the OPP is to align water supply and demand in areas of
the Klamath Project that rely on the Klamath system (Lake and River)
for water supply. This would be accomplished by Project districts, for
the first time ever, having a known block of water available each year.
The plan will also take into account water delivery obligations for
National Wildlife Refuges. The overriding principals/goals of the OPP
are that the plan be developed by irrigators and that no irrigator or
district in the Project suffers involuntary water shortages, as has
happened in the past. The OPP will likely employ a variety of tools in
order to address variability in available water supply so that
irrigators in the Project can ``live with'' the available water supply
including any limits on that supply in the future.
The KBRA describes certain agreed upon ``Diversion Limits'' for
water diverted from Upper Klamath Lake and the Klamath River for the
Klamath Project and refuges. The OPP is needed to ensure a reliable
water supply for the sustainability of agriculture in the Klamath
Basin. Beyond the scope of the KBRA, the challenges of meeting water
needs during dry years for agriculture, endangered and special status
species, and wildlife refuges in the Klamath Basin have become
monumental and are unlikely to change.
While ``water banks'' (which consist primarily of additional
groundwater pumping) have partially addressed the imbalance of supply
and demand in the Basin, there is no simple answer for achieving
balance and mitigating the disastrous impacts that water shortages
impart on our local economy and infrastructure. Instead of relying on
Federal agencies to develop a plan to deal with variable water supply,
it makes sense that the irrigation community develops its own plan.
KBRA Solution to the Klamath Project Power Challenge
Stabilizing power costs is an important component of the KBRA. The
KBRA programs include the Power for Water Management Program, which
also relates conservation elements of the KBRA. The KBRA power program
also addresses similar interests of irrigators in the Upper Klamath
Basin who operate outside the Klamath Project (Off-Project irrigators).
Section 17 of the KBRA, complemented by Section 5 of the KHSA,
states the Power for Water Management Program as related to the Klamath
Project and Off-Project agriculture. The Program consists of three
elements developed around a delivered power cost target ``at or below
the average cost for similarly situated Reclamation irrigation and
drainage projects in the surrounding area.'' The composition and cost
of those programs are interrelated.
First, for the short-term, funding is provided to stabilize total
power costs as other components of the program are brought on line.
Second, power generated at other Bureau of Reclamation facilities
would address the program objectives in part. Power can, for example,
be marketed by the BPA to serve eligible loads in the upper Klamath
Basin in Oregon. Under the KBRA and KHSA, Reclamation commits to
acquire a contract consistent with applicable law and standards of
service to serve eligible loads, PacifiCorp agrees to cooperate in
delivery of power to the loads, and all parties support this
undertaking. The KBRA provides for funding of $1 million over four
years for technical work and analysis necessary for contracting and
development of transmission and delivery arrangements. The availability
of some federally generated power should incrementally assist in
meeting low power cost objectives, and would be supplemented by the
renewables element of the overall Power for Water Management Program,
which is discussed below.
Third, funding would be provided for energy efficient/conservation
and renewable generation opportunities and investment. The activities
to be pursued could include installation of efficiency measures, such
as additional improvements in water pumping and piping efficiency,
solar photovoltaic development and net metering programs, investment in
renewable generation on a broader scale, and other practices.
Settlement parties, with expert assistance provided by the State of
Oregon and the Bureau of Reclamation, worked diligently to evaluate
alternatives that would leverage expenditures through tax credits and
available regulatory programs. The KBRA also contemplates the potential
development of joint projects with the Klamath Tribes and irrigators
under the umbrella of the renewable energy element. As with other
elements, the benefits and objectives of this element are designed to
serve both irrigation interests inside the Klamath Project and the Off-
Project area in the Upper Klamath Basin.
Conclusions
Developing a collaborative settlement to the Klamath River
watershed challenges was initiated by the Bush Administration, and
strongly supported by former Interior Secretary Salazar when President
Obama was handed the issue. Now, we need similar bipartisan support in
Congress to lead to eventual implementation.
It defies common sense why some critics of the Settlement
Agreements believe we should tear them up and start over. We hope that
these critics are prepared to offer alternative, realistic solutions--
now.
It is time for Congress to start moving authorization of the
Agreements.
Thank you for this opportunity to present testimony to you.
______
Statement of Luke Robison, Manager, Malin and Shasta View Irrigation
Districts, Malin, OR
On behalf of the Malin Irrigation District (Malin ID) and the
Shasta View District (Shasta View ID), I appreciate the opportunity to
present written testimony for the record of this very important
oversight hearing. My name is Luke Robison, and I am the manager of
both districts. I also serve as an alternate director on the board of
the Klamath Water Users Association.
My district is proud to be one of the parties signed on in support
of the Klamath Settlement Agreements, including the Klamath Basin
Restoration Agreement (KBRA). Admittedly, the KBRA is not the perfect
answer to the challenges facing the Klamath River watershed. However,
we believe the KBRA is the most viable solution to a complex set of
issues that face the people of the Klamath Basin.
In the past ten years, local water users--both within the Klamath
Project and those who farm in upstream areas north of Upper Klamath
Lake--have taken proactive steps to protect and enhance water supplies,
enhance the environment, and stabilize the agricultural economy. The
impacts of the 2001 decision to withhold irrigation supplies
underscored the vital linkage that exists between irrigated farmland
and wildlife. Water that would normally flow through Klamath Project
farmland habitat was directed instead towards increasing instream water
levels for three species protected under the Endangered Species Act
(ESA). The vitality of over 400 other wildlife species was threatened
when they were subjected to the same fate as local farmers: no water,
dry watercourses, drastically altered vegetation, parched land and
dust.
Our pioneering heritage is based upon common sense and harmony with
our environment and our community. The simple fact is that there was no
common sense or harmony in 2001 during the water shut off, or after the
2002 die-off of fish near the mouth of the Klamath River. It took a lot
of tenacity for the major stakeholder from all areas of our watershed
to put hard feelings aside and agree to work together to find a better
way of life for all interests who rely on the river. Thus, the KBRA was
born.
I applaud the Committee for conducting this important hearing at
such a critical time. Once again, we are facing yet another water
crisis in the Upper Klamath Basin this year.
The KBRA can help prevent a repeat of this year's crisis. However,
Congressional action is required to fully enable it and the Klamath
Hydropower Agreement. This is both reasonable and appropriate since the
federal government has played a central role in virtually every major
water management decision in this basin and the locally-crafted
consensus approach embodied by the accords came about at the urging of
Congress.
Shasta View and Malin Irrigation Districts: Background
Shasta View ID and Malin ID derive their water from the Klamath
Irrigation Project, which draws its source water from Upper Klamath
Lake, the Klamath River, and the Lost River systems. Shasta View ID
serves 5,000 acres, while Malin ID serves 3,400 acres near the
community of Malin, Oregon. Key crops grown include potatoes, alfalfa,
garlic, sunflowers, mint, strawberries, and grain. Shasta View ID has
an underground pressurized water delivery system, while Malin water is
delivered primarily by gravity, through an open channel delivery
network.
Recent Changes in Klamath Project Water Management
For most of the last century, Klamath Project irrigation supplies
proved sufficient to meet the needs of our district's farm families.
Although there were years where Mother Nature and Klamath Project
storage capacity proved insufficient to meet full irrigation demands,
the local community managed to stretch thin supplies and make things
work. That all changed in the early 1990s, when steadily more
restrictive government agency decisions made to meet Endangered Species
Act (ESA) goals began to steadily chip away at the stored water supply
originally developed for irrigation.
Two sucker species were listed (1988) as endangered and coho salmon
were listed (1997) as threatened under the ESA. Since then, biological
opinions rendered by the U.S. Fish and Wildlife Service (for the
suckers) and NOAA Fisheries (for the coho), have emphasized the
reallocation of Project water as the sole means of avoiding
jeopardizing these fish. Klamath Project ``operations plans'' based on
these biological opinions also factor in tribal trust obligations,
although the nature and extent of such obligations is undefined.
The net result of increasing restrictions on other Klamath Project
water users was fully realized on April 6, 2001, when Reclamation
announced its water allocation for the Project after U.S. Fish and
Wildlife Service and NOAA Fisheries officials finalized the biological
opinions (BOs) for project operations in a critically dry year. Based
on those regulatory actions, Reclamation announced that--for the first
time in Project's 95-year history--no water would be available from
Upper Klamath Lake to supply Project irrigators.
The resulting impacts to our local community were immediate and
far-reaching. Even with a later release of a small percentage of needed
water over a 30-day period in July and August 2001, thousands of acres
of valuable farmland were left without water. In addition to harming
those property owners, managers, and workers, also imparted an economic
``ripple'' effect through the broader community. The wildlife benefits
provided by those farms--particularly the food provided for area
waterfowl--were also lost with the water.
The local farming community took years to recover from the April 6,
2001 decision, and severe business losses echoed the hardship endured
by farmers and farm employees. As farmers and laborers attempted to
deal with the loss of jobs, a year's income, and in some cases the land
itself, referrals for mental health counseling increased dramatically.
Because of the heated controversy over the federal government's
decision to eliminate water deliveries to the Klamath Project in 2001,
the National Academy of Science (NAS) was asked by the Department of
the Interior and Department of Commerce to ``evaluate the strength of
scientific support for the biological assessments and biological
opinions on the three listed species, and to identify requirements for
recovery of the species''. Although the NAS Klamath committee agreed
with many of the agencies' decisions, after extensive review, they
ultimately concluded that there was insufficient scientific support for
the argument of high lake levels for suckers (Upper Klamath Lake) and
high Klamath River releases from Iron Gate Dam for coho. Notably, the
peer review committee members were unanimous in their conclusions on
both biological opinions.
Nevertheless, increased downstream releases into the Klamath River
and elevated lake levels in Upper Klamath Lake in the past 13 years
have formed the foundation of recent Klamath River management by the
federal government.
Impacts Due to Water Supply Uncertainty and Rising Power Costs
The 2001 Klamath Basin water crisis dramatically affected the Malin
community, resulting in the closure of the town's only gas station and
auto repair shop. The hardware store reported $150,000 in lost sales,
and a local restaurant also suffered, and eventually closed.
Before 2001, the Klamath Basin had 30,000 acres in potatoes. Now,
the acres planted in potatoes are only 11,000. The number of potato
packing sheds dropped from 23 to 9. Of those, three are in Malin.
It is nearly impossible to describe 2001 and the harsh impacts that
resulted from the immediate loss of farm income. Some farmers went
broke, while others were forced to retire. Farm jobs were lost. Dust
blew across the fields and through our community all summer and once-
productive farmland was overtaken by weeds.
Things were not much better in 2010, when sixty-two landowners in
the Shasta View ID went without Upper Klamath Lake surface water and
voluntarily participated in a land idling program that paid landowners
not to irrigate. Many fields and farmlands went dry as a result, and
the farmland that did not have access to groundwater produced no crops
that year. Several of our potato growers, under contract to supply
potato chip manufacturers, had to find other lands in neighboring
communities to grow, or risk losing their contracts.
A significant amount of the acres grown in both districts are
permanent crops. With the current uncertain water delivery status, this
can be risky and costly at times, since money must be invested prior to
knowing what our water supply will be. It can sometimes take up to
three years before a permanent crop actually returns invested money
back to the family farm.
Delayed delivery of water to our row crops can also be detrimental
to our growers, due to the location of our districts, near the tail-end
of the Klamath Project delivery system. By the time water gets to one
of my district farmers, his crops have already taken a hit from lack of
water. He and his neighbors deserve a return to the reliable water
supplies that originally drew them to our area.
Potatoes grown for chips are a major crop in the two district
service areas. Without reliable water in the September- November time
frame, these crops cannot be harvested. Walker Brothers Farms is a
family owned, large employer in this area. That business would not be
able to continue without water.
In addition to water supply uncertainty in recent years, Shasta
View and Malin Irrigation Districts have seen unprecedented power rate
increases in the past six years, due to the expiration of a long-term
power agreement with Pacific Power that local farmers and ranchers
enjoyed for the previous 50 years. In 2005, Shasta View Irrigation
District, which provides piped, pressurized water to our farms, spent
$35,000 on power costs. This year, we budgeted $500,000 to cover those
costs. Malin Irrigation District pumps its water out of the Klamath
Project canal system into a gravity-fed canal system. From there,
individual farmers pump the water from the canal on to their fields. In
2005, Malin ID spent approximately $13,000 on pumping costs. This year,
we budgeted $112,000 for the same line item. These costs are passed on
to the farmers, who also have to pay for their own individual on-
property pumping costs.
Farmers in both districts are paying well over 10 times what they
were paying in 2005. This is a very serious challenge that is shared by
other Klamath Project irrigators in Oregon and California.
The Solution: Klamath Basin Settlement Agreements
The Klamath Settlement Agreements will help stabilize power costs
and improve water supply certainty for both Malin and Shasta View
Irrigation Districts.
The KBRA contains provisions for local irrigation districts,
including TID, to develop and implement an ``On-Project Plan'' (OPP).
The purpose of the OPP is to align water supply and demand in areas of
the Klamath Reclamation Project that rely on the Klamath system (Lake
and River) for water supply.
I am actively involved with the development of the OPP and I am
confident that it will improve water supply predictability. Under the
KBRA and OPP, by early March, every farmer should know what the
Project's water allotment from the Klamath system will be, which is a
great improvement in certainty for water users. In almost every year, a
determination of how much water will be made available will be made in
early March by applying criteria in the KBRA. Studies estimate that
surface water alone should meet the Project irrigation demand in at
least 50 percent of the years. For those drier years, the OPP will
align supply and demand, through physical facilities, voluntary
arrangements, or both.
The OPP provides an opportunity for Klamath Project irrigators to
move from a ``reactive'' mode, focused on addressing regulatory
concerns, to a strategic mode that provides a defensible road map for
accommodating variations in Klamath River water supply. This will
support and promote viable Project agriculture in the Basin, which in
turn will boost the local economy and the environment. The OPP is
intended to provide predictable and reliable water supplies, albeit
with limitations (which should be manageable) on the total amount of
Klamath River water available, particularly in the drier years.
Stabilizing power costs is also an important component of the KBRA,
which includes provisions for the Power for Water Management Program.
The KBRA power program addresses similar interests of irrigators in the
Upper Klamath Basin who operate outside the Klamath Reclamation Project
(Off-Project irrigators). The Program consists of three elements
developed around a delivered power cost target ``at or below the
average cost for similarly situated Reclamation irrigation and drainage
projects in the surrounding area.'' The composition and cost of those
programs are interrelated.
Conclusions
If the KBRA is not implemented, the status quo--rooted in
regulatory uncertainty--remains, with potentially greater risk to
Shasta View and Malin ID water users. The irrigation districts and
their water users will be left with (a) addressing ESA issues year to
year, likely through conflict and litigation, as they have in the past;
and (b) exposure to greater uncertainty with respect to future effect
of tribal rights and claims; and (c) potentially crippling power bills.
We specifically ask that Congress join us in finding the most
viable means to fund, authorize, and otherwise support solutions that
decisively overcome the decisions of the past that created today's
crisis, and help us enact what we believe to be the fairest, most cost-
effective, and fastest path to sharing the basin's water resources. The
Settlement Agreements represent years of intense negotiations between
the federal government, two states, three tribes, a power utility, and
agricultural, conservation and fishing interests. The Agreements are
complete, and represent the one true, comprehensive plan that can be
implemented now, with Congressional support. We cannot afford to have a
repeat of this year anytime soon.
In short, I ask for this Committee's assistance in crafting
legislation to enact the Klamath Settlement Agreements.
Again, I would like to thank the Committee for taking the time to
hear testimony on this topic, which is vitally important for every
resident of the Klamath River watershed.
______
Statement of Steve Kandra, President, Westside Improvement District,
Tulelake, CA
On behalf of the Westside Improvement District (Westside), I
appreciate the opportunity to present written testimony for the record
of this very important oversight hearing. My name is Steve Kandra, and
I am now and have been since 1985, the President of Westside. I am
intimately familiar with the operations of Westside and, generally,
with the Klamath Irrigation Project (Klamath Project). My
responsibilities include overseeing all irrigation and drainage
functions of Westside, record-keeping, and reporting to and advising
Westside's Board of Directors.
We commend the Committee's leadership in providing this oversight
hearing. The timing of this is critical, given that we are facing yet
another water crisis in the Upper Klamath Basin this year.
Unfortunately, the situation in the Klamath has again reached crisis in
2013. The State of Oregon declared a drought in the Upper Klamath
because of an unusually low snow pack in the mountains that nourish the
basin. With recent completion of the 38-year process that determined
water rights in the basin's headwaters, those with junior water rights
are virtually certain to see their water shut off this summer. The
threat of community conflict this summer, even violence, is sadly very
real.
For these reasons and many more, Westside supports the Klamath
Settlement Agreements (Agreements). Three years ago, weary from decades
of seemingly endless litigation and rotating crises, an unlikely
coalition of farmers, fisherman, tribes, and environmentalists, along
with private dam-owner PacifiCorp and government representatives,
signed the Klamath Settlement Agreements in 2010. These Agreements,
supported by the majority of basin interests who depend upon surface
water, offer balanced solutions for realizing better water certainty
and water sharing across all interests, restoring imperiled fish and
wildlife, and sustaining a strong natural resource-based economy in the
region. The parties to these accords put aside their own ideology and
vision of the perfect outcome to embrace a collaborative path they
believe is in the best long-term interest of the entire basin.
The Agreements can help prevent a repeat of this year's crisis;
however, Congressional action is required to fully enable them. This is
both reasonable and appropriate since the federal government has played
a central role in virtually every major water management decision in
this basin and the locally-crafted consensus approach embodied by the
accords came about at the urging of Congress.
Westside Improvement District: Background
Westside--created in 1934--is a California improvement district
organized and existing under the California Water Code.--The District
is located in Siskiyou County, California, and is adjacent to Tulelake
National Wildlife Refuge. Westside receives water from facilities
operated and maintained by Tulelake Irrigation District, which convey
irrigation water for beneficial use to water users on approximately
1,190 acres of high-value agricultural land within the boundaries of
Westside. Westside's farmers grow alfalfa, wheat, mint, sunflowers,
potatoes (Russets and chippers) and onions.
All of the lands presently within Westside were part of lake bottom
ceded to the United States by the State of California in 1905 for the
construction of the Klamath Irrigation Project. On October 20, 1936
these lands were conveyed to the Colonial Realty Company (Colonial) by
patent as part of a land exchange between Colonial and the United
States. Colonial thereafter sold this land to farmers.
Once the Klamath Project construction had begun, Westside
landowners began filing water right applications for delivery of water
from the Klamath Project. Today, Tulelake Irrigation District (TID)
delivers water to lands within the Westside that are also within TID
under what are know as Warrant Act contracts.
Westside Improvement District Environmental Initiatives
My district has a well-established record for finding ways to
enhance the symbiotic relationship that exists between the environment
we work in and the land that supports the food we produce. In Westside,
18 percent of the District is dedicated to long term wildlife
enhancement projects. The farmlands within the District experience
significant Pacific Flyway waterfowl usage during Spring and Fall
migrations.
In 2004, Westside Improvement District landowners partnered up with
USFWS, Reclamation, TID, and others to design and construct a water
treatment marsh that treats the drainage return flows from the District
to improve water quality in Tule Lake. The treatment marsh became
functional in 2012.
Landowners also participate in ``walking wetlands'' program in
cooperation with the Klamath Basin National Wildlife Refuges. In order
to reduce pesticide use on the National Wildlife Refuge and reduce
risks to Refuge fish and wildlife, the U.S. Fish and Wildlife Service
in cooperation with the Bureau of Reclamation and local farmers created
an Integrated Pesticide Management (IPM) Plan in 1997. In developing
the plan, it was felt that periodic flooding of agricultural lands
would be a key IPM technique for suppressing plant parasitic nematodes
as well as a host of other soils diseases and pests. This is a
management plan that rotates blocks of farmland with flooded wetlands.
In participating in the Refuge's wetland/cropland program, growers
have found that following wetland cycles, no soil fumigants are
required at a savings of up to $200/acre. In addition, yields of some
crops have increased up to 25 percent. The value of these benefits is
apparent in recent lease rentals which are nearly twice those of
adjacent conventionally farmed fields. In addition, several Refuge
farmers have discovered that the soil pest and disease control function
of wetlands is sufficient to allow for organic crop production. Based
on increasing demand for organic acreage on the refuge, this program
continues to expand.
One of the primary reasons for implementing an integrated program
of wetlands and croplands was to enhance wildlife values with an
emphasis on waterfowl and the diversity and abundance of other wetland
wildlife species.
As a result of cooperative wetland restoration and enhancement
programs, waterfowl use of Tule Lake NWR has increased to levels not
seen in over 25 years.
Westside Water Supplies: Before and After 2001
Westside receives its water from the Klamath River system and the
Lost River/Tule Lake, which are all regulated for endangered fish
species by U.S. Fish and Wildlife Service (USFWS) and National Marine
Fisheries Service (NMFS). The inclusion of two endangered sucker fish
species and the threatened coho salmon on the Endangered Species Act
list fundamentally changed how our water was managed, starting in the
late 1990's.
Prior to 2001, Westside landowners always received all the water
they could beneficially use (with minor exceptions in the drought years
of 1992 and 1994). Westside farmers would, again, in 2001 have received
all the water they could have beneficially used if Reclamation had been
able to operate under historical practices as originally intended. In
February 2001, Reclamation issued a biological assessment with respect
to the operation of the Klamath Project, proposing to deliver water to
Klamath Project irrigators and wildlife refuges, in accordance with
historical practice. Reclamation, however, directed irrigation water
users not to take water until USFWS and NMFS had completed their
biological opinions.
On April 6, 2001, the NMFS and USFWS issued their biological
opinions with respect to the operation of the Klamath Project on coho
salmon and suckers, respectively. Each found that the proposed action
of water delivery was likely to jeopardize the continued existence of
the species. Throughout the 2001 irrigation season, Upper Klamath Lake
contained large quantities of water that should have been released to
Klamath Project water users. Constrained by the biological opinions,
however, Reclamation always kept the Upper Klamath Lake level between
4,143.3 and 4,139.5 feet above sea level, rather than drawing it down
to 4,137 feet above sea level or lower as in prior years. Further,
Reclamation released flows down the Klamath River as required by the
NMFS biological opinion much larger than the historical practice. Had
Reclamation managed Lake levels and downstream flows according to
historic practices, Klamath Project water users would have received
sufficient water to grow their crops.
Because of the heated controversy over the federal government's
decision to eliminate water deliveries to the Klamath Project in 2001,
the National Academy of Science (NAS) was asked by the Department of
the Interior and Department of Commerce to ``evaluate the strength of
scientific support for the biological assessments and biological
opinions on the three listed species, and to identify requirements for
recovery of the species''. Although the NAS Klamath committee agreed
with many of the agencies' decisions, after extensive review, they
ultimately concluded that there was insufficient scientific support for
the argument of high lake levels for suckers (Upper Klamath Lake) and
high Klamath River releases from Iron Gate Dam for coho. Notably, the
peer review committee members were unanimous in their conclusions on
both biological opinions.
Nevertheless, increased downstream releases into the Klamath River
and elevated lake levels in Upper Klamath Lake in the past 13 years
have formed the foundation of recent Klamath River management by the
federal government.
In the years following 2001 and currently, Klamath Project annual
operations are characterized by uncertainty. As things stand,
irrigators may not know what their water supply will be until April (or
June, as was the case this year), and uncertainty can persist through
the season. This makes planning for the growing season very difficult.
Further, if there is a water shortage, it is not allocated according to
any particular plan or logic (other than contractual priorities that
the Bureau of Reclamation has identified). Finally, for over a decade,
local water users have spent significant time and financial resources
monitoring and challenging annual Klamath Project operations plans
influenced by agency biological opinions.
Importance of Affordable Power
Westside Improvement District could also be viewed as a
``drainage'' district, since the farmlands have been reclaimed from
Tule Lake and are protected by 4 miles of levees and 6 miles of drains.
The cost of energy for drainage pumping is a significant portion of
operations costs for the District, having increased nearly 2,000
percent since 2006. This is a critical matter, since we need to pump to
avoid flooding, and it is becoming increasingly expensive to do so.
How the Klamath Settlement Agreements Help Westside Farmers
The Settlement Agreements will help stabilize power costs and
improve water supply certainty for Westside Improvement District.
The Klamath Basin Restoration Agreement (KBRA) contains provisions
for local irrigation districts, including TID, to develop and implement
an ``On-Project Plan'' (OPP). The purpose of the OPP is to align water
supply and demand in areas of the Klamath Reclamation Project that rely
on the Klamath system (Lake and River) for water supply.
I am confident that the OPP will improve water supply
predictability. Under the KBRA and OPP, by early March, every farmer
should know what the Project's water allotment from the Klamath system
will be, which is a great improvement in certainty for water users. In
almost every year, a determination of how much water will be made
available will be made in early March by applying criteria in the KBRA.
Studies estimate that surface water alone should meet the Project
irrigation demand in at least 50 percent of the years. For those drier
years, the OPP will align supply and demand, through physical
facilities, voluntary arrangements, or both.
The OPP provides an opportunity for Klamath Project irrigators to
move from a ``reactive'' mode, focused on addressing regulatory
concerns, to a strategic mode that provides a defensible road map for
accommodating variations in Klamath River water supply. This will
support and promote viable Project agriculture in the Basin, which in
turn will boost the local economy and the environment. The OPP is
intended to provide predictable and reliable water supplies, albeit
with limitations (which should be manageable) on the total amount of
Klamath River water available, particularly in the drier years.
Stabilizing power costs is also an important component of the KBRA.
Programs proposed in the KBRA include the Power for Water Management
Program, which also relates conservation elements of the KBRA. The KBRA
power program addresses similar interests of irrigators in the Upper
Klamath Basin who operate outside the Klamath Reclamation Project (Off-
Project irrigators). The Program consists of three elements developed
around a delivered power cost target ``at or below the average cost for
similarly situated Reclamation irrigation and drainage projects in the
surrounding area.'' The composition and cost of those programs are
interrelated.
Conclusions
Our farms provide high value, high productivity crops that
contribute to our local economy and the overall health of the nation.
Benefits provided by irrigated agriculture--consisting of the direct
crop production, agricultural services, and the food processing and
packaging sectors--is one of the largest job providers and economic
engines in the West. A recent study released by Dr. Darryl Olsen of the
Pacific Northwest Project determined that Western irrigated agriculture
creates a total annual national economic benefit valued at $128 billion
in 2010 dollars.
Our farms also provide significant wildlife values that must be
protected. We need to find constructive and meaningful ways to
proactively address the Endangered Species Act and the Clean Water Act.
And, we need affordable energy for drainage vital to prevent flooding.
We specifically ask that Congress join us in finding the most
viable means to fund, authorize, and otherwise support solutions that
decisively overcome the decisions of the past that created today's
crisis, and help us enact what we believe to be the fairest, most cost-
effective, and fastest path to sharing the basin's water resources. The
Settlement Agreements represent years of intense negotiations between
the federal government, two states, three tribes, a power utility, and
agricultural, conservation and fishing interests. The Agreements are
complete, and represent the one true, comprehensive plan that can
implemented now, with Congressional support. We cannot afford to have a
repeat of this year anytime soon.
In short, I ask for this Committee's assistance in crafting
legislation to enact the Klamath Settlement Agreements.
Again, I would like to thank Chairman Wyden, Ranking Member
Murkowski, and the entire Committee for taking the time to hear
testimony on this issue which is vitally important to every resident of
the Klamath River watershed.
______
Hoopa Valley Tribal Council,
Hoopa, CA, June 18, 2013.
Hon. Michael L. Connor,
Commissioner of Reclamation, United States Department of the Interior,
Washington, DC.
Dear Comissioner Connor:
The referenced letter recently came to our attention and raises a
number of issues that bear on the protections required in reclamation
law, federal Indian law, and the 2000 Trinity River Mainstem Fishery
Restoration Record of Decision (ROD). The positions taken in the letter
bear directly and adversely on the Hoopa Valley Tribe's rights and
interests in the Klamath/Trinity River fishery. The letter confirms our
long-held suspicion that the Central Valley contractors will never
accept the Law of the Trinity River (the statutes, permits,
regulations, judicial decisions, agreements and administrative
decisions that govern the use of Trinity River water.) unless the
Secretary acts decisively to dismiss their contentions and use her
authority to require the contractors' to comply with these authorities.
We intend to confer with you about this subject in our meeting on
June 20. In the meantime we request that the Department provide an
opportunity for a Government-to-Government consultation about the
preparation of any response the Bureau intends to make to the San Luis
& Delta Mendota Water Authority and the water and power contractors who
joined in their May 31 letter.
We note that on page 6, the May 31 letter states that the Bureau
had assured the contractors in 2012 that they would be made whole in
the event Trinity Division water was used in late summer in excess of
the ROD flow releases to protect fish in the lower Klamath River. If
such an assurance was made, it appears to us to have been unlawful
because it would upend the priority for protection of in-basin uses
over out-of-basin diversions.
Sincerely,
Leonard E. Masten, Jr.,
Chairman.
______
U.S. House of Representative,
Committee on Natural Resourses, June 19, 2013.
Hon. Ron Wyden,
Chairman, Senate Committee on Energy and Natural Resources, 304 Dirksen
Senate Building, Washington, DC.
Dear Chairman Wyden,
I am writing to express my support for your June 201 h hearing on
``Water Resources Issues in the Klamath River Basin'' and to recognize
what an important milestone a Congressional hearing on these issues is
for residents of the Klamath Basin.
Diverse agricultural, tribal, and environmental interests have been
at the forefront of water conflicts in the Klamath Basin for decades.
Events since 2001 however, including water shortages for agricultural
uses and a devastating fish kill, brought tensions between these groups
to a head. Seeking to end decades of conflict in this region, more than
forty signatories--including Indian tribes, the dam owner itself,
PacifiCorp, the states of California and Oregon, downstream interests,
Humboldt County, and upstream irrigators--negotiated and signed the
Klamath Basin Restoration Agreement (KBRA) and the Klamath
Hydroelectric Settlement (KHSA) in 2010.
The parties to the KBRA and KHSA are already implementing the
actions that are possible under existing authorities. However, as you
know, Congressional action is required to move forward with a number of
the important actions included in the KBRA and KHSA.
Removing the four dams enumerated in the KHSA and restoring a
healthy, thriving Klamath River should be a goal of this Congress, and
I am conunitted to supporting that goal in any way I can. Thank you
again for your initiative in bringing these diverse parties to a
Congressional hearing to articulate the critical situation in the
Klamath Basin and the need for further Congressional action on these
issues.
Sincerely,
Jared Huffman,
Member of Congress.