[env-trinity] Times-Standard Opinion- Rick Dowd, Resighini Rancheria
FISH1IFR at aol.com
FISH1IFR at aol.com
Sat Nov 19 19:43:55 PST 2011
Interesting….
However, though I have great respect for Chairman Dowd and the Resighini
Rancheria residents, there are nonetheless a number of serious problems and
outright errors with his analysis of the KBRA in this article below,
including the following:
No “Terminations” of Any Non-Party Tribe’s Rights: While there are some
strictly voluntary water right settlements mentioned in the KBRA only by
the signatory Party Tribes to the KBRA, no non-Party like the Reshigini’s can
be bound in any way by what is essentially just a long-term habitat
restoration contract if they did not sign that contract.
The so-called “terminations” of the Resighinis rights they fear will just
not happen – it is a pure fiction. This fact is also made clear in the
Klamath Basin Economic Restoration Act (S. 1851 and H.R. 3398) that will
implement the deal. Here is a direct quote from that bill language:
“Sec. 106 (l). NONPARTY TRIBES OF THE KLAMATH BASIN UNAFFECTED – Nothing
in this Act or the Restoration Agreement amends, alters, or limits the
authority of the federally recognized tribes of the Klamath Basin, other than
the Party Tribes, to exercise any water rights the tribes hold or may be
determined to hold.”
While it is true that the federal government cannot sue other Tribes in
the basin over the KBRA on behalf of other non-Party Tribes, being the
Trustees for them all, and cannot in essence “sue itself” to overturn the KBRA
when the federal government is itself going to be a Party, and so has to do
what is called “recusing” itself from participating in any such lawsuit,
this is a far cry from any sort of rights “termination.”
Nothing prevents the Resighini Rancheria from hiring their own lawyers to
enforce those rights if they want to – this is done all the time, whenever
a Tribe sues the federal government, since the feds cannot both represent
themselves and simultaneously act as a Trustee for the suing Tribe against
themselves in Court.
KBRA Provisions are Misstated: Several statements made in this article
about what the KBRA actually does are simply wrong. The 330,000 acre-feet
the Klamath Irrigation Project will have to live within in the future is a “
ceiling,” not a “floor” or minimum; while there is some money in the KBRA
budget to help partially finance a renewable energy project in the upper
basin, this is nowhere near the amount stated, nor is most of this money a “
subsidy” any more than any other type of federal energy development
funding; and the refuge leaselands system was created and has been allowed
continuously by Congressional statute (the Kuchel Act, P.L. 88-567 (U.S.C. 695n))
since 1964, nearly 46 years before the KBRA existed, nor will the KBRA have
anything to do with whether or how long that program remains – only a
separate Act of Congress could change that prior statute. There are also
other such errors I need not go into here. These errors are the result of
simplistic "sound bite" criticisms and not any real analysis.
Correcting Upper Basin Water Quality Problems are Separately Being
Addressed Under the Clean Water Act: There are numerous well-known water quality
problems in the upper Klamath Basin, but the KBRA – which is really just a
long-term restoration contract, remember – is not the appropriate tool to
address those problems. These problems are all already being addressed
separately under the Clean Water Act and equivalent state water quality
protection laws, including recently legally approved pollution control standards
(TMDLs) in the upper basin intended to solve these water quality problems
over time. Blaming the KBRA for NOT being the Clean Water Act is
preposterous.
What the KBRA would do, however, is bring something like $75 million
additional dollars over the next 15 years to fully fund these already ongoing
upper basin TMDL and state cleanup programs, jump-starting the implementation
of these solutions by at least a decade.
The Likely Outcome of Returning to the FERC Process May Not Be Four Dam
Removal: Opponents of the Klamath Settlement Agreements have a touching
faith in the willingness of state water agencies in both states (remember, one
of the dams is in Oregon) to go directly against – and win in every court
and every appeal, on every key issue – against the entire litigation might
of the Hydropower Industry, which would surely see a first-time ever actual
401 certification denial in the Klamath as a major precedent to be fought
at all costs. Those of us who are Parties to the Settlement simply have
much less faith in that process and want to see the dams come down sooner and
with far more certainty.
Opponents of the Klamath Settlement should remember that the odds are
strongly stacked against dam removals resulting from the FERC and State 401
Certification process.
Not only has FERC never yet ordered a dam down against the wishes of a
relicensing Applicant in its entire history, no STATE water quality agency has
ever “just said no” outright to a water quality certification application
attached to a FERC license application and made it stick in court.
Setting such a precedent would guarantee many years of litigation and expense,
with appeals in all the state and federal courts for many years, with no
certain outcome – except that the dams would continue to run just as they are
now, on annual license extensions, for as long as that litigation could be
strung out (10-15 years at least are the best estimates from litigation
counsel familiar with this process).
PacifiCorp also has VERY deep pockets to fund litigation – all their
litigation costs are considered routine costs of doing business that are fully
funded by its ratepayers.
During all that time of ongoing litigation, without the Klamath Hydropower
Settlement Agreement (KHSA) there would also be NO “interim measures”
such as those required by the current KHSA to protect the fish in the meantime
(with the exception of those few measures required under the PacifiCorp
HCP, if any -- but all the other KHSA “interim measures” would disappear
with the KHSA).
One possible – potentially likely – outcome of such an extended court
fight from reversion to the FERC process would be that PacifiCorp would
ultimately retain at least the J.C. Boyle Dam in Oregon. Because this dam IS in
Oregon, the clean water laws that apply to it are much weaker than in
California, the Oregon Water Quality Commission is much less willing to “go to
the mat” on this issue and get sued, the J.C. Boyle dam is by far the most
valuable of the four dams for power production since it produces by far the
most power (80 MW capacity), the water quality problems it creates are the
least difficult to clean up, and furthermore it is likely the least costly
of the dams to retrofit to modern FERC standards for relicensing.
Losing the KBRA also means: losing up to 130,000 acre-feet of additional
water in the Klamath River every year as compared to the current status
quo; losing all benefits of a guaranteed water supply for the upper basin
National Wildlife Refuges, letting them go dry in many years as they do today;
losing the Klamath Tribes their only opportunity to reclaim the Mazama
Forest as once again Tribal lands; losing most of the more than 100,000
acre-feet of additional wetlands restoration and natural storage under Sec. 18 of
the KBRA, which will also benefit fish; losing the Klamath Project “
irrigation cap,” the first time the Klamath Irrigation Project has ever been
legally limited in the water it can take for irrigation and; losing some $75
million in water quality monitoring and clean-up funds to implement the upper
basin TMDLs much faster than would otherwise be the case, and; losing all
the benefits of a 50-year aggressive watershed and salmon habitat
restoration program in the Klamath Basin.
Just taking the dams down, most biologists agree, will simply NOT be
enough to truly revive the basin’s salmon runs. The water reforms and multiple
watershed restoration benefits of the KBRA will also be necessary.
In Summary: Settlement opponents should be VERY careful what they wish
for if they are thinking about jettisoning the current Klamath Settlement and
the high degree of certainty of four-dam removal plus major watershed
improvements and water reforms it provides for. The chances of accomplishing
four-dam removal, plus all the many restoration efforts the KBRA also
provides, plus major water reforms to reverse years of water over-appropriation
the KBRA also provides for, plus multiple other benefit of the KBRA, would
all likely be MUCH worse (or zilch) under a FERC-only recourse. Under the
FERC-only approach, you might well still get the dams down -- in 15 or 20
years -- but not accomplish lasting salmon restoration.
Anyone who has more questions on the above, or on the KBRA-KHSA Settlement
Agreement generally, should feel free to contact me PERSONALLY. I would
be glad to discuss or debate these issues in a more appropriate forum. I am
always hesitant to inflict such discussion on open forms such as this one.
I hope those who are simply not interested in this issue will forgive me
the intrusion. (smiling)
=============================================
Glen H. Spain, NW Regional Director
Pacific Coast Federation of Fishermen's Associations (PCFFA)
PO Box 11170, Eugene, OR 97440-3370
O:(541)689-2000 -- Fax:(541)689-2500
Email: fish1ifr at aol.com
Home Page: _www.pcffa.org_ (http://www.pcffa.org/)
In a message dated 11/19/2011 3:07:26 P.M. Pacific Standard Time,
tstokely at att.net writes:
Klamath Dam removal linked to very bad restoration agreement
Rick Dowd/For the Times-Standard
Posted: 11/18/2011 02:39:14 AM PST
_http://www.times-standard.com/guest_opinion/ci_19364130_
(http://www.times-standard.com/guest_opinion/ci_19364130)
Members of the Resighini Rancheria strongly object to the approach taken
by the federal government and the state of California for Klamath River dam
removal. We are a small, federally recognized Indian Tribe with a
reservation in Del Norte County upstream of Highway 101 on the Klamath River. We
have been studying the Klamath Hydroelectric Project Facilities Removal
Draft Environmental Impact Statement (DEIS) and Draft Environmental Impact
Report (DEIR) for several months and want to inform the community about
major problems we have discovered. Comments on the DEIS/DEIR are due Monday.
The DEIR/DEIS leads up to a secretary of Interior decision in March 2012
which, if affirmative, will not only carry out the Klamath Hydropower
Settlement Agreement (KHSA) that removes dams but also the Klamath Basin
Restoration Agreement (KBRA).
The KBRA is very damaging to Indian rights and will not bring about
restoration of the Klamath River.
We were excluded from Klamath settlement discussions that lead to the
KBRA and KHSA, as were the federally recognized Quartz Valley Indian
Reservation and Del Norte County. The Hoopa Valley Tribe participated in the
settlement talks but refused to sign the KBRA because they would have to
expressly give up their water and fishing rights. Both our rights, and theirs, to
protect our fisheries and water quality will be terminated by the
secretary of Interior if he makes an affirmative decision (KBRA 15.3.9). Those who
are not KBRA and KHSA
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signatories (parties), such as nonnparty tribes and Del Norte County, will
be unable to participate in committees that govern the management of the
Klamath River until 2062. This arrangement is undemocratic and of
questionable legality under the Federal Advisory Committee Act.
Despite the fact that an affirmative secretarial decision will implement
the KBRA, the environmental report does not examine the cumulative effects
of its water allocation, stream flow projections and water pollution
impacts. The DEIS/DEIR claims that the KBRA is insufficiently defined to
analyze its effects, which is untrue. Among other things, it allocates a minimum
of 330,000 acre feet of water to Klamath Project irrigators, subsidizes
their power costs with $92 million in tax dollars, and allows farming on
20,000 acres in Tule Lake and Lower Klamath National Wildlife refuges for 50
years. The DEIS/DEIR failure to analyze cumulative effects from the KBRA
and operation of the Klamath Project is a patent violation of both National
Environmental Policy Act and the California Environmental Quality Act.
The Chinook Expert Panel hired as part of the KBRA process noted that the
KBRA had no credible plan to resolve water pollution problems. The experts
stated that the Keno Reservoir reach of the Klamath River would continue
to be an anoxic dead zone for weeks a year and that salmon wouldn't jump
through it even after dam removal: “Without solving the water quality
problems, a fully self-sustaining run of chinook salmon to the upper basin is
unlikely.”
The Resighini Rancheria and Hoopa Valley Tribe both favor speedy Klamath
Hydroelectric Power dam decommissioning but oppose the current approach
that is joined to implementation of the KBRA. If the government had not
discarded Alternative 8 from consideration, which is KHP facilities removal
without the KBRA, then the Resighini Rancheria would have favored that option.
Instead we will comment in favor of the no action alternative, with a
return to the Federal Energy Regulatory Commission (FERC) relicensing
process.
The proponents of the KBRA say that FERC has never ordered a dam removed
and that dam removal can come only with the KBRA, their flawed Settlement
Agreement. FERC may not require dam removal, but its relicensing process
can set up conditions that make project operation uneconomic. An example is
the Condit Dam, on the White Salmon River in Washington, which was
abandoned by PacifiCorp and decommissioned on Oct. 26 of this year. Unlike the
KBRA, the related Settlement Agreement would have no negative impact on
existing tribal water and fishing rights. The National Marine Fisheries Service
requirement for installation of $230 million fish ladders, if KHP dams
remain, cause the KHP to fall into uneconomic status. Furthermore, the
California State Water Resources Control Board will not issue 401 Certification
as required by the Clean Water Act and Federal Power Act; therefore,
PacifiCorp will not receive a new license and will have to abandon and
decommission.
Comments can be submitted electronically at
_http://klamathrestoration.gov/Draft-EIS-EIR_ (http://klamathrestoration.gov/Draft-EIS-EIR) /feedback.
For more information on the DEIS/DEIR, Klamath River ecological restoration
and the newly introduced authorizing legislation that we oppose, see our
website: _www.klamather.org_ (http://www.klamather.org/) .
Rick Dowd is Resighini Rancheria chairman.
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