[env-trinity] Times-Standard Opinion- Rick Dowd, Resighini Rancheria

Sun Nov 20 11:07:22 PST 2011

Downstream tribes, upper basin ranchers; there will always be opponents to the clear majority in support of the two agreements, but it’s still the best we have for going forward, or going anywhere for that matter.  Some will never be persuaded.  Consensus is a wonderful thing and kept the Hatfield Group together for a decade, but sometimes you just can’t get everyone on board.  It’s time for action.

GiveThanks for the abundance we have.

Jim

From: env-trinity-bounces+windhorse=jeffnet.org at velocipede.dcn.davis.ca.us [mailto:env-trinity-bounces+windhorse=jeffnet.org at velocipede.dcn.davis.ca.us] On Behalf Of FISH1IFR at aol.com
Sent: Saturday, November 19, 2011 7:44 PM
To: tstokely at att.net; env-trinity at velocipede.dcn.davis.ca.us
Subject: Re: [env-trinity] Times-Standard Opinion- Rick Dowd, Resighini Rancheria

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 

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:  <http://www.klamather.org/> www.klamather.org.

Rick Dowd is Resighini Rancheria chairman.

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