Our Klamath Basin Water Crisis
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NW Fishletter #267, October 12, 2009
 Analysis: Dam Breaching Made Simple
Editorial boards around the country have gone all out the past few weeks in their haste to say something wrong about the 2008 salmon plan, recently blessed and bulked up by the Obama administration.
Whether that can be attributed to malice aforethought, math-challenged editors or just plain sloppiness is up to you. But it does seem that the farther one gets from the Columbia Basin, the more effective environmental propaganda becomes.
The New York Times, no less, seems fascinated with the idea of tearing out some dams in the wild and woolly West. In April, as the Obama administration was making up its mind on the 2008 hydro BiOp, the Times editorial page encouraged new NOAA head and official MacArthur genius Jane Lubchenco to consider breaching the lower Snake dams.
But a few weeks ago, when she put the breaching idea on the back burner as a sop to federal Judge James Redden, the editorial writers at The Gray Lady were beside themselves.
After she pronounced the salmon science in the hydro BiOp sound, they dropped her like a hot Idaho spud, and continued on their crusade for breaching.
They didn't even mention the fact that one of the country's most prominent scientists had just told a federal judge the science in the plan under his review was the best available.
"In his written instructions to the Obama administration, Judge Redden made it clear that he wanted a plan that put the salmon on a trajectory toward recovery--one with clear standards by which to measure success, not 'triggers' that only measure failure. Judge Redden has been the salmon's strongest defender, and he may be the salmon's last hope. He should send this plan back to Washington and insist on something better."
However, if the editorial board had spent a few minutes actually checking into what the plan was all about, it might have stumbled onto the fact that the BiOp sets into play a series of performance goals for the hydro system--96 percent survival per project for juvenile spring chinook, 93 percent for little fall chinook.
And there are plenty of other actions in the BiOp designed to help fish. After all, the document was more than 4,000 pages long before the latest additions.
The Gray Lady's editorial writers also made it sound like the Obama administration was adding $100 million in new annual habitat funding, courtesy of the U.S. taxpayer. But we all know that was simply the bill for the "Accords" process in the original 2008 "Bush" plan, added to the yearly salmon bill footed by BPA customers that is already over $700 million a year.
Maybe the editorial board had a hard time swallowing the notion that the dam-loving Bush administration might have actually endorsed such an added extravagance.
But the NY Times wasn't the only paper to get that part wrong. The Los Angeles Times reported a similar tale in a regular news story, though when contacted, LA Times journalist Kim Murphy, the paper's NW Bureau chief, said she was aware of the correct budget numbers, but the problem was one of enforced "brevity."
But for one reason or another, it seems hard for the word to get out that BPA is spending about a third of its annual revenues on fish and wildlife, maybe because it's so hard for regular folks to fathom.
Closer to home, The Seattle Times editorial page botched the budget numbers, too. Though the Times' Sept. 21 editorial was generally supportive, it was more than 700-percent short on the amount spent on fish-recovery costs.
"Regional ratepayers already support annual salmon budgets of $100 million, and another $6 million is pledged for habitat and estuary improvements," said the Seattle paper.
A quick check with BPA spokesman Michael Milstein, an ex-Oregonian scribe himself, found the numbers a bit higher--Milstein said BPA is expecting to pay about $750 million annually for related fish costs over the next two years. That includes the direct F&W program generally administered by the Northwest Power and Conservation Council, added BiOp costs (including the extra $6 million a year to Washington state for estuary work signed last week), and forgone costs and power purchases attributable to hydro operations for added flows and spill.
At least The San Francisco Chronicle got the number right--the $900-million-plus worth of salmon recovery projects over 10 years. But they said it was an expense the Obama people were asking the judge for his OK to spend.
The last time I checked, that money is getting spent right now, thanks to a steady stream of projects being reviewed by the Northwest Power and Conservation Council, since it has been a part of the hydro BiOp from the get go.
But the Chronicle editorial board also needs some quick lessons in agriculture and geography.
They wrote that the BiOp "stops short of much bolder options to order more water flows, which would anger wheat farmers in western Washington, and take down the dams, a position favored by environmentalists. Also, this fall's salmon counts are way up, making drastic steps a hard sell."
To their credit, they did notice that the rivers around here are full of fish. Just how could that be with those dreaded dams in place? The runs sank to 10 percent of previous numbers in the 1990s, and came bouncing back while the last three salmon plans were being fought in court.
They've declined again some, but are expected to rebound next year, given the extraordinary jack counts for both spring and fall chinook. What have dams got to do with it? Mother Nature or Coyote is really running the show, playing dice with ocean conditions, while a federal judge thinks he can control the situation and somehow outflank Mother Ocean.
But I digress. I am really here to announce NW Fishletter's Stinky Salmon journalism award of the year.
The envelope please!
The 2009 hands-down winner is The Tampa Tribune, for its Aug. 24 editorial support for breaching the lower Snake dams, even before the Obama folks showed us their cards.
"The dam turbines crush salmon as they attempt to migrate to or from the Pacific. Efforts to truck salmon around the dams cost $500 million a year but have proved futile," the editorial said.
Huh? Wait a second.
Barging and trucking fish down the Snake and Columbia costs around $3 million a year, said Corps of Engineers' spokesman Nola Conway Leyde. Forget all about the fact that transporting fish past the dams benefits most stocks in most years--especially steelhead.
"In the 1960s," wrote the Tribune's editorial writer, "about 100,000 adult salmon returned to the river each year. Then the dams were erected. Now the number is less than 10,000."
Where do you suppose they came up with those smelly old fish numbers? They got them from a previous Tribune editorial written on July 25, 2000!
And where did they come from? Likely from a 1998 article in a lawyerly journal called Environmental Law penned by Portland attorney Michael Blumm and other dam breaching advocates.
The Tribune could use a significant update. Here it is--less than a year after its 2000 editorial was published, more than 186,000 spring chinook made it to Idaho and about 20 percent of those fish were wild. Since then, the hatchery plus wild numbers have fluctuated between 30,000 and 100,000, but significantly better than 1995's 1,800-fish return and 1999's 6,500.
Stay tuned. This year's huge jack counts have put fish managers and researchers in unfamiliar territory, and sporting dreamy, faraway looks at the possibility of seeing half a million spring chinook swim back to Idaho next year. Unlike many editorial writers, some of them even know how much they don't know. -Bill Rudolph
 BiOp Plaintiffs File Same Old Complaints
Plaintiffs in the ongoing BiOp litigation are not impressed with the Obama administration's support and strengthening of the 2008 salmon plan that is still simmering in federal court.
In a filing made Oct. 7, plaintiffs took issue with nearly every addition to the plan made by the new administration released Sept. 15.
NOAA head Jane Lubchenco said her agency judged the original plan's science was sound, but added to it to address uncertainties and satisfy U.S. District Judge James Redden, who has been presiding over the remand process since he overturned a Clinton-era hydro BiOp in 2003.
However, despite Lubchenco's claim, the plaintiffs said the 2008 BiOp and the plan tacked onto it (called the Adaptive Management Implementation Plan) still fail to comply with the ESA and follow the best available science.
"Federal defendants have shown themselves unable to admit that there is any problem with the 2008 BiOp. Indeed, it has now become apparent that there can be no resolution of this controversy until federal defendants understand that the status quo the 2008 BiOp seeks to continue must change," plaintiffs said in the filing.
The plaintiffs said they hoped the judge will reject the AMIP added by Obama officials and grant their own motion for summary judgment, "in the sincere hope that a ruling from the Court will provide what has been sorely missing for at least the past six months--significant momentum for substantive change and the start of a new day."
They said that the feds' rephrasing of the original "trending towards recovery" jeopardy standard is nothing more than "semantic sleight-of-hand." The feds had borrowed a phrase from a recent decision handed down from the 9th U.S. Circuit Court of Appeals, and called the jeopardy standard legal because it provided an "adequate potential for recovery" of the ESA-listed stocks.
The plaintiffs also said the added plan sets biological triggers that are too low (declines in fish populations) before potential contingency actions kick in.
The state of Oregon, in its own filing, said that long-term contingencies like drawing down John Day Pool or breaching lower Snake dams should be ready for action before fish population levels sink to 10 percent of their four-year geometric mean, as the AMIP calls for.
The AMIP's lengthy decision process could take four or five years before concluding whether or not breaching one or more lower Snake dams would help some listed fish.
The Nez Perce Tribe's response also focused on the breaching contingency, which the feds say is a measure of "last resort." The tribe said the years of study plans and last-minute authorization of Congressional authority for breaching "is a disingenuous effort to ensure that dam breaching remains a paralyzed political question, rather than a feasible biological option that should be prepared now to actually be available to be implemented."
They said Congressional authority should be obtained sooner, rather than later, which would only ensure that dam breaching will never be viewed as a biological matter, "in which, under the ESA, the needs of a listed species are to 'come first,' and the only ultimate exception is through the 'God Squad,' but will remain instead a political question in which the needs of the fish can be outvoted by other social or economic factors no matter what the biological reality or urgency."
The tribe's filing mentioned the AMIP's conclusion that "the best available science does not support moving ahead with breaching lower Snake dams at this time." But the tribe said the AMIP doesn't mention the conclusion in the 2008 BiOp that "breaching the four lower Snake dams would provide more certainty of long-term survival and recovery than would other measures," or to prior PATH [Plan for Analyzing and Testing Hypotheses] and Weight of Evidence reports that some states and tribes have long used as their mainstay in support of breaching those dams.
"Instead," said the tribe, "the AMIP reports that the administration's review "noted uncertainty about the short-term negative biological benefits of lower Snake dam breaching."
The tribe said the feds have stacked the deck against breaching's "contingency of last resort," since NOAA Fisheries and the Action Agencies will evaluate the potential action, not an independent panel.
The Nez Perce said the dam breaching issue in the feds' Sept. 15 submission is a matter of "public relations," designed to tell the world they had "heard" the court on this matter.
Back in May, Judge Redden had recommended that the feds add contingency plans to their BiOp if fish numbers don't respond as expected, including the study of breaching Snake dams.
The plaintiffs' renewed call for dam breaching to remain front and center has long been their core position, at the center of their efforts ever since the regional PATH process concluded in the late 1990s that breaching the dams was the best hope of recovering the Snake stocks, which were in much worse condition than they are now.
But the BPA-funded PATH's 1998 murky, non-consensus analysis of fish recovery options that pointed to decided benefits from breaching was contested by some of PATH's own participants and two of PATH's four peer reviewers, who said they didn't trust the optimistic results from dam breaching and had questions about some of the foundations of the data analysis.
PATH came in for more criticism from NOAA Fisheries as the 2000 BiOp was being developed. In a report called the A-fish Appendix that ended up as part of the Corps of Engineers' giant feasibility study on lower Snake dams, the agency said the PATH analysis didn't stress major uncertainties and relied on older data that might not reflect current conditions in the hydro system and the higher juvenile fish survivals observed from PIT tag research.
PATH is still providing fodder for academic journals. Just this month, in an article in the peer-reviewed Transactions of the American Fisheries Society, it was reported that survival estimates developed by PATH are extremely sensitive to small changes in the model used by its participants and can result in huge discrepancies in estimates of dam survival and latent mortality (Hinrichsen and Fisher, 2009). It reported such changes could lead to estimates of dam system survival for Snake spring chinook stocks that ranged from only 9 percent to 56 percent (close to current PIT tag results) and latent mortality half of all passage mortality or close to zero.
The authors said such differences showed that the model was a poor statistical tool for trying to compare survival of upstream and downstream stocks, the basis for PATH's determination that taking out the lower Snake dams would be extremely beneficial for fish populations in the Snake Basin.
Just last week, Barry Thom, acting regional administrator for NOAA Fisheries, told members of the Northwest Power and Conservation Council that breaching the dams just might not be the best thing to do for the fish, anyway.
"It is a contingency of last resort," said Thom, "because of the uncertainty that's out there, in terms of both the biological effects that came out of the scientific review we've completed, as well as the significant impacts to the local communities and the environment. It's not a cut-and-dried deal that if you took out Snake River dams you would actually have the benefits that some people would purport out there."
On Oct. 2, the Oregon Chapter of the American Fisheries Society sent a letter to Redden complaining that NOAA Fisheries has not addressed dam breaching as a key element in salmon restoration. They told the judge that they have reaffirmed their 2000 resolution calling for the demise of those four dams and sent him a copy along with their missive.
The 2000 resolution cited the PATH analysis and said that breaching "should happen soon" to restore the stocks to sustainable, fishable levels.
Federal attorneys sent their own missive to the judge saying the Oregon AFS was not a party to the litigation and their letter should be stricken from the record.
Besides, they said, it contained critical legal inaccuracies like confusing a biological opinion with a recovery plan.
The feds said the letter suggested that dam breaching is a necessary precondition for a valid biological opinion. But the feds said breaching, in addition to being not necessarily based on the best, available science, isn't "reasonably certain to occur;" thus, breaching is considered a contingency of last resort, as it was in the AMIP.
The feds also said the letter should be thrown out because the judge's science adviser may be a member of the AFS Oregon chapter, and by allowing them to advocate while the judge considers the cross-motions for summary judgment could create an appearance of impropriety and partiality.
A response to the court by Earthjustice attorneys said the letter should be disregarded as should any non-party communication to the court. But they took issue with the feds' insinuation that the plaintiffs may have had something to do with its production.
Federal parties get to respond by Oct. 23. -B. R.
 Plaintiffs Want Docs From NOAA's 'Secret' Science Panel
The latest twist in the never-ending BiOp soap opera has plaintiffs in the ongoing litigation asking U.S. District Judge James Redden to order the federal government to turn over more information the Obama administration used in reaching its decision to support the 2008 salmon plan.
The plaintiffs said they need the documents to help with their response to the government's decision, originally due Oct. 2 in Redden's court. Redden later extended their deadline to Oct. 7 (see story 2).
The plaintiffs' request is focused on what was said by an independent panel of mostly non-agency scientists who advised NOAA Administrator Jane Lubchenco--especially during a two-day July workshop in Washington, D.C., when the panel discussed the salmon plan with agency personnel.
In its Sept. 30 response to the request, the government said it had already turned over plenty of information and that it wouldn't share anything else without a court order. They have released the names of the panel's members and the documents they looked at.
Plaintiffs said they need to know more about how the panel felt about the considerable "uncertainties" in the BiOp's analyses and predictions, and how the review affected the agency's decision to develop the biological "triggers" [severe drops in fish populations] that would initiate contingency plans, including studies of breaching lower Snake dams.
"The missing material also appears likely to be relevant to assessing whether federal defendants' actions have been based on the best scientific and commercial data available," said the plaintiffs' memo filed in support of their request.
In their Sept. 30 response, the feds told the judge that the panel review was only "one component of the multi-faceted five-month process," and allowing the request would "falsely elevate the importance of this workshop."
The feds said the plaintiffs hadn't shown how fulfilling their request is really necessary for filing their response to the administration's Sept. 15 decision.
"It is clear that plaintiffs' motion is more about probing the mental processes of Administration officials than about their ability to meaningfully respond," said the feds' memo.
The feds suggested if the judge approved the request, that he first review the documents in camera--privately, in chambers--to determine whether they satisfy exceptions to the federal records review rule.
Judge Redden later ordered the feds to turn over any pertinent documents to him by Oct. 16. He said he will review the documents and decide whether to allow plaintiffs to see them.
It was reported that the science panel's deliberations did not include official note-taking or creation of any written report, but some observers had taken notes, that were later shown to the panel. These notes have been given to the judge for review. Even if they do gain access to the panel's review, plaintiffs may find the discussions had little or nothing to do with additions to the BiOp that the Obama administration tacked on to please the judge. It was reported the panel found the science in the BiOp "standup" and the best available under the circumstances.
Some of the scientists who participated on the panel are very familiar with salmon issues. Two of them are currently serving on the Independent Scientific Review Board, which looks at different questions related to salmon recovery.
The scientists who took part in the July 7-8 workshop include Bob Bilby, current ISAB member and biologist with Weyerhaeuser Co.; Peter Bisson, ISAB member, USFS; Mary Power, biology professor at University of California, Berkeley; Joseph Travis, Dean of the College of Arts and Sciences, Florida State University; Dr. Mary Ruckelshaus, from Seattle's NOAA Science Center; Daniel Simberloff, biology professor, University of Tennessee; Peter Kareiva, chief scientist with The Nature Conservancy; and Nate Mantua, ad hoc ISAB member and associate research professor, Aquatic and Fishery Sciences, University of Washington.
Kareiva worked for NOAA Fisheries during development of the 2000 BiOp and was responsible for developing a matrix analysis that took a fresh look at salmon survival issues. He successfully countered the results of the contentious PATH process, which tried to evaluate competing passage models by regional scientists. PATH's majority opinion found breaching lower Snake dams a much better recovery strategy than current operations.
Kareiva's analysis reduced PATH's estimate of delayed mortality from barged fish and found breaching the dams was barely better than current operations for recovering the Snake River stocks. -B. R.
 Juvenile Steelhead Survival Soars In Hydro System
NOAA Fisheries scientists say preliminary analyses show that inriver migrating juvenile steelhead in 2009 beat average survival for every reach in the hydro system over the past six years.
According to their Sept. 14 survival memo, about 80 percent of the PIT-tagged hatchery and wild steelhead made it from Lower Granite to McNary Dam, better results than any year since 1995.
From the McNary Dam tailrace to Bonneville Dam's tailrace, survival was even higher, more than 86 percent.
From the head of Lower Granite Reservoir to Bonneville, steelhead averaged about 70-percent survival; yearling chinook averaged 53-percent survival. In 2008, steelhead averaged 48-percent survival, yearling chinook 46 percent.
More good news came from the upper Columbia, where PIT-tagged hatchery chinook averaged 84-percent survival from McNary to Bonneville, the highest in the 2002-2008 dataset. Steelhead survival was about 73 percent.
According to the memo, overall steelhead survival was unusually high from Lower Granite to Little Goose dams, and from John Day to Bonneville dams. With operations similar to 2008, the big difference was a temporary spillway weir in place for the first time this year at Little Goose. Also, a new spillway guidance wall at The Dalles Dam was partly completed by this spring, which may have helped to boost survival.
With steelhead survival the highest yet estimated between Lower Granite and Little Goose, the memo said the new weir may have had something to do with it. Acoustic-tag results will be available later, to "inform this conjecture," says the memo.
Timing of the steelhead run was much earlier than the past two years. By the end of April, 44 percent of the run had passed Lower Granite. In 2007 and 2008, only 18 percent of the run had passed by then.
With transportation starting later this year, many more steelhead migrated inriver than the past two years. NMFS scientists say the larger numbers of inriver fish may actually reduce overall predation.
Avian predation by gulls below John Day Dam was also reported down compared to 2008 as well.
Steelhead survival may have also improved with cooler temperatures during most of the migration. When water temperatures stay down, fewer steelhead revert to parr and residualize, stopping their migrations and sticking around the reservoirs for the rest of their lives.
Yearling chinook survival was about average, with nearly 79 percent survival from Lower Granite to McNary. From McNary to Bonneville, it averaged about 71 percent, with about 56 percent overall survival from Lower Granite to Bonneville Dam. The spring chinook showed no meaningful difference in survival between Granite and Goose from the added weir.
The springers actually showed similar survival from the head of Lower Granite Reservoir to Bonneville (53 percent) in 2005, before the court-ordered spill program began. Spring flows were considerable lower in 2005 than 2009. -B. R.
 Huge Jack Count For Fall Run In The Snake
With almost 14,000 adult fall chinook going over Lower Granite Dam since the middle of August, fish managers are pretty much assured that this year's return will include enough wild fish to pass the interim recovery threshold of 2,500. In fact, it's more likely to be about double that number.
The adult fish count is good, but still less than twice the 10-year average and about 2,000 shy of last year's count by now. The 38,000-fish jack count, however is nearly 7 times the 10-year average, and more than four times higher than last year's count at this time.
The high jack count is a trend that was evident in the spring chinook return earlier this year. It is already higher than last year's entire fall jack count (by this date) way downriver at Bonneville Dam.
This year's Bonneville fall chinook jack number is around 109,000 fish, about three times last year's number. Spring jacks topped 80,000, about four times last year's tally.
Does that mean next year's fall run on the Snake will hit more than 50,000 hatchery and wild fish? No one has yet ventured a guess.
Steelhead numbers are also doing extremely well, with around 241,000 (143,000 in 2008) total--with 52,000 wild ones mixed in. About 36,000 wild steelies were counted at the dam by this time last year. In fact, overall numbers are outpacing the 2001 record year at this point.
Harvest managers had estimated about 6,600 wild Snake fall chinook would enter the mouth of the Columbia this year. After accounting for about a 30-percent harvest rate between tribal and non-Indian fishers, that would still put plenty above the dam by the end of October.
Last year, the managers estimated about 6,400 wild falls from the Snake entered the Columbia.
Only 78 wild fall chinook were counted at Lower Granite in 1990. Since then, a combination of hatchery supplementation and improved ocean conditions has boosted the run. Since 2000, wild numbers have been above 2,000, with more than 5,000 returning in 2001.
On Sept. 21, harvest managers reviewed run sizes and downgraded the upriver bright fall run, which they estimated was running four days early, to 203,000 from their pre-season estimate of 270,000.
They also decided that the Bonneville Hatchery tules would come up a bit shy of their expectations--41,000 now, down from 56,500 pre-season.
The managers said most lower Columbia hatcheries were on track to reach broodstock collection goals for fall chinook.
They authorized a late-fall commercial gillnet season for the lower Columbia that is expected to net up to 4,000 more chinook, along with 15,000 coho and 1,600 white sturgeon.
By the end of September, the non-Indian gillnetters were expected to have caught more than 32,000 fall chinook, more than 29,000 coho and 4,600 white sturgeon, with an 8.5-percent expected impact on upriver bright fall chinook.
The managers said coho passing Bonneville were also exceeding expectations, with about 135,000 early stock fish counted by Sept. 30.
Lower river coho were showing up in better-than-expected numbers as well. About 10,700 coho had passed Willamette Falls by Sept. 27. Only about 4,000 passed the dam in 2008 and about 1,000 in 2007.
Managers expect more than 700,000 coho will enter the Columbia by the end of the season.
News on the upper Columbia was good as well. WDFW announced the recreational season for hatchery steelhead was opening on the upper Columbia and some nearby tributaries on Sept. 29.
This year's upper-C run of wild and hatchery-produced steelhead is showing so well that sport anglers are allowed four hatchery steelhead apiece, said Jim Scott, assistant director of WDFW's fish program. More than 33,000 summer steelhead had been counted at Priest Rapids Dam through Sept. 22, well above the overall return's 10-year average of nearly 14,500 fish.
"This is a terrific fall fishing opportunity that also will help further fish-recovery efforts by removing hatchery-origin steelhead and increasing the proportion of wild steelhead onto the spawning grounds," Scott said. -B. R.
 700 Sockeye Make It All The Way To Redfish Lake
More than half of the 1,200 or so tenacious sockeye counted at Lower Granite Dam have made the last 450 miles to their home waters in Idaho's Stanley Basin, nearly 7,000 feet above sea level.
The 700-fish-plus return is 50 more than made it back last year, signaling at least temporary success for the captive broodstock program that is trying to bring the Redfish Lake sockeye back from the brink of the early 1990s.
"Lonesome Larry" was the lone sockeye that returned in 1992. His precious bodily fluids were frozen as part of a recovery program that started in 1991, a last-ditch effort aimed at saving the run from extinction.
Fish managers and scientists are still debating why the latest returns are so high, but a combination of increased numbers of hatchery-raised smolts, better passage conditions and a huge boost in ocean productivity all likely played a role in the big returns.
A 2008 memo and later analysis by NOAA Fisheries found a strong correlation between estimated return rates of the Upper Columbia and Snake stocks, which suggested that changes in ocean productivity led to the big returns last year.
In addition, the scientists found no correlation between sockeye salmon SARs [smolt-to-adult return rates] and indices of mainstem flow and percentage spill at dams between McNary and Bonneville.
"This suggests that the primary factors influencing the variation in annual adult returns acted downstream from Bonneville Dam, and on both stocks in common," said the memo.
Two years ago, 52 sockeye were counted at Granite in 2007, but only four finished the last 450-mile trek to the trap at IDFG's Sawtooth Hatchery, near Redfish Lake. Managers had originally expected 50 to 100 to return.
Back in 2006, three sockeye returned to Redfish Lake. The average return over the past five years has been only 12 fish, but in 2000, when river conditions were relatively good, more than 200 of them made it all the way home, about two-thirds of the number counted at the dam that year.
The captive broodstock program really took off in 1998, when nearly 336,000 sockeye smolts were released into the Snake zone. In 1997, only 1,926 smolts were released, a year when flows in the basin were extremely high. From that migration, only 14 sockeye returned to the dam in 1999. -B. R.
 New Klamath Settlement Targets BuRec As Likely Removal Entity
Four dams operated by PacifiCorp on the upper Klamath River would be removed in the year 2020, according to a draft agreement announced Sept. 29.
Under the Klamath Hydroelectric Settlement Agreement (KHSA), the Secretary of the Interior will complete an investigation by March 31, 2012, to affirm a preliminary view that removal of the 169-MW project [FERC No. 2082] is in the public interest because the benefits outweigh the costs.
The Secretary will also make a determination designating a dam removal entity (DRE), which is likely to be the Bureau of Reclamation.
The KHSA is a follow-on to the November 2008 Agreement in Principle (AIP) signed by PacifiCorp, Interior, and the states of Oregon and California. They and 24 parties finalized the new agreement last week. However, a signing ceremony is not expected until late this year because the agreement must still be approved by the governing boards and councils of the other negotiating parties. These include three counties, three irrigation districts, four tribes and 10 nongovernmental organizations, although the draft agreement itself has signature lines for 50 entities.
After the governing boards review the deal, Interior will conduct a formal process enabling "the general public to help inform the secretarial review process and the related environmental review."
The agreement specifies that "public agency parties" will comply with all applicable federal laws, including NEPA, ESA, CWA, the Wild and Scenic Rivers Act, and California's CEQA.
The deal contemplates that the environmental reviews will get under way and be completed so that removal can commence in 2020 and be effectively completed by Dec. 31, 2020.
Until then, PacifiCorp will spend $500,000 a year implementing a range of interim measures to improve coho salmon habitat on the Klamath's California tributaries.
"At this junction, PacifiCorp believes that this hydropower agreement is in the best interests of customers, as opposed to the alternative of relicensing," said Dean Brockbank, vice president and general counsel for PacifiCorp Energy and lead negotiator for the company in the talks.
Brockbank said the new deal's biggest departure from the previous agreement is that the AIP precluded the federal government from serving as the DRE, while "in this, the federal government will likely serve as the DRE." That is still subject to a final decision, however, when the Secretary of the Interior makes a determination on whether dam removal is in the public interest. Under the settlement, the Secretary may designate Interior or a "non-federal entity" as the DRE.
Some parties are wary of the announced settlement.
"There's been no affirmative determination as to who is going to assume the liability of which PacifiCorp is relieved," said Tom Guarino, county counsel for Siskiyou County, where three of the dams are located. "And there's been no affirmative determination of who is liable for the removal activities."
The county also has doubts about the wisdom of a non-federal entity accepting liability.
The Hoopa Valley Tribe, which joined the negotiations in August, and Waterwatch, which was thrown out of an earlier round of talks, both complained the 10-year timeline is too long, risking the survival of endangered fish species.
Klamath Riverkeeper, which has not been involved in the talks but has pursued litigation against PacifiCorp and regulators over water quality problems in the river, acknowledged substantial improvements in the agreement. However, it said, there's no mention of who will pay for the clean-up of a stretch of the river below the nearby Keno Dam.
Under the KHSA, water quality issues at Keno--a separate project that would remain after the Klamath projects are removed--will be subject to a separate but concurrent study by the Secretary. But Klamath removal is contingent on negotiations to transfer Keno to Interior, another element that makes Riverkeeper and Siskiyou County nervous because the project needs work to meet Interior safety standards. The KHSA exempts PacifiCorp from paying those costs but doesn't say who will cover them instead.
Riverkeeper also said the deal doesn't address drought planning.
Pacific's Brockbank said he didn't think the new agreement changes PacifiCorp's liability exposure compared to the AIP, which provided immunity for past operations. As a practical matter, the statute of limitations only allows liability going back five or six years. He said the number of "off-ramps"--what the parties call "terminable events" allowing parties to pull out of the deal--has not substantially changed from the AIP.
The agreement does not finalize terms of the January 2008 Klamath Basin Restoration Agreement reached by many of the same parties to "rebuild fisheries, sustain agricultural communities, and resolve other longstanding disputes related to the allocation of water resources" in the basin. PacifiCorp is not a KBRA signatory, although dam removal is contemplated in provisions of the KBRA.
Many of the parties supporting release of the KHSA emphasized the import of turning now to the KBRA, including Interior Secretary Ken Salazar, who said he has directed federal negotiators "to immediately begin to finalize" the KBRA.
In a joint statement, the Klamath Water Users Association, Klamath Water and Power Agency and Upper Klamath Water Users Association said the new agreement "is not where the bulk of the irrigation parties' power interests are dealt with."
"We look forward to turning our full attention now to the KBRA and finalizing terms that combine federal power and renewable energy investment to provide affordable power for our members," said UKWUA's Becky Hyde.
In a separate statement, another group of the negotiating parties called the KHSA "a major step toward restoring the health" of the Klamath River, but added it "would be complemented by the implementation" of the basin restoration agreement, which "significantly increases water flows for fish, provides greater reliability of irrigation water delivery, undertakes Basin-scale habitat restoration, and makes critical economic investments to ensure the economic viability of Basin fishing and farming communities into the future."
The statement was signed by the Karuk Tribe, Klamath Tribes of Oregon, Yurok Tribe, American Rivers, Trout Unlimited, California Trout, Pacific Coast Federation of Fishermen's Associations, Salmon River Restoration Council, Northern California Council of the Federation of Fly Fishers, National Center for Conservation Science and Policy, and the Natural Heritage Institute.
Federal legislation will be required to authorize the Secretary's review and Interior's service as DRE, to provide PacifiCorp immunity from dam-related liability, and to make a half-billion dollars in new appropriations under the KBRA.
The 132-page KHSA includes 13 appendices on federal legislation, state legislation, interim measures, a timeline and study process guidelines.
Oregon has already passed legislation authorizing PacifiCorp to collect up to $200 million in rates to pay for the state's share of removal costs, along with PacifiCorp's undepreciated investment in the dams, its cost to operate the project prior to removal, and for replacement power.
The new agreement also includes an AIP provision calling on California to pass a bond measure for up to $250 million to cover any costs beyond those incurred by PacifiCorp. That money was reportedly folded into one of the bills that make up a $12-billion bond package aimed principally at water system improvements in the Sacramento-San Joaquin River Delta. It would require voter approval at a time when polls show it would likely not pass.
The bond package died in early September for lack of Republican support, and the session is now over. But a Rules Committee aide said the Legislature and governor are still negotiating, and there will likely be a move to bring the legislation back during an "interim session" later this month. The measure could possibly be split into separate ballots of $5.9 billion each, one in 2010 and 2014. -Ben Tansey
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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