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Klamath  Basin Restoration Agreement
Can They Do That?

March 10, 2013 Herald and News by SAMANTHA TIPLER

Followed by:
What does KBRA say about opting out?
What's next for the KBRA?
Will the commissioners decision effect dam removal?
Reactions to the commissioner's decision?
How to guarantee water.

H&N photo by Samantha Tipler

From left, Klamath County Commissioners Jim Bellet, Dennis Linthicum and Tom Mallams have voiced their desire to opt out of the Klamath Basin Restoration Agreement.

The Klamath County commissioners said they wanted to opt out of the Klamath Basin Restoration Agreement at their Feb. 26 meeting. They voted to sign an order, which will be drafted and likely signed at their upcoming meeting Tuesday.

With that said, everyone wants to know, can they do that?

Groups like the Klamath Water Users Association and the Klamath Water and Power Agency, as well as the facilitator of the KBRA, say no. The commissioners say yes.

And another question: What kind of an impact can the county’s withdrawal have on the future KBRA and the Klamath Hydroelectric Settlement Agreement?

Greg Addington, executive director of the Klamath Water Users Association, said the agreements are contracts signed with the county, not the individual board members. KWAPA Executive Director Hollie Cannon deferred to Addington to voice the group’s position on the issue.

“It’s the county who is a party, not the individual,” Addington said. “And it’s a pretty important point to us because this agreement, this contract, is signed by a lot of other parties that have a lot to do with our ability to receive water or not.”

Those parties — Addington listed tribes, state agencies and environmental groups to name a few — have agreed to support a stable water supply to the Klamath Project.

“So if it’s OK for the county to just leave and get out of the agreement, what’s to prevent one of those entities from doing the same thing?” Addington asked.

Ed Sheets, facilitator of the KBRA, said if Klamath County pulls out it would not dissolve the agreement.

But the commissioners say they can opt out of the agreements nonetheless.

Commission Chairman Dennis Linthicum said the issue is not a contract, it’s a policy.

“They’re saying you can’t sign a contract and not fulfill your obligations under the contract,” Linthicum said. “It’s not a contract. We don’t have distinct obligations in my view. I could be wrong. What it really is, is a statement about policy, not contractual obligations.”

Commissioner Jim Bellet referenced case law during his statements Feb. 26, and again in an interview last week.

“I believe case law confirms that you can’t bind this board with last year’s board,” he said.

In November, previous commissioners Al Switzer and Cheryl Hukill carried the vote to endorse a two-year extension of the KBRA. Dennis Linthicum, current board chair, voted against the extension. The new board’s decision contradicts the old board’s vote.

“I think that when you study case law it stipulates that what we did will be upheld in court,” Bellet said.

Further, Bellet said he didn’t know why other parties in the KBRA would want an unwilling partner like the commissioners.

“I don’t think it’s going to serve any purpose to try and keep us in,” he said.

Addington countered, saying if the commissioners stayed at the table, they could introduce amendments to the agreements. He couldn’t guarantee those amendments would pass, but it would be an option.

Commissioner Tom Mallams also said in the Feb. 26 meeting and again in an interview last week he was involved in early agreement talks. Then he said other parties were uncooperative with the ideas he raised.

“I sat in and tried to negotiate changes and amendments. It was 100 percent unsuccessful. I got no support whatsoever to make any changes of any substance during those meetings,” he said. “To say we should go back to the table and work it out again, it wasn’t successful in the past and I see no reason to believe it has changed at this point.”

Though Addington said the commissioners can’t walk away from the table, he is waiting to see the wording on the paper they will sign Tuesday.

“What it all comes back to is, what are they signing, what are the words to their alleged withdrawal?” Addington said. “To me, it’s a political maneuver. It’s sending a message to Congress that Klamath County is not supporting this.”

That message has been observed in Washington, D.C. by Hayley Hutt, a Hoopa Valley Tribal Council member who travels to the Capitol in a lobbying capacity. The Hoopa Tribe is supportive of dam removal but against the KBRA. Hutt said members of Congress were not surprised to hear this news about the commissioners and aren’t sure the agreements have momentum.

“It doesn’t affect the agreement,” Addington said of the commissioners’ actions. “The agreement doesn’t die if they pass a resolution. It doesn’t go away. No matter what they do next week, they’re still a party to the agreement.”

Reporter Devan Schwartz (dschwartz@heraldandnews.com) contributed to this story.

stipler@heraldandnews.com; @TiplerHN


What does the KBRA document say about opting out?

Greg Addington, executive director for the Klamath Water Users Association, said the Klamath Basin Restoration Agreement has provisions for parties to withdraw, but none of the strict stipulations for withdrawal have been met.

Parties can withdraw if regulatory action invalidates the agreement or portions of it. Also, a party can withdraw if actions for the KBRA don’t happen within “a timely fashion.”

“That time is a long ways from now,” Addington said.

The Klamath Hydroelectric Settlement Agreement does not have provisions for withdrawal.

Another legal issue is the wording of the order, which will be drafted and likely signed at the upcoming commissioners meeting Tuesday.

Ed Sheets, facilitator for the agreements, said a response will be prepared by the parties of the Klamath Basin Coordinating Council as soon as they see exactly what the commissioners do.

“If Klamath County pulls out, it would not dissolve the agreement,” Sheets said. “We’ll have a KBCC meeting in the near future to discuss this.”

The Klamath Water Users Association letter can be accessed at http://tinyurl.com/a4orfxn.


What comes next for the KBRA?

Commissioners discuss future plans for Basin water rights

What comes next for the KBRA?

By SAMANTHA TIPLER H&N Staff ReporterHerald and News | 0 comments

With the Klamath County commissioners declaring they will withdraw from the Klamath Basin Restoration Agreement, the question is, what’s next?

Commissioners differed on their answers. Tom Mallams said the county opened the door for parties to negotiate a new agreement. Jim Bellet said the county should sit back and wait for the KBRA and the Klamath Hydroelectric Settlement Agreement to expire. Dennis Linthicum said commissioners could lead the way, but the ultimate solution, or a plan B, should be found by private parties.

“We’re not just saying ‘no’ with no other options out there. There are pages and pages of alternatives that need to be put on paper,” Mallams said. “A local stakeholders group needs to sit down and start working on that.”

The past board of commissioners offered to arrange for mediation between parties, and Mallams said that offer still exists. But he was less clear on if he was going to stand up and lead the way.

“As a county commissioner I can only ask people to come to the table,” he said. “The offer is still there.”

Linthicum also said the board of commissioners could play a role in finding an alternative to the KBRA, but he didn’t want government to play a deciding role.

“Government is not the appropriate solution. The free market is the solution. Commissioners can play a leadership role: get private parties together, work out a solution,” Linthicum said. “The best thing the commissioners can do is to be conveners and let the different players decide where they think the best resources belong.”

Linthicum advocated starting now, two years before the KBRA expires.

“Rather than stand on the sidelines for two years … use those two years to craft another solution,” he said. “Get a head start on it right now and modify it to meet the needs of the various groups that are a part of the agreement.”

Bellet had the opposite idea for the commissioners’ role in future water settlements. As long as the KBRA exists, he said no progress can be made on an alternative.

“As long as that is considered a viable alternative out there, it does not behoove us to try to start plan B,” he said. “As long as they have the idea of the KBRA going forward, they’re not going to talk about plan B.”

Paul Lewis, a sheep farmer from Langell Valley who supported the commissioners’ decision, said he hopes to see them lead the way to the next step.

“I hope the process starts anew with a more open discussion and more transparency,” he said. “It behooves the board of commissioners to take the lead on this and I think there needs to be some public meetings, not to discuss whether there should be a KBRA or not, but to bring out ideas that might be out there in the public forum as to how we can deal with the problem.”

Even with an unclear plan to go forward, Mallams said Klamath County has to move beyond the KBRA.

“We can’t just sit here and watch it wither away,” he said. “It’s done. We need to move on to something else. Keep the good parts and pieces of it and the relationships, capitalize on that. Make something work with local stakeholders.”

For pro-KBRA farmers like Gary Derry, it’s time to wait and see.

“We’re going to deal with it as it comes. What we do every day is we work toward water supply for agriculture. We deal with energy issues. We deal with regulation. We deal with everything that’s going on. We continue to fight those battles one at a time,” he said. “We wish there was a better way to do it. We feel the KBRA is a better way to do it.”

“It’s the best solution right now by far. There is no other solution out there,” said Rob Unruh, a Malin-area potato, wheat and alfalfa farmer. “Bellet really doesn’t have anything.


Linthicum says more storage is a great deal, but it’s not realistic in my lifetime. (Mallams’) deal is, with an agreement like this, one with dam removal, you don’t have an agreement. For now the KBRA is the best thing going.”



Will the commissioners’ decision affect dam removal?

by SAMANTHA TIPLER and DEVAN SCHWARTZ  Herald and News  3/10/14

Even if the Klamath County commissioners are able to opt out of the Klamath Basin Restoration Agreement, it is unclear whether that will have an effect on the removal of four dams along the Klamath River, part of the Klamath Hydroelectric Settlement Agreement.

Commissioner Tom Mallams hopes the board’s decision will have an impact.

“It’s got to take some effect,” he said. “This is the governing body of Klamath County.”

“My hope is that it has an effect,” said Commissioner Dennis Linthicum, “and that everybody knocks themselves in the head and says hydro power is something we should preserve.”

Mallams admitted it is a private property issue, as it is PacifiCorp’s decision to take out the dams or not, but he said commissioners should voice their opinion when it involves rates and taxpayers. PacifiCorp ratepayers already pay a surcharge dedicated to the cost of dam removal.

“I’m not against PacifiCorp making a profit,” Mallams said. “But when it’s at the public’s expense, I have a problem with that.”

Linthicum said he hopes it also sends a message to Congress to make relicensing dams easier. He contends the actual cost of relicensing could not be higher than removing dams.

“You recognize how absurd it is to say the permitting process is more expensive than the demolition of these hydro facilities. This is ludicrous,” Linthicum said. “If they want fish ladders, put in fish ladders. If they want fish passage, put in fish passage. Don’t make this claim that tearing out the resource is far more costly than blowing the dams.”

Bellet was less sure if the board’s actions would affect dam removal.

“Time will tell,” he said. “I don’t know. Just because we are out of the agreement does not nullify the agreement completely.”

Glen Spain, northwest regional director for the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources, said there’s nothing the commissioners can do to stop dam removal, even if the KBRA doesn’t go through.

“The public utility commissions (in Oregon and California) show dams to no longer be profitable or cost-effective. It’s cheaper by far to remove them than to patch the dams.”

Spain pointed out that all four dams (JC Boyle, Irongate and Copco 1 and 2) produce only 82 megawatts of power, whereas a single wind turbine can produce six megawatts.

As far as costs go, Spain said the Federal Energy Regulatory Commission has calculated a $20 million annual loss for maintaining the dams, which is absorbed by ratepayers.

“These dams provide some of the most expensive power in the country, if not the most expensive,” Spain said.

PacifiCorp spokesman Bob Gravely said the KBRA seeks to address power costs for ratepayers and this is the best available option “to represent our customers in Klamath County and around the state … the company as well as the Oregon public utility commission have concluded that (the dam removal agreement linked to the KBRA) is a better outcome for customers than dam relicensing.”

Asked if the commissioners’ actions would stop dam removal, anti-KBRA Langell Valley sheep farmer Paul Lewis said, “I hope it does.”

“Legislators in Washington should certainly take into account the wishes of the people in the county that are affected before they fund dam removal,” Lewis said.

KBRA supporter Gary Derry said dam removal is more cost-effective than installing fish ladders. He also said as the dams are PacifiCorp’s property, it’s the company’s decision.

“It costs to take out the dams, but it costs a whole bunch more if you’re going to put up fish ladders,” he said. “Currently there is money going into a dam removal fund. If they relicense those dams and put in fish ladders, I assume they will use that fund and continue to charge ratepayers to put in fish ladders. You can call it dam removal or you can call it fish ladders. The ratepayer’s going to pay for whatever happens to those dams on that river.”

Water storage, pros and cons

At the Feb. 26 Klamath County commissioner meeting Chairman Dennis Linthicum made a strong argument for more water storage. During an interview Friday, he said water storage (a new reservoir) could offset snowpack loss in the future, especially with global warming. Otherwise he said he was dismayed at water storage’s near absence from the Klamath Basin Restoration Agreement. He said it was only “mentioned” in the agreement.

“How can you only mention it without making some strides to solve the actual water storage problem?” Linthicum asked.

“Water storage is a no-brainer. That is common sense nuts-and-bolts,” said Commissioner Tom Mallams. “The Klamath Basin needs more water storage.”

“To deal with the requirements of the Endangered Species Act, my opinion is that there is no doubt we have to have additional storage if we’re going to have reliable water,” said Paul Lewis, a Langell Valley sheep farmer who supported the commissioners’ decision to opt out of the KBRA.

Greg Addington, executive director of the Klamath Water Users Association, said storage is something water users have considered, exhaustively.

“There’s enough documentation to fill this room on evaluations of storage proposals,” Addington said. “We’ve been looking at these issues every day for 25 years. So it’s not like we haven’t considered these things before.

The problem is availability of water. In the Basin water is allocated to agriculture and protected species in Upper Klamath Lake and the Klamath River. In most years, the water is already spoken for.

“One out of 10 years there might be extra water to store, somewhere,” Addington said.

Mallams said the water storage may only be used once every 10 years when there is an excess, but if it was there water users could use it.

Glen Spain, northwest regional director for the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources, said the KBRA is clear on water storage. Spain explained that Agency Lake and Barnes Ranch would be used as 100,000 acre-feet of wetlands storage. “The best place to put water is where water once existed,” Spain added.

Mallams and Linthicum said wetlands are not an efficient way to store water. Mallams said wetlands use four times as much water as irrigated agriculture.

Linthicum suggested individual farmers each build their own reservoir projects — provided government regulations made it easier to do so — or work together to build a larger reservoir.

“You have to turn it into an economic decision for the farmer,” Linthicum said.

Plan for water storage?

“I don’t see ‘no plan’ as leadership,” said Gary Derry, a pro-KBRA farmer. He sees years and years of planning, a price-tag in the millions or billions of dollars, and an over-allocated water supply as significant roadblocks to a new reservoir.

“I agree with water storage 150 percent. I support it to the bitter end,” he said. “But I know the realities surrounding water storage.”

Addington said the commissioners need to support their ideas for water storage with a more concrete plan.

“I’m all for it. Let’s see the proposal,” he said. “Are they going to float a bond at the county level to help fund it?”

Aquifers: A solution?

Bruce Topham, owner of the Flying T Ranch in Sprague River, said storing water in existing basalt aquifers would be an alternative solution to a reservoir or wetland. And he said it’s a way to guarantee water.

“There’s 10 million acre-feet (of water) coming into the upper Klamath Basin here on average. That’s an awful lot of water,” said Topham, who identified himself as a trained geologist as well as a rancher. “There’s a simple answer. The rocks around here, especially in our valley, are fractured lava rocks, mostly basalt … The fractured basalt has a storage capacity for water. You put it underground, reinject water into the aquifers when you have a surplus in the spring. You put it in the ground. You don’t have to build a dam. You don’t have to get all the permits.”

Underground, the water doesn’t evaporate like surface water does, Topham said. Underground, the water stays a cool 53 degrees.

“When you need it you get it back on the surface,” he said, “and you’ve got good, clean, cold, wonderful water to use.”

Reactions to county commissioners’ decision

Klamath County Commissioner Dennis Linthicum said the board of commissioners could play a role in finding an alternative to the KBRA, but he didn’t want government to play a deciding role.

March 9, 2013

Paul Lewis (anti-KBRA)

Langell Valley sheep farmer

“I thought it was a good decision, personally. I just don’t see, number one, that the claims these folks in the KBRA are making about water and lower electricity have any basis in fact — in how they’re going to provide it.”

Bruce Topham (anti-KBRA)

Owner of the Flying T Ranch in Sprague River

“That’s why we elected those guys. My reaction is, it’s about time somebody got smart around here. All three of those commissioners ran on that idea and we voted for them because that’s what they wanted to do. They kept their promise.”

Asked how the commissioners’ decision will affect the KBRA, Topham said:

“I hope it turns it off. It was a very poor idea in the first place. … Everything about it is wrong. They left too many people out of the agreement. … We’ve been screaming about this for a long time. It’s not good for anybody. It’s good for people in the KBRA, but not for ratepayers or anybody else.”

Gary Derry (pro-KBRA)

Farmer and board member on the Klamath Water Users Association

“Us up here in the irrigation community are worried about project water for irrigators. That process (the KBRA) was a path that we believed in. … We’re out here working on the ground, constantly worried about water supplies. This year is no exception to that. Snowpack is not what it should be.”

Rob Unruh (pro-KBRA)

Potato, wheat and alfalfa farmer from the Malin area

“I’m still waiting for adjudication and waiting for the commissioners to have a viable plan. I’ve had my water shut off twice. Anybody involved knows the commissioners are saying good sound bites, but if you’re involved in water, they don’t work.”

Bob Gravely

PacifiCorp spokesman

“I don’t think there’s a way they can just vote and take their names off the agreement.”

Glen Spain

Northwest regional director for the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources

“This means Klamath County would no longer participate in the most important restoration programs in the country’s history ... they should stay at the table and resolve their grievances or the train will leave without them.”

Hayley Hutt

Hoopa Valley Tribal Council member

“This just proves that the KBRA is not a solution that’s going to mend relationships. In D.C., I don’t think Congress was surprised. We need to actively look for a new and better solution.”

Matt Baun

U.S. Fish and Wildlife Service spokesman

“Our goal is to try and resolve these natural resources conflicts — that’s why we’re supportive of KBRA and KHSA … it’s the best option on the table in terms of bringing parties together throughout the Basin.”

Courtney Warner Crowell

Deputy communications director for Sen. Jeff Merkley, D-Ore.:

“Sen. Merkley is still committed to working with his colleagues to pass legislation that will help pave a path forward for the Basin. The KBRA is the most comprehensive framework that offers the best benefits and most balanced plan for the region. With Sen. (Ron) Wyden’s chairmanship on the Energy and Natural Resource committee, Sen. Merkley feels optimistic that we’ll be able to make headway this year in Congress. Sen. Merkley understands that the new Klamath County commissioners would like to change direction regarding the KBRA but he is still committed to the vision that stakeholders across the Basin spent years developing — a collaborative agreement that benefits everyone in the region.”

Don Gentry

Vice-chairman of the Klamath Tribes

“The commissioners should meet with the KBRA parties and bring their concerns. Their reasons not to support are unfounded … I don’t know all their political motivations.”

Ed Sheets

Facilitator for the Klamath Basin settlement agreements

“If Klamath County pulls out, it would not dissolve the agreements.”


How to Guarantee Water

Paul Lewis (anti KBRA)

Langell Valley sheep farmer

“The pie in the sky is that we have to somehow get the Endangered Species Act to include a requirement that, besides ad environmental impact study, it has to have a social and economic impact study. That’s not changing the fact that it’s required to protect species and such, but there has to be a balance as to the effect on the social fabric of communities and the economic well-being of people. Right now it doesn’t matter what kind of dire straights it puts people in — farmers, fisherman anybody else — it’s strictly what’s good for the fish. That’s not right. There has to be a balance between what’s good for the environment and the effect on people and communities.”

Gary Derry (pro-KBRA)

Farmer and member of the Klamath Water Users Association board

“The KBRA is the path we’ve chosen because there is a means to secure an allotment of water. There is a means to deal with power and there is an opportunity to bring 42 groups together that typically have not worked together. That brings along benefits. It’s good to have people thinking the way you’re thinking. It’s not a one-track, narrow-minded approach. It’s a watershed, two states, three-county approach to fixing a huge problem. And so yes, it is the path. If somebody has a better path, put it forward. Nobody’s putting it forward.”

Dennis Linthicum

Klamath County Commission chairman

“The best approach for guaranteeing sufficient water resources is to create water resources. The KBRA does not create water resources. It takes a limited resource and tries to allocate it politically. … If you’re going to really provide water to users, you need to create more access to water and the best way to create access to water is to make more water available.”




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