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Dormant commerce clause is supreme as it related to the KBRA (Klamath Basin Restoration Agreement)

3/30/09 by Dr. Richard Gierak

All navigable or commercial fish producing rivers fall under the protection of the Dormant Commerce Clause. This is dictated by the Magnuson Stevens Act and the Sustainable Fisheries Act. Under both of these Acts the only Federal regulatory actions that can be taken are specifically water and substrate only. Within the Magnuson Stevens Act it clearly addresses the Endangered Species Act and dictates that it supersedes the ESA and regulatory action can only be taken on water and substrate only.

All rivers that fall under the protection of the Dormant Commerce Clause specifically state that it supersedes any State action. Should a State list a species as Endangered it cannot impose any regulatory action on said river. Only a Federal listing of Endangered can result in regulatory action and that is limited to water and substrate only.

Nowhere within the Magnuson Stevens Act is reference made to dams, reservoirs, fish ladders or fish byways and we might surmise that they have no regulatory relief in these instances. Conversely, since dams are within the river they may have some basis for regulatory control. At this point in time I am unaware of any action taken against dams as part of regulatory action by the United States for the propagation of fish.

Under the present Federal Environmental Protection Act there are listed levels of toxicity for a multitude of chemicals. As a search of the Federal EPA water site there does not reveal a specific level of toxicity of Microcystin. The only listed reference to Microcystin is a proposed level submitted by the Hoopa Tribe of California. There are a multitude of articles listed under the Federal EPA site, however, none are listed under the EPA water site. A figure of 100,000 cells per milliliter is a number touted by the World Health Organization. It would appear that each State has determined its own levels for toxicity. It might be prudent to again argue that since the rivers fall under the Dormant Commerce Clause the only regulatory agency that can impose regulatory control would be the Federal EPA and not the States EPA.

The California Water Quality Board has openly admitted that samples submitted by the Karuk and Hoopa Tribes are at best tainted as they were collected in backwashes and samples held for an extended time period prior to testing. Retaining samples for any length of time in warm weather would hasten the reproduction of the Microcysin within the sample and give a false high level of cells.

The National Research Council has determined that those who crafted the proposed Klamath Basin Restoration Agreement (aka The Water Deal) used flawed studies to develop recommendations for Klamath River flows, ignored calls by independent scientists for a whole basin approach and did not propose using the sort of independent science process that the National Research Council recommended. Essentially the proposed Deal seeks to substitute its political calculations for good science. Klamath history teaches that when good science is ignored bad things happen. That may be the future to which the Klamath River Basin is headed if promoters of the Klamath Basin Restoration Agreement get their way.

According to a recent article by Felice Pace he stated the following: The most significant opposition to the Deal could come in the future. The Obama Administration, which has not yet made known its position on the Deal, has pledged publicly to use the best science when making natural resource decisions. And the scientific underpinnings for the KBRA are weak at best. Knowing this to be the case, the Dealís promoters are doing what they can to ignore and downplay scientific studies and opinions which do not support the Deal. While some scientists in the employ of Water Deal promoters tell us it is based on good science and will allow salmon and other species to recover, no independent scientists have endorsed the KRBA . KlamBlog predicts that no independent scientist will endorse it in the future either.

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