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Clarifying questions regarding the Klamath Settlement/Restoration Agreement

(I would like specific and comprehensive answers to the following questions)
sent by Marcia Armstrong, Siskiyou County Supervisor 2/25/08

A response by Klamath Basin irrigator and Klamath Water Users Association board member Steve Kandra to 62 questions by Siskiyou County regarding Klamath Settlement Agreement that calls for removal of 4 hydropower dams, 3 being in Siskiyou County, 2/26/08

  1. When did the new Settlement/Restoration agreement group start meeting? When did Siskiyou County become a part of that group? How did they become a part of it?
  2. Is the “Klamath Summit” the same thing as the Settlement/Restoration Agreement? How do they fit together?
  3. Are there two agreements (a) the “restoration” agreement and (b) the dam removal agreement with PacifiCorp?
  4. Are we actively participating in group (b)? If not, why not? That seems to be where mitigation for the impacts in Siskiyou County are to be located.
  5. Could the dams come out without an agreement in place? Could we end up with no mitigations for impacts if we do not have an agreement in place? Does that include the physical impacts being discussed under group b?
  6. Will the Settlement Agreement negotiations be reopened and an effort made to seat representatives of the Copco lake area and downriver communities with the most at stake of loss in this agreement? Will there be negotiation and governance seats for the Shasta and Scott landowners affected by the new Fish Council and Governance Structure? Will efforts be made to create a fair paying field for these Mid-Klamath interests?       
  7. What permits and licenses are needed for the dam to continue operation? Who has that authority? Are we participating in these other permitting processes? What is their timeline and how can we/the public participate? Are there any requirements in the law for these permitting or relicensing bodies to “coordinate” with the County?
  8. Can we consider an alternative to deepen the dams – creating greater storage for flood protection, colder water for management?
  9. Will the dam removal agreement have mitigations for: (a) restoration of the lake bottoms and securitized funding for those purposes; (b) assurances that some entity will be liable for damages to considerable County infrastructure downstream of the dams, private property, business damages (including white water rafting) and the securitization of funding for that liability; (c) repair and maintenance of roads and other infrastructure used in the decommissioning of dams; (d) mitigation for the  clean energy source lost – such as investment and location of alternative energy generation facilities in Siskiyou County; and (e) any potential damages to Yreka City water use rights, sources and transportation infrastructure – with securitized funding? The Settlement/Restoration Agreement has nothing addressing these concerns.
  10. On Page 135 item 31, it states that if the CEQA/NEPA process fails to mitigate significant physical impacts to Siskiyou County and to fishing opportunities, then the CDFG will meet with County representatives to develop recommendations to address the impacts. Does this mean that there is a possibility that the serious and direct impacts identified under question #3 have no certainty of being mitigated?
  11. If the sediment settles on the river bottom and raises the level of the river, who will be liable for flooding of private property and damage to businesses and investment backed expectations? Seiad Valley is prone to having its access roads flooded during 15-25 year events or greater. These roads are in a canyon and cannot be moved. What guarantees will there be that these roads will remain accessible?
  12. Under the Settlement/Restoration Agreement, Siskiyou County is to get a promise from the CDFG to ask the State Legislature for $20 million. Is this money to go into the County’s General Fund to pay for County Services? If not, then what is it to be used for and how and to whom is it intended to be allocated? Is it true that any non-county recipients of these funds will have to waive their right to sue for any damages from dam removal? Page 136)  Is this not an “unconstitutional condition?”
  13. On page 135- 136 it appears that in exchange for uncertain and unsecured benefits, by signing the agreement, Siskiyou County waives its rights to file a claim for damages against the United States, the States of Oregon and California, or the agencies of these.  Is this true?
  14. Appendix A Proposed California Legislation – A.6,  Section 6 states “The Department shall allocate the interest earned from the funds allocated pursuant to Section 1 for restoration projects within the Klamath Basin.” It is implied that the approximately $20 million will not be fully allocated, but some part will remain with the state to garner interest. Please explain. What form will this $20 million take? In what increments will it be allocated and who will be in control of its disbursement? 
  15. It appears that if the promised CA legislation to offset Siskiyou County for its tax loss of up to $20 million does not materialize by the time the process has completed, the license surrendered and the dams are ready to be taken out, our remedy is to withdraw from the agreement or request the parties reconvene.  Is this correct - As this appears to result in a completely empty benefit to Siskiyou County.
  16. What will happen if we don’t sign the agreement? Will the $20 million remain? Could the agreement go forward without us?
  17. The tribe and environmentalists claim that decommissioning will bring jobs to Siskiyou County which will offset impacts. Do we have a qualified contractor that exists in Siskiyou County who could do the work? What kinds of jobs could typically be done by local contractors or would they be subcontracted to any lowest bidder? What is the real likelihood that anyone from Siskiyou County would be employed? At other than a menial skill level?
  18. Can the landowners around the lakes get just compensation under the fifth Amendment for loss of property value?
  19. Who will own the property between the current lake front houses and the new river channel? Will it be available for adjacent landowner’s to purchase so that they have riverfront property? Is it in the flood plain or will it be available for development by PacifiCorp?
  20. Rumor is that a consortium has been formed to purchase the land under the lakes to develop it as riverfront properties. Do you know this to be true? Won’t the properties be in a flood plain? What limitations will be placed on development? Will adjacent property owners have right of first refusal?
  21. Under the Restoration Agreement, there is nothing about disposition of historic Shasta tribal village and burial sites. Will the land revert back to the Shasta Tribe? This includes  sites: # 62 Ko-soo'-rah located on the N. Side of the Klamath close to Copco Dam; # 69 Choo-pah'ch-took, now under Copco lake, located on the N. Side of the Klamath below " Ik-kweek"; # 70 Ik-kweek, now under water,  located on the N. Side of the Klamath below Ho-a'-te-took. Each Village site also had a burial ground located nearby, usually on a hill or slope.
  22. Many of the studies being used to assess impacts were done or commissioned by environmental groups. It is my personal experience that these studies are not impartial, peer reviewed or public and have a track record of skewing conclusions to support the environmental agenda. Will a comprehensive, impartial, scientific public studies be funded and performed on the impacts of dam removal?
  23. Will there be any fair and impartial comparative analysis of the potential loss of other values to Siskiyou County such as potential loss of a California designated Wild Trout Area from Copco to the border, Wild and Scenic Rivers, a Class IV-V summer whitewater rafting run, a treasured competitive bass fishery, a valued perch fishery, valued lake ecosystems and recreational opportunities?
  24. How will dam breaching and the delivery of a source of a huge amount (in excess of 20 million cubic yards) of sediment for the next several years comport with the Klamath TMDL, Cologne Porter Water Quality Act and new Sediment rules for the North Coast Regional Water Quality Control Board? How can we justify actions to reduce sediment on Moffett Creek, etc. because they deliver sediment to the Klamath and then turn around and release a huge sediment source directly into the Klamath? 
  25. It appears the breaching of the dam is planned for the precipitation season. This coincides with the spawning season. Won’t the sediment cement in the fry that has been deposited in the gravels? Won’t new sediment repeatedly be deposited at each precipitation event through run-off over the years killing subsequent yearly productions of salmon? 
  26. I understand that PacifiCorp ran models of the recovery response of the fisheries to dam breaching. Could you go over the results of that? In addition to the loss of 25% of the run from the closure of the hatcheries, how might the fisheries be impacted in the first, second, third, fourth year, etc. Will such impacts on threatened coho species with a 3 year age class be acceptable under the ESA? Will this create conditions where the Magnusson Stevens thresholds will not be met and the coastal fisheries shut down again?
  27. If the release of sediment harms the downstream fishery, will farmers in the Scott and Shasta be held harmless for lower fish counts?
  28. The release of sediment will likely make suction dredging very difficult and possibly release toxins into the river. Will the miners be compensated for the loss of the ability to work their gold claims? Who will be liable for any health impacts to miners from working in the sediment? What is the logic behind the Karuk tribe mounting an aggressive attempt to halt mining because of sediment and then favoring the release of huge amounts through dam removal?
  29. It is my understanding that the agreement proposes to expand marshland for additional water supply by 90,000 acres. As this storage is extremely shallow, won’t this accelerate evaporation and won’t the solar exposure heat the water far above temperatures lethal to anadromous fish? Won’t this create additional warming of the water coming from the Upper Klamath River Basin? Is that in compliance with the intent and spirit of the Clean Water Act?
  30. Will the hatchery still be operational if the dams are removed or if fishways are installed? Who will pay for operations? Where will the operational water come from if the reservoirs and facilities are removed? (The groundwater has arsenic.) How much of fish populations are due to the hatchery production? Will farmers in the Scott and Shasta be held harmless for decreases in population due to loss of the hatchery?
  31. What are the estimates for what it will cost to retrofit the dams with required fishways? What are the estimates for what it will cost to decommission dams? Will that include removal of sediment so that it doesn’t move downstream? What is the cost for alternative energy sources? On behalf of the ratepayers, will an impartial source (not Ecotrust) study the relative costs and benefits of dam removal and the legitimacy of the conditions of relicensing being imposed on PacifiCorp? (When I attended preliminary settlement agreement meetings with PacifiCorp, it was evident that attendees were trying to pack the conditions with expensive and unnecessary studies and conditions  so that they would tip the cost/benefit balance in favor of dam removal.) 
  32. Will the costs of fishways and other conditions or decommissioning and alternative source development be passed on to the ratepayers? Which ratepayers? Will the Klamath Project and Off Project users be exempt from additional costs on their “sustainable” rates?
  33. Will the cost for reducing energy rates to a lower “sustainable”  level of approximately three cents per kilowatt-hour, delivered,  for the Klamath Project and perhaps Off-Project Users (Oregon users under 1956 agreement,)  be passed on to other users? Which users? Will the rate breaks be publicly funded and distributed as a credit to eligible participant’s bills? Will non-Klamath Project Siskiyou County receive sustainable rates as well? If not, why not ? What parties to the Settlement Agreement would not bear these costs as they are out of the service area or sheltered by the Agreement?
  34. An insert in a June 2006 billing to California rate payers indicated that a rate increase request of  $12.8 million was the equivalent of an overall rate increase of  18.9%. This means roughly, that each $1 million is the equivalent of a 1.48% increase in overall rates if laid entirely on the California rate payers. Estimates for dam decommissioning and the costs of alternative replacement power or retrofitting with fishways is into the multiple hundred of $millions to well over a billion. How might this effect residential, business and agricultural rates in the mid-Klamath River? Shouldn’t the impact of such rates be examined from the perspective of social justice, given the high poverty level of the residents (rate payers) of Siskiyou County? Shouldn’t all rate payers be given equitable treatment? Shouldn’t it be required that the rate payers be given a seat at the negotiation table?
  35. Will “net metering” arrangements for Klamath Project users cost other rate payers? Will other rate payers in Siskiyou County be allowed to net meter excess energy produced by alternative sources?
  36. What elements of the agreement provide for incentive to develop alternative energy sources in Siskiyou County to replace the lost power source of the hydropower dam? Given California’s requirements for utilities to have a certain percentage of green energy, what efforts will be made to ensure that California rate payers of Pacific Power receive mitigation for the loss of this green hydropower source?  
  37. It appears that the Restoration Agreement alters the water use rights secured under the Klamath Compact. Doesn’t such alteration require specific legislative agreement by the two states and Congress? 
  38. What, if anything, will we be giving up concerning our groundwater jurisdiction in this agreement? It appears that the agreement ( page 60) covers operations on the Klamath Project that could have adverse impacts on  groundwater resources on the Klamath that are under the jurisdiction of Siskiyou County.   
  39.  It is my understanding that, because of tribal sovereignty, the tribes cannot be sued. Are the signatures of the tribe on this agreement enforceable in court? Can the tribes be held to anything they agree to in this document?
  40. If the agreement is signed, the Tribes agree to waive their right to litigate the US Government (Klamath Project and above the Oregon-California border – pg. 70-72) for additional flows under tribal trust, fishing rights or water rights “theories”  It appears that this waiver from suit is not also good against the Scott and the Shasta Adjudications, including the Forest Service’s Rights on the Scott River?
  41. It was stated by Troy Fletcher in a Congressional briefing on this agreement, that this agreement did not waive any right of the Yuroks to assert their Winter’s Doctrine rights against the Scott and the Shasta. After agreeing not to pursue additional flows from the Klamath Project, is it the Yurok’s intention to pursue additional flows from the Scott and the Shasta?
  42. On page 139, the Agreement would establish an interim fishery for the Klamath tribe in the area between I-5 and Iron Gate on the Klamath to begin after quotas are met at the hatchery. (If it still functions.) This is the aboriginal territory of the Shasta tribe and would appear to be inappropriate. Currently, this area provides a recreational fishery for many Siskiyou river guides and residents, patrons of the Blue Heron resort and the R Ranch. How would this Indian fishery impact that? How would the new Klamath fishery affect the in-river sports fishery? Why can’t the Klamath tribe just fish like any other public? What special rights will they have?
  43. Are Scott and Shasta Valleys included in the Drought Plan? If so, how? Are they bound to it without direct representation? Can such a drought plan take precedence over the Scott, Shasta, Seiad and other long-standing water use right adjudications under the Superior Court of Siskiyou County? (page 94  B iv. “Klamath Basin includes lands tributary to the Klamath River in California and Oregon.) 
  44. Are the Scott and Shasta Valleys to be included in the Climate Change Plan (Pg. 97) If so, how?  Are they bound to it without direct representation? Can such a drought plan take precedence over the Scott, Shasta, Seiad and other long-standing water use right adjudications under the Superior Court of Siskiyou County? (page 94  B iv. “Klamath Basin includes lands tributary to the Klamath River in California and Oregon.) 
  45. Can we do a document search of every mention of “Klamath Basin” and “Klamath River Basin” to see where the Scott and Shasta and other areas of Siskiyou County tributary to the Klamath have been either unintentionally or inappropriately included in provisions of the agreement meant to apply only to the Klamath Project or Upper Klamath Basin?
  46. What will happen to the water use rights reserved to the Shasta Valley from the Klamath River? (Page 105) Will these be dedicated to instream flows without any compensation, reservation or mitigation?
  47. On page 138, item 34.3, of the Agreement,  it states: “the Tribes shall be priority recipients of federal grants and funds for Fisheries Program described in Part III.” Does this mean that areas like the Scott and Shasta Rivers will have a subordinated position in their ability to receive restoration grants?
  48. Page 18 item 4.11 states that “Parties shall support allocation and reprogramming of existing funds to implement this Agreement prior to enactment of Authorizing Legislation or Secretarial Funding.” Does this mean that existing funding streams for the Scott and Shasta will be redirected to allocation under the Restoration Agreement?
  49. The fisheries program fails to recognize that the area from Copco to the border has already been officially designated by the California Fish and Game Commission as a Wild Trout Water to me managed exclusively for wild trout.  It is further categorized as a “fast Action water” for the speed in which one can catch one’s quota.
  50. (page 32-33) The “Fish Managers” (Us Fish and Wildlife Service, NOAA Fisheries and the Tribes) shall write Phase I of the Klamath River Fisheries Restoration Plan. This will establish restoration priorities and criteria for selection of projects. If the tribes are a potential recipient of restoration funding, doesn’t this pose a potential economic conflict of interests? Will we see a repeat of criteria that favors projects that employ unemployed fishermen? The Counties have land – ergo habitat (and groundwater) use jurisdiction. Why are they not included in planning efforts? What authority will the Fish Managers have on private land management and planning?  
  51. If the agreement is signed, can the Shasta and Scott River Valleys (RCDs) continue to apply for and receive grants for projects under government programs such as the  “Klamath River Restoration Program” (See current Neg Dec) or will all future government funding be funneled through the new Settlement process?   
  52. What will that new funding for projects process entail? Who will have the authority to make decisions or impose requirements on new restoration projects under the new process? How much will the agencies be entitled to take as a cut for administration etc?
  53. (Page 36-37) It appears that the Reintroduction plans will include the entire Klamath River system and will include management of Chinook, coho, steelhead, Pacific lamprey where the species was historically present. Will areas below the Oregon border in Siskiyou County such as above Dwinnell dam be included? If  reintroduction of coho causes new exposures to ESA will there be a Safe Harbor or other such protections?
  54. Under provisions in the Fisheries section , it appears that Tribal Trust outcomes are being held paramount to all other interests  (page 40-41,) including private property use, other economic uses, the economic stability of Siskiyou County, and other important ecological values. Is this imbalance in the public interest?
  55.  Appendix C.2. If Siskiyou County does not sign the Agreement, will the “Governance framework” develop and implement long term solutions pertaining to private lands in Siskiyou County? It appears that the framework would exclude “other restoration entities and efforts existing within the Klamath Basin that are outside the Agreement” from governance. Can Siskiyou County be excluded from the “basinwide perspective” if it chooses not to sign? C.4
  56. Under this Governance framework and all monies being funneled through the structure, will the Scott and Shasta Valley acquire a federal nexus making them subject to biological opinions? Aren’t Recovery Plans currently voluntary? Will the governance structure render them non-voluntary? Who makes the decisions as to how money is allocated to various projects?
  57. C.3 Is it true that the Chartered Klamath Basin Coordinating Council (KBCC) is to act as a FACA committee making recommendations to federal agencies?   The make up of this Federal Advisory Committee will include one representative each from the federal agencies; each of the two states; each of the three counties - Klamath, Siskiyou and Humboldt Counties; each of the Klamath Yurok, Karuk and Hoopa tribal governments; The On-Project water users; the Off-Project (Oregon) water users; commercial fishing industry; and conservation/restoration organization? Does this mean that the (County recognized) Upper Mid-Klamath Watershed Council, Siskiyou RCD, Shasta RCD, Klamath River landowners, business interests and others such will be excluded? ? Is it appropriate to have NGOs and industry sitting at the table at the same level and with the same standing as County legislators, government agencies and tribal governments who have jurisdiction and authorities? 
  58.  How will the governance structure ensure a fair geographic balance in allocating grant and other monies – particularly to the salmon spawning and rearing areas of the Scott and Shasta? Will the Counties have any control or first approval over what projects, policies (or whatever) affecting lands, water and resources within their geographical jurisdiction will come to the “governance body” for consideration? Or will the Fish Managers decide which projects are to be funded? Will County police powers and jurisdiction over land and groundwater use be respected?
  59. C.4 “The KBCC will function to link and coordinate…subbasin watershed organizations and resource conservation districts.” Currently, Siskiyou County has a process in place to recognize legitimate community watershed groups. It has recognized planning efforts from the Shasta CRMP, Scott Valley Watershed Group and the Upper Klamath River Watershed Council. There are several groups in the county currently operating without County recognition. These groups are supposed to be community-based groups working on voluntary efforts, including restoration or improvement of privately owned habitat for anadromous fish.  They act as advisory bodies to the County. Because California Counties have land use planning authority, it could undermine or circumvent the jurisdiction and authority of the County to have these groups linked and coordinated through KBCC, and ultimately under the federal agencies.  
  60. Who will pay for trips to participate in the governance body? Will these be open, noticed FACA meetings? Where will the meetings be held
  61. C.6-7 The TAT (Technical Advisory Team) will make recommendations to the KBCC and “Lead Parties” on “management of resources” and “water operations that affect the Upper Klamath Lake and the lower Klamath River mainstem ecosystems in the period before, during and after dam removal.” Will this include the Scott and the Shasta Rivers and Valleys?
  62. Who will manage releases in times of flood threats downriver?

"This is the full revised list of questions I have and that my constituents have brought forward concerning the Settlement/Restoration Agreement. My District includes approx 110 miles of the Klamath River, the Scott Valley and the Salmon River drainage."

Marcia Armstrong, Supervisor District 5, Siskiyou County

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