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The Klamath Settlement 

Weighing the pros and cons of a proposal to end the crisis on our most important river

The troubles on the Klamath River are much older than the 2002 fish kill, and they continue to this day. But seven years ago, when as many as 70,000 Chinook and coho washed up dead on the banks of the river, a desperate new sense of urgency was born in the public consciousness. For the first time, it seemed possible that California's second most productive salmon fishery could turn completely barren, and that it could happen soon. And in the intervening years, in fact, commercial salmon fishing has shriveled, banned entirely for some years due to a lack of fish. The river has seen numerous other mass die-offs, mostly of juvenile salmon, since the 2002 crisis.

Solutions are not easy to come by. As it stands, the river is broadly divided between upstream agricultural interests in the Klamath Basin, which straddles Oregon and California in the east, and fishing communities in the west. In between are four electricity-producing dams ultimately owned by Warren Buffett, one of the world's richest men. Apart from the river itself, the only thing that unites these interest groups is their unhappiness. The farmers had their own traumatic event a year before the fish kill -- in 2001, irrigation was shut off completely due to drought conditions. This led to a political uprising in the Basin that ultimately reached the ear of then-Vice President Dick Cheney, who pressured federal agencies to give water to the farmers next year, regardless of the consequences. (Hence the fish kill, some say.) Upstream and downstream were at war for several years.

Since 2005, though, groups with an interest in the river -- including farmers' associations, fishermen's associations, Native American tribes and environmental organizations, along with representatives from local, state and federal government -- have been meeting in an attempt to find compromise. The goal has been to find new ways to manage the river and to distribute its resources more equitably. In January 2008, the negotiators released a draft management plan -- the Klamath Basin Restoration Agreement. But the plan was incomplete; it was written to be contingent upon an agreement to remove the four hydropower dams downstream from the Klamath Basin. Just last week, negotiators announced an agreement with the dam owners -- the Klamath Hydroelectric Settlement Agreement -- that would see the dams removed by 2020.

In most cases, the details of both agreements, which have to be signed in tandem, must be approved by the boards of directors of the various stakeholder organizations that have been involved in the talks -- including the government of Humboldt County -- before those organizations officially sign on. In general, though, many have already signaled broad support or opposition to the settlement agreement. Those in support include the Yurok Tribe, the Karuk Tribe, the Klamath Tribes (of Oregon), the Pacific Coast Federation of Fishing Assocations and several national conservation organizations, including American Rivers, Trout Unlimited and the National Center for Conservation Science and Policy. Those opposed include the Hoopa Valley Tribe and two Oregon-based environmental groups -- Oregon Wild and WaterWatch of Oregon.

The Northcoast Environmental Center has strongly opposed the Klamath settlement agreement in the past, but Jay Wright, the NEC's current Klamath coordinator, said last week that organization -- which has been in flux lately -- is reconsidering that position, and neither supports nor opposes the settlement at this time.

Like the river itself, the Klamath Basin Restoration Agreement is immensely complex. With the hydropower agreement, it amounts to over 400 pages of dense text, and much -- including provisions for what to do in years of extreme drought -- remains to be accomplished. The states of California and Oregon and the federal government will have to pass legislation to implement the settlement. So people might need a road map: The following is just a brief outline of the key points of contention between some local organizations that may share the same goal -- removal of the hydropower dams and restoration of the Klamath ecosystem -- but deeply differ on the question of whether this agreement is the best way to get there.

Executive summaries and the full text of both the Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement can be found at


One of the main goals of the settlement talks was to ensure that salmon can survive and thrive in the Klamath watershed. Because of that, some say, the talks were flawed from the beginning in that they dealt only with one branch of the river -- the main stem of the Klamath. And though that is undoubtedly the most troubled branch of the river system, some critics hold that it is impossible to ensure the viability of future salmon runs without also guaranteeing the conditions on some of the main-stem Klamath's most important tributaries. How can you ensure the quality and quantity of water at the mouth of the river -- the site of the 2002 fish kill -- without taking the Trinity, Shasta and Scott rivers into account?

This point is especially important to the Hoopa Valley Tribe, whose reservation straddles the Trinity River, the Klamath's largest tributary, which joins the Klamath at Weitchpec. For years, Trinity River water -- which is cleaner, cooler and more pristine than the Klamath's -- has been diverted to the Westlands Water District, a consortium of irrigators in the Central Valley. A 2000 management plan from the Department of the Interior greatly improved upon the condition of salmon in the Trinity, but the Hoopa Valley Tribe charges that much of the plan has not yet been implemented. For instance, Humboldt County has annual rights to 50,000 acre-feet of water from the reservoir at Trinity Lake, which it would like to send downstream for fish; that water is sporadically delivered, if at all. And restoration programs in the plan have gone unfunded.

Any comprehensive management plan for the watershed would have to firm up the Trinity, according to Hoopa. How can you know what kind of water you'll have at the mouth of the Klamath if variations in Trinity flows don't enter into the calculus? "You want to have that tool in your toolbelt," as Mike Orcutt, director of the tribe's fisheries department, put it last week.

Much the same could be said for the smaller Shasta and Scott rivers, which enter the Klamath main stem farther upstream. Agriculture and municipal water systems take water from those rivers as well, and in some years juvenile fish have struggled to survive. But those rivers, too, are outside the scope of the settlement.

Jay Wright of the Northcoast Environmental Center said last week that the exclusion of these tributaries from settlement talks is contrary to recommendations from the National Resource Council, and that has been a sticking point for his group. "That's been one of the NEC's concerns -- whole-basin solutions haven't been on the table in this agreement for a while, now," he said. "Scott and Shasta got carved out. The Trinity got carved out. That doesn't follow whole-basin solutions for restoration. It's going to be a pretty substantial resolution, but not full."

While proponents of the settlement may agree with the sentiment, most would say that it would be all but impossible for the multitudinous interests in the entire watershed to reach any sort of consensus agreement. A settlement for just the Klamath Basin and the dams was difficult enough -- it involved over two dozen parties and a major multinational corporation. As a practical matter, settlement supporters say, it was important to stay focused on the most degraded section of the river.

"Right now Westlands Water District doesn't have a dog in the fight," said Craig Tucker, Klamath campaign coordinator for the Karuk Tribe, last week, alluding to the pressure that the politically powerful organization might bring to bear in discussions.

"We have never said that the KBRA solves all the basin problems," added Yurok Tribe Policy Analyst Troy Fletcher. "It can't. It can't solve the Trinity problems, it can't solve the Shasta and Scott. What we have done is taken a significant step forward toward solving water issues in the upper Klamath Basin. We wish and we hope that others will continue to work with us on those issues. We just can't wrap them all into the KBRA now."


Probably the most important item in the settlement -- as well as the most difficult to comprehend or forecast -- is the division of water between interested parties. How much water goes to upstream agriculture? How much goes toward salmon habitat? How much needs to be maintained in the upstream reservoirs for the benefit of the endangered sucker fish, a staple food of Oregon's Klamath Tribes? What happens in a dry year, or a wet year?

The settlement imposes an entirely new management regimen on the river, and critics maintain that the regimen is inadequate for salmon and insulting to downstream communities. "Guaranteed water for farming, no guaranteed water for fish," has become a slogan for opponents of the settlement agreement. The slogan does have some basis in fact, though proponents insist that the same baseline minimums required under the Endangered Species Act, which have been used to protect endangered coho salmon runs in the past, would still apply.

Proponents are certain, however, that the settlement would bring increased water flows for fish, brought about by a decrease in agricultural water usage. Agriculture would not only be guaranteed a certain minimum of water; it would also be held to a certain maximum. The water cap for irrigators would be accompanied by a conservation program designed to lessen the farmers' need for past levels of water usage.

As the summary of the settlement agreement puts it: "The Department of Interior and Yurok Tribe have estimated that the limitation will result in the availability of water for irrigation being 100,000 acre-feet less than current demand in the driest years, with irrigation water availability increasing on a sliding scale with increasingly wet conditions." Most of that water would be used to support fish.

But sending more water downstream is only the beginning of the discussion; the crucial question is when the water is sent. The Hoopa Valley Tribe is deeply critical of the volume of water that will be available to fish during certain months and very dry years. They base this critique on analysis of flow simulations that were performed in advance of the settlement. (The Northcoast Environmental Center had previously cited the same analysis as reason for its opposition to the agreement. But as mentioned earlier, the organization has recently undergone a complete change in leadership, and new personnel are revisiting their positions.)

"What it shows is that 40 percent of the time you're at or below the fish kill flows of 2002," said Hoopa's Mike Orcutt. "That's the model. It's only a model, but that's what it shows. It's the only tool you have. What we're saying is, how is that good for fish?"

Mike Belchik, senior fisheries biologist for the Yurok Tribe, charged that this is somewhat of a misreading of what the modeling system -- known as WRIMS -- was intended to demonstrate. WRIMS looked at historical river flows from 1961 through 1996 and simulated what would have happened if the river had been managed according to the proposed terms of the settlement. But WRIMS did not take into account the effect of dam removal and some other aspects of the settlement that will make more water available to the system.

What's more, Belchik said, concerns about flows based on the WRIMS study fail to take into account the fact that the river will be actively managed, and that real-time decisions can be made to send more water downstream in the event that the river reaches critically low levels. This is one of the aspects of the settlement that changed the mind of Dr. Thomas Hardy, an environmental engineer at Utah State and the author of the most influential and respected study of Klamath River flows. Hardy was initially critical of flow regimes mandated by the agreement; however, according to a paper he released last year, after discussing the issue with Belchik and others most of his concerns had been answered.

Troy Fletcher acknowledged, though, that WRIMS did bring up some reasons to worry -- especially until a still-to-be-written plan for extremely dry years is in place. "Some people's criticisms are valid, and we have to address them in the drought plan," he said. There will have to be a strong plan to address the crucial months of August and September -- the months when salmon are just starting to return from the ocean -- during years of drought.

Regardless, though, the new management system will not take effect until the dams are removed. According to the hydropower settlement announced last week, that won't happen until 2020, at the earliest. For Orcutt and others, interim measures to address the crisis are unclear at best.


The four Klamath hydropower dams beneath the Klamath Basin produce a negligible amount of electricity, but they have a massive impact on the river. Most obviously, they block fish passage: When the first of the dams were built in 1916, they instantly removed salmon from over 300 miles of the upper reaches of the river. But the effect of the dams is even more insidious than that. The series of large, stagnant pools behind the dams lead to toxic algae blooms and other serious degradations of water quality. Their removal -- which would be the largest undamming of any river in history -- has long been a top priority for tribes, fishermen and environmental activists.

The hydropower agreement released last week lays out a timetable that would culminate in the removal of the dams in 2020. The timetable includes the design of a removal plan, analysis under the National Environmental Protection Act and the hiring of contractors. Removal costs would be borne by taxpayers and electricity customers in Oregon and California. Buffett's PacifiCorp subsidiary, which holds title to the dams, was at the table during negotiations, and has tentatively approved the deal.

Very few people are opposed to the broad outlines of the dam removal deal. Some may object to the fact that the public will be paying to clean up PacifiCorp's mess. Others suspect that there may be a more direct route to getting the dams out (as discussed below). Perhaps the strongest and most crucial criticism is that the hydropower agreement offers the government several "outs," through which the deal could be killed if significant political pressure were brought to bear.

But there is significant opposition to the way that the dam agreement has been effectively linked to the larger restoration settlement, so that one cannot proceed without the other. Now, to achieve the removal of the dams, opposition groups such as the Hoopa Valley Tribe must sign on to a larger agreement they do not believe is adequate.

"If you delink the two, then you don't have the bad KBRA stuff linked to the hydro agreement," said Orcutt. "You can kind of clear the dust and say 'Let's focus on that part of it,' then you can turn to water allocations and things like that."

But proponents counter that linking the two halves of the agreement is the only politically viable way forward. Besides, they say, working on both parts at once allows them to bring forward a complete package for upper Klamath restoration.

"We want them to be linked, because it's the whole package that gives us the restoration we're looking for," said Tucker. "Aside from that -- politically, the interests of the irrigation community is met in the KBRA, and we want their support for dam removal."


Oregon conservation groups are especially sensitive to the way the restoration agreement handles future management of the national wildlife refuges in the Klamath Basin. Ecologically, the refuges -- marshy areas along the upper reaches of the river -- should serve to filter and purify the water going into the river. Also, they are among the most important stops on the Pacific Flyway, the route taken by migratory birds every year. For decades, though, the federal government has leased parts of the refuges to farmers, making them the only federal wildlife refuges that also permit commercial agriculture. Though some contend that migratory birds are not harmed by refuge farming, there can be little doubt that, for example, pesticide application in these sensitive areas impacts the overall health of the Klamath ecosystem.

The settlement agreement permits lease land farming to continue in the refuges for at least the next 50 years, and this raises the ire of environmental groups who would like to end the unique arrangement between refuge farmers and the federal government.

The text of the agreement does contain provisions aimed at improving the wildlife refuges. For the first time, the refuges themselves -- both farmed areas and pristine -- would receive a mandated share of water, ameliorating the drought conditions that have sometimes plagued them. Farmers would be encouraged to maintain "walking wetlands" -- a farming practice that allows certain areas to remain fallow each year. Though the practice is somewhat controversial, the agreement maintains that a "walking wetlands" system results in higher crop yields, better habitat for wildlife and a reduced dependence on fertilizers and pesticides.


To some, the compromise solution on the table simply gives away too much. But if the agreement is rejected, the opponents of the agreement -- who, ultimately, share most of the same goals as the proponents -- must find another way forward. That solution would seem to involve fighting for restoration one piece at a time. And winning.

The opponents to the agreement have not articulated a clear political strategy to move forward, but they do have several weapons which could be used to carry on the struggle for a river more attuned to fish habitat. For one, the Federal Energy Regulatory Commission must soon grant a long-term license to the hydropower dams if they are to continue standing. Theoretically, the FERC could order the removal of the dams as being the only solution to ensure their compliance with environmental law. The commission could also place conditions on relicensing that would render the dams too expensive to maintain, which could force PacifiCorp into removing them. The Endangered Species Act, the Clean Water Act, state legislation and federal obligations to the tribes could be used to argue for higher flows and better water quality.

Proponents think this is a risky strategy, and one not likely to bear fruit within our lifetimes -- or, possibly, before salmon disappear from the river entirely. "We have done a significant amount of litigation analysis," said the Yurok Tribe's Fletcher, referring to the battle over the hydropower dams alone. "We've thought about the alternatives. For us, it's a 30-year-plus litigation outlook, even if we won every battle." The compromise does make concessions to upstream interests, proponents say, but they believe that settlement is the only politically feasible alternative, and that it will result in a vastly improved -- if imperfect -- river.

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Hank Sims

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