December 1, 2004

Ms. Barbara Chillcott Hall
Conference Editor
Public Land & Resources Law Review
The University of Montana School of Law
Missoula, Montana 59812

Dear Ms. Hall:

Thank you for the opportunity to participate in the 28^th Annual Public Land Conference in Missoula earlier this fall. I have been contacted by your department with a request for a paper that will be included in a document that summarizes the proceedings of the conference. This letter and the attached report have been developed to respond to this request.

The panel that I sat on in Missoula provided Klamath Basin stakeholder and agency comments, partially in response to the 45-minute overview presentation made by Dr. Holly Doremus. After listening to Dr. Doremus’ comments in Missoula, and after reviewing the related 2003 document she authored with Dan Tarlock entitled “Fish, Farms, and the Clash of Cultures in the Klamath Basin”, I feel it is imperative to address her assessment of the situation we face here in the Klamath Basin. My resolve on this hardened when Ms. Doremus stated her intent to further advance her philosophy in the form of a soon-to-be-published book on the Klamath Basin.

As was apparent during our panel discussion in Missoula, nearly every panelist identified concerns with comments made by Dr. Doremus. I have prepared the attached assessment of “Fish, Farms, and the Clash of Cultures in the Klamath Basin”, which should also serve to outline related concerns our association has with Dr. Doremus’s Missoula presentation.

Thank you for your consideration of this matter. If you have any questions regarding the attached assessment, please do not hesitate to contact our office.

Very Truly Yours,

Dan Keppen

Klamath Water Users Association

2455 Patterson Street, Suite 3      

Klamath Falls, Oregon 97603

(541)-883-6100   FAX (541)-883-8893  

                  www.kwua.org

KWUA Response to

“Fish, Farms and the Clash of Cultures in the Klamath Basin”

Dan Keppen, P.E.

Executive Director

Klamath Water Users Association

November 28, 2004

Submitted to:

Public Land & Resources Law Review
The University of Montana School of Law
Missoula, Montana 59812 

The Rest of the Story….

An Assessment of “Fish, Farms, and the Clash of Cultures in the Klamath Basin”

Introduction

In September 2004, representatives from government agencies, Indian tribes, local government, water users and conservation groups participated in a two-hour panel discussion on Klamath River watershed issues at the University of Montana School of Law. Prior to the panel discussion, Dr. Holly Doremus, a law professor at the University of California, Davis, provided her perspective overview of the Klamath situation. The document she primarily relied upon for that presentation was a paper entitled “Fish, Farms, and the Clash of Cultures in the Klamath Basin” which had previously been published in a 2003 edition of Ecology Law Quarterly, which Dr. Doremus co-authored with A. Dan Tarlock, a fellow law professor at the Chicago-Kent College of Law.

The paper’s most important message – that the Klamath Basin crisis of 2001 can teach us important lessons about conflicts in larger basins – is a good one, and from a legal standpoint, we agree with many of its conclusions. However, the paper’s negative treatment of agriculture is unjustified. In addition to a few key facts that are incorrect, the authors have a tendency to tell one side of the story in a way that backs what appears to be their predetermined conclusion: Irrigated agriculture has no place in the Klamath Basin, the small family farms and ranches are doomed, and local water users are backwards obstructionists who are primarily responsible for the “degradation” of the Klamath River watershed.

I sat in the audience as Dr. Doremus repeated many of thoughts proposed in the 2003 paper, and I shared silent gazes of disbelief with my fellow panelists as we listened and prepared for our discussion. While many of the panelists joined with me later to constructively address some of the views presented by Dr. Doremus, there simply was not enough time to fully engage on this matter. On behalf of the Klamath Water Users Association, I have prepared the following assessment of the Doremus / Tarlock paper for the record to provide…the rest of the story.

Background of Klamath Water Users Association

The Klamath Water Users Association (KWUA) is a non-profit corporation that has represented Klamath Irrigation Project farmers and ranchers since 1953. KWUA members include rural and suburban irrigation districts and other public agencies, as well as private concerns that operate on both sides of the California-Oregon border. We represent 5,000 water users, including 1,400 family farms.

Overview of Current Situation

Three and one-half years after Klamath Irrigation Project (Project) water deliveries were terminated by the federal government, local water users are attempting to proactively address water supply challenges while at the same time trying to stave off a furious round of attacks launched by environmental activists. Project irrigators – who farm on lands straddling the California-Oregon state line - remain apprehensive about the future certainty of water supplies.

Unfortunately, this critically important dynamic is both overlooked and misrepresented in the Doremus / Tarlock paper.

General Overview: “Fish, Farms, and the Clash of Cultures in the Klamath Basin”

As noted previously, we generally agree with some of the key conclusions made in the Doremus / Tarlock paper. For example, we completely agree with the authors’ assertion that, while there are legal tools for addressing most of the Klamath Basin’s water woes, they are fragmented and scattered, under the authority of a variety of federal and state agencies. The authors are right –and their findings are bolstered by the 2003 final Klamath report prepared by the National Research Council (NRC) – when they conclude that state and federal agencies must work toward common solutions, and that resource use issues must be integrated with pollution issues. In the case of the 2001 Klamath crisis, the ESA very definitely did catalyze a move to a “more comprehensive approach that can produce a more sustainable landscape.” That move is best captured by the recent signing of the “Klamath River Watershed Coordinated Agreement”, where two state governors and four Bush Administration cabinet-level secretaries endorsed this concept.

We also essentially agree with many of the key legal points made in the Doremus / Tarlock paper, with a few exceptions. However, under “Setting the Stage” and other important background portions of the paper, it appears that much of the information was gleaned from media accounts, websites, and apparently, review comments offered up by Reed Benson, former Executive Director of WaterWatch of Oregon[1]. That organization, in our view, is one of the most vocal and strident opponents of irrigated agriculture in the Klamath Basin. In fact, the Doremus / Tarlock paper includes a statement that could have come directly out of any of a number of WaterWatch press releases in the past four years, when it notes that the Klamath Basin has “too many demands competing for too little water”[2].  The “WaterWatch message” appears to be an appealing one to the authors, where local water users are portrayed as right-wing obstructionists, desecrating the “arid” Klamath Basin with their water guzzling ways, unwilling to fess up to their responsibilities and, who are, inevitably, doomed. Like many of the sophisticated outside environmental coalitions that have made the Klamath Basin a playground for litigation and negative press attacks, the authors, unfortunately, appear to have adopted a similar approach. The authors in many instances seek to justify pre-determined conclusions by either misrepresenting the facts entirely, or, by selectively relying on only those sources that support their view.

We offer the following examples to back these assertions.

Agriculture is Seriously Misrepresented in the Doremus / Tarlock Paper

1.      The authors focus almost exclusively on Upper Basin agriculture as the sole culprit responsible for all the woes of the basin. Consider the following:

“Current agricultural practices in the Klamath Basin are not compatible with ecological protection.”[3]

“The Klamath’s ecological problems are traceable to the cumulative effects of project and non-project water diversion, and agricultural practices.”[4]

“Besides water diversion, agricultural practices in the basin contribute to the problems facing the fish, and ultimately constitute the major threat to biodiversity in the basin.”[5]

“….agriculture is the primary land use and the largest threat to water resources….”[6]

These types of statements – the same we hear on a regular basis from WaterWatch and other activist organizations - are in direct contradiction with the 2003 Klamath report prepared by the National Resources Council (NRC Report)[7]. The report clearly indicates that recovery of endangered suckers and threatened coho salmon in the Klamath Basin cannot be achieved by actions that are exclusively or primarily focused on operation of the Klamath Irrigation Project.

There are many other documented factors that have affected salmon runs in the Klamath River[8].  The U.S. Fish and Wildlife Service (USFWS) have described the most important eight factors as “most frequently referred to with regard to recent population declines” of anadromous fish in the Klamath River.  Those factors are: 

• Over fishing
• Logging
• Trinity River transbasin diversion
• Irrigation diversions in lower Klamath tributaries
• 1964 flood
• 1976-1977 drought
• Sea lion predation
• Brown trout predation. 

The documents we have reviewed are notable for their lack of supporting scientific

information or data suggesting that Klamath Project operations are a significant factor

adversely affecting fishery resources.  To the contrary, the available information provides

compelling evidence that other factors are far more important in affecting fish populations

than the recent historical Iron Gate Dam flow regime.

Similar arguments apply to factors affecting sucker fish. At the time of the listings in 1988, the Klamath Project was not identified as having known adverse affects on the sucker populations, yet four years after the listing, using limited or no empirical data, the USFWS turned to the Klamath Project as their singular focus.  Paradoxically, since the early 1990s, despite new beneficial empirical evidence on the improving status of the species and lack of relationship with Klamath Project operations, the USFWS became ever more centered on Project operations and increased restrictions on irrigators instead of paying attention to more obvious, fundamental problems for the species.  This circumstance caused tremendous expense in dollars and time by diverting resources away from other known factors affecting the species.

A similar circumstance occurred with the National Marine Fisheries Service (NMFS) during and after the coho salmon listing in the lower basin.  It cited the reasons to list coho salmon, excluding Klamath Project operations as a significant factor affecting the species.  However, shortly following the listing, and with no supporting data, NMFS chose to center its attention on the Klamath Project as the principal factor affecting coho salmon. 

Both agencies adopted a single-minded approach of focusing on Klamath Project operations to artificially create high reservoir levels and high reservoir releases.  This puzzling, similar sequence of events has yet to be explained by agency officials[9].

Unfortunately, the Doremus / Tarlock paper perpetuates this type of singular focus on agriculture –particularly Klamath Project irrigators and their representatives - as the source of Klamath Basin ills.

2.      The authors mistakenly conclude that irrigation is inefficient in the Klamath Project. The report repeatedly makes references that water use in the Klamath Project is inefficient:

“The Klamath crisis and its aftermath provide an important case study of the difficulty of simultaneously addressing both the long history of inefficient irrigation and ecosystem degradation in the West.”[10]

“Water use in the Klamath Project is inefficient by western irrigation standards, two acre feet are lost for every acre foot actually consumed by crops.”[11]

To the best of our knowledge, the authors did not contact local water users, the Bureau of Reclamation, or their brethren at the University of California experiment station in Tulelake, California before making these assertions. Instead, they relied on the generalized information provided by the highly politicized Western Water Policy Review Advisory Commission.

Because of the Klamath Project’s design and the interrelated nature of water use within it, including the use of return flows by farmers and the refuge, Project efficiency is very high.  A recent assessment of Klamath Project water use efficiency[12] implies that a sophisticated seasonal pattern of water use has evolved in the Klamath Project. One must understand that the Klamath Project has developed into a highly effective, highly interconnected form of water management. According to the 1998 Davids study, effective efficiency for the overall Project is 93 percent, making the Klamath Project one of the most efficient in the country[13].

3. The authors exhibit a negative and condescending attitude towards family farmers and ranchers. For example, on page 4, the authors intone:

 “This coldly rational view can be recast as a struggle by an embattled culturally minority to buffer itself against political and economic forces which will inevitably result in its displacement.”

And, on page 36:

“…the smaller the user, the more deeply entrenched the water use. Farms in the Klamath Basin tend to be small. Unlike large corporate agricultural interests, small farmers have a low tolerance for risk and see few alternatives to preserving the status quo, regardless of the impacts on others or society.”

We are used to seeing this tone expressed in press releases from activist organizations. However, we were very disappointed to see the cynical manner in which our community is addressed in the subject paper, where irrigators are portrayed as entrenched obstructionists who are unwilling to adapt to changing times and societal priorities. The allegations continue:

“In the short term, the irrigators in the Klamath Basin may believe they are winning    the battle.  In the long run, however, by refusing to give ground gradually they may be setting up a conflict in which they cannot hope to prevail.”[14]

“The vague efforts sparked by the droughts of the 1990s to resolve the conflicts ….were far too little and far too late to avert the crisis.”[15]

Again, the record fails to support these conclusions. In the past twelve years, local water users – both within the Klamath Project and those who farm in upstream areas north of Upper Klamath Lake – have taken proactive steps to protect and enhance water supplies, enhance the environment, and stabilize the agricultural economy. Farmers and ranchers in the Klamath Project have consistently supported restoration actions to improve habitat for the basin’s fish and wildlife species.

Local agricultural and business leaders have dedicated thousands of volunteer hours and have spent millions of dollars in legal and consulting fees in the past ten years to participate in processes associated with environmental restoration, Klamath Basin water rights adjudication, dispute resolution, drought-proofing, and water supply enhancement. Local water users have participated in these actions through the Kerns Group, Hatfield Upper Basin Working Group, Klamath Compact Commission, Klamath River Basin Fisheries Task Force, KPOP, the Klamath Basin Alternative Dispute Resolution process and local watershed councils.

Most impressive, however, is the multitude of actions undertaken on-the-ground to effectuate improvements in the following areas:

·        Local efforts to assist National Wildlife Refuges

·        Ecosystem Enhancement and Sucker Recovery Efforts in the Upper Basin

·        Fish Passage Improvement Projects

·        Wildlife Enhancement and Wetland Restoration Efforts Undertaken by Upper Basin Agricultural Interests

·        Local Efforts to Improve Water Quality

·        Efforts to Improve Klamath Project Water Supply Reliability and Water Use Efficiency

The Doremus / Tarlock paper also fails to note that the first ecosystem-based recovery plan for Klamath Basin sucker fish was not developed by regulatory agencies, conservation groups or the tribes. It was developed, instead, by the same farmers criticized by Doremus and Tarlock. In both 1993 and 2001, it was the Klamath Water Users Association that developed comprehensive plans to accelerate the recovery of sucker fish.

The Doremus / Tarlock paper fails to acknowledge these efforts, and instead concludes:

“…farmers must be willing not only to let some lands go fallow but to move to more adaptive, sustainable agricultural practices…Had the Bureau forced them to face the less severe droughts of the 1990s, many farmers might have taken steps to make their operations less vulnerable, such as increasing their water use efficiency, switching to less water-intensive crops, adjusting their planting decisions annually based on water supply forecasts, drilling wells and applying for groundwater rights, or even accepting buyout offers.”[16]

The hydrologic conditions of 1992 and 1994 were comparable to 2001 conditions. In the time between those earlier droughts and 2001, with widespread local recognition that the Klamath Project already delivers water efficiently, local farmers still participated in a voluntary demand reduction program and began developing supplemental groundwater supplies. We refer you to www.kwua.org and a 45-page document entitled Summary of Recent and Proposed Environmental Restoration and Water Conservation Efforts Undertaken by Klamath Water Users and Basin Landowners for further information on this topic.

The Doremus / Tarlock paper also contains specific negative references to our association that deserve further consideration:

“Congress dropped another $125 million in aid to the region when the Klamath Water Users Association opposed it, largely because the funds could have been used for land or water buyouts.”[17]

Actually, there were several factors that led to our association opposing this legislation, which was supported by environmental groups like WaterWatch. These included a proposed governance structure that was top-heavy with federal agencies, no accountability or justification for proposed restoration projects that emphasized conversion of farmland to wetlands, and no proposed improvements to aid water supply reliability for the Klamath Project. Ultimately, our engagement in this matter helped secure $50 million for on-farm water use efficiency projects for Upper Basin farmers.

The Doremus / Tarlock paper relies on the one in a series of local news stories that addressed the controversial farm bill debate, and claims that “(s)ome farmers in the Upper Basin who are prepared to sell have complained that the (Klamath Water Users) Association has usurped their ability to control their property.”[18] The paper fails to cite a second story on this topic – written by the same reporter – where it was revealed that one-quarter of the landowners who signed a related letter criticizing our association did not even know their names would be used for that purpose. In fact, we were contacted by three of the so-called signatories who claimed their signatures on the letter were forged. The letter was crafted by environmental activists who had a philosophical, if not financial, gain in advocating for a “solution” that would pay desperate landowners 2 ½ to 3 times the assessed value of their property to sell their land to the government.

What WaterWatch and the other organizations that advocate for this “solution” consistently fail to reveal is that, after “buying out” the farmers, those lands would be “returned” to a wetland state, where more water would be consumed than that currently used by the farms. How does this help the overall water balance of the Klamath Basin? The Doremus / Tarlock paper swallows the WaterWatch argument hook, line and sinker, and suggests that it the “entrenched” attitude of local farmers that is responsible for delaying progress in the Klamath Basin. The authors fail to offer any sort of alternative portrayal that would steer them towards another conclusion.

For the record, the State of Oregon has recognized the proactive conservation efforts undertaken by local water users, and in 2003 and 2004 presented KWUA with its “Leadership in Conservation” award. Also, Tulelake Irrigation District recently received the prestigious F. Gordon Johnson award for leadership in western irrigation district operations. Finally, U.S. Secretary of Agriculture Ann Veneman and Natural Resources Conservation Service (NRCS) chief Bruce Knight this year recognized local rancher Mike Byrne in Washington, D.C., for his leadership in conservation.

Because the proactive efforts described above have not yet provided any relief to Project irrigators towards meeting the ESA-driven requirements imposed by NOAA Fisheries and USFWS, local irrigators have assumed a more reluctant stance in recent years to support further, similar efforts. The disastrous water cut-off of 2001 – after years of proactive actions taken by local water users – contributed largely to this current perception. Nevertheless, KWUA is working with USFWS and the Bureau of Reclamation to develop a formal agreement that pledges to develop a paradigm where sound conservation and restoration measures directly result in improved water management flexibility for Project irrigators.

Doremus and Tarlock further completely ignore the elevated proactive efforts undertaken in the past three years, and suggest that nothing is happening:

“The transition will be easier if the irrigators take the initiative to begin it now, before the next crisis hits…..Some farmers might voluntarily idle their lands in dry years if environmental groups, taxpayers, or farmers with higher value crops would pay for the water. But without clarity about the extent and priority of water rights, those transactions cannot happen.”[19]

Actually, by agreeing to “forebear” the use of Klamath Project water, irrigators have been involved with land idling efforts. The events of 2001 notwithstanding, the year 2002 was the first of three years where irrigators have stepped up to meet a steadily increasing cry to meet environmental and tribal trust water demands in the Klamath River watershed:

In 2002 – 62,000 acre-feet of water were generated through the environmental water bank, Tulelake Irrigation District groundwater contributions, and an early-fall pulse flow intended to ease fish crowding in the lower Klamath River.

In 2003 - 59,651 acre-feet of water bank water plus 30,000 AF were generated through voluntary groundwater pumping and conservation efforts undertaken by local water users, with no federal compensation.

This year, 75,000 AF of water bank water plus 13,000 AF of water pulled from the stored refuge and irrigation water were generated to meet ESA and tribal trust needs. 

Next year, the NOAA Fisheries biological opinion calls for a massive 100,000 AF water bank, regardless of actual hydrological conditions.

It is clear that our irrigators have not been idle. We feel that we are doing all we can to be part of a constructive solution to meet the challenges we all face in this watershed. We are modifying our actions to generate water to meet these regulatory demands. And, importantly, we have no say in how that water is actually managed.

In the past two years, nearly 90,000 acre-feet of water each year were reallocated away from the Klamath Project and towards ESA and tribal trust needs because farmers have idled land and pumped their own groundwater, and because the national wildlife refuges have drained seasonal wetlands. Our Project, including the refuges, consumptively uses 350,000 acre-feet of water in an average water year. This year, we took actions that provided environmental water exceeding 25 percent of that value. This, despite a widespread local community view that this water is achieving questionable value for the species it allegedly is intended to protect.   

4. Irrigators are the “bad guys”; and the “outside” environmental community is powerless.

The authors’ characterization that environmental groups are somehow powerless victims in the Klamath conflict is pure fiction:

“Anger was also directed at environmental activists, some of whom received death threats.”[20]  

“It has been a struggle for cultural supremacy in which environmentalists have been only peripheral combatants.”[21] (p. 10).

The hard working landowners I represent have been on the receiving end of a cruel and long-distance war being waged by environmental activists who zealously assert that our water project – representing only 2 percent of the total land base of the Klamath River watershed, and consuming only 3-4 percent of the average annual flows to the Pacific Ocean – is somehow responsible for all of the environmental woes of the river system. These advocates are intent on portraying the Klamath Basin as a poster child to help fuel outside efforts that are focused on litigating, legislating and publicly condemning our community for doing what it has done for 97 of the last 98 years – irrigating farm and ranch land.

These interests know that federal water projects are an easy target of litigation, since federal environmental and clean water laws govern project operations. The lawsuits are often aimed at federal entities – such as the U.S. Bureau of Reclamation and fishery agencies – which, on the surface, give the appearance that the environmental plaintiffs are simply interested in correcting errors made by some non-descript governmental agency. The true intended target of these actions, however, ultimately becomes the landowners and water users who fall under the management jurisdiction of the federal agencies. It is the farmers and ranchers that pay the price of litigation through altered management practices, increased uncertainty, and escalating legal expenses to defend their interests.

Some environmental activists take umbrage when besieged landowners tag these litigious actions as “anti-farming”. I have yet to receive a satisfactory response from activists when I ask how these actions could possibly be perceived as being “pro-farming”.  In our Basin, things have gone this far: activists in 2003 sent landowners a cruel, threatening letter, telling them to sell out.

Without a doubt, constructive environmental organizations exist. But they do not, by any means, control the dialogue in the Klamath Basin. Also, environmentalists are not the only ones who have been subjected to hateful correspondence. Here is a sample of some of the e-mail I received after the 2002 fish die-off on the Klamath River, long before the facts were in regarding specific causes for this unfortunate event:

Sent: Saturday, September 28, 2002 6:33 AM

Subject: Stupid White Farmers

There is nothing to add

Subject: COMMENT-QUESTION from your OrgSite
[http://www.orgsites.com/or/klamathwaterusers]
> You greedy a*****s... congratulations on killing all those Salmon!
> P****d Off
> upyours@yahoo.com  (Expletives deleted).

To: <kwua@cdsnet.net>
Sent: Monday, September 30, 2002 9:01 AM
Subject: Thanks for Killing our Fish!
> Just a thank you note for your ignorance and blatant disregard for the environment. I hope you padded your pockets even more with federal welfare monies, while the rest of us downriver will have to scrape by this winter with water that is too little to late. Good thing you have Mr. Bush on you side.

> Oh by the way the water flows down river 200 miles, so yes the devastation is a direct result of the Project. You sound like your president, trying to shift the blame rather than take responsibility for your actions.
> Thanks again we all appreciate it!

There are two sides to every story, and by focusing only on the environmental / tribal claims, the Doremus / Tarlock paper tends to lead to conclusions that appear to be slanted.

The Authors Underscore the “Arid” Nature of the Basin

The Doremus / Tarlock paper goes to some length to portray the Klamath Basin as a desert, with minimal attributes to support agriculture. “The Klamath Basin is distinguished by …its aridity”[22] say the authors, the Basin marks the beginning of “the forbiddingly arid Great Basin”, and “because of the severe climatic conditions, none of the lands in the region fall in the U.S. Department of Agriculture’s highest productivity class.” [23]

The Basin is also just that, a basin, and for millennia it has collected runoff from millions of acres of snow-bearing highlands that surround it. Further, the 2002 Oregon State University report cited in the Doremus / Tarlock paper points out that land values in the Klamath Project for Class II and III soils are comparable to farmland prices in Iowa, one of the most productive agricultural areas in the country. It finds that land prices in the Project are much higher than the average farmland value for Oregon. The OSU report further points out that most of the higher value lands are within the Project, whereas the relatively low value lands are primarily outside the Project. 

The Authors Misrepresent Some Very Basic Facts

The following very fundamental inaccuracies should be noted when reviewing the Doremus / Tarlock paper.

Doremus / Tarlock: “Today, the largest community in the Basin is Klamath Falls, Oregon, a city of less than 20,000.”[24]

Fact: The corporate limits of Klamath Falls have not changed for decades. However, the suburban area immediately adjacent to and including the city has a population over 40,000.

Doremus / Tarlock: “Upper Klamath Lake fish kills occurred in 1995, 1996 and 1997. During the same time period, siltation, algal blooms, and agricultural pollution made the Tule Lake Refuge unsuitable for fish and waterfowl.”[25]

Fact: The second sentence is not accurate.  According to Ron Cole, USFWS Manager of the Klamath Refuge Complex[26], Tule Lake in 1995, 1996, 1997 was suitable for fish and waterfowl, as both were present in large numbers. Siltation of Tule Lake has been occurring for decades – it is not just a three- year phenomenon.  Filling of wetlands is also a somewhat natural process, although anthropogenic activities can certainly accelerate the process.

Algal blooms have been occurring on Tule Lake since at least the 1950's and it is fairly certain that the aquatic system was always eutrophic. Algal blooms certainly have an effect on fish, (e.g. huge fluctuations in dissolved oxygen). However, waterfowl are a poor indicator of water quality, and if you look at where waterfowl or water bird concentrations are high, it is generally where systems have an abundance of nutrients.

"Agricultural pollution" is a fairly vague term, but millions of dollars in research and monitoring by USGS/USFWS failed to detect pesticides in concentrations sufficient to cause harm.  That same research found that eutrophication was the largest factor that influenced the aquatic environment. Tule Lake is at the tail end of an agricultural project that is already eutrophic and in fact its source waters do no meet water quality standards for nutrients.

As to fish populations, Tule Lake contains a small sucker population (<1,000 fish).  According to Cole, individual suckers in Tule Lake NWR are in the best condition of any suckers in the Klamath Basin.  Cole believes the primary limitation to suckers is a lack of suitable spawning habitat and a lack of optimal water depths. In addition, large populations of blue and tui chub also occupy the lake, which support a dense population of fish-eating birds.  Tule Lake is the primary feeding site for the pelican colonies at Clear Lake.

 

Doremus / Tarlock:  “The Klamath Project diverts about 1,345,000 acre-feet to irrigate approximately 240,000 acres in Oregon and California.”[27]

Fact: As previously noted, the average annual water used to supply the Klamath Project and the national wildlife refuges is approximately 350,000 acre-feet[28], which is almost three times lower than the Doremus / Tarlock estimate.

Doremus / Tarlock: “There are no fish screens at Link River Dam or A Canal; those facilities entrain a large population of the endangered sucker larvae and juveniles each year.”[29]

Fact: The U.S. Bureau of Reclamation (Reclamation) in early 2003 completed construction of a $14 million state-of-the-art fish screen on the “A” Canal, a project that has been championed by the Klamath Irrigation District (KID) since the early 1990’s. KID worked closely with Reclamation in all aspects of the planning, design and contracting phases of this multi-million dollar project.

Doremus / Tarlock: “Potatoes are a thirsty crop, using 4.1 acre-feet of water per growing season compared to 3.6 acre-feet for most other crops.”

Fact: Klamath Basin potatoes are not that thirsty. The consumptive use of potatoes in the Klamath Basin ranges between 1.5 and 1.8 acre-feet per acre, compared to something less than 2 acre-feet per acre for other crops[30].  

In Several Instances, the Authors Tell Only One Side of the Story

If the “rest of the story” were included, we doubt whether some of the report’s key conclusions could be supported.

Doremus / Tarlock: “Commercial harvest began in the early 1800s and continued until the mid-1990s, when the severely declining coho fisheries were essentially closed.”[31]

The rest of the story…. The anadromous fishes have been in decline since the 19^th century, when dams, mining, and logging severely altered many important streams and shut off access to the upper basin. Over harvesting also has affected fish populations. Commercial harvests of salmon intensified with the development of canning technology. By the early 20^th century, habitat destruction combined with commercial harvests had resulted in serious salmon depletion on the Klamath River (Pacific Watershed Associates, 1994). Cobb (1930) estimated that the peak of the Klamath River salmon runs occurred in 1912, Snyder (1931) observed substantial declines in the 1920s. As Snyder observed, “in 1912 three [canneries] operated on or near the estuary and the river was heavily fished, no limit being placed on the activities of anyone”. [32]

Doremus / Tarlock: “A small tribal coho harvest, affecting only about 70 naturally spawning fish per year, continues in spite of the ESA.”[33]

The rest of the story….the report does not mention that tribal Chinook harvest – which is orders of magnitude higher than coho harvest – still occurs at the mouth of the Klamath River, at a time when salmon are returning to the river to spawn.

Doremus / Tarlock: “These fish (suckers) remained the target of a recreational as well as a tribal fishery until catches sharply declined in the 1980s.”[34]

The rest of the story…. There is a reason for the sharp declines in sucker catches. Just prior to the listing of the suckers in 1988, a sport snag fishery was allowed.  Before 1969, the fishery was largely unregulated with no harvest limit; in 1969 a generous bag limit of 10 fish per angler was imposed.  During the early to mid-1980s, despite the belief that the numbers of fish were in a state of rapid decline, the State of Oregon still allowed the sport snag fishery.  Ultimately, because of increased focus on the status of the sucker populations, Oregon eliminated the fishery in 1987.  The first detailed description explaining how and why the snag fishery caused significant harm to the sucker populations was provided by Vogel (1992).  More recently, the NRC Klamath Committee came to the same conclusion.  If the USFWS would have properly assessed the known impacts on the suckers caused by the snag fishery and the benefits from ceasing the fishery, it very likely could have affected the ultimate listing decision.

Simply stated, the largely unregulated snag fishery slaughtered the sucker populations.  Since the fishery was eliminated in 1987, the two sucker populations dramatically rebounded.  The threat was removed and the populations increased ten-fold.  But unlike the rationale to originally list the species, the current inflexibility of the ESA will not account for that major beneficial effect.[35]

Doremus / Tarlock: “Naturally nutrient-rich, Upper Klamath Lake had become hypereuthrophic, leading to massive algal blooms, largely due to agricultural runoff.”[36]

The rest of the story….Much attention has been given to the possibility of reducing the phosphorus load passing from the watershed to Upper Klamath Lake. According to the NRC final 2003 report, “the prospects for suppressing algal blooms by this means in UKL seem poor, however, because about 60% of the external phosphorus load is derived from natural sources. In addition, the anthropogenic (human-induced) component of load is accounted for by dispersed sources, which are difficult to control, and the internal (P released from lake sediments) is about double the external load.”[37] (Emphasis added).

Doremus / Tarlock: “….flows exceeded the minimums establishd by FERC in the licensing of Iron Gate Dam, but were less than those recommended in the draft Hardy Report,”[38] and “….the Phase II Hardy Report recommended flows no lower than 1,000 cfs  at the driest time of the driest year.”[39]

The rest of the story…. The “Hardy Phase Flow Reports” (still in draft form)– so named for its primary author, Dr. Thomas Hardy of Utah State University – build upon previous instream flow recommendations made for the main stem Klamath River based on analyses of hydrology data.  This work was originally commissioned to address instream flows required to support ecological and tribal trust needs in the main stem Klamath River below Iron Gate Dam (IGD).

The draft Hardy flow studies contain fundamental flaws that taint their use:

• Insufficient data on Coho salmon in the upper reaches of the Klamath River has led to use of “generalized” habitat suitability criteria for Coho and surrogate criteria derived from Chinook salmon.
• No analysis of whether mainstem Klamath River habitat is in fact a limiting factor for coho populations.
• Much of the recently developed site-specific habitat used data was obtained during 1998 and 1999, which were average to above average water years with relatively high springtime river releases.
• The seasonal analyses of the effects of the proposed action essentially isolate the potential for impacts on Coho salmon to fry that may be rearing in the mainstem immediately downstream of Iron Gate Dam (IGD) in June. 
• While the report professes to focus on site-specific matters, very generalized information is used to develop habitat preferences, particularly for Coho salmon.
• The report falsely suggests that Coho habitats should somehow be recreated in the large river channel downstream of IGD to serve as a surrogate for the lost or degraded habitats in Klamath basin tributaries.
• Questionable assumptions are made regarding Klamath River temperature.

KWUA has still not received responses from federal agencies and Dr. Hardy on the association’s formal comments submitted on both phases of Hardy’s work. KWUA and an independent Colorado consulting firm determined both reports to be fundamentally flawed and that the draft reports did not provide scientifically defensible information for developing specific flow recommendations for the Klamath River.

Doremus / Tarlock: “Fishery scientists from Oregon State University criticized the interim (NRC) report as plagued by ‘multiple errors that detract from its scientific usefulness’. In a paper accepted for publication in a peer-reviewed journal Fisheries, they argued that the report should not be treated as the definitive scientific statement on the status and needs of the basin’s fish.”[40] 

The rest of the story…..The Doremus / Tarlock paper makes no mention of the other article that appeared in the same issue of Fisheries – a scathing response by the NRC Committee Chair William Lewis to the OSU paper. Dr. Lewis disputed the OSU researchers’ claim that the members of the NRC committee could not have reached a meaningful understanding of the scientific issues surrounding the endangered suckers over the few months during which they studied written documentation and heard oral presentations by researchers and others.

“The committee voluntarily and unanimously reached several strong conclusions because it was confident that the evidence presented to it supported these conclusions,” said Lewis.

The Lewis response, entitled “Argument is No Substitute for Evidence”, contains a strong theme suggesting that the OSU researchers – Drs. Cooperman and Markle - had a motive other than a strictly scientific approach to their evaluation of the Interim Report.

“Cooperman and Markle, in grasping at every item in the NRC committee’s report that could be perceived or portrayed as an error, and in casting doubt on the committee’s competence and even its honesty, have shown that their main purpose is to discredit the committee rather than to deal in a useful way with some of the important issues that the committee’s report has highlighted,” said Lewis.

Lewis also took Cooperman and Markle to task on their suggestion that scientists who work the longest on a problem should have the final word in evaluating information related to the problem.

“The committee rejects the notion that the main issues of importance in the Klamath basin are so complex that they can only be evaluated by insiders,” said Lewis.

Doremus / Tarlock: “In its BiOp, FWS held its ground against the NRC report…..Defending the science, FWS pointed to reviews by faculty of Oregon State University and the University of California at Davis.”[41]

The rest of the story…The University of California (UC) peer review actually consisted of four separate reviews, with differing conclusions.  It is unclear precisely what was - and was not - examined in these reviews.  All were very heavily qualified, recognized shortcomings in the data, and did not by any means constitute a scientific “peer review” as that term is normally understood. Key concerns include:

• Unlike the recent NRC Committee review, the UC review was not an analytical peer review because the reviewers could not perform their own independent analyses of the available information used in the USFWS BO.
• The UC reviewers were not provided appropriate criteria to perform the review.
• The reviews were short and similar to an annotated biography of the BO.
• A most important discipline – limnology – was lacking on the review panel.
• Much of the reviewers’ comments focused on topics not germane to a BO peer review.
• Some of the reviewers provided philosophical comments inappropriate for a technical, scientific peer review.
• The conclusions of the review were highly ambiguous, leaving the review open to widely divergent interpretation.
• Use of incorrect information invalidated one reviewer’s conclusions

Despite the shortcomings of the UC review, it was apparent that some reviewers rejected the definitive arguments used by the USFWS BiOp to justify higher lake levels.

Doremus / Tarlock: “In late October 2002, a young NMFS biologist sought Whistleblower Act protection, charging that the agency’s biological opinion had been improperly altered at the last minute, at the behest of the Bureau and without input from agency scientists, to lower the required minimum stream flow levels.”[42]

The rest of the story…. The U.S. Office of Special Counsel (OSC) later dismissed the whistleblower charges made by Michael Kelly. The OSC determined that Kelly’s allegations did not warrant further investigation and that the file for this case would be closed. In a March 5, 2003 letter to Kelly, OSC declined to take further action on Kelly’s claims, including:

·        Kelly’s allegation that a there was a substantial likelihood that the government’s decision to adopt its Klamath River flow regime represented a violation of law.

·        His claim that the fish die-off that occurred last September provides the proof that NMFS engaged in “gross mismanagement”.

·        Kelly’s charge that NMFS engaged in a “gross waste of funds”.

“After careful review of your comments and the materials previously submitted, and consideration of the issues discussed in our recent telephone conversations, we have determined that our original decision to close the case was warranted,” OSC stated in its letter to Kelly.

Despite this decision, environmental activists continue to rely upon Kelly’s allegations to support their argument that Bush Administration policy makers “stifled” sound science during the development of the Klamath Project operations plan. Also often overlooked in media coverage of this matter is the Administration’s decision to direct the National Academy of Science – perhaps the premier science body in the land - to provide guidance in federal Klamath decision-making.

Doremus / Tarlock: The Blumenauer lease lands proposal was “narrowly defeated.”[43]

The rest of the story….Actually, the appropriations amendment offered by Rep. Blumenauer was defeated twice, and the second time, more convincingly than the first. In 2003, for the second straight year, refuge lease land legislation introduced by U.S. Representative Earl Blumenauer (D-Portland) was defeated in the House of Representatives. In 2003, more lawmakers – including 23 Democrats – voted against the measure, which failed by a 228-197 vote on the floor of the House. Importantly, the rest of the Oregon delegation, including three Democrats and Republican Greg Walden, opposed Blumenauer’s proposal. The failed legislation aimed to prohibit the Bureau of Reclamation from issuing leases to farmers planting alfalfa or row crops in the Lower Klamath and Tule Lake National Wildlife Refuges.

Doremus / Tarlock: “It is unclear whether that pulse helped the fish at all.”[44]

The rest of the story ….It did not – see the 2003 NRC report section that addresses the 2002 fish die-off, and the questionable benefits the pulse provided to river conditions.

Doremus / Tarlock: “In the spring of 2002, a coalition of environmental groups submitted a petition asking the Oregon Water Resources Commission to place a moratorium on new appropriations on the Klamath and Lost Rivers. Given the recent conflicts in the basin, the ongoing adjudication, and the fact that no new flow appropriations have been granted since 1997, that seemed a relatively mild request. The Commission, however, with the support of the agricultural community, rejected the petition.”[45]

The rest of the story….A primary reason for local opposition to this proposed moratorium was the concern that it would restrict the ability of water users to develop supplemental groundwater and storage supplies to meet the environmental water bank requirements established by the federal government earlier that year.

Doremus / Tarlock: “Irrigators direct financial losses from the dry summer have been estimated at $ 28-35 million, a sizeable figure but nowhere near the one billion dollars that irrigators announced they would seek in compensation from the federal government. Indeed, the agricultural losses are considerably less than those claimed by Lower Basin fishery communities, which have pegged their losses due to reduced Klamath River flows at $80 million annually since 1992.”[46]( p. 26).

The rest of the story…Doremus and Tarlock apparently derived their fishery economic numbers from a PCFFA press release and a related Los Angeles Times article that cite the “leak” of a draft USGS economics study in 2002. The draft USGS report itself was a highly theoretical exercise, based in part on information culled from “cold calls” and mailings sent to random respondents in four Western states.

Participants in the USGS study were polled on past visits they made to the Klamath River, and then were asked if they would increase visits based on improvements noted in the river, such as enhanced water quality and angling harvests. Not surprisingly, respondents answered positively, and the draft report’s findings suggest that recreational visitation would increase under these circumstances. The study then balanced the theoretical economic gains associated with increased visits versus the costs for actions that were assumed to improve water quality and fishery conditions.

Although the draft USGS study clearly states “we have no quantitative information about the impact of the individual restoration activities on habitat or water quality,” the “restoration” activities chosen included:

·        Acquiring all farmland within the Klamath Project at an assumed price.

·        Acquiring forest land along the Klamath River and tributaries.

·                 

·        Increasing Trinity River flows by 500,000 acre-feet per year.

·        Removal of some Klamath River hydroelectric dams.

·                 

The draft report concluded that the recreational benefits achieved by increased recreational use would far outweigh the costs of buying farms and forests, removing water supplies from California’s Central Valley and removing hydroelectric dams. Importantly, it provided no explanation whatsoever for how the radical “restoration” measures it proposes will improve the fishing and habitat conditions in the river.

It also fails to address the obvious impacts that would result from these measures. In the Upper Klamath Basin — even ignoring the callous attitude that would close down entire towns — what would be the cost of acquiring the residences, businesses, schoolhouses, and communities throughout the Klamath Project? What would happen to recreation benefits — as well as the many other benefits associated with the private farmland — when the farmers disappear? What happens to the national wildlife refuges? How will they receive water when irrigation districts that serve them are wiped off the map?

The negative economic impacts associated with other proposed actions appear fairly obvious to us, but are nowhere even addressed in the draft report. This is but a small sampling of some very fundamental problems embedded in the USGS report.             

5. Subjective statements belie the authors’ political bent throughout the article.

In a number of areas, tongue-in-cheek innuendos and more direct and critical commentary aimed at Republicans reveal a startling bias in the Doremus / Tarlock paper. References to “influential segments of the Christian Right”, “extreme hyperbole” employed by former Idaho Congresswoman Chenowith, the Bush Administration’s “surprise” that global climate change is a serious problem, as well as direct criticism of President Bush’s Klamath Working Group seemed inappropriate in a paper used at the basis for an overview presentation. 

Conclusions

To solve the problems of the Klamath River watershed, we need a coordinated management program that spans two states in a watershed that is characterized by a strong federal presence. Competition among stakeholder groups – including four tribes, agricultural water users, and countless environmental organizations – is fierce.  In order to be successful, we need to better understand the real state of the watershed by developing the facts and best possible information to make the best possible decisions. Environmental sensationalism scare the public and make us more likely to spend our resources and attention solving phantom problems while ignoring real and pressing issues.