Our Klamath Basin Water Crisis
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News from the Front #91:
A New Cloud Over the Klamath Basin
by James L Buchal, Complex Civil Litigation Specialist 1/18/08. Buchal biography>http://www.buchal.com/legal.htm )
This year marks the twentieth anniversary of the listing of “endangered” suckerfish, beginning the invasion of the Klamath Basin by “swarms of officers” “sent hither”, in the words of the Founders, “to harass our people and eat out their substance”. On January 15, 2008, the swarms released a draft “Klamath River Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities”. The title is ironic, if not Orwellian, as the true purpose and effect of the Agreement is to destroy the sustainability of a growing agricultural economy, part and parcel of a larger hollowing-out of America that becomes more and more apparent.
Dam Removal and Other Economic Losses
One overarching purpose is the destruction of productive capital in the form of dam removal, though PacifiCorp is not yet on board. Presumably one reason the draft Agreement was released, rather than being consummated in secret like so many other vital natural resource decisions, was the need to pressure PacifiCorp. Destroying clean, renewable hydropower in favor of forcing citizens to fund their foreign enemies with energy payments will someday be regarded as a great crime. For now, the answer is always the same: Uncle Sam will print up more dollars to paper over the problem, but those days will soon come to an end.
Specifically, there is to be a $41.7 million (143) program “to provide power costs security” at a level of three cents (2007) per kilowatt-hour (141). But “actual realization of the specific power cost target depends on several factors and variables and is not guaranteed by the Agreement” (141). To get the benefits, if any, participants must “enroll to support this Agreement and the Hydropower Agreement” (142), adopting the time-honored tactic of using borrowed fiat dollars to buy off political opponents of the Agreement.
Counties losing tax revenue from dam removal or suffering other adverse impacts (147) will be bought off by the “Counties Program” for economic development, though no level of funding is specified yet (148). Local losses may be even worse as more land is converted into into Tribal trust property; a “Mazama Forest Project” (138), rumored to involve converting 80-90,000 acres, appears to show a proposed funding level of $21 million (175). A related Klamath Tribe document even suggests that the Tribe expects to “[s]ecure assurances that the Tribes and Tribal members will be given preference on contracting, employment and business opportunities generated on the Tribes’ ancestral homelands by the Settlement Agreement”.
Immediate and Long Term Restrictions on Irrigators
The most immediate effect of the Agreement is to “provide limitations on diversions from the Klamath River and Upper Klamath Lake associated with the Klamath Reclamation Project” (114). The precise amount of such “limitations” is not specified, though the total suggested diversions, to be made effective by stipulation in the Oregon water rights litigation (71), are specified in an Appendix (211-12). All amounts less than the specified “maximum diversion” are to be turned over to fish managers (59-60).
It is true that in exchange for dam removal (or if more storage is built), the irrigation season may be increased by 10,000 acre feet (less than 3%) in the Klamath Reclamation Project “in some years” (58), assuming that increases are not enjoined by disgruntled parties for reasons set forth below.
In the Upper Basin, one can expect “voluntary retirement of water rights or water uses” (98), and new restrictions on groundwater use (100), with the ultimate goal of increasing inflow to Upper Klamath Lake by 30,000 acre-feet a year—unless there is “still a need for additional water for instream uses” (102). Very roughly speaking, then, irrigation interests give up three or more buckets of water for one bucket back.
Landmines such as the command to avoid “adverse impacts” on the flow of numerous springs throughout the Basin will require a new Klamath Water and Power Agency to “remedy the adverse impact” (77); as a practical matter, war is declared on new wells (78-79).
One of the most important questions—what to do when water runs short—is not really resolved. The Klamath Basin Coordinating Council “shall identify a lead entity” to develop a “Drought Plan”, taking care to ensure that “commercial fishers”, among others, are involved in the development (107). The Plan sets forth a list of drought response measures in priority order, which rapidly evolve to the “exercise of water right priorities” (109), and under Extreme Drought conditions (e.g., 1992 and 1994), reductions to the otherwise-stipulated diversion rights for the Project (109). And if “climate change” makes things worse, the parties are bound to “develop supplemental terms” including “adaptive management of water resources” (113)—a code word for taking more water from the irrigators.
Spreading Listed Species Problems Further Around the Basin
All of the parties commit themselves to the great lie that reintroducing salmon and steelhead (and their parasites, lamprey) “will result in significant net conservation benefits” (46). The likely (albeit not certain) effect will be to commit the Basin to sustaining fish where they will not thrive, requiring ever larger public expenditures and ever greater human restrictions (called “additional measures” (55)) to conduct the same failed experiment with each passing year. Half a billion dollars is to be wagered on this experiment in the first ten years (47), and we can be sure that the value of any fish that are produced will be orders of magnitude below this figure.
The parties have sufficient wit to realize that introducing new listed species above the dams threatens to create further regulatory nightmares (121), and agree to “take every reasonable and legally-permissible step to avoid or minimize any adverse impact” (122). Those words are empty, of course, since the law is going to require new steps to protect new listed species, and the parties will merely “meet and confer” if things go wrong (124). Californians, however, have negotiated special, extra protection by specific provisions to keep the new fish out of the Lost River system and the Tule Lake Basin (46), continuing their successful campaign of evading issues (e.g., Trinity diversions) in the Klamath Basin.
More Administrative Overhead
Another overarching purpose of the Agreement is to establish “Collaborative Management”. Instead of reforming a broken system with countless agencies all claiming jurisdiction over the same subject, we are to ratify the process and require “mutual agreement” (21). By this means, the swarms of officers can eat up ever-greater amounts of our substance through endless internal meetings and paperwork, as less and less is accomplished for the people. The resulting “governance structure” alone will cost $3.3 million in the first ten years of the Agreement (35). As authority is diffused amongst an alphabet soup of new, parasitic agencies, the people will suffer even greater loss of their ability to hold officials accountable for the inevitable problems.
Tribes Get Everything, Give Up Nothing
The Agreement ratifies the legal fiction that the Tribes have “water rights for fish to propagate and produce sufficient numbers for harvest” (18), as if one could manufacture fish at will with instream flows. The irrigation interests bind themselves to “not protest, contest, object or block any assertion of water rights by the Klamath Tribes” consistent with the Agreement (82), which water rights are to be “recognized . . . at the claimed amounts and with the priority date of time immemorial” (83). Last time I looked, the claimed amounts exceeded natural streamflows, meaning that enforcement of such rights would terminate all junior rights—and such enforcement would naturally arise in the absence of “sufficient” salmon for harvest. A related Klamath Tribe document entitled “Klamath Tribe Economic Revitalization” confirms the Tribe’s intention to “[a]ssert tribes’ senior water rights”. To make matters worse, the parties cannot contest any instream flow applications filed by Oregon (119) or Federal (120) agencies either, some of which are disclosed in an Appendix (236).
The Tribes will provide a “written assurance” (83) not to enforce water rights in a fashion that interferes with Project operations, except that the assurance is carefully crafted to be meaningless, because, among other things it “shall not include, or be construed to extend to, rights under statutes of general applicability, including the Endangered Species Act”. Indeed, the Tribes even specifically reserve the right to enforce future ESA biological opinions (130).
And notwithstanding the yet-to-be developed “written assurance”, the Tribes have made it clear that “nothing in this Agreement is intended to diminish the rights of those Parties which are sovereign Indian Tribes” (28). Appendices E-6 and E-7, which document potential future limitations on the Tribes, conditioned on federal legislation (85), and “substantial funding” (89), are left blank (254-55). Nowhere is there even a clear waiver of sovereign immunity by the Tribes that would permit parties to take them to court to enforce the Agreement. So far, the non-tribal interests have really gotten nothing out of the Tribes, but what can one expect from local leaders who cower at the prospect of enforcing even the local building codes against tribal leaders?
The Agreement Ultimately Promises Nothing for the Irrigators
One could hardly put a larger red flag on the field than carveouts to allow continued attacks under the Endangered Species Act. (See also 107.) Nor does the Agreement provide any “waiver of federal Clean Water Act requirements or of comparable state water quality standards”. (121; see also 130 (Tribes reserve right to seek Clean Water Act regulatory authority)). Clean water statutes and rules are rapidly metastasizing into a form as virulent as the Endangered Species Act.
More general provisions confirm that the Agreement will not be the last word in “eating out the substance” of Basin residents, for all parties remain bound to comply with existing law (27). That law in turn changes upon the whim of the California liberals who dominate the Ninth Circuit. And once the courts destroy the benefits of the bargain, if any, the non-tribal interests will be stuck because if any provision of the Agreement providing those benefits is “held to be invalid”, “the remaining provisions of this Agreement are not affected or impaired in any way” (40).
It is true that parties to the Agreement are to support “existing management of water levels” behind Keno Dam (43) and operation of Link River Dam “in a manner that ensures the availability of water for diversion” (44), but the Agreement specifies how further “diversion limitations” will be accomplished for “changed circumstances” (127). And of course nothing prevents nonparties from making attacks. This leaves open the door for a time-honored tactic of the environmental movement, which can always field a new set of objections and objectors to anything previously negotiated away.
If the Basin’s leaders were actually interested in striking a deal that would defend the interests of their constituents, all concessions in the Agreement would be predicated on the adoption of an Act of Congress that exempted the participants from environmental statutes of general applicability in exchange for suffering administration under the Agreement. That way, it would require a further Act of Congress to destroy the benefits of the Agreement (if any), rather than a single disgruntled environmentalist.
It is remarkable to see a community give up so much, and provide such massive funding for its enemies, in exchange for comparatively tiny programs to benefit their actual constituents. The new Lords of the Basin will bask in nearly a billion dollars of funding, while mitigation to local power customers, water users and local governments will be funded at perhaps a tenth of that level. Three buckets of water, and associated crop income, are to be given up now, in exchange for immediate restrictions and the possibility of one more bucket later. This is not a recipe for sustainability, but for the continued rise of the parasitic classes at the expense of the host. As the United States devolves into a kleptocracy, the strategy of joining the looters at the public till might make short-term sense, but not when the payoff is so poor.
What is especially tragic is the lack of courage and leadership in the Basin, which has rejected available alternatives. Real leadership could have organized a new public utility district that condemned and took over the dams, and operated them for the benefit of the local communities—avoiding massive rate increases that threaten economic sustainability. Real leadership could have stuck to the original design of Reclamation legislation, and taken ownership of the Klamath Basin Project, pruning away great swarms of officials in the process. And real leadership would have continued to fight against bogus ESA listings that were generated to fund the parasitic classes, and are only maintained by their lies.
Note: Numbers in parentheses refer to electronic page numbers of the Adobe Acrobat file “Proposed Klamath Basin Restoration Agreement January 15, 2008 (Draft 11).pdf”
© James Buchal, January 17, 2007
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