Must Trust Responsibility be cut for Klamath River dam removal? Tom Schlosser

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1 Must Trust Responsibility be cut for Klamath River dam removal? Tom Schlosser 1

2 Indian Reservations of land and resources Yurok, Hoopa reservations Resighini, Karuk, Quartz Valley reservations-after 1934 Klamath & Modoc reservation 1864 treaty Sites ideally selected for the Indians 2

3 Federal duty to protect tribal property Reservation intended to maintain fishing livelihood, be self-sufficient (Solicitor 1993) Parravano v. Babbitt (9 th Cir. 1995)(federal trust duty to protect fish from non Indian activities) Tribal water rights have earliest (first) priority (Solicitors 1995, 1997) 3

4 Duties of the federal trustee Moral obligations of the highest responsibility and trust Duty of loyalty 1905 Klamath Irrigation District Obligated to ensure that the Klamath Irr. District operations do not interfere with the tribes water rights Irrigation diversions leave poor water quality & quantity 2001 cut-off of irrigation water drew Dick Cheney to help Sen. Gordon Smith Under pressure, NMFS unlawfully reduced required water flows Sept 2002 largest adult salmon die-off ever PCFFA et al. v. Reclamation (2003, 2005) required more water 4

5 PacifiCorp s Expired Klamath Hydro project License expired Feb. 28, 2006 FERC s EIS points to decommissioning: cheaper than fishways During relicensing, turbines generate $27 million profit per year under 1956 license terms 5

6 Clean Water Act Sec. 401 Any applicant for a Federal license which may result in any discharge into the navigable waters, shall provide the licensing agency a certification from the State that any such discharge will comply with the applicable provisions of [this Act]. 6

7 Water quality standards will apply Mandatory license conditions require volitional fish passage and higher bypass flows Under Fed. Power Act annual licenses use the terms of original license until new license issues Oregon, California and Hoopa water quality standards are postponed until a new license KHSA shields PacifiCorp No 2020 dam removal unless Congress approves and Sec. of Interior approves Legislation must ratify KHSA and KBRA water settlement PacifiCorp agrees to some voluntary operating measures during delays 7

8 8000 pp. DEIS Sept. 22, 2011 Alt. 1 No action???? Alt. 2 PA (full removal) Alt. 3 Remove parts of all 4 Alt. 4 Pass fish at 4 dams Alt. 5 Pass fish at Boyle, Copco 2, remove Copco 1 and Iron Gate 8

9 States are blocking FERC relicensing Sept CA Notice of intent to proceed to scoping; app. w/d Nov SWRCB extended scoping May 2010 SWRCB abeyance to 2011 August 2011 abeyance hints of action after April 30, 2012 States shouldn t delay water quality improvements PacifiCorp will withdraw & resubmit 401 app. Annually SWRCB and ODEQ should act FERC may rule that State permits are waived, and proceed to license A new license requiring retrofitting will produce dam removal without legislation 9

10 Klamath Basin Agreement $1 billion (now $800 mil.) federal legislation linked to KHSA Fish restoration plans Upper basin water retirement funding Power cost subsidies for irrigation pumps Tribes must surrender priority water rights for fish for first 378,000 af per year Parties will petition NMFS to reduce ESArequired water flows 10

11 Total March Through October Volume in Acre Feet DEIS Dams Out Alternative Shortages Compared to ,000 Biological Opinion Requirements 300, , , , ,000 50, , , Percent Exceedance 11

12 Total Annual Volume in Acre Feet (January December) DEIS 400,000 Dams Out Alternative Shortages Compared to 2010 Biological Opinion Requirements 300, , , , , Percent Exceedance KBRA sec The United States, acting in its capacity as trustee for the Federally-recognized tribes of the Klamath Basin, hereby provides interim Assurances that it will not assert: (i) tribal water or fishing right theories or tribal trust theories in a manner, or (ii) tribal water or trust rights, whatever they may be, in a manner that will interfere with the diversion, use or reuse of water for the Klamath Reclamation Project that is [permitted by] Appendix E-1 12

13 Nitrogen Fixing Algae Bloom Frequent Sucker Fish Kills Section 106(f) of Merkley s bill changes the trustee s duty The United States, as trustee on behalf of the federally recognized tribes of the Klamath Basin and allottees of reservations of federally recognized tribes of the Klamath Basin in California, is authorized to make the commitments provided in the Restoration Agreement, including the assurances in section 15 of the Restoration Agreement. Ecological Restoration Not Planned in KBRA/KHSA or DEIS/DEIR See for more information and how to comment. Marsh Restoration Needed Upper Klamath Lake has acute problems with nitrogen fixing blue-green algae that can only be cured by restoring marshes around its edge. The KBRA and DEIS/DEIR won t take such action. Tule Lake and Lower Klamath Lake former beds are green and areas that sometimes have water are in blue. Lost River water and water diverted from Upper Klamath Lake through the A canal to the Klamath Project is used three or four times for irrigation and then returned to the Klamath River. Pump D where Tule Sump drain water from Klamath Project in Lost River Basin is shipped to Keno Reservoir. The KBRA provides $92 million in subsidy for power costs for water users to operate pumps. Two Expert Panels said that lack of a KBRA nutrient pollution clean up plan would prevent salmon from migrating through Keno Reservoir, even after dams are removed. The Keno reach of the Klamath River was formerly a vast marsh connected to Lower Klamath Lake. Today marshes have been filled, the river disconnected by dikes and ecological function has been lost. Dissolved oxygen lethal to salmonids persists for 5-10 weeks a year. Iron Gate Reservoir removal will solve toxic algae problems but nutrient pollution from the Upper Basin will continue. Dams need to come out before Studies show that nitrogen at the location of Iron Gate Dam after dam removal will increase by 45-58% in the months of July through September because reservoirs currently slow nutrient travel. We need nutrient reduction provided by ecosystem restoration in addition to dam removal. Thick beds of attached algae downstream of Iron Gate Reservoir support colonies of polychaete worms that are intermediate hosts for the deadly fish disease Ceratomyxa shasta. The location of these algae beds is likely to move upstream into flat reaches below Keno Reservoir, where salmon spawning will also concentrate. Fish disease epidemics will continue and likely worsen without Upper Klamath nutrient reduction. The U.S. Fish and Wildlife Service has documented the loss of hundreds of thousands of juvenile salmonids in many recent dry years and estimated impacts on recruitment rival those of the September 2002 Fish Kill. Poor water quality and high disease organism prevalence are likely to continue under the KBRA. 13

14 Stalemate: No legislation S.1851 and HR 3398 not moving Decisions are due March 31 $1 billion price now $800 million, partly at expense of other BIA programs Power surcharge in place but cover only $200 million of $290 million dam cost Bills in Committees H.R (Mike Thompson) Introduced Nov. 10, 2011 Referred to H. Comm on Resources Referred to Subcom. on Energy & Water Referred to H. Comm. on Energy & Commerce S (Jeff Merkley) Introduced Nov. 10, 2011 Referred to S. Comm. on Energy & Nat. Resources 14

15 Summary Trust breach for Interior to force subordination of Indian water rights Bills unlikely to pass Delay favors PacifiCorp Ratepayer surcharge funds can still go to dam removal under FERC licensing 15