Troubled Waters, Part III: The settlement talks — path to a solution or political fix?

Troubled Waters, Part III: The settlement talks — path to a solution or political fix?

By H. Bruce Miller
Source Weekly
October 11, 2007


Drive around the back roads near Klamath Falls and you’ll still come across a few hand-lettered signs left over from the spring of 2002, when federal officials shut off irrigation water to help threatened salmon and sucker fish. The signs bear some variation of the message: “Farmers – The New Endangered Species.”


Drive through the coastal fishing communities of Northern California and you’ll see the same type of homemade protest signs, with the word “fishermen” substituted for “farmers.” The signs have been there since 2006, when the government shut down the fishing season along 700 miles of the Pacific Coast to protect dwindling stocks of Klamath River salmon.

The signs are emblems of the conflict that has raged over the Klamath River for decades. But that conflict isn’t a simple one of fish vs. people or farmers vs. fishermen. It’s a many-headed monster that was created by trying to make a finite resource meet too many different, and often conflicting, demands.

Farmers have wanted the Klamath’s water for their fields. Power companies have wanted it to turn their turbines. Fishermen and Native American tribes have wanted it for fish. Conservationists have wanted it for fish too, and also for the myriad other forms of life that inhabit its wetlands.

And politicians have wanted it to help them win elections.

The most concerted effort ever made to resolve the Klamath mess is now underway. The Klamath Resources Settlement Group has been meeting since 2005. Its 26 participating parties include four Native American tribes, three county governments, two state governments, six federal agencies, fishermen’s groups, farmers’ groups, conservationist groups.

The settlement group’s closed-door negotiations are supposed to produce an agreement sometime in November, and some participants are optimistic they’ll hit that target. But critics claim the process already has been poisoned by politics – and there’s a good chance that any agreement that comes out of it will only lead to more court battles.

One critical point of contention in the talks is the fate of four aging hydro power dams – the oldest was built in 1908, the newest in 1962 – owned by the utility giant PacifiCorp. Those dams, along with three others PacifiCorp owns on the Klamath, are up for relicensing by the Federal Energy Regulatory Commission.

The fishermen’s groups, the conservationists and the Native American tribes say the four old dams – which were built without any provision for fish passage – block access to hundreds of miles of salmon spawning habitat, as well as polluting water downstream and endangering salmon on their spawning run by making water temperatures higher. Their goal is to get the dams out.

The dams “provide very little benefit to the public, no irrigation at all, no flood control benefits to speak of,” said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA). “All they do is produce a little bit of power and destroy what was historically the third most productive salmon fishery in the country.”

Publicly, PacifiCorp is taking the position that the dams are still valuable and it wants to keep them in operation. “PacifiCorp considers Klamath dam removal to be an extreme outcome that does not balance environmental issues,” the company’s website states.

“They’re valuable to us because they’re valuable to our customers,” said PacifiCorp spokesperson Jan Mitchell. “They generate enough power to supply about 72,000 customers a year. If we didn’t have these projects we would have to replace that power,” probably with an environmentally unfriendly fossil fuel generating plant.

The PCFFA and other opponents of the dams say the relatively small amount of electricity they generate could be replaced with wind and solar power and conservation. They cite findings by the California Department of Fish and Wildlife that it would cost much more to provide fish passage around the dams, as the National Marine Fisheries Service has demanded, than to simply take them out. And they say PacifiCorp is just holding out for the highest price it can get.

“They want to be bought out, and it’s only a matter of fixing the right price,” Spain said. “But these are very old klunker cars in the junkyard, and they’re asking a premium price.”

Even if the issue of the dams can be resolved, other serious obstacles to a settlement would remain. The biggest is what to do about the Klamath Reclamation Project and the approximately 2,400 farms and ranches it provides water to.

The massive federal irrigation project was authorized by Congress in 1905, and construction of its first main canal began two years later. In the early 1920s the government encouraged World War I veterans to homestead on irrigated land in the Klamath Basin. Some descendants of those homesteaders are still farming there today.

The project drained roughly 80,000 acres of wetlands and turned them into farmland. In 1908, to protect some of what remained, President Theodore Roosevelt established the 49,600-acre Lower Klamath National Wildlife Refuge – the nation’s first waterfowl refuge. In 1928 the Tule Lake and Upper Klamath refuges were created, adding another 32,000 acres.

But tens of thousands of acres in the refuges have remained open to farming and ranching, and that’s a sore point with conservationist organizations.

In the Tule Lake Refuge, “you’ve got two polluted farm ponds and the rest is commercial farming,” said Bob Hunter, staff attorney for Water Watch. “You could drive through those farms and you would never know it’s a wildlife refuge.”

Besides eliminating or reducing farming in the refuges, the conservation groups – as well as the fishermen’s groups – want to see the Klamath Reclamation Project leave more water in the river, especially during the critical late summer / early fall period when Chinook and Coho salmon are trying to swim upstream to spawn. They maintain that a politically motivated decision by the Bush administration to let the farmers have the water instead of keeping it in the river led to a die-off of between 33,000 and 77,000 salmon and steelhead in September 2002 – the worst adult salmon kill in the history of the West.

“The problem is it’s an over-promised river – there are too many demands on it,” said Sean Stevens, a spokesman for the conservation group Oregon Wild. “The government 95 years ago gave all these rights to farmers, and it’s not realistic to believe there could be that much farming and still enough water for the wildlife and for the fishery downstream.”

“We’re not trying to eliminate agriculture in the basin,” said Hunter of Water Watch. “People make that statement to try to paint us as radical. We believe there can be a great deal of agricultural activity in the basin; we just need to make it a manageable size.”

“There is a need to reduce the total irrigation demand in the basin, and [the farmers] know it and we know it, and we are working to try to do that in a way that keeps agricultural communities viable,” said Glen Spain of the PCFFA. “Is it easy? No. If it were easy it would have been done 90 years ago.”

The solution conservation groups have been pushing for years is a voluntary government buyout of farmers in the Klamath Basin, but farmers are wary of that idea. They worry that if too many of them leave, a tipping point will come and the region will cease to be agricultural. The support businesses – the tractor dealers, the fertilizer dealers, the irrigation pipe suppliers – will go away, the farms and ranches will be carved up into hobby farms and “ranchettes,” and a way of life that has existed for over a century will die.

If the farmers and ranchers go out of business, “what are you going to do with all the land?” asked Greg Addington, executive director of the Klamath Water Users Association. “Is it going to just sit there? What’s going to support the communities that depend on agriculture? It doesn’t take very much, and pretty soon the whole thing collapses.

“People here – no offense – are very scared of this looking like Central Oregon, with the development, with the parceling,” he added.

As if the Klamath Basin settlement talks weren’t complex and difficult enough in themselves, conservation groups say the Bush administration is trying to manipulate them to serve its own political agenda.

Water Watch and Oregon Wild originally were participants in the negotiations, but they dropped out – or were forced out, depending on how you look at it – after the administration imposed conditions they couldn’t accept.

“We and Water Watch were evicted forcibly from the talks because we could not sign on to some of the demands the Bush administration was making,” said Steve Pedery, conservation director of Oregon Wild. “We were presented [in January] with a settlement framework and told that we had to sign a statement of support and agree we wouldn’t try to change it.”

The settlement framework, Pedery said, amounted to a “blanket statement of support” for agricultural development on wildlife refuges, weakening endangered species protections and guaranteeing irrigation water to the basin’s farmers. “The spin that’s been put on it is that, ‘Well, they excluded themselves,’ but they essentially tried to hold the river hostage.”

Bob Hunter of Water Watch confirmed Pedery’s account. “We didn’t quit – we were excluded involuntarily,” he said. “Basically there was an attempt to ram something down our throats and we objected, and that’s why we were excluded.”

According to Hunter and Pedery, the administration is using the PacifiCorp dams as leverage to try to force an agreement that’s favorable to Klamath Basin irrigators and also will set the precedent of allowing farming and ranching in wildlife refuges nationwide.

“I think the Bush administration has shown over and over again that it’s not really looking for a scientifically based solution, but a political fix that favors irrigation interests over other interests in the basin,” Hunter said. “And of course that is just going to keep the basin in crisis. The irrigators see the dam settlement talks as a new opportunity to get their agenda, basically using the prospect of dam removal as a lure.”

It’s impossible to know exactly what’s going on in the settlement talks because they’re taking place behind closed doors and the participants are not allowed to discuss any details. And it may be impossible to ever know what went on, because no formal minutes are being kept.

“We haven’t been keeping minutes per se,” said Ed Sheets, the facilitator for the talks. “We’ve been keeping a summary of all the follow-up actions. I think the settlement agreement will be detailed enough that you will see the reasoning and the thinking behind it.”

But Hunter and Pedery warn that if the settlement talks yield an agreement that they see as violating the Endangered Species Act or other federal or state laws, their groups likely will challenge it in court.

“If this does wind up producing a settlement that violates the ESA it will all end up in court, and there will be a lot of heartburn and agitation for everybody without anything really being done,” Pedery said.

“Certainly we will continue to advocate for and protect the public interest,” Hunter said. “If there is an agreement that we feel violates the ESA or any other federal or state laws, we would certainly consider litigation if appropriate.”

In the meantime, Pedery thinks the best course for conservation groups would be to wait for the Bush administration to leave office in January 2009 and try to work with a new, and hopefully more environmentally friendly, administration.

“The Bush administration has tried again and again to exploit the crisis in the Klamath Basin,” he said. “We’ve just been at an impasse since 2001, where the Bush administration has refused to allow any reduction in water demand to go forward unless they’re forced to by a court. There’s no reason to rush this.”

But others, including Glen Spain of the PCFFA, feel a greater sense of urgency. They know that every year that goes by without a resolution of the Klamath crisis holds the possibility for another fish kill like the one that happened in 2002.

The negotiating framework that Oregon Wild and Water Watch balked at “was nothing more than a draft, and it was clear we would have to spend months working on parallel guarantees for water for fish,” Spain said. “There were some unfortunate hard feelings, and I think it was very unfortunate that those happened, but ultimately there is no choice but to go forward and try to reach a solution. … We are very much in favor of a negotiated settlement if it is possible. We remain optimistic. We are working hard to craft a settlement that all stakeholders can agree to.”

The Klamath crisis, Spain added, isn’t the result of one group or another acting out of evil motives, but of misguided public policies going clear back to the beginning of the last century.

“It’s a story of good people caught in a bad situation,” he said. “There are no bad people in this story, but there are a lot of bad policies.”

In fact, the story of the Klamath River is a classic example of Murphy’s Law in action: Everything that could go wrong did, including things that everybody thought couldn’t go wrong. It’s also an object lesson in how people have misused, overused and abused the rivers of the West, from the Colorado to the Columbia, “managing” them to serve short-term needs with little or no thought for long-term consequences.

“Within the Klamath Basin you probably have represented about every water issue that you have in the West,” said Hunter of Water Watch. “You have state and federal policies, you have tribal rights, then you have an endangered species situation, you have the whole issue of how water is managed. All these things are finally coming to a head. …

“It’s indicative of society as a whole. We’re in denial of the fact that there are limits to resource development, that there are going to be repercussions from over-development.”

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