[env-trinity] Times-Standard Opinion- Rick Dowd, Resighini Rancheria

[FISH1IFR at aol.com]

Interesting…. 
However, though  I have great respect for Chairman Dowd and the Resighini 
Rancheria residents,  there are nonetheless a number of serious problems and 
outright errors with his  analysis of the KBRA in this article below, 
including the  following: 
No  “Terminations” of Any Non-Party Tribe’s Rights:  While there are some 
strictly  voluntary water right settlements mentioned in the KBRA only by 
the  signatory Party Tribes to the KBRA, no non-Party like the Reshigini’s can 
 be bound in any way by what is essentially just a long-term habitat 
restoration  contract if they did not sign that contract.   
The so-called  “terminations” of the Resighinis rights they fear will just 
not happen – it is a  pure fiction.  This fact is also made clear in the  
Klamath Basin Economic Restoration Act (S. 1851 and H.R. 3398) that will  
implement the deal.  Here is a  direct quote from that bill language: 
“Sec. 106 (l).  NONPARTY TRIBES OF THE KLAMATH BASIN  UNAFFECTED – Nothing 
in this Act or the Restoration Agreement amends, alters, or  limits the 
authority of the federally recognized tribes of the Klamath Basin,  other than 
the Party Tribes, to exercise any water rights the tribes hold or may  be 
determined to hold.” 
While it is true  that the federal government cannot sue other Tribes in 
the basin over the KBRA  on behalf of other non-Party Tribes, being the 
Trustees for them all, and cannot  in essence “sue itself” to overturn the KBRA 
when the federal government is  itself going to be a Party, and so has to do 
what is called “recusing” itself  from participating in any such lawsuit, 
this is a far cry from any sort of  rights “termination.”   
Nothing prevents  the Resighini Rancheria from hiring their own lawyers to 
enforce those rights if  they want to – this is done all the time, whenever 
a Tribe sues the federal  government, since the feds cannot both represent 
themselves and simultaneously  act as a Trustee for the suing Tribe against 
themselves in Court.   
KBRA Provisions  are Misstated:  Several statements made in this article  
about what the KBRA actually does are simply wrong.  The 330,000 acre-feet 
the Klamath  Irrigation Project will have to live within in the future is a “
ceiling,” not a  “floor” or minimum;  while there is  some money in the KBRA 
budget to help partially finance a renewable energy  project in the upper 
basin, this is nowhere near the amount stated, nor is most  of this money a “
subsidy” any more than any other type of federal energy  development 
funding; and the refuge leaselands system was created and has been  allowed 
continuously by Congressional statute (the Kuchel Act, P.L. 88-567  (U.S.C. 695n)) 
since 1964, nearly  46 years before the KBRA existed, nor will the KBRA have 
anything to do with  whether or how long that program remains – only a 
separate Act of Congress could  change that prior statute.   There are also 
other such errors I  need not go into here.  These errors are the result of 
simplistic "sound  bite" criticisms and not any real analysis. 
Correcting Upper  Basin Water Quality Problems are Separately Being 
Addressed Under  the Clean Water Act:  There are  numerous well-known water quality 
problems in the upper Klamath Basin, but the  KBRA – which is really just a 
long-term restoration contract, remember – is not  the appropriate tool to 
address those problems.  These problems are all already being  addressed 
separately under the Clean Water Act and equivalent state water  quality 
protection laws, including recently legally approved pollution control  standards 
(TMDLs) in the upper basin intended to solve these water quality  problems 
over time.  Blaming the KBRA for NOT being the Clean  Water Act is 
preposterous.   
What the KBRA  would do, however, is bring something like $75 million 
additional dollars over  the next 15 years to fully fund these already ongoing 
upper basin TMDL and state  cleanup programs, jump-starting the implementation 
of these solutions by at  least a decade.   
The Likely  Outcome of Returning to the FERC Process May Not Be Four Dam  
Removal:  Opponents of the Klamath Settlement  Agreements have a touching 
faith in the willingness of state water agencies in  both states (remember, one 
of the dams is in Oregon) to go directly against – and win in every court 
and every appeal, on  every key issue – against the entire litigation might 
of the Hydropower  Industry, which would surely see a first-time ever actual 
401 certification  denial in the Klamath as a major precedent to be fought 
at all costs.  Those of us who are Parties to the  Settlement simply have 
much less faith in that process and want to see the dams  come down sooner and 
with far more certainty. 
Opponents of the  Klamath Settlement should remember that the odds are 
strongly stacked against dam removals  resulting from the FERC and State 401 
Certification process.   
Not only has  FERC never yet ordered a dam down against the wishes of a 
relicensing Applicant  in its entire history, no STATE water quality agency has 
ever “just said no”  outright to a water quality certification application 
attached to a FERC license  application and made it stick in court.  
Setting such a precedent would guarantee many years of litigation and  expense, 
with appeals in all the state and federal courts for many years, with  no 
certain outcome – except that the dams  would continue to run just as they are 
now, on annual license extensions, for as  long as that litigation could be 
strung out (10-15 years at least are the best  estimates from litigation 
counsel familiar with this process).   
PacifiCorp also  has VERY deep pockets to fund litigation – all their 
litigation costs are  considered routine costs of doing business that are fully 
funded by its  ratepayers. 
During all that  time of ongoing litigation, without the Klamath Hydropower 
Settlement Agreement  (KHSA) there would also be NO “interim measures” 
such as those required by the  current KHSA to protect the fish in the meantime 
(with the exception of those  few measures required under the PacifiCorp 
HCP, if any -- but all the other KHSA  “interim measures” would disappear 
with the KHSA). 
One possible –  potentially likely – outcome of such  an extended court 
fight from reversion to the FERC process would be that  PacifiCorp would 
ultimately retain at least the J.C. Boyle Dam in Oregon.  Because this dam IS in 
Oregon, the clean  water laws that apply to it are much weaker than in 
California, the Oregon Water  Quality Commission is much less willing to “go to 
the mat” on this issue and get  sued, the J.C. Boyle dam is by far the most 
valuable of the four dams for power  production since it produces by far the 
most power (80 MW capacity), the water  quality problems it creates are the 
least difficult to clean up, and furthermore  it is likely the least costly 
of the dams  to retrofit to modern FERC standards for relicensing.  
Losing the KBRA  also means: losing up to  130,000 acre-feet of additional 
water in the Klamath River every year as  compared to the current status 
quo;  losing all benefits of a guaranteed water supply for the upper basin 
National  Wildlife Refuges, letting them go dry in many years as they do today; 
losing the  Klamath Tribes their only opportunity to reclaim the Mazama 
Forest as once again  Tribal lands; losing most of the more than 100,000 
acre-feet of additional  wetlands restoration and natural storage under Sec. 18 of 
the KBRA, which will  also benefit fish; losing the Klamath Project “
irrigation cap,” the first time  the Klamath Irrigation Project has ever been 
legally limited in the water it can  take for irrigation and; losing some $75 
million in water quality monitoring and  clean-up funds to implement the upper 
basin TMDLs much faster than would  otherwise be the case, and; losing all 
the benefits of a 50-year aggressive  watershed and salmon habitat 
restoration program in the Klamath Basin.    
Just taking the  dams down, most biologists agree, will simply NOT be 
enough to truly revive the  basin’s salmon runs.  The water  reforms and multiple 
watershed restoration benefits of the KBRA will also be  necessary.   
In  Summary: Settlement  opponents should be VERY careful what they wish 
for if they are thinking about  jettisoning the current Klamath Settlement and 
the high degree of certainty of  four-dam removal plus major watershed 
improvements and water reforms it provides  for.   The chances of  accomplishing 
four-dam removal, plus all the many restoration efforts the KBRA  also 
provides, plus major water reforms to reverse years of water  over-appropriation 
the KBRA also provides for, plus multiple other benefit of  the KBRA, would 
all likely be MUCH worse (or zilch) under a FERC-only  recourse.  Under the 
FERC-only  approach, you might well still get the dams down -- in 15 or 20 
years  -- but not accomplish lasting salmon restoration.   
Anyone who has  more questions on the above, or on the KBRA-KHSA Settlement 
Agreement generally,  should feel free to contact me PERSONALLY.  I would 
be glad to discuss or debate these issues in a more appropriate  forum.  I am 
always hesitant to  inflict such discussion on open forms such as this one. 
 I hope those who are simply not interested in  this issue will forgive me 
the intrusion.   (smiling) 

=============================================
Glen H. Spain, NW Regional  Director
Pacific Coast Federation of Fishermen's Associations (PCFFA)
PO  Box 11170, Eugene, OR 97440-3370
O:(541)689-2000 --  Fax:(541)689-2500
Email: fish1ifr at aol.com
Home Page: _www.pcffa.org_ (http://www.pcffa.org/)  
 
 
 
 
 
 
 
In a message dated 11/19/2011 3:07:26 P.M. Pacific Standard Time,  
tstokely at att.net writes:

Klamath Dam  removal linked to very bad restoration  agreement
Rick  Dowd/For the Times-Standard
Posted: 11/18/2011  02:39:14 AM PST
_http://www.times-standard.com/guest_opinion/ci_19364130_ 
(http://www.times-standard.com/guest_opinion/ci_19364130)  



Members  of the Resighini Rancheria strongly object to  the approach taken 
by the federal government and  the state of California for Klamath River dam 
 removal. We are a small, federally recognized  Indian Tribe with a 
reservation in Del Norte  County upstream of Highway 101 on the Klamath  River. We 
have been studying the Klamath  Hydroelectric Project Facilities Removal 
Draft  Environmental Impact Statement (DEIS) and Draft  Environmental Impact 
Report (DEIR) for several  months and want to inform the community about  
major problems we have discovered. Comments on  the DEIS/DEIR are due Monday. 
The  DEIR/DEIS leads up to a secretary of Interior  decision in March 2012 
which, if affirmative,  will not only carry out the Klamath Hydropower  
Settlement Agreement (KHSA) that removes dams  but also the Klamath Basin 
Restoration Agreement  (KBRA). 
The  KBRA is very damaging to Indian rights and will  not bring about 
restoration of the Klamath  River. 
We  were excluded from Klamath settlement  discussions that lead to the 
KBRA and KHSA, as  were the federally recognized Quartz Valley  Indian 
Reservation and Del Norte County. The  Hoopa Valley Tribe participated in the  
settlement talks but refused to sign the KBRA  because they would have to 
expressly give up  their water and fishing rights. Both our rights,  and theirs, to 
protect our fisheries and water  quality will be terminated by the 
secretary of  Interior if he makes an affirmative decision  (KBRA 15.3.9). Those who 
are not KBRA and  KHSA 
  
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signatories (parties), such as nonnparty  tribes and Del Norte County, will 
be unable to  participate in committees that govern the  management of the 
Klamath River until 2062. This  arrangement is undemocratic and of 
questionable  legality under the Federal Advisory Committee  Act.  
Despite  the fact that an affirmative secretarial  decision will implement 
the KBRA, the  environmental report does not examine the  cumulative effects 
of its water allocation,  stream flow projections and water pollution  
impacts. The DEIS/DEIR claims that the KBRA is  insufficiently defined to 
analyze its effects,  which is untrue. Among other things, it  allocates a minimum 
of 330,000 acre feet of  water to Klamath Project irrigators, subsidizes  
their power costs with $92 million in tax  dollars, and allows farming on 
20,000 acres in  Tule Lake and Lower Klamath National Wildlife  refuges for 50 
years. The DEIS/DEIR failure to  analyze cumulative effects from the KBRA 
and  operation of the Klamath Project is a patent  violation of both National 
Environmental Policy  Act and the California Environmental Quality  Act. 
The  Chinook Expert Panel hired as part of the KBRA  process noted that the 
KBRA had no credible plan  to resolve water pollution problems. The experts 
 stated that the Keno Reservoir reach of the  Klamath River would continue 
to be an anoxic  dead zone for weeks a year and that salmon  wouldn't jump 
through it even after dam removal:  “Without solving the water quality 
problems, a  fully self-sustaining run of chinook salmon to  the upper basin is 
unlikely.” 
The  Resighini Rancheria and Hoopa Valley Tribe both  favor speedy Klamath 
Hydroelectric Power dam  decommissioning but oppose the current approach  
that is joined to implementation of the KBRA. If  the government had not 
discarded Alternative 8  from consideration, which is KHP facilities  removal 
without the KBRA, then the Resighini  Rancheria would have favored that option. 
 Instead we will comment in favor of the no  action alternative, with a 
return to the Federal  Energy Regulatory Commission (FERC) relicensing  
process. 
The  proponents of the KBRA say that FERC has never  ordered a dam removed 
and that dam removal can  come only with the KBRA, their flawed Settlement  
Agreement. FERC may not require dam removal, but  its relicensing process 
can set up conditions  that make project operation uneconomic. An  example is 
the Condit Dam, on the White Salmon  River in Washington, which was 
abandoned by  PacifiCorp and decommissioned on Oct. 26 of this  year. Unlike the 
KBRA, the related Settlement  Agreement would have no negative impact on  
existing tribal water and fishing rights. The  National Marine Fisheries Service 
requirement  for installation of $230 million fish ladders,  if KHP dams 
remain, cause the KHP to fall into  uneconomic status. Furthermore, the 
California  State Water Resources Control Board will not  issue 401 Certification 
as required by the Clean  Water Act and Federal Power Act; therefore,  
PacifiCorp will not receive a new license and  will have to abandon and 
decommission. 
Comments  can be submitted electronically at 
_http://klamathrestoration.gov/Draft-EIS-EIR_ (http://klamathrestoration.gov/Draft-EIS-EIR) /feedback.  
For more information on the DEIS/DEIR, Klamath  River ecological restoration 
and the newly  introduced authorizing legislation that we  oppose, see our 
website: _www.klamather.org_ (http://www.klamather.org/) . 


Rick  Dowd is Resighini Rancheria  chairman.


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