News from the Front #91:
A New Cloud Over the Klamath Basin
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
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
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
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
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.
Conclusion
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
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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