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KBRA: It's About The Water
The Klamath Basin Restoration Agreement (“KBRA”), does not offer thousands of acre-feet of additional non-winter river flows to the Klamath River, as some people claim. To the contrary, the KBRA’s failure to provide the water fish need is at the heart of the Hoopa Tribe’s opposition to the deal. Our Fishery Department’s hydrologists have long been warning about insufficient water. Humboldt County has worked with us to protect Trinity River flows from the Delta Tunnels, and they joined with us in urging additional flows this summer to avert a fish kill. But Humboldt is strangely ignorant of how much less water KBRA promises to the River.
Reclamation’s studies on the unfinished dam EIS, and posted on the KlamathRestoration.gov website, show that in most water years the KBRA will provide less water to the Klamath River, not more. In fact, KBRA promises even less than the current ESA-required flows. Please see Technical Report No. SRH-2011-02, Hydrology, Hydraulics, and Sediment Transport Studies for the Secretary’s Determination on Klamath River Dam Removal and Basin Restoration. The KBRA delivers less water to the Klamath River than at present in hydrological conditions represented by 30%, 50%, 90%, and 95% exceedence water years. And take note: even now, Reclamation is seeking permission to cut the River back to KBRA flows—even without dam removal.
The KBRA limits tribal water and fishing rights. Under existing law, the United States must ensure that irrigation projects do not interfere with the tribes’ senior water rights. The KBRA, if approved by Congress, would change this. In KBRA Section 15.3.9 the United States agrees that it will not assert tribal water or fishing rights in a manner that would interfere with the diversion of water for the Klamath Irrigation Project that is authorized by the KBRA. That is important because the Hoopa water rights have been the linchpin of success in protecting Trinity as well as Klamath River water.
Termination of the government’s trust responsibility would become lawful by enacting Section 106(f) of the proposed KBRA legislation. As stated in that section, the United States acts on behalf of all of the tribes of the Klamath Basin, not merely the tribes that signed the KBRA. Any attempt by a tribe to assert its own rights against the dewatering of the River by Reclamation, effectively would be trumped by the KBRA’s termination of the federal government’s existing trust responsibility to protect the tribes’ rights.
The $970.452 million cost of the Klamath Agreements ratification legislation has raised eyebrows in Congress. There has been no agreement on how to scale back KBRA costs and still give all parties the benefit of their bargain. Not one dollar of that price tag goes for dam removal; most of the money goes to taxpayer subsidies for irrigation operations. Why should the KBRA continue to delay dam removal?
There is no magic fix to the Basin’s environmental problems. Litigation is always a risk and nothing in the KBRA or KHSA would avert it. Letting FERC address the dam licensing issues will not cause more litigation. The Klamath Agreements are themselves the reason FERC is not proceeding to issue a conditioned license, and they provide no guarantee of dam removal by 2020. Indeed, the KHSA requires $27 million in “additional value” to be paid if dam removal actually begins by January 1, 2020. See KHSA Page 48.
The failure of the Interior Secretary to make a finding on dam removal and the failure of Congress to enact the flawed KBRA legislation means that the parties must extend the KBRA or let it expire on December 31, 2012. It is past time to revise the Klamath Agreements and address problems in a sequential, cost-effective fashion instead of defending the public-to-private transfer of wealth and the impediments to environmental restoration and protection that PacifiCorp, Federal agencies, and others have created in the Klamath River Basin.