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Klamath River Basin: Background and Issues
Charles V. Stern, Coordinator
Analyst in Natural Resources Policy
Harold F. Upton
Analyst in Natural Resources Policy
Pervaze A. Sheikh
Specialist in Natural Resources Policy
Cynthia Brougher
Legislative Attorney
Bill Heniff Jr.
Analyst on Congress and the Legislative Process
February 1, 2012
Congressional Research Service
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www.crs.gov
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CRS Report for Congress
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Klamath River Basin: Background and Issues
Summary
The Klamath River Basin on the California-Oregon border is a focal point for local and national
discussions on water allocation and species protection. Previously, water and species management
issues have exacerbated competition and generated conflict among several interests—farmers,
Indian tribes, commercial and sport fishermen, federal wildlife refuge managers, environmental
groups, and state, local, and tribal governments. As is true in many regions in the West, the
federal government plays a prominent role in the Klamath Basin’s waters. This role stems
primarily from (1) operation and management of the Bureau of Reclamation’s Klamath Water
Project; (2) management of federal lands, including six national wildlife refuges; and
(3) implementation of federal laws such as the Endangered Species Act.
Allocation of the Klamath Basin’s water has been contentious in the past. Controversy peaked in
2001 when the federal government halted irrigation water deliveries to protect species listed as
threatened under the federal Endangered Species Act. Efforts to permanently settle many of the
basin’s water and species issues stepped up between 2002 and 2010, and were led by the federal
government.
In 2010, the Secretary of the Interior and the governors of Oregon and California, along with
multiple interest groups, announced the result of these negotiations: two interrelated settlement
agreements, supported by the federal government and signed by numerous other parties. These
agreements are meant to address many of the previous conflicts in the basin. The first agreement,
known as the Klamath Basin Restoration Agreement (KBRA), provides for restoration, water
deliveries, and related actions, including a defined range of water supplies for Reclamation
project users as well as projects to restore and protect threatened and endangered fish species. The
second agreement, known as the Klamath Hydroelectric Settlement Agreement (KHSA), lays out
a process for studies and a decision by the Secretary of the Interior regarding whether the removal
of four dams in the Lower Klamath Basin (funded by power customers in Oregon and California,
as well as the State of California) would be in the public interest. Together, removal of these dams
would constitute the largest dam removal project ever undertaken.
Forty groups are signatories (or “parties”) to the Klamath agreements. Supporters of the
agreements include the states of Oregon and California, three area tribes, Reclamation project
irrigators, environmental interests, and other groups. Opponents of the agreement include some
non-Reclamation project (“off-project”) irrigators, as well as a subset of environmental groups,
tribes, and area residents who disagree with some or all of the agreements. While the Obama
Administration endorsed the Klamath agreements, Congress has to formally authorize most
provisions for the federal government to become a “party” and move forward with most actions.
In order to be fully implemented, both of these agreements require explicit authorization by
Congress. Legislation currently before Congress (H.R. 3398 and S. 1851) would authorize the
agreements, including approximately $800 million for federal actions (mostly in the KBRA).
Considerations related to the Klamath agreements may include whether the federal government is
obligated to act beyond current activities in the Klamath Basin (and, if so, to what extent), and
what specific strategies should be authorized.
This report is divided into two parts: the first part provides a brief overview of issues in the
Klamath Basin, with a focus on the federal government’s role in region. The second part focuses
on the Klamath agreements and related issues for Congress in considering this legislation.
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Contents
Introduction...................................................................................................................................... 1
Background on the Klamath Basin .................................................................................................. 1
Upper Klamath Basin ................................................................................................................ 3
Lower Klamath Basin................................................................................................................ 4
Klamath Hydroelectric Project .................................................................................................. 7
Klamath Tribes .......................................................................................................................... 8
Recent Conflicts............................................................................................................................. 10
2010 Klamath Settlement Agreements .......................................................................................... 10
Klamath Basin Restoration Agreement ................................................................................... 11
Fisheries Restoration......................................................................................................... 12
Water and Power Supplies................................................................................................. 13
Sustainable Communities and Other Activities................................................................. 17
Klamath Hydroelectric Settlement Agreement........................................................................ 19
Secretarial Determination on Dam Removal..................................................................... 20
Dam Removal Costs.......................................................................................................... 21
Stakeholder Views on the Klamath Agreements............................................................................ 22
Support for Agreements........................................................................................................... 22
Opposition to Agreements ....................................................................................................... 23
Congressional Interest.................................................................................................................... 24
Obligation of the Federal Government.................................................................................... 24
Cost of Implementation ........................................................................................................... 25
Dam Removal Determination.................................................................................................. 28
Other Frequently Asked Questions.......................................................................................... 28
Will the Agreements End Litigation in the Klamath Basin? ............................................. 28
Will the Agreements Result in Restored Fish Populations in the Klamath Basin? ........... 29
What Are Some Other Potential Effects of the Agreements on the Basin?....................... 30
How Do the Agreements Affect Endangered Species Act Implementation?..................... 31
What Happens If the Agreements Are Split Up or Changed? ........................................... 31
What Are the Alternatives to the Klamath Agreements?................................................... 32
What Happens If Congress Chooses Not to Authorize the Agreements?.......................... 32
Conclusion ..................................................................................................................................... 33
Figures
Figure 1. Klamath River Watershed................................................................................................. 2
Tables
Table 1. Water Allocations in the Klamath Basin Restoration Agreement .................................... 14
Table A-1.Listed Freshwater Fish Species of the Klamath River .................................................. 34
Table A-2. Selected Anadromous Species of the Klamath Basin .................................................. 35
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Appendixes
Appendix A. Klamath Basin Fish Species ..................................................................................... 34
Appendix B. Summary of Previous Events ................................................................................... 36
Contacts
Author Contact Information........................................................................................................... 40
Acknowledgments ......................................................................................................................... 40
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Klamath River Basin: Background and Issues
Introduction
The Klamath River Basin, a region along the California-Oregon border, has become a focal point
for local and national discussions on water and species management.1 Water management issues
were brought to the forefront when severe drought conditions in 2001 exacerbated competition for
scarce water resources and generated conflict among several interests—farmers, anglers
(commercial and sport), other recreationists, federal wildlife refuge managers, environmental
organizations, and state, local, and tribal governments. Subsequent issues with Klamath Basin
fisheries, including events in 2002 and 2006, exacerbated these conflicts.
As is true in many regions in the West, the federal government plays a prominent role in the
Klamath Basin’s water management. This role stems from (1) operation and management of the
Bureau of Reclamation’s Klamath Water Project; (2) management of federal lands in the basin,
including several national wildlife refuges managed by the Fish and Wildlife Service (FWS); and
(3) implementation of federal laws, such as the Endangered Species Act (ESA), Clean Water Act
(CWA), and National Environmental Policy Act (NEPA).
The Klamath Basin Restoration Agreement (KBRA) and the Klamath Hydroelectric Settlement
Agreement (KHSA), collectively referred to as the “Klamath agreements” in this report, aim to
settle many of the outstanding issues in the basin. The agreements were signed in 2010 by more
than 40 groups, including state and non-federal interests. The KBRA sets up defined water
allocations for irrigators and wildlife refuges under a range of conditions, and lays out restoration
actions, monitoring and other actions that aim to recover fish species and provide economic
stability for basin tribes. The KHSA lays out a process that could lead to removal of four non-
federal hydroelectric dams currently owned and operated by a private entity. Under the KHSA,
the Secretary of the Interior determines whether removal of these dams is in the public interest.
Congress has oversight over federal activities in the Klamath and has held hearings and
appropriated funding to address issues in the Klamath Basin. In the past, congressional debate has
focused on the role of the ESA in water management, the operation of the Klamath Project, and
other topics, such as supplemental support for parties impacted by federal policies. Current
congressional consideration is likely to focus on the agreements themselves. The agreements
require congressional authorization to move forward on some of their most important
components, which may result in Congress revisiting previous questions, as well as new ones.
Background on the Klamath Basin
The Klamath River Basin (also referred to in this report as the Klamath Basin) drains
approximately 16,000 square miles in Oregon and California. It drains into the Klamath River,
which originates in southern Oregon and travels 253 miles before emptying into the Pacific
Ocean near Crescent City, California. Combined with the Trinity River, the system is the largest
in the western United States other than the Sacramento and Columbia rivers in terms of flow and
salmon production.2 However, the basin is also a sparsely populated area with some of the lowest
1 See Figure 1 for a map of the basin.
2 National Academy of Sciences, National Research Council. Hydrology, Ecology, and Fishes of the Klamath River
Basin, Washington, DC, 2008, p. 31. Hereinafter referred to as the 2008 NRC Report.
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per-capita incomes in either state. The total population is approximately 287,000, and total
economic output in the basin was approximately $10 billion as of the late 1990s.3 Native
American tribes account for 6% (15,000) of the basin’s total population.
Figure 1. Klamath River Watershed
Source: Bureau of Reclamation, adapted by CRS.
For water management purposes, the Klamath Basin is divided into two distinct subbasins. The
Upper Basin lies upriver and east of Iron Gate Dam on the Klamath River, and contains Oregon’s
3 In 1998, the Upper Basin produced approximately $4 billion in total output, while the Lower Basin produced $5.9
billion in output. National Academy of Sciences, National Research Council, Endangered and Threatened Fishes in the
Klamath River Basin: Causes of Decline and Strategies for Recovery (Washington, DC: 2004). p. 52. Hereinafter
referred to as the 2004 NRC Report.
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largest lake, Upper Klamath Lake. The Lower Basin includes nearly 200 miles of the Klamath
River between Iron Gate Dam and the Pacific Ocean. Both basins contain smaller lakes,
tributaries, and wildlife refuges that also play an important role in water allocation.
Upper Klamath Basin
The Upper Klamath Basin is an area with limited water resources. It represents approximately
50% (8,060 square miles) of the Klamath Basin land area, but accounts for only 12% of its water
runoff.4 Upper basin issues center largely around Upper Klamath Lake (UKL), a large, shallow
natural lake covering about 60,000 acres. UKL has an active storage capacity of approximately
600,000 acre feet. It is naturally eutrophic (i.e., high in nutrients) because of its shallow depth and
natural sources of nutrients, and these conditions have worsened over the past century in part due
to agricultural development. 5 As a result, the lake is now considered to be “hypereutrophic,” a
condition which can cause excessive algae blooms and, in some instances, harm fish and other
resident species.
Management of Upper Basin water largely revolves around the Klamath Project, a federal project
operated by the Bureau of Reclamation. The Klamath Project diverts Klamath and Lost River
flows between the Link River Dam, at the outlet of the UKL, and Keno Dam.6 The project,
authorized in 1905, provides irrigation water for approximately 210,000 acres in the Upper Basin,
including an estimated 1,400 farms.7 It converted much of what were historically wetlands (fed
by the Klamath River) into farmland. The project is different from many other Reclamation
projects because of its reliance on UKL for project storage. Because of the shallowness of UKL,
it is it difficult to store significant amounts of water for irrigation from year to year. As a result,
the project is highly dependent on annual precipitation and snowmelt for water supply.
Irrigated lands in the upper basin also include approximately 180,000 acres of lands that are not
dependent on the Klamath Project for deliveries. This land is located predominantly around the
northern part of UKL and on the surrounding tributaries of the Sprague, Williamson, and Wood
rivers. Irrigators operating in these areas are often referred to as “off-project” irrigators.
Agriculture is a major part of the Klamath Basin’s economy. Major crops supported by irrigation
in the Upper Basin include wheat, malt barley, potatoes, onions, and alfalfa. According to
Reclamation, crops watered by the Klamath Project had an estimated annual value of $156
million in 2007.8 On off-project lands, water is mainly used to maintain pastures and forage crops.
In the late 1990s it was estimated that agriculture accounted for 10% of the jobs and 7.3% of the
4 2008 NRC Report, p. 25.
5 According to the Oregon Lakes Association, the average depth of UKL is 4.2 meters (or approximately 14 feet). The
average surface elevation of UKL is 1262 meters, or 4140 feet above sea level. The USGS provides a more detailed
description of the lake’s water quality levels, including historic trends, at http://or.water.usgs.gov/klamath/.
6 Farms on the eastern part of the project also draw water from Gerber and Clear Lake reservoirs.
7 Different acreage estimates have been reported for the Project. Although Reclamation reports 210,000 acres of
irrigable lands for the project, actual crop land irrigated is usually less than this amount. For instance, Reclamation
reported that 191,592 acres were irrigated in 2008. Project details are available at http://www.usbr.gov/projects/
Project.jsp?proj_Name=Klamath%20Project&pageType=ProjectDataPage#Group531045 (hereafter referred to as
“Klamath Project Data”).
8 Klamath Project Data. Available at http://www.usbr.gov/projects/Project.jsp?proj_Name=Klamath+Project.
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Klamath River Basin: Background and Issues
direct economic activity in the region. As the region’s largest industry, agricultural activity also
supports other economic sectors.
The Upper Klamath Basin also includes six wildlife refuges, both upstream and downstream of
the Klamath Project, collectively referred to as the Klamath Basin National Wildlife Refuge
Complex (or “Klamath Refuges”).9 These refuges contain wetlands that are major stopping points
for approximately three-quarters of migratory birds on the Pacific Flyway.10 Additionally, a
portion of the irrigation water from the Klamath Project is used downstream to provide water to
the Lower Klamath National Wildlife Refuge (NWR) and the Tule Lake NWR, lands that were
included as part of the original Klamath Project but that were subsequently converted. (See
Figure 1.) These refuges also have a unique agreement (known as “lease-land farming”) in which
parts of the refuge are leased out for farming.11
Two species of Upper Basin fish are listed as endangered under the Endangered Species Act
(ESA) and figure prominently into water allocation debates (see Appendix A). The Lost River
and shortnose suckers both live in UKL and were once plentiful enough to support commercial
fisheries.12 After steep declines during the last half of the 20th century, they were listed under the
Endangered Species Act in 1988.13 Their decline has been attributed to factors such as poor water
quality, habitat loss and degradation, dams on UKL tributaries, and entrainment in irrigation
diversions. Suckers are particularly important to the Klamath Tribe, who use the fish for
ceremonial purposes, but historically relied on the fish for sustenance. Upper Basin tribes and
recreational anglers also reportedly used to catch salmon. However, Iron Gate Dam, constructed
in 1962, permanently blocked upstream passage of salmon. Previous studies by government
biologists have concluded that historically, significant runs of Chinook and coho salmon existed
north of Iron Gate Dam and on the tributaries of Upper Klamath Lake, although some dispute
these conclusions.14
Lower Klamath Basin
The Lower Klamath Basin lies below and west of Iron Gate Dam. The Klamath River at this point
runs unobstructed to the Pacific Ocean. Where the Lower Basin represents approximately half
(7,470 square miles) of the basin’s land area, it is the origin of 88% of its runoff.15 Much of this
water flows into the Lower Klamath from four tributaries: the Shasta, Scott, Salmon, and Trinity
rivers.
As in the Upper Basin, agriculture is a prominent activity in the Lower Basin. In particular,
irrigated agriculture uses water from the Shasta, Scott, and Trinity rivers.16 The number of Lower
9 The refuges are Upper Klamath, Lower Klamath, Tule Lake, Clear Lake, Bear Valley, and Klamath Marsh (located
on the Williamson River).
10 Federal biologists estimate that 1 to 2 million birds use these refuges.
11 Approximately 22,000 acres within the refuges are leased for agricultural purposes. This arrangement was authorized
by Congress in the Kuchel Act of 1964 (P.L. 88-567).
12 Although suckers live in lakes, both species migrate to tributaries to spawn.
13 Since this time, Reclamation has had to consult with FWS on the operation of the Klamath Reclamation Project.
14 J. Hamilton et al., “Distribution of Anadromous Fishes in the Upper Klamath River Watershed Prior to Hydropower
Dams—A Synthesis of the Historical Evidence,” Fisheries, vol. 30, no. 4 (2005).
15 2004 NRC Report, p. 52.
16 Unlike the Klamath Project on Upper Klamath Lake, these diversions are privately owned.
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Basin farms and their associated production value, however, are less than half of that found in the
Upper Basin.17 In addition to agriculture, much of the acreage in the Lower Basin is managed by
the U.S. Forest Service for multiple purposes (e.g., timber production, recreation, fish and
wildlife habitat, etc.).
The Lower Klamath River provides habitat for 13 anadromous fish species, including three
species of salmon: coho salmon, Chinook salmon, and steelhead (see Appendix A).18 Below Iron
Gate Dam, the Klamath River is inhabited by the Southern Oregon/Northern California Coast
population of coho, which has declined significantly since the mid-20th century.19 Coho were
listed as threatened under the ESA in 1997.20 While coho are the only Lower Basin salmonid
currently listed under the ESA, a petition to list the Upper Klamath and Trinity Rivers Chinook
salmon evolutionarily significant unit (ESU) was submitted to the National Marine Fisheries
Service (NMFS) in January 2011. 21 Listing alternatives include listing the entire ESU (both fall
and spring runs), listing the spring run as a separate ESU, or listing the spring run as a distinct
population segment within the ESU.22 NMFS announced that the petition warranted review, and a
finding as to whether a listing as threatened or endangered is warranted is expected in early 2012.
The Klamath is inhabited by a significant fall run of Chinook salmon, although this population is
thought to be a fraction of the historical run.23 Winter and summer runs of steelhead also inhabit
most of the Klamath basin below Iron Gate Dam. Although steelhead have also declined to a
fraction of their former population size, the population is not considered to be in danger of
extinction.24
Salmon are an important resource for tribes in the Lower Basin, including the Yurok, Hoopa
Valley, and Karuk. In the late 1980s, the Yurok’s commercial fishery harvest represented a direct
value to the tribe of $3 million and additional income to the region’s businesses.25 The Hoopa
Valley and Yurok tribes also reported significant catches over this time period. These tribes,
which have rights to 50% of the total allowable harvest of Chinook salmon, have reportedly been
harmed by declines of Klamath fish.26 Furthermore, the decline in salmon has undermined
17 2004 NRC Report, p. 81, 91.
18 Anadromous fish grow to adulthood in saltwater but swim into freshwater to spawn.
19 In 1983 coho were estimated to have declined 70% since the 1960’s. See 2008 NRC Report, p. 48.
20 National Oceanic and Atmospheric Administration, 62 CFR, p. 24588, May 6, 1997, and 64 CFR, p. 24099, May 5,
1999. An “evolutionarily significant unit” (ESU) is the marine species equivalent of “distinct population segment” used
for terrestrial species under the ESA. Salmon are also named according to the timing of their spawning run.
21 The ESA allows listing of “distinct population segments.” In the case of salmon, this is applied through a policy
establishing separate populations as “ESUs” based on two requirements: (1) substantial reproductive isolation; and (2)
important component of the evolutionary legacy of the species. NMFS previously determined in 1998 that Upper
Klamath and Trinity River Chinook salmon did not warrant listing under the ESA, but the current petitioners (Center
for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and the Larch Company) have
requested the NMFS revisit this decision. Both the spring and fall runs of the ESU are under consideration.
22 National Oceanic and Atmospheric Administration, “Listing Endangered and Threatened Species; 90-Day Finding on
a Petition to List Chinook Salmon,” 76 Federal Register 20302, April 12, 2011.
23 Fall runs of Chinook averaged 120,000 annually from 1978 to 2009.
24 U.S. Department of the Interior, Klamath Facilities Removal: Draft Environmental Impact Statement/Environmental
Impact Report, State Clearinghouse #2010062060, Sacramento, CA, September 21, 2011,
http://klamathrestoration.gov/Draft-EIS-EIR/download-draft-eis-eir. (Hereinafter “Draft EIS.”)
25 Klamath River Basin Fisheries Task Force, Long Range Plan for the Klamath River Basin Conservation Area
Fishery Restoration Program (January 1991), pp 1-6. Available at http://www.krisweb.com/biblio/
gen_usfws_kierassoc_1991_lrp.pdf. Hereafter KRBFTF Plan.
26 The Draft Environmental Impact Statement of the Department of the Interior included extensive information on each
(continued...)
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cultural events such as the First Salmon Ceremony, which marks the passing of the first spring
Chinook salmon up the Klamath River. 27
Salmon and other anadromous fish from the Klamath River also support commercial and sport
fisheries off California and Oregon coasts. In past years, more than one-third of the 600,000
Chinook salmon taken by commercial fisherman on the ocean between Fort Bragg, CA, and Coos
Bay, OR, are estimated to have originated in the Klamath Basin.28 Beyond the direct revenues of
nearly $6 million annually since 1986, commercial fishing also supports various businesses in
fishing ports that contribute substantially to local economies. Local economies have reportedly
been harmed by restrictive fishing regulations and low fish populations during the last decade,
including restrictions on fishing subsequent to the 1997 ESA listing of the coho salmon in the
Klamath Basin.29
Some Lower Basin waters are also managed by Reclamation as part of the California Central
Valley Project and are discussed in the context of Klamath restoration.30 Among these is the
Trinity River Division (TRD) of the Central Valley Project, which was completed in 1964. The
Trinity River is the largest tributary of the Klamath River, and enters the river not far from where
the Klamath meets the Pacific Ocean (see Figure 1). The TRD takes water from the Trinity River
system and transports it into the separate watershed of the Sacramento River for use in water-
deficient areas to the south.31 Due to the impact of these diversions on the Trinity River
ecosystem, in 1984 Congress directed the Secretary of the Interior to develop a separate
restoration program for that river to restore fish and wildlife levels on the river and meet trust
obligations to the Hoopa Valley Tribe.32 These and additional actions have resulted in increased
Trinity River flows and other restoration activities, many of which are ongoing.33 As a result of
the connection between the two rivers, water quality and other issues on the Lower Klamath
River affect species that migrate up the Lower Klamath to the Trinity River, including Trinity
(...continued)
tribe’s historical dependence on fishery resources, reportedly based on consultations with the tribes. See U.S.
Department of the Interior, Klamath Facilities Removal: Draft Environmental Impact Statement/Environmental Impact
Report, State Clearinghouse #2010062060, Sacramento, CA, September 21, 2011, http://klamathrestoration.gov/sites/
klamathrestoration.gov/files/3.12_Tribal%20Trust.pdf.
27 The Draft Environmental Impact Statement of the Department of the Interior included extensive information on each
tribe’s historical dependence on fishery resources, reportedly based on consultations with the tribes. See U.S.
Department of the Interior, Klamath Facilities Removal: Draft Environmental Impact Statement/Environmental Impact
Report, State Clearinghouse #2010062060, Sacramento, CA, September 21, 2011, http://klamathrestoration.gov/sites/
klamathrestoration.gov/files/3.12_Tribal%20Trust.pdf. (Hereafter “Draft EIS.”)
28 KRBFTF Plan, p 1-6.
29 For instance, fishing restrictions were notably severe in 2006, and prompted Congress to appropriate $60.4 million in
supplemental appropriations under P.L. 110-28 to assist affected fisherman. See below section, “2006 Klamath Fishery
Disaster Determination.”
30 Congress authorized initial features of the Central Valley Project (CVP) in the 1937 Rivers and Harbors Act. The
project consists of canals and water transfer facilities that work in conjunction with the California State Water Project
(SWP) to supply water to the Central Valley of California and metropolitan areas in the southern area of the state.
31 At its peak, the TRD diverted up to 90% of flows into Trinity Lake south to the Sacramento River watershed.
32 P.L. 98-541. Also, in 1992 (Title 34 of P.L. 102-575), Congress further directed minimum flows for the Trinity
River and completion of a river flow study. This study was completed in 1999, and a record of decision was issued in
2000. This resulted in increased Trinity River flows, a new round of fish and wildlife restoration activities, and creation
of the Trinity River Restoration Program (an interagency partnership including federal, state, and tribal governments).
33 Information on these ongoing activities is available at http://www.trrp.net/.
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River salmon. Thus, stakeholders on the Trinity River, including most prominently the Hoopa
Valley Tribe, also figure into Klamath River restoration debates.
Klamath Hydroelectric Project
Straddling both basins are seven dams collectively known as the Klamath Hydroelectric Project
(KHP), owned by PacifiCorp.34 Southeast of Upper Klamath Lake, Link River Dam and Keno
Dam (both non-hydroelectric dams) are operated by PacifiCorp to regulate and impound water for
hydroelectric dams, as well as the Klamath Project.35 Four hydroelectric dams operate on the
Klamath downstream of Keno Dam, including (in order, going downstream) JC Boyle Dam,
Copco Dams 2 and 1, and Iron Gate Dam.36 These dams were built between 1918 and 1962 by the
California Oregon Power Company (later known as COPCO), and together account for
approximately 2% of PacifiCorp’s total electric generating capacity.37 The dams also provide
irrigators in the Upper Basin with power. Prior to 2006, PacifiCorp provided irrigators in the
basin with low-cost power under long-term, fixed-rate contracts.38 Although the dams are
operated for hydroelectric generation, they are also used for some other purposes, included
recreation (e.g., white water rafting) and incidental storage for flood control.39
The Federal Energy Regulatory Commission (FERC) is responsible for the licensing of non-
federal dams under the Federal Power Act.40 The last FERC license to operate the KHP, originally
issued in 1956, expired in 2006. PacifiCorp first applied for relicensing of the KHP in 2004 and,
subsequently, in 2007, FERC issued an environmental impact statement on relicensing, including
recommendations for fish passage and other environmental upgrades of the dams. A new long-
term license was not granted at the time because of the lack of state certification under Section
401 of the Clean Water Act, as well as ongoing uncertainty related to fish passage upgrades and
the status of Klamath negotiations.41 The KHP is currently operating on a temporary annual
license until other issues pertaining to dam removal, discussed later in this report, are clarified.
34 PacifiCorp is owned by Mid American Energy Holdings Company. Berkshire Hathaway owns a majority stake in
MidAmerican Energy.
35 Both Link River Dam and Keno Dam include fish passage structures.
36 The other dam, Fall Creek Dam, is located on a tributary of the Klamath River.
37 On average, the KHP produces about 716 megawatt hours annually, or about 0.25% percent of the electricity
produced in California in 2009 (or, approximately 1% of PacifiCorp’s average electricity generation). Water Education
Foundation, Layperson’s Guide to the Klamath River (2011), p. 11.
38 Power costs are a significant component of irrigation project costs in the Klamath as a result of pumping activity, and
irrigators rely on the dams for this power since, unlike other Reclamation projects, there is no power component to the
Klamath Project. As a result of the expiration of the project’s 50-year license in 2006, increased power prices have
been phased in by PacifiCorp. These price increases have been challenged in court by some irrigators who view them
as a violation of their original contracts with the dam owner, but the increases have thus far been upheld in state court.
39 See Part II of this report for additional information on other major uses, specifically discussion under “What Are
Some Other Potential Effects of the Agreements on the Basin?”
40 16 U.S.C. §790 et seq.
41 Under the CWA, a FERC-issued license must include any conditions that the state deems necessary to maintain state-
developed water quality standards. 33 U.S.C. §401 et seq.
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Klamath Tribes
Six federally recognized tribes make up approximately 6% of the basin’s total population and
figure prominently in the basin’s natural resource debates. The Yurok, Klamath,42 Karuk, Hoopa
Valley, Quartz Valley, and Resighini Rancheria tribes are all federally recognized. The tribes
range in size, from more than 5,000 enrolled members (the Yurok Tribe) to 36 enrolled members
(the Resighini Rancheria). The tribes are marked by cultural and socioeconomic distinctions, and
live on different parts of the river in the Upper and Lower Basins. As noted above, fisheries in
both the Upper and Lower Basins (including salmon and sucker fisheries), as well as other natural
resources, are important for all of these tribes. However, the importance of individual resources
varies among the tribes.43 Similarly, the interests of the different tribes in the agreements vary and
at times may conflict. To date, three of the six tribes in the Klamath Basin have signed the
Klamath agreements (discussed later in this report): the Klamath, Yurok, and Karuk Tribes.44
In the Klamath Basin, the extent of rights held by the Klamath Tribe has been particularly
contentious and has led to conflict over basin water supplies. Congress entered into a treaty with
the Klamath Tribe in 1864, which created a reservation for the tribe to settle and provided an
exclusive right to fish in the waters of the reservation.45 The U.S. Supreme Court has long
recognized that the reservation of land also secures the implied water rights necessary to fulfill
the purpose of the reservation of that land.46 In this case, the Klamath Tribe would need enough
water to maintain the purposes of the Klamath Reservation, including fishing, hunting, and
gathering. Because reserved water rights are given a priority date of the time of the reservation,
the Klamath Tribe’s claims for water have high seniority among other competing claims for the
water.47 However, because the Klamath Tribe’s reservation was terminated by Congress in 1954,48
the tribe’s claims for water rights have been a source of tension among Klamath River water users
for decades.
Other Klamath Basin water users have challenged whether the Klamath Tribe’s water rights
survived the congressional termination of the Klamath Reservation and have attempted to clarify
the extent of the tribe’s rights to water in the basin.49 Courts have generally recognized the tribe’s
reserved water rights and have indicated that the water rights necessary to support hunting and
42 The “Klamath Tribe” is actually composed of three historically distinct tribal groups: the Klamath, the Modoc, and
the Yahooskin band of Snake Indians. Frequently, the United States would make a treaty with “one” tribe, which
actually consisted of a combination of several tribes that were historically distinct.
43 See Draft EIS, Section 3.12.
44 The two smallest tribes, the Quartz Valley and the Resighini Rancheria, were not included in negotiations because
their interest in Klamath fisheries was not deemed sufficient. As discussed later in this report, the Hoopa Valley Tribe
was included in negotiations but has opposed the agreements.
45 Treaty of October 14, 1864, art. I, 16 Stat. 707.
46 These are often referred to as “reserved” water rights. See Winters v. United States, 207 U.S. 564 (1908); Cappaert v.
United States, 426 U.S. 128 (1976). See also CRS Report RL32198, Indian Reserved Water Rights Under the Winters
Doctrine: An Overview, by Cynthia Brougher.
47 See Winters, 207 U.S. 564.
48 Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974).
49 See United States v. Adair, 478 F.Supp. 336 (D. Or. 1979 (Adair I), aff’d United States v. Adair, 723 F.2d 1394 (9th
Cir. 1984) (Adair II); United States v. Adair, 187 F.Supp.2d 1273 (D. Or. 2002) (Adair III), vacated United States v.
Braren, 338 F.3d 971 (9th Cir. 2003).
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fishing have a priority date of “time immemorial,” while irrigation and domestic use water rights
have a priority date of 1864.50
Even with the previous decisions recognizing the Klamath Tribe’s water rights, tension between
the different tribes in the Klamath Basin and other non-tribal water users has continued in part
because these rights have not been quantified. Without quantification, junior water users cannot
rely on what amount may be available and may not be able to fulfill their claims for water if and
when tribal water rights are exercised. Accordingly, the state of Oregon has undertaken a water
rights adjudication to quantify historic water rights that vested without quantification, including
tribal reserved water rights.51 The adjudication is ongoing, but the results are expected to clarify
the tribal rights at issue. (See box below.)
Klamath Water Rights Adjudication
The questions related to the quantification of tribal water rights are interconnected with the determination of water
rights within the Klamath Basin. The Klamath Basin is “over-allocated,” meaning that claims to water exceed the
amount available in most years. This often leads to legal conflicts over the proper allocation of limited resources.
Allocation of water resources is largely determined by state law. Western states generally follow a system of prior
appropriation, which provides certain quantities of water to water users depending on their relative seniority in
acquiring water rights.52 State appropriative rights can be complicated by federal water rights such as those of tribes
claiming water rights reserved by the creation of the tribal reservation. In addition to tribal reserved water rights,
other federal rights such as those associated with federal land reservations like national forests and national wildlife
refuges also may not be quantified.53 The uncertainties resulting from the lack of quantification of these rights has led
to ongoing legal disputes over the allocation of water within the Klamath Basin.
Oregon has undertaken a general adjudication of water rights in the Klamath Basin (known as the Klamath Basin
Adjudication, or KBA) to address these disputes. The KBA began in the 1970s to determine water rights among
various users in the Klamath Basin.54 The final claims in the KBA are expected to be determined in the spring of 2012.
However, even with the conclusion of the administrative adjudication, parties that are dissatisfied with the outcome
may pursue judicial appeals. The general process of the adjudication is as follows: parties with claims or contests
must file with the Oregon Water Resources Department (OWRD); an administrative panel then hears the contests
and issues proposed orders based on the hearing; and the OWRD reviews the proposed orders and issues its final
findings and order, which is filed with a state court.55 Following the OWRD’s final determinations, parties may file
“exceptions to the Determination” with the state court.56 Following the state trial court’s decision, litigants may
appeal through the state’s court of appeals, state supreme court, and possibly the U.S. Supreme Court. Thus,
although the KBA is nearing completion of its administrative process, many observers expect that disputes over the
allocation of the Klamath Basin’s water recources will continue for many years.
50 See Adair I, 723 F.2d at 350.
51 For an overview, status, and claims of the adjudication, see Klamath Basin Adjudication/ADR, Oregon Water
Resources Department, available at http://www.oregon.gov/OWRD/ADJ/index.shtml.
52 See supra note 50, Tarlock, “Prior Appropriation Doctrine.”
53 See id. at ch. 37, “Reserved Water Rights.”
54 See Or. Rev. Stat. 539.010 et seq.
55 See United States v. Braren, 338 F.3d at 973-74.
56 Id.
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Recent Conflicts
While water and species management issues have been prevalent throughout the history of the
Klamath Project, three seminal events in 2001, 2002, and 2006 brought the region into the
national spotlight. These events resulted in a number of legal conflicts, studies, and negotiations
that frame the recent history of the Klamath Basin. First in 2001, as a result of previous biological
opinions by the FWS and NMFS, Reclamation severely curtailed water deliveries to the Klamath
Project to provide more water for endangered fish in the basin.57 Later, in 2002, thousands of fish
(mainly Chinook salmon) died largely due to poor water conditions and fish health in the Lower
Klamath. Finally, in 2006 NOAA severely restricted ocean fishing for salmon due to low numbers
of naturally spawning adults in the region (due in part to residual effects of the 2002 fish kill),
resulting in a large decrease in that year’s salmon catch compared to previous years. These three
events are discussed in detail in Appendix B to this report. The remainder of this report focuses
on the settlement agreements that resulted from these events, which are currently under
consideration by Congress.
2010 Klamath Settlement Agreements
In response to the earlier conflicts and other issues in the Klamath basin, the federal government
led talks among multiple groups between 2002 and 2010, with a goal of achieving long-term
solution to the water and endangered species issues in the Klamath Basin. This included a
solution to previous problems with irrigation deliveries and instream flows for fish, as well as
potential ongoing issues associated with the Klamath Basin Water Rights Adjudication.
Participants included state governments, tribes, counties, irrigators, fishermen, and conservation
groups.
On February 18, 2010, two agreements were announced and signed by many of the participants in
the settlement process. The first agreement, known as the Klamath Basin Restoration Agreement
(KBRA), lays out numerous actions by local, state, and federal parties that would restore river
and ocean fish populations, establish water and power supplies for certain agricultural, municipal,
and environmental users, and provide for various other actions. The second agreement, known as
the Klamath Hydroelectric Settlement Agreement (KHSA), lays out the process for removing four
dams owned by PacifiCorp, as well as other related actions.
Before many of the agreements’ provisions can be implemented, numerous actions must take
place, including several notable congressional requirements: (1) congressional authorization of
both agreements; (2) a secretarial determination on dam removal (which itself must be authorized
by Congress); and (3) funding (via federal appropriations) for federal components of both
agreements by Congress.58 Many other contingencies do not involve Congress directly, but are
required for full implementation of the agreements.
57 Although irrigators have continued to face uncertainty since then, there have not been similar restrictions on water
deliveries.
58 Funding for most actions would occur subsequent to authorization of the agreements, but is an important requirement
for implementation.
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The two agreements were negotiated separately, but are officially linked. Their signatories have
agreed to support their simultaneous enactment. Beyond this legislative linkage, some provisions
of the agreements are linked (i.e., they assume other actions will take place).59 The below sections
summarize the agreements and selected provisions that may be of interest to Congress. They are
not an exhaustive summary of either agreement.
Klamath Basin Restoration Agreement
The KBRA was largely negotiated between 2005 and 2010, and contains actions that have been
agreed to by parties, or signatories, to the agreement.60 The final agreement, signed in 2010, is
divided into eight sections that are intended to achieve three overarching goals:
• restore and sustain natural production of fish species throughout the Klamath
Basin;
• establish reliable water and power supplies for agricultural users, communities,
and area wildlife refuges; and
• contribute to the public welfare and sustainability of communities.
Broadly speaking, the KBRA promises Klamath Project irrigators and refuges water supplies that
correlate to various inflows in a given year, with “surplus” supplies to be allocated to other uses
(i.e., environmental water). While these inflows would generally be less than current levels
during some years with above-average inflow, they would largely increase the predictability of
available water supplies during drier years. Under the agreement, environmental interests gain
additional federal and state funding for fisheries restoration, as well as related assurances for dam
removal under the KHSA. For their part, tribes agree not to assert water and fishery rights over
the aforementioned Klamath Project water allocations in exchange for fisheries restoration
actions and additional economic aid (and dam removal). All parties also agree to support actions
and funding to expand water and power supplies (including power for irrigators to replace low-
cost power formerly available from the hydroelectric project) and to only pursue litigation after
other options laid out under the agreement are exhausted.
Two important notes frame federal responsibilities for the KBRA. First, no federal agencies are
“parties” to the KBRA until Congress enacts authorizing legislation.61 Therefore the considerable
number of federal agency actions in the KBRA represents expectations for federal actions by the
non-federal parties, not obligations on the part of the federal government to act.62 Secondly, if
authorization is provided by Congress and the federal government becomes a party to the
agreements, the federal government would still not be bound to implement actions or expend
59 To take one example, observers note that the fisheries restoration in the Lower Basin which is envisioned by many
supporters depends on both dam removal under the KHSA and water quality and water storage improvements expected
to be achieved under the KBRA.
60 There are 45 non-federal parties to the KBRA. See Klamath Basin Restoration Agreement for the Sustainability of
Public and Trust Resources and Affected Communities, February 18, 2010, pp 3-4, at http://klamathrestoration.gov/
sites/klamathrestoration.gov/files/Klamath-Agreements/Klamath-Basin-Restoration-Agreement-2-18-10signed.pdf.
(Hereinafter “KBRA.”)
61 KBRA, p. 2.
62 If Congress enacts authorizing legislation, the relevant federal entities automatically become party to the agreement.
Notably, the federal government has existing authorities that allow for a number of ongoing actions to be implemented
now. Some of these actions are included in the KBRA.
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funds in absence of express direction by Congress (typically in the form of annual
appropriations). Under the agreement, state governments are afforded the same flexibility.63
The sections below discuss actions of potential interest to Congress in the KBRA as they relate to
the three goals of the agreement: fisheries restoration, reliable water supplies, and support for
communities/other goals.
Fisheries Restoration
Restoring Klamath Basin fisheries is one of the primary objectives of both Klamath basin
agreements. The KBRA’s fisheries program aims to complement the KHSA, which would open
420 miles of habitat above Iron Gate Dam to anadromous species such as salmon, steelhead, and
lamprey. The KBRA aims to achieve this through a number of measures, including measures to
achieve habitat restoration throughout the basin; measures to reintroduce fish; measures to
monitor fisheries; and actions intended to improve flow conditions and water quality for fish.
The general goals of the KBRA fisheries program are to:64
• restore and maintain ecological functionality and connectivity of historic fish
habitats;
• re-establish and maintain naturally sustainable and viable populations of fish; and
• provide for the full participation in harvest opportunities for fish species.
The fish restoration process established by the KBRA would occur in two general phases. In the
first phase, the restoration plan would establish priorities and criteria for selecting projects over
the next 10 years. Examples of likely actions include re-establishing and protecting riparian
vegetation, restoring stream channels, repairing or improving fish passage, and preventing
entrainment of fish into diversions. Phase I actions would be monitored, primarily by the federal
government, to determine their effectiveness and for developing phase II of the restoration plan.
Fish managers would develop phase II by collaborating with the parties, including the Klamath
Basin Coordinating Council, and by considering public input.65 Based on the results of phase I,
phase II would establish plan elements, restoration priorities, and an adaptive management
process for the remaining term of the KBRA.
One of the main goals of the fish program of the KBRA would be to reestablish anadromous
species in the Upper Basin above Iron Gate Dam, including tributaries to Upper Klamath Lake.
As part of the re-introduction plan, the Oregon Department of Fish and Wildlife has adopted a
policy to establish natural and self-sustaining populations of Chinook, steelhead, and lamprey in
these areas. The plan is expected to include near-term investigations to determine those resources
and actions needed to initiate and accomplish reintroduction of fish populations, and actions to
manage these populations once they are reestablished. An important component of this plan is
screening of Klamath Reclamation Project irrigation diversions to prevent entrainment of re-
introduced fish.
63 KBRA, p. 13.
64 KBRA, p. 37.
65 See below section, “Coordination and Oversight” for more information on this body.
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The Water Resources Program (WRP) of the KBRA, discussed below, is closely related to the
goals of the fisheries restoration program. The WRP would provide more water for fish by
limiting the quantity of water diverted from UKL and the Klamath River for the Klamath
Reclamation Project. Additional measures in the WRP that would add storage and could also
increase water available for fish include water leasing, water conservation, and additional storage
(see section on “Water and Power Supplies”). The KBRA would reserve most of the additional
flows/storage generated by these actions for the benefit of fish.
The reintroduction of salmon and other aquatic species above Iron Gate Dam could have
regulatory or legal consequences for users of water and land in the Upper Klamath Basin. The
KBRA includes commitments by the parties to avoid or minimize any adverse impact resulting
from introduction or reintroduction of aquatic species to currently unoccupied habitats or areas.
The KBRA requires the National Marine Fisheries Service (NMFS) and FWS to consider whether
there are any alternatives to limitations on diversion, use, and reuse of water related to the
Klamath Reclamation Project. Although the ESA would still be in effect for listed fish species,
the KBRA attempts to minimize future potential impacts on the supply of water for basin
interests, especially farmers. It also urges parties to attempt dispute resolution before a party
initiates litigation to limit water diversion.
Water and Power Supplies
Water Allocations
The allocation and reliability of water supplies has historically been a contentious issue in the
Klamath Basin. The KBRA proposes to settle many of these issues by establishing a Water
Resources Program (WRP) for the basin.66 The WRP portion of the KBRA would attempt to settle
certain long-standing water resource issues through modification of the existing water
management regime in the basin. This would include, among other things, establishing set
schedules and plans that define a range of guaranteed water deliveries in most water years for the
Klamath Project and federal wildlife refuges that have historically received water deliveries from
the project.67 The WRP would also establish efforts to increase water supplies through water
rights retirement and development of new water supplies, and would settle certain ongoing water
rights disputes. This portion of the agreement is estimated to cost the federal government
approximately $257 million in federal funds.68
The agreement’s provision for a defined range for annual water allocations for Klamath Project
users is a key component to the KBRA.69 Historically, Reclamation has delivered project supplies
to irrigators under long-term contracts. Allocations are made annually, depending on water supply
levels, projected runoff, and other obligations (including consultation with FWS and NMFS).
These decisions have been subject to legal challenges when parties did not agree with
Reclamation’s allocations, and led to the aforementioned shut off of Klamath Project waters in
66 See KBRA, pp 50-143.
67 As previously noted, Tule Lake NWR and Lower Klamath NWR receive water from the irrigation project.
68 For recent cost estimates, see Ed Sheets Consulting, “Klamath Basin Restoration Agreement Revised Cost
Estimates.” June 17, 2011. Available at http://216.119.96.156/Klamath/2011/06/RevisedCostEstimates.pdf. Accessed
November 18, 2011. Hereinafter “Revised Cost Estimates.”
69 See generally, KBRA, ibid., pp 54-76 and Appendix E.
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2001. The KBRA would attempt to make such a scenario less likely by establishing agreed-upon
diversion limits for the Klamath Project and the Klamath Refuges that are tied to forecast water
inflows. (See Table 1.)
Table 1. Water Allocations in the Klamath Basin Restoration Agreement
Water Forecasta
“Dry”
Yearb
“Average” Yearc “Wet”
Yeard
Klamath Reclamation
March-Oct: 330,000
March-Oct (formula-
March-Oct: 385,000
Project
based): 330,000-385,000
Nov-Feb: 45,000
Nov-Feb: 45,000
Nov-Feb: 45,000
Wildlife Refuges
March-Oct: 48,000
March-Oct (Formula-
March-Oct: 60,000
based): 48,000-60,000
Nov-Feb: 35,000
Nov-Feb: 35,000
Nov-Feb: 35,000
Environmental/Othere n/a
n/a
n/a
Source: Klamath Basin Restoration Agreement, Appendix E-1, p. E-25.
Notes: Units in whole acre-feet. Columns indicate the water allocation under a given forecast scenario. Rows
indicate the diversion reserved for a specific location.
a. Forecast references the March 1 Natural Resources Conservation Service Forecast for Net Inflow into
Upper Klamath Lake for the period April 1-September 30.
b. “Dry” is shorthand for inflows less than 287,000 a/f. Notably, Section 19.2.2.B.v of the KBRA provides that
if an “extreme drought” is declared by OWRD and voluntary water conservation measures triggered under
the KBRA are insufficient, diversions may be reduced below the levels specified in the KBRA. “Extreme
drought” is defined as water conditions similar to 1992.
c. “Medium” indicates forecast inflows ranging from 287,000 a/f- 569,000 a/f.
d. “High” indicates forecast inflows of more than 569,000 a/f.
e. Additional allocations (including environmental flows for fish) are assumed in the KBRA, but not provided
with a specific diversion limit/guarantee.
The KBRA’s diversion limits for the Klamath Project and Klamath Refuges are determined based
on annual forecast inflows into Upper Klamath Lake, as defined by the Natural Resources
Conservation Service (NRCS). Under the agreement, diversions would be defined for three
ranges of inflows: (1) less than 287,000 acre-feet (a/f); (2) 287,000 a/f to 569,000 a/f; and (3)
569,000 a/f or more. Each of these scenarios would trigger corresponding allocations for the
Klamath Project and Refuges for two different periods: March-October and November-
February.70 For reference, average annual net inflows from 1961 to 2009 were approximately
492,000 a/f, while average annual inflows from 2000 to 2009 were closer to 392,000 a/f and 2001
inflows were 242,000 a/f. Average diversions to the Reclamation Project over the 1961-2009 and
2001-2009 periods were approximately 357,000 and 351,000, respectively.71
70 Typically, the March through October allocation receives the most scrutiny, as that is the peak period for snowpack
melt and irrigation diversions.
71 This includes diversions from water banks and other measures since 2001.
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Allocations for years defined as an “extreme drought” are not covered in the KBRA’s
aforementioned water diversion limits. The agreement includes a placeholder for a “Drought
Plan” to provide for additional water to fish and wildlife in low water years, and this could
modify the allocations for some “dry” years. The KBRA and subsequent documents have outlined
a number of potential strategies in the event of a drought designation, including payment of
federal funds for reduced irrigation diversions.72
Off-Project Settlement and Additional Water Supplies
Another significant component of the WRP is referred to as the Off-Project Water Program.73 The
actions under this program would initiate a process, known as the Off-Project Water Settlement,
that would settle certain longstanding water rights disputes between off-project irrigators, tribes,
and the Bureau of Indian Affairs (see previous box on Klamath Water Rights). In addition to the
resolution of these claims, this part of the KBRA also proposes a Water-Use Retirement Program
(WURP) that would attempt to provide additional inflows into Klamath Lake from off-project
lands. The KBRA presumes the WURP would result an average annual addition of 30,000 a/f of
inflow into UKL. The KBRA also includes an Off-Project Reliance Program that would attempt
to mitigate the effects of water shortages that could result from the WURP in other aspects of the
agreement associated with off-project irrigators. Funding requirements for the latter program are
estimated to be at least $12 million over the next 10 years.74
The WRP would also expand water storage and availability in the basin through several new or
ongoing efforts. The KBRA states that parties will support funding for additional storage and lake
expansion, including a proposed effort to reconnect Barnes Ranch and Agency Lake Ranch to
Agency Lake for an additional 63,700 a/f of storage and the reconnection of Wood River
Wetlands to Agency Lake Wetlands for an additional 16,000 a/f of storage. Parties also pledge to
support a study by Reclamation investigating additional storage options of up to 350,000 a/f in
Long Lake under the Klamath Basin Water Supply Enhancement Act of 2000 (P.L. 106-498).75
The agreement also pledges that parties will support groundwater development efforts, so long as
they have no “adverse impacts” on groundwater levels.76
72 The Drought Plan was released in June 2011. It proposes thresholds for drought and would designate the Oregon
Department of Water Resources as the ultimate arbiter of these thresholds. The Draft Plan is available at
http://67.199.95.80/Klamath/DraftDroughtPlan2011-02-28.pdf.
73 “Off-project irrigators” refers to irrigators who do not receive water through the Klamath Reclamation Project and
who are claimants in the Klamath Basin Adjudication. Notably, not all off-project users signed the final KBRA. See
Restoration Agreement, p. 105.
74 Revised Cost Estimates, p. 7.
75 This project has subsequently been determined by Reclamation to have an extremely low return on investment and is
not expected to be further pursued. The associated studies by Reclamation are available at http://www.usbr.gov/
newsroom/newsrelease/detail.cfm?RecordID=34462.
76 The Restoration Agreement outlines a working definition for “no adverse impact.” In short, “adverse impact” is
defined to be a reduction of more than 6% to the flows of certain groundwater and surface water bodies. USGS, in
cooperation with OWRD, would provide the relevant data to make this determination, and this monitoring is among the
actions funded in the agreement. See Restoration Agreement, pp 71-72.
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Environmental Water
The term “environmental water” as used in the KBRA refers to any quantity or quality of water
intended to benefit fish species and aquatic resources in the Klamath Basin, including both
Klamath Lake and the Klamath River. Notably, the water allocations outlined in the agreement for
the project and wildlife refuges are the only specific water allocations in the KBRA. Outside of
these allocations, the KBRA does not define specific water allocations for environmental water.
However, the agreement stipulates that excess water generated from dam removal, water
retirement, additional storage, and excess flows in “wet” years (all of which are provided for
under the agreements) would be made available for fish and aquatic species.
Lease-Land Farming
As previously noted, two refuges in the Klamath Basin, the Lower Klamath and Tule Lake
refuges, have a somewhat unique history that has allowed for leasing of several thousand acres of
farmland within their boundaries. The KBRA would allow for the continuance of this practice,
which some groups have opposed.
Water Rights Claims
The KBRA does not determine or quantify water rights.77 However, the KBRA does provide a
framework for the settlement of disputes between Klamath Project users and tribal water rights
holders. Under the KBRA, Reclamation and FWS, along with various irrigation users, agreed to
limit certain diversions in the Klamath Basin in order to enhance fisheries in the basin.78 In
exchange, tribes that are parties to the KBRA have agreed not to assert their claims against the
United States that relate to water management decisions or the failure to protect tribal water
rights.79 The KBRA further provides for the withdrawal of certain claims and contests in the
Klamath Basin Adjudication (see earlier box), if the administrative panel adopts the parties’
negotiated settlement of the dispute.80
Power Program
Several provisions of the KBRA would attempt to provide power supplies for Klamath Project
and other area irrigators at or below the average cost for similarly situated projects in the region.
Most important, if authorized the KBRA would provide that Reclamation will pursue (and others
will support) an allocation of preference power from the Bonneville Power Administration for on-
and off-project irrigators in the Klamath Basin that would replace the low-cost power previously
available to irrigators from the hydropower project prior to 2006.81 If successful, this provision of
77 KBRA §2.2.11.
78 See KBRA §15.3.1.
79 See KBRA §§15.3.5 – 15.3.7. The KBRA does not provide for all tribal claims to be relinquished.
80 See KBRA Appendix E.
81 Klamath Project irrigators and other area irrigators previously received project power at low-cost, set rates pursuant
to an agreement between Reclamation, Copco, and the Klamath Water Users Association that was signed in 1918.
Under the agreement, Copco (and later, PacifiCorp) gained the right to control flows for the hydroelectric project at
Reclamation-owned Link River Dam, in exchange for low-cost power. The agreement was not renewed when the
hydroelectric project’s 50-year federal license expired in 2006, and PacifiCorp has raised its rates as a result. Some
irrigators view the power provisions of the KBRA to be as important (or more important) than the water allocations.
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the KBRA could potentially provide for irrigation power rates of $.03 per kilowatt-hour, or
approximately $.01 per kilowatt-hour less than current rates. In addition to the promise to pursue
a preferential power allocation, the KBRA also proposes interim funding to offset potential power
price increases in the short-term, as well as funding to develop other renewable energy resources
in the long-term.
Sustainable Communities and Other Activities
Those actions which fall outside of the categories of fish restoration and water supplies are
collectively referred to in the agreement as actions to ensure “sustainable communities.” Of these
actions, the most prominent relate to the economic well-being of the basin’s tribes and counties.
These provisions are discussed below.
Tribal Commitments
Four basin tribes participated in KBRA negotiations: the Klamath, Yurok, Karuk, and Hoopa
Valley tribes. Three of the four tribes (the Klamath, Yurok, and Karuk tribes) are parties to the
KBRA and would agree not to assert their rights over the defined allocations in the KBRA if the
agreement is authorized.82 In exchange, tribes would receive direct support for economic
revitalization projects (i.e., projects to revitalize tribal subsistence and traditional ways of life), as
well as support for fisheries restoration discussed above. The KBRA would also provide funding
to facilitate the transfer of approximately 90,000 acres of the Mazama Forest to the Klamath
Tribe.83 The total federal cost for these tribal commitments was estimated at $87 million in June
2011, but could be more if the Hoopa Valley Tribe were to become party to the KBRA.84
Counties Program
The KBRA also includes a program to mitigate economic impacts on counties associated with
dam removal and other actions. The agreement would provide compensation for lost property
taxes to Klamath and Humboldt counties. These provisions are estimated to cost approximately
$23 million, and are largely intended as mitigation for the effects of the KHSA (discussed
below).85 The states of Oregon and California have recently clarified that they expect to cover
these payments (see below section, “Cost of Implementation”).86
82 See previous section, “Water Rights Claims” and previous box “Klamath Water Rights Adjudication.”
83 This land was historically a part of the Klamath Tribes’ reservation, but was sold after Congress terminated the Trust
Relationship with the Klamath in 1954 (Congress restored this relationship, but not this land, in 1986). For more
information on the transfer, see KBRA, Section 33.2. For background on termination and the tribes, see
http://klamathrestoration.gov/sites/klamathrestoration.gov/files/3.13_Cultural%20and%20Historic%20Resources.pdf,
p. 3.13-13.
84 See Revised Cost Estimates. Section 38 of the Restoration Agreement provides that the Hoopa Valley Tribe would
be eligible for similar funding levels to the other tribes if it becomes a party to the agreement.
85 KBRA, Appendix C-2, p. C.6.
86 Revised Cost Estimates.
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Regulatory Assurances
The KBRA contains provisions pertaining to federal and state regulations that, while not
representing new regulations in and of themselves, are described as “assurances” related to
existing regulatory processes. These regulatory assurances lay out actions expected to take place
and information which parties would expect federal agencies take into consideration in
implementing regulations relevant to the KBRA. For instance, the federal government would
agree to avoid (or seek to minimize) new regulations and/or actions related to fish reintroduction
that could have a negative impact on certain users. The KBRA would also provide a process
under which the FWS and NMFS would issue their biological opinion for proposed operations of
the Klamath Project under the ESA. If authorized, the KBRA would direct the agencies to
consider several actions contemplated under the KBRA (e.g., water retirement, wetlands
restoration) that are expected to benefit fisheries.87 The resulting effect of these assurances is not
well understood, and is a matter of contention among some stakeholders.88
Coordination and Oversight
Coordination and oversight of the KBRA would be conducted primarily by the Klamath Basin
Coordinating Council (hereinafter referred to as the Council.89 The Council would promote
collaboration among stakeholders and coordinate the implementation of the agreement. The
Council would also be responsible for oversight and administration of restoration activities and
implementing dispute resolution.90 The Council would make decisions and establish protocols to
implement the agreement, although none of its authorities exceed the pre-existing authorities of
individual parties.
Under the KBRA, the Council would foster public involvement by allowing participation in
meetings and consideration of public input when making decisions. This input would come
mostly through other committees formed under the KBRA. In addition to federal and state
representatives, these committees would be comprised of stakeholders that include agriculture,
recreation, commercial fishing, environmental, tribal, recreational, and county interests. Most
stakeholder groups have participated in the process and have committed themselves to continue
work on the agreements as they are implemented.
Several advisory groups would assist in the coordination and implementation of the KBRA. A
summary of three of these groups follows:
• The Klamath Basin Advisory Council (KBAC) would provide advice and
recommendations for federal agency parties as necessary for implementing the
Restoration Agreement after execution of a charter pursuant to the Federal
Advisory Committee Act (FACA). Prior to execution of the charter, advice would
be provided by the Interim Advisory Council. All parties would be provided the
87 KBRA, Section 151, pp 153-154.
88 For more information, see below section, “How Do the Agreements Affect Endangered Species Act
Implementation?”
89 Parties to the KBRA are represented on the Council by one voting member.
90 KBRA, Appendix D-1, p. D.2.
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opportunity to participate in meetings of KBAC, but voting members would be
limited to the parties specified for Council voting.91
• A Technical Advisory Team (TAT) would be created to provide recommendations
to the Council, KBAC, and agencies on water management and fisheries
restoration activities governed by the Restoration Agreement. The TAT would
gather data, make recommendations for management of resources, provide
technical expertise, and evaluate management and make recommendations
concerning environmental water in the Klamath Basin.92
• An Upper Basin Team (UBT) would be created to oversee the planning and
implementation of the Water Use Retirement Program. The UBT would be a
subcommittee of KBAC and its recommendations would be provided to KBAC.
The four voting members of the UBT would include two representatives of the
Klamath Tribe and two representatives from the Upper Klamath Water Users
Association.93
The KBRA estimates funding needed to conduct coordination and oversight activities at $3.3
million. Oversight of the implementation would also be supported by an adaptive management
program. This process under the agreement is broadly described, and would be expected to
include objectives to measure performance, monitoring and evaluation procedures, and a process
to use these results to inform future management actions.
Klamath Hydroelectric Settlement Agreement
The Klamath Hydroelectric Settlement Agreement (referred to here as the KHSA) lays out a
process for additional studies and environmental review by the Secretary of the Interior to
consider removal of the four hydroelectric dams on the Klamath River that are owned by
PacifiCorp (J.C. Boyle, Iron Gate, Copco 1, and Copco 2). The KHSA addresses the interim
operation of the dams as well as processes that could lead to transfer, decommissioning, and
removal of the dams. Additionally, the KHSA includes provisions for PacifiCorp to transfer Keno
Dam to the Bureau of Reclamation and to relinquish its current role as operator of Link River
Dam. In contrast to the KBRA, the federal government is a party to the KHSA. However, similar
to the KBRA, implementation of certain components of the KHSA requires authorization by
Congress.94
Some actions within the KHSA have been interpreted by Reclamation not to require an explicit
authorization by Congress, and are currently ongoing. For example, the central component of the
KHSA, the dam removal study, is being conducted under Reclamation’s general authorities.
However, parties to the KHSA agree that a congressional authorization is necessary to finalize the
Secretary’s determination on dam removal (which would result from these studies).95 A final
91 KBRA, Appendix D-1, p. D.6.
92 KBRA, Appendix D-2, p. D.9
93 KBRA, Appendix D-1, p. D.14
94 Federal parties to the settlement include National Marine Fisheries Service, U.S. Department of the Interior, Bureau
of Indian Affairs, Bureau of Land Management, Bureau of Reclamation, and Fish and Wildlife Service.
95 The settlement states that a final Secretarial determination on dam removal may not be made until federal legislation
has been enacted. See, KHSA, p. 20. Available at http://klamathrestoration.gov/sites/klamathrestoration.gov/files/
Klamath-Agreements/Klamath-Hydroelectric-Settlement-Agreement-2-18-10signed.pdf. Accessed May 10, 2011.
(continued...)
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decision from the Secretary on whether to remove the dams is expected no later than March 2012,
although this deadline assumes authorization of the determination by Congress.96
Secretarial Determination on Dam Removal
The Secretary of the Interior’s dam removal determination is the central component of the KHSA.
As previously mentioned, the KHSA lays out the process and expectations underpinning this
study. First and foremost, the settlement directs the Secretary to answer two central questions
related to dam removal: (1) Will facilities removal advance restoration of salmon fisheries? (2) Is
facilities removal in the public interest?97
The Secretary, in consultation with other federal and state agencies, is to use his best efforts to
finalize this determination by March 31, 2012.98
In addition to a determination on the primary questions mentioned above, the KHSA also
stipulates that the Secretary prepare a “Detailed Plan” that provides additional analysis and a
potential plan forward for implementing dam removal. Under the KHSA, this plan must outline
methods to remove the dams, and may include other things such as cost estimates, timetable,
plans for sediment removal/site restoration, potential downstream impacts and any planned efforts
to minimize these, among other items.99
Negative Determination
If the Secretary of the Interior recommends against dam removal (i.e., if the Secretary finds that
proceeding with dam removal will not restore salmon fisheries and/or be in the public interest),
the KHSA would terminate unless parties come to a new agreement that would serve as a “cure”
to a negative determination. In the event of a negative determination, the KHSA requires that the
Secretary of the Interior provide prior notice of this decision so the parties can meet and consider
potential changes to the original agreement. Assuming no such “cure” is agreed to and the
settlement is terminated, all dams would remain under PacifiCorp’s ownership, and the FERC
relicensing process would resume.100
Affirmative Determination
The agreement provides considerable detail and requirements in the event of an affirmative
determination on dam removal. Such a decision could take several forms depending on what type
of entity (i.e., federal, non-federal) is designated as the dam removal entity. Additionally, pursuant
to the KHSA, a determination recommending in favor of dam removal may not be finalized until
several other preconditions have been met. Some of these preconditions include:
(...continued)
(Hereinafter KHSA.)
96 See below section, “What Happens If Congress Chooses Not to Authorize the Agreements?”
97 The KHSA sets the “public interest” standard for the determination as including, but not limited to, impacts on tribes
and local communities.
98 See KHSA, Section 3.3.4.
99 KHSA, p. 19.
100 KHSA, p. 58.
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• Authorizing Legislation—passage of federal authorizing legislation for both
Klamath settlement agreements.
• State Funding Authorizations—authorization/approval of funding for dam
removal by the states of California and Oregon.101
• Cost Overrun Plan—if the Secretary determines that costs will exceed $450
million, parties must develop a plan to address these excess costs.
• State Concurrence with DRE-Designate—the Secretary must recommend a
dam removal entity (DRE) and the states must concur with this designation.
Assuming all of these actions take place along with an affirmative dam removal determination,
ownership of the dams would eventually be transferred from PacifiCorp to the dam removal
entity, in accordance with the schedule laid out in the Secretary’s “Detailed Plan.” However, after
ownership is transferred, PacifiCorp would continue to operate the dams for electricity generation
until at least 2019 (with dam removal scheduled for 2020 at the earliest). Whatever DRE is
designated (i.e., federal or non-federal), the entity would be expected to develop a “Definite Plan”
that builds on the aforementioned Detailed Plan to further specify actions associated with dam
removal.
Dam Removal Costs
Responsibility for costs associated with dam removal are an important component of future dam
removal actions. The KHSA assumes a “cap” of $450 million for dam removal costs. Of these
costs, $200 million is assumed from a 2% ratepayer increase by PacifiCorp customers in Oregon
($184 million) and California ($16 million).102 An additional $250 million is assumed to come
from the State of California, either through water bonds (which have yet to be approved by
voters) or other means.103 Finally, regardless of whether or not the DRE is the federal government
(e.g., the Department of the Interior) or another entity, the KHSA provides that under no
circumstance will the federal government be responsible for costs associated with dam removal,
including liability for dam removal.104 PacifiCorp is similarly protected from liability under the
settlement. Preliminary estimates by DOI have provided a range for potential dam removal costs
from $238 million to $493 million. DOI concluded that the most probable cost would be
approximately $292 million.105
101 The initial components of this funding, (rate increases for PacifiCorp customers) have been approved, although as of
late 2011, the California bond funding had not been approved. Notably, the KHSA provides an exception for this bond
funding: if the Secretary finds that future approved bond funding would be sufficient, he may make a determination.
See KHSA, p.21.
102 These rate increases have been approved by the Oregon Public Utilities Commission and the California Public
Utilities Commission.
103 See KHSA, Section 4.1.2.
104 KHSA, p. 31.
105 Bureau of Reclamation, Detailed Plan for Dam Removal- Klamath River Dams, Department of the Interior, Denver,
CO, September 15, 2011, p. 7, http://klamathrestoration.gov/sites/klamathrestoration.gov/files/
Klamath_DetailedPlan2011.pdf.
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Stakeholder Views on the Klamath Agreements
Stakeholder views on the Klamath agreements can broadly be divided into those supporting the
agreements and those opposed to one or both of the agreements. However, such a simple
characterization may not do justice to the motivation and preferences of many groups. While a
majority of interest groups involved in initial settlement negotiations endorsed both agreements,
reasons for support among these groups are varied, and in some cases are likely to be contingent
on specific parts of one agreement or another (e.g., guaranteed water, dam removal) going
forward. Among those opposed to the agreements, reasons for opposition also vary widely, and
include reasons ranging from perceived economic damages resulting from the agreements to their
overall lack of environmental protections (or subversion of existing laws).
Support for Agreements
Among those supporting the Klamath agreements are all of the parties listed as “non-federal
parties” within both the KBRA and the KHSA. For the KBRA, this includes five state agencies in
Oregon and California, three tribes, four counties (in both states), 25 parties related to the
Reclamation Project, one Upper Basin party, and seven other groups (some of them
environmental interests). These same groups are also party to the KHSA.106 Notably, supporters
who were party to one agreement have agreed to support authorizing legislation for the other
(e.g., KBRA signatories back enactment of the KHSA), and supporters have generally argued that
the agreements themselves must be linked.
Some interests, including the states, support the agreements because as a whole, they represent a
potential solution to the protracted resource conflicts in the Upper and Lower Basins. Other
groups representing narrower interests also tend to support the end of these conflicts, but also
support specific provisions that they view as necessary (e.g., the prospect of more predictable
irrigation water supplies under the KBRA), and have pledged to support other provisions (and/or
the other agreement) as part of the overall compromise.107 For instance, environmental groups
have pledged to support the defined allocations for irrigation without a corresponding guaranteed
allocation for fish in exchange for dam removal and other promised fisheries restoration actions.
For its part, PacifiCorp reports that it decided to support removal of its dams on the Klamath
because retirement of the dams represented the best option to protect its ratepayers.108 Previously
there have been disagreements over which option the company would have pursued in absence of
the KHSA: FERC relicensing for ongoing operations (and potential costly improvements paid for
by PacifiCorp for fish passage) or dam decommissioning, paid for by PacifiCorp.109 The
106 See KHSA, pp 1-2 or the appendix to this report.
107 General obligations to support the agreement for non-federal parties is laid out in Part I of the KBRA.
108 “Klamath Dam Agreement Unveiled,” September 30, 2009, press release. Available at http://www.pacificorp.com/
about/newsroom/2009nrl/kdau.html.
109 A previous study by the California Energy Commission and the Bureau of Reclamation found that removal of all
dams would be the most cost effective action for PacifiCorp (i.e., less expensive than modification of the dams). Some
have argued that this suggests that even without a dam removal agreement or outside funding, PacifiCorp would choose
to remove the dams on its own. Thus, the dam removal agreement and related concessions were unnecessary. However,
PacifiCorp has argued that relicensing would actually cost less than decommissioning, and that if the government tried
to force it to pay for removal, the company might contest removal of some or all of the dams.
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provisions of the KHSA made dam removal the favorable option, in part because they include
protection for PacifiCorp from some water quality requirements it would otherwise be forced to
pursue under existing law, while also allowing the company to operate the dams without major
changes through at least 2019. An additional significant consideration was likely the assurance
that PacifiCorp would not have to fund dam removal itself (nor be liable for it).
Opposition to Agreements
A number of groups and individuals have opposed the Klamath agreements and now argue
against their authorization. Some of these parties were initially involved in settlement
negotiations but dropped out for various reasons, while others were not invited to participate in
negotiations because they were not seen as representing significant interests. Notable opponents
of one or both of the Klamath agreements include Siskiyou and Del Norte counties in California,
the Klamath Off-Project Water Users, the Hoopa Valley and Resighini Rancheria and Quartz
Valley tribes, the Northcoast Environmental Center (NEC), Waterwatch of Oregon, Oregon Wild,
and others.
Some groups oppose the agreements because they believe they will further damage the region’s
economy. Off-project users are opposed to the Klamath agreements and have argued in previous
testimony before Congress that the agreement will put farmers (in particular, off-project
irrigators) out of business.110 Siskiyou County opposes the agreements for a number of reasons,
including the assertion by some that the PacifiCorp dams provide flood protection and economic
benefits for downstream areas.111 Some residents and officials in these areas also oppose dam
removal because of an expected loss of property taxes associated with certain lands expected to
be flooded or loss of lake access when the dams are removed.
Other groups have opposed the agreements for other reasons. Some argue that the agreements do
too little to benefit fisheries, and give up too much to farmers and other interests. For instance, the
Hoopa Valley Tribe has been critical of the agreements because they do not provide defined
amounts of water for fish, and the federal appropriations for restoration actions are unlikely to be
funded. While tribal representatives are in favor of dam removal, they argue that it could be
achieved through other processes (i.e., FERC relicensing), and should not be tied to the KBRA.
They note that by providing a stay for PacifiCorps from the FERC relicensing process, the KHSA
allows PacifiCorp to avoid project upgrades (or removal) that would otherwise be paid for by the
company and benefit fisheries in the short term.112 Combined with a lack of performance metrics
for fisheries restoration provisions in the KBRA, these opponents assert that the agreements
disproportionately benefit PacifiCorp and irrigators at the expense of fisheries.
110 U.S. Congress, House Committee on Natural Resources, Subcommittee on Water and Power, Testimony of Thomas
Mallams, Klamath Off Project Water Users Association, The Bureau of Reclamation and the American Recovery and
Reinvestment Act: A Progress Report and Planning for the Future, Hearing on the American Recovery and
Reinvestment Act, 111th Cong., 2nd sess., July 15, 2010.
111 In its draft EIS, DOI asserts that most of these concerns are unfounded. See below section, “What Are Some Other
Potential Effects of the Agreements on the Basin?”
112 Thomas P. Schlosser, “Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration
Agreements,” Washington Journal of Environmental Law and Policy, vol. 1, no. 1 (July 2011), p. 42. Available at
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1043/1WJELP042.pdf?sequence=1. (Hereinafter
Schlosser.)
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Some environmental groups oppose other provisions of the Klamath agreements and dropped out
of negotiations as a result. Waterwatch of Oregon and Oregon Wild find fault with a number of
the provisions in the agreements, including the lack of defined water supplies for fish and the
inclusion of lease-land farming on wildlife refuges.113 Similar to the Hoopa Valley Tribe, these
groups have called for voiding the KHSA and resuming water quality certification processes
under the Clean Water Act in order to force dam upgrades or removal through a separate process,
which they argue will be more expedient and cost less for state and federal taxpayers (i.e., a
process to be funded by PacifiCorp).114
Congressional Interest
As previously discussed, both Klamath agreements require congressional authorization to move
forward, and companion bills to authorize the Klamath agreements have been introduced in the
112th Congress in both the House and Senate (H.R. 3398 and S. 1851, respectively). The bills
authorize the agreements by reference, and reinforce other provisions in the agreements,
seemingly without significant changes to the contents of the agreements. If it chooses to consider
these bills, Congress might focus on a number of issues, including whether it endorses the
strategies and specific actions (e.g., dam removal, water allocations, restoration actions, and aid
for tribal and local interests) in the agreements. In addition to deciding whether it agrees with the
strategies/actions themselves, Congress might also consider the broader obligation of the federal
government to act on the agreements, and whether federal expenditures on these actions are
justified (and if so, how much).
Obligation of the Federal Government
The role of the federal government in the Klamath Basin is likely to be a central question related
to congressional consideration of the Klamath agreements. Both agreements assume numerous
actions by the federal government, and it is unlikely that many of the agreement’s provisions
could go forward under existing authorities (i.e., without explicit authorizations by Congress). In
particular, without congressional authorization for the Secretary to make a dam removal
determination, the four dams could not be removed under the process currently envisioned in the
KHSA. Further, without authorization of its provisions, it is also unlikely that many of the
programs under the KBRA could go forward. In considering authorization of the Klamath
legislation, Congress may decide whether the federal government has an obligation to act on the
agreements and, if so, to what extent.
Supporters of the Klamath agreements argue that because of the federal government’s prominent
role in the basin, including its role in the area’s resource allocation conflicts, it has a
responsibility to help solve these issues. These groups note that federal involvement, including
operation of the Reclamation Project, implementation of ESA, and management of fisheries and
federal lands, is not likely to diminish. They argue the agreements represent a delicate consensus
achieved by differing factions and are the best opportunity to solve the region’s problems. They
also argue that the agreements are likely to save the federal government from future expenditures
113 See KBRA, Section 15.4.3.
114 Ani Kame'enui and Alexander Borack, “Op-ed: Water Quality Suffers as Congress Dithers,” Redding Record
Searchlight, June 13, 2011.
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associated with litigation and emergency financial support, and that the agreements will be a
valuable source of jobs within the basin.115
Some of those opposed to the agreements note that the federal government has no clear obligation
to authorize the Klamath agreements and implement their provisions. Some of these entities have
argued that many of the activities represented in both agreements, including dam removal and
water quality improvements, could potentially occur without the federal government or through
pre-existing federal processes.116 Others, including off-project water users and some local
interests, note that the agreements, like previous federal actions in the Klamath, amount to federal
overreach and are actually more likely to harm the local economy, especially in the agricultural
and recreation industries. Finally, others argue against federal authorization of the settlement
agreements because they believe that the agreements themselves will undermine existing federal
laws (e.g., the Endangered Species Act) or undermine federal responsibilities (e.g., tribal trust
responsibilities), or that they will fail to achieve their stated goals (e.g., fisheries restoration)..
Cost of Implementation
Federal costs to implement actions contemplated under the Klamath agreements are likely to be
among the most contentious issues associated with congressional authorization. Most of the
actions in the agreement are funded by the federal government, including most of the costs for the
water resources, fisheries restoration, and tribal components of the KBRA. The original 2010
agreement included an estimate of $970 million in total costs through the year 2020.117 Since that
time, estimates have been revised downward for several reasons:
• estimates were revised to assume a 15-year implementation window (2012-2026)
rather than a 10-year window (2010-2020);
• estimates were revised to remove approximately $100 million in non-federal
costs for the various parts of the KBRA (including $23 million under the
“Counties” program, as well as $51 million in “other” funding which is now
noted as a state cost);
• some of the costs included in the original estimates for the KBRA were reduced
or eliminated due to changes in assumed necessary actions, including actions in
both agreements which reportedly overlapped;118 and
• estimates for federal costs were reduced based on the assumed availability of
“base” funding from the federal government that would be rolled into spending
totals under the KBRA (see discussion below).
115 DOI has estimated that dam removal itself will create approximately 1,400 jobs in the one-year timeframe for this
project, while other actions under the KBRA will create 4,600 jobs over 15 years, with additional gains to farming and
fisheries industries See draft EIS, Klamath Regional Economics Fact Sheet, available at http://klamathrestoration.gov/
sites/klamathrestoration.gov/files/Econ.Fact.Sheet.Sept.21.pdf.
116 See for instance, Schlosser, p. 60.
117 KBRA, Appendix C-2, p. C.6.
118 Revised Cost Estimates, p. 10.
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According to the revised estimates, the full federal cost for the KBRA would be $798.5 million,
with approximately $536 million of this amount considered to be “new” federal funding required
to implement the KBRA.119 The funding estimates assume that $262 million (approximately
$15-$21 million per year) in current base spending would continue to be available. Some may
debate the inclusion of ongoing funding in these estimates (which, depending on the activity, may
or may not be similar to activities contemplated under the KBRA). However, supporters of the
agreement argue that this spending is likely to continue in the future, and should thus not be
counted as a new cost associated with the legislation.
Regardless of the actual cost for the authorization, obtaining authorization of new funds and,
subsequently, appropriations for these activities, may be difficult for a number of reasons. For
new authorizations, there are procedural hurdles that may need to be overcome, especially in the
House. For instance, some new authorization bills may not be eligible for consideration without
an “offset” of another authorization, pursuant to House “Cut-Go” protocol (see box below).
Beyond authorization of new funds, many observers have also noted the unlikelihood of obtaining
the appropriations envisioned for the KBRA in a constrained budgetary environment.
Hypothetically, a lack of discretionary appropriations or progress associated with future actions
initially assumed in the KBRA could affect the status of support for either agreements among the
parties, and thus cause additional conflicts or fracturing of that agreement’s coalition.
Costs estimates to implement the KHSA have not changed substantially since the original
agreement, and may not garner as much attention from Congress since states are the primary
entities responsible for funding dam removal under the KHSA.120 However, a potential issue
related to the costs of dam removal is whether the Secretary will recommend the federal
government as the dam removal entity. If the Secretary does recommend the federal government
as the dam removal entity, a major question may be how the department would handle additional
costs for dam removal that could result from lawsuits.
119 Revised Cost Estimates, p. 3.
120 The KHSA provides that the states of California and Oregon are responsible for up to $450 million of the costs for
dam removal, but makes no provision for costs beyond this cap. If estimates conclude that costs are likely to exceed
$450 million, then the Secretary must put off a determination until a plan to address these costs is developed.
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Cut-Go for Discretionary Authorizations in the 112th Congress121
Discretionary authorizations do not have a direct effect on the federal budget. Instead, they authorize, explicitly or
implicitly, the enactment of appropriations for specified purposes. It is the subsequent appropriations, and not the
authorization of appropriations, that provide the legal authority to obligate funds. As a result, such discretionary
authorizations do not, by themselves, increase federal spending or increase the federal deficit.
Current budget enforcement rules are intended to constrain congressional action on legislation directly affecting the
federal budget. For instance, the Senate’s PAYGO rule (§201 of S.Con.Res. 21, 109th Congress), or the House’s Cut-
Go rule (clause 10 of Rule XXI), do not apply to most discretionary authorizations, and currently there are no budget
enforcement rules that would constrain the levels of discretionary authorizations provided in legislation.122 However,
the House Majority Leadership has established a “protocol” relating to legislation authorizing discretionary
appropriations, which is intended to guide “the scheduling and consideration of [such] legislation on the House
floor.”123 The “Cut-Go for Discretionary Authorizations” protocol generally requires that any discretionary
authorizations for a new program, and any increase in discretionary authorizations for an existing program, be offset
by an equivalent reduction in discretionary authorizations of an existing program.
How the protocol is applied depends on three key determinations. The first two determinations relate to what
discretionary authorizations need to be offset. First, the protocol requires that any discretionary authorizations for
“any new agency, office, program, activity, or benefit” would need to be offset. This determination would seem to
depend on what constitutes “new.” While a new agency or office might be self-evident, what constitutes a new
“program, activity, or benefit” might be open to interpretation. For example, a discretionary authorization for a
specific activity could be construed as part of a more general ongoing activity, and therefore not be considered “new”
for purposes of the protocol. In contrast, “new” could be construed very strictly, and require that any newly specified
authorized activity (i.e., any proposed authorization not currently existing in statute) would require an offset.
Second, the protocol basically defines an increase in an existing program authorization as any amount in excess of
“the overall increase in the relevant function area in the most recent budget resolution.” That is, the discretionary
authorizations for an existing program may be increased as long as it is assumed in the most recent budget
resolution.124 For example, if the budget resolution assumes that an existing program authorization would increase by
$2 million each year, then such an increase in discretionary authorization for such program presumably would not
need to be offset. In contrast, if the discretionary authorization for the same program proposed an increase of $3
million each year, then $1 million each year presumably would need to be offset.
Finally, the third key determination relates to what would constitute an appropriate discretionary authorization offset.
The protocol requires a “reduction in the authorization of current ongoing spending” to offset the “full value” of an
applicable discretionary authorization.125 It defines such reduction as “a new authorization level below the amount
actually appropriated for such purposes in the most recent fiscal year.” An appropriate offset under the protocol,
therefore, is not a cut in existing authorized levels for a particular purpose but rather the establishment of an
authorization level for such purpose that is below the amount of appropriations provided in the most recent fiscal
year. For example, if $20 million in budget authority was provided in an appropriations act in the most recent fiscal
year for an ongoing activity, then the establishment of an authorization level of $10 million for such activity
presumably would qualify as a $10 million offset, regardless of the existing authorization level, or lack thereof, for
such activity.126
121 This section was written by Bill Henniff, Jr., Analyst in Congress and the Legislative Process.
122 The amount of spending for such authorizations ultimately is determined in the annual appropriations process. Such
annual appropriations are subject to certain budget enforcement rules. Appropriations are capped in each fiscal year
through allocations to the House and Senate Committees on Appropriations. These allocations are intended to control
the overall level of discretionary appropriations on an annual basis.
123 The House Majority Leadership’s “Legislative Protocols for the 112th Congress” are available at
http://www.majorityleader.gov/Protocols/.
124 The most recently adopted budget resolution is the FY2010 budget resolution (S.Con.Res. 13, 111th Congress).
125 The protocol does not indicate the time frame of an appropriate discretionary authorization offset. That is, the
protocol might require an equivalent offset for each fiscal year for which the applicable discretionary authorization is
provided, or it might require an equivalent offset for the total of all fiscal years for which the applicable discretionary
authorization is provided.
126 In general, under House Rule XXI (as well as Senate Rule XVI), an appropriation in excess of the authorized level
(continued...)
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Dam Removal Determination
Some assert that congressional authorization of the agreements would be an implicit endorsement
not only of federal actions, but of the agreements’ other provisions (i.e., actions by non-federal
entities). This is true for one of the most controversial actions represented in the agreements: dam
removal. While the federal government would not fund dam removal under the current version of
the KHSA, DOI is directing the study process to determine whether dam removal is in the public
interest, and requires congressional authorization to make the final determination.
Authority for the Secretary of the Interior to make a final determination on dam removal is a key
step in the dam removal process, and some argue that Congress’s action on the legislation could
either endorse or prevent the largest dam removal project in history to date. Since draft findings
have raised few major drawbacks associated with removal, opponents of dam removal argue that
providing the Secretary with authority to make this decision will be tantamount to congressional
approval for dam removal itself, and should thus be avoided at all costs. On the other hand, some
note that congressional refusal to authorize the secretarial determination would not necessarily
stop dam removal, especially if PacifiCorp pursued an alternative dam removal process that did
rely on the federal government to go forward (such as the KHSA does).
Other Frequently Asked Questions
The Klamath agreements bring up a number of complex questions that may be considered by
Congress. This section includes questions that are common regarding the Klamath agreements.
Will the Agreements End Litigation in the Klamath Basin?
A central argument for congressional authorization of the Klamath agreements is that the
agreements will end or limit conflicts in the Klamath Basin. As previously discussed, if
authorized by Congress, the agreements would provide for the settlement of some legal conflicts
in the basin (see section on “Water Rights Claims”). Furthermore, by laying out a suite of actions
that are acceptable to those stakeholders who are party to the agreements, many argue that the
agreements render future lawsuits less likely.
However, the Klamath Basin agreements do not determine water rights in the basin, nor do they
provide for the resolution of all water rights claims in the basin. The Klamath Basin Adjudication
would continue to adjudicate outstanding claims asserted by water users. Although some claims
between Klamath Project water users and tribal water users may be withdrawn under the
agreements, the KBRA nonetheless contemplates the possibility of future claims by other parties
(i.e., those unrelated to water management decisions or the failure to protect water rights). The
agreements are analogous to contracts between consenting parties. As such, any party who wishes
to withdraw from the terms and conditions of the agreements would be liable under contract
principles.
(...continued)
is considered an unauthorized appropriation and is prohibited. The establishment of a new authorized level apparently
is based on the idea that a Member could raise a point of order under the rule against an appropriation in excess of the
authorized level when the subsequent appropriations legislation is considered on the House floor. In this way, the
discretionary authorization protocol may lead to a reduction in the actual amount appropriated.
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Will the Agreements Result in Restored Fish Populations in the Klamath
Basin?
The causes of fish population declines are numerous and vary depending on species and location
within the Klamath Basin. Similarly, fish restoration is likely to depend on integrating numerous
restoration efforts required by both Klamath agreements, and the success of these efforts may not
be uniform for all of the basin’s fisheries. Further, the outcomes and timing of restoration efforts
are subject to uncertainties because of the complexity of interrelated elements of the Klamath
ecosystem and the effects of exogenous factors on fish abundance such as ocean conditions and
climate change.
Removal of the four lower dams on the Klamath River mainstem would open 420 miles of
historical fish habitat that is currently closed off to anadromous fish such as salmon, steelhead,
and lamprey.127 Dam removal may also decrease the incidence of blue-green algal blooms that are
harmful to fish and other aquatic organisms and allow gravel previously retained behind dams to
contribute to spawning habitat. The KBRA intends to complement dam removal by improving
habitat, screening diversions, and increasing instream flows to mimic natural river conditions.
Survival of outmigrating salmon may improve because flows, water temperature, and other
conditions would be likely to more closely resemble historical conditions that existed prior to
dam construction, while the risk of extended low flows also may be minimized.128 In 2011 DOI
issued a draft environmental impact study (EIS), as well as numerous other reports and
documents that are expected to inform the Secretary’s dam removal determination. A draft of one
of these reports, widely cited by DOI, concluded that removal of the four dams would lead to
long-term benefits for fisheries, including an increase of approximately 81% in Chinook salmon
production.129 The effect on other fish populations, including coho salmon, is more uncertain, but
DOI has asserted that approximately 68 miles of potential coho habitat would be restored, and
that water quality would be enhanced.130
Most of the primary supporters of the KHSA believe that dam removal would result in net long-
term gains for the Klamath Basin’s fisheries. However, some have argued that the long-term
improvements from dam removal will be outweighed by short-term harm from the release of
sediments that that have accumulated behind the dams. DOI concluded that the short-term
negative effects of sediments on fisheries would be somewhat negligible, but could be negated by
timing the removal of dams for the winter (so as to not coincide with major upstream or
downstream fish migrations).131 According to an expert panel funded by (but not representing) the
Fish and Wildlife Service, suspended sediment would be high for up to eight months, and
although the effect of these concentrations on migrations may be minimal, spawning gravels may
127 John Hamilton, Dennis Rondorf, and Mark Hampton et al., Synthesis of the Effects to Fish Species of Two
Management Scenarios for the Secretarial Determination on Removal of the Lower Four Dams on the Klamath River,
Biological Subgroup for the Secretarial Determination Regarding Potential Removal of the Lower Four Dams on the
Klamath River, June 13, 2011. Hereinafter “Synthesis of the Effects, 2011.”
128 Synthesis of the Effects, 2011.
129 Noble Hendrix, Forecasting the Response of Klamath Basin Chinook Populations to Dam Removal and Restoration
of Anadromy Versus No Action, Department of the Interior, Review Draft, Redmond, WA, September 20, 2011, p. 2,
http://klamathrestoration.gov/sites/klamathrestoration.gov/files/
EDRRA%20Report%20Hendrix%209.21.11%20Draft.pdf.
130 See Department of the Interior, Klamath Secretarial Determination Process: Summary of Key Conclusions.
September 21, 2011. p. 1, http://klamathrestoration.gov/sites/klamathrestoration.gov/files/Final.Summary.Sept.21.pdf.
131 Draft Environmental Impact Statement, p. ES-40.
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be impacted by silt for up to several years. This study also concluded that the extent of benefits
that can be expected from dam removal will depend heavily on the extent to which pre-existing
water quality issues in the Klamath River can be resolved. Since these issues are purportedly
addressed in the KBRA, some note that removal of the four dams alone will not be sufficient to
restore salmon and other fish unless it is tied to successful implementation of the KBRA.
Dam removal would have little or no effect on resident species of the Upper Klamath Basin such
as Lost River and shortnose suckers. However, these species are likely to benefit from the KBRA
fisheries and water programs, which seek to improve water flows, quality, and habitat,
particularly in Upper Klamath Lake.132 Some, including DOI, have noted that that improving
water quality in Klamath Lake will be difficult because of the lake’s natural conditions. Stream
flows and water quality improvements related to KBRA actions may also increase productivity of
these species.
What Are Some Other Potential Effects of the Agreements on the Basin?
Besides the aforementioned effects on fisheries, other potential impacts to the basin resulting
from dam removal have been noted and, in some cases, studied. According to DOI, potential
impacts include the loss of a small amount of flood storage on the Klamath River (mostly in the
area immediately downstream of Iron Gate Dam), reduced property values for some reservoir
frontage property (including 127 single family homes, mostly around Iron Gate Dam and J.C.
Boyle Dam), and some reductions in white water rafting opportunities upstream of J.C. Boyle
Dam.133 Dam removal will also result in a loss of hydroelectric power produced by PacifiCorp.
According to DOI , the dams represent approximately 2% of PacifiCorp’s total generating
capacity, and produce an annual average of approximately 716,00 megawatt-hours (MWh)
electricity, of which 686,000 MWh would need to be replaced under the proposed dam removal
plan.134 DOI has also acknowledged a potential increase in greenhouse gas emissions due to this
loss, and the expected sources of replacement power.
The cumulative economic effects of both agreements (including the economic effects of fisheries
restoration) is one of the many items that has been studied by DOI.135 Preliminary analysis of
National Economic Development benefits by DOI concluded that approximately $225 million in
benefits to irrigated agriculture, fishing, and other sectors would result from the agreements,
although DOI noted that several potentially substantive benefits (e.g., tribal fisheries and cultural
values) remained unquantified as of December 2011. In addition to the implementation costs of
the agreements, these studies projected approximately $1.32 billion in forgone hydropower
benefits (not included operations/maintenance savings), as well as $41 million in forgone
reservoir and whitewater recreation benefits.136
132 Synthesis of the Effects 2011.
133 Regarding flood control, according to DOI only Iron Gate and Copco 1 provide noteworthy protection during flood
events (approximately 5% attenuation, according to DOI). In its draft environmental impact statement, DOI states that
the 100-year floodplain downstream of Iron Gate Dam would change slightly as a result of removal, and proposed
mitigation measures as a result. See Draft Environmental Impact Statement, p. 3.6.30.
134 Draft Environmental Impact Statement, p 3.10-27.
135 See Bureau of Reclamation, Economics and Tribal Summary Technical Report, Department of the Interior, Denver,
CO, September 2011, pp. ES-4, http://klamathrestoration.gov/sites/klamathrestoration.gov/files/EIS-EIR-Draft/Econ-
Reports/Economics-Tribal_9-12_FULL%28accessible%29.pdf. (Hereinafter Economics Summary.)
136 Economics Summary, p. ES-5.
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How Do the Agreements Affect Endangered Species Act Implementation?
Whether the Klamath agreements will alter implementation of the Endangered Species Act
(ESA), and to what extent, is a matter of disagreement. Previous biological opinions established
minimum flows on the Klamath River for coho salmon, as well as actions intended to aid the
recovery of Lost River and shortnose suckers. According to supporters, the Klamath agreements
will be considered to the maximum extent practicable under the Endangered Species Act.137 At
the same time, both agreements state that implementation of the agreements shall not affect
implementation of the Endangered Species Act by the Department of the Interior or the National
Marine Fisheries Service.138 Currently it is unclear how both claims would be accommodated.
While the agreements do not “waive” application of the ESA, some groups that were not
signatories argue that certain provisions, in particular the defined water allocations for irrigators,
would have the effect of undermining the ESA. These groups note that the defined allocations for
irrigators would provide more water than irrigators received under ESA regulations during recent
“low” water years, and will thus provide less water for the environment and harm fish species.
They also note that while other processes under the ESA will go forward apart from the KBRA,
the “assurances” in the agreements, if adopted in legislation, could result in additional pressure on
rulemaking agencies to adopt biological opinions that allow the flows set forth in the Water
Resources Program.
Supporters note that the Klamath agreements are likely to provide more resources and effort to
improve environmental quality for listed fish species, which would in effect provide for positive
mitigation actions for listed species. Improvements under the KBRA, including new fish habitat
and improved water quality, are assumed to result greater fish abundance, which would in turn
allow managers to forgo restrictive measures under the ESA. Furthermore, if landowners perceive
that success of fish restoration efforts are in their long-term interest, they may become more
receptive to voluntary actions such as screening diversions and improving habitat under the terms
of the agreements. In other words, some believe that the KBRA could also encourage more
“cooperative” actions (as opposed to regulatory actions) that would improve the likelihood of the
recovery of listed species.
What Happens If the Agreements Are Split Up or Changed?
Some might argue that one or both agreements will have a better chance of being enacted if they
are considered separately by Congress, or else altered to remove controversial parts (e.g., dam
removal). Officially, signatories to the Klamath agreements have stated that their support for the
agreements is contingent on concurrent authorization of both agreements. Also, as previously
noted, the agreements contain a number of interrelated actions. Splitting up the agreements might
thus result in a fracturing of the coalition of current signatories, and would likely be opposed by
at least some of the current coalition of supporters. However, whatever federal activities are
authorized could hypothetically go forward.
137 Klamath Basin Coordinating Council, “Summary of the Klamath Basin Settlement Agreements,” May 2010,
available at http://216.119.96.156/Klamath/Summary%20of%20Klamath%20Settlement%20Agreements%204-5-
10.pdf.
138 For example, see KBRA Sections 2.1, 19.1, 20.3.1, and 22.5.
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If Congress does decide to materially change the agreements, it could trigger meet and confer
and/or dispute resolution processes under the agreements. Specifically, Section 3.2.4.B.vi of the
KBRA provides that any party who believes that enacted authorizing legislation is not “materially
consistent” with the KBRA can seek a resolution that would result in either amendment of the
authorizing legislation or amendment of the KBRA. The KHSA provides for similar meet-and-
confer procedures (and potential termination of the agreement) in the event of enacted legislation
that is materially inconsistent with the KHSA.
What Are the Alternatives to the Klamath Agreements?
Some have pointed out that there are alternative solutions to the issues that the Klamath
agreements aim to settle, some of which would not require congressional involvement in the form
of authorizations and appropriations for specific actions. For instance, some groups opposed to
the agreements but in favor of dam removal or other environmental improvements have argued
that, were it not for some of the protections in the KHSA, processes that would otherwise proceed
under the Clean Water Act or the FERC relicensing process would potentially force PacifiCorp to
add fish passage and/or remove some (or all) of the dams on its own, potentially on a timeline
sooner than the 2020 deadline envisioned in the current agreements.139 Supporters of the KHSA
generally disagree with this idea, and note that such a process would likely be contentious,
involving years of litigation and no guarantee of dam removal at the same scale and in the same
time frame currently promised under the KHSA.
Others point out that the status quo, while imperfect, may be preferable to many of the provisions
included in the Klamath agreements, including the array of additional actions by federal and state
governments. These interests point out that a considerable amount of federal spending and
planning already takes place in the Klamath, and the likely future costs of litigation and the
expected needs for more federal action will not outweigh the considerable new investments
envisioned under the agreements. These interests also note that while proceeding under an ad-hoc
approach that prolongs conflicts in the basin up to this point may not be ideal, it is preferable to
some of the trade-offs which have been made under the agreements.
What Happens If Congress Chooses Not to Authorize the Agreements?
If Congress does not authorize the agreements, many (but not all) of the federal actions in the
agreements could not be implemented. As previously noted, some actions could go forward under
existing authorities, although the scope of those actions has not been fully delineated by DOI.
DOI has stated that absent congressional authorization of the KHSA, the Secretary will not be
able to make a final determination on dam removal, a key step in the restoration process.140 Other
notable parts of the KBRA that are not currently authorized, and may potentially be unable to go
forward without congressional authorization, include the water rights assurances and the water
retirement program, as well as other provisions.141 Other ongoing activities would likely continue
regardless of the status authorization of the agreements (e.g., operation of the Klamath projects
and enforcement activities required under the ESA).
139 Schlosser.
140 Communication with DOI Solicitor’s Office, September 19, 2011.
141 CRS has not conducted a formal analysis to analyze whether these provisions are possible under current authorities.
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Another potential effect of Congress not enacting the agreements could be “termination” of one
or both of the agreements. Each agreement contains termination provisions that provide the
option for termination if Congress does not enact the legislation, although termination is not
automatic for either agreement. Section 8.11 of the KHSA outlines the process for termination,
while Section 7.6 of the KBRA outlines the process under that agreement. Alternatively, parties to
the agreements can also go back and amend the agreements so as to make them more palatable to
Congress or alter their current structure.
Conclusion
To many, the Klamath agreements represent a potential solution to a series of conflicts between a
complex array of interest groups with a history of conflicting values and perspectives. To others,
they represent an unfair and unnecessary resolution to these contentious issues. The ability of the
two interrelated agreements to solve long-term issues in the Klamath Basin will depend on a
number of factors, including complex ecological and hydrological processes that are not fully
understood. In considering the agreements, Congress may weigh such factors as the likelihood of
more problems in the basin (and the associated costs of these problems), the advisability of
strategies in the agreements, and whether the costs of these actions are justified.
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Appendix A. Klamath Basin Fish Species
Table A-1.Listed Freshwater Fish Species of the Klamath River
Range, Condition, and Threats
Fish Species/Life
History
Range Condition
Threats
Lost River Sucker
Endemic to the Upper
Listed as endangered under
Damming tributaries,
Deltistes luxatus
Klamath Basin of southern
the federal ESA and the
instream flow diversions,
Oregon and northern
California ESA
competition and predation
Lake dwelling, but spawn California, currently found
by invasive species, habitat
in tributaries
in Upper Klamath Lake and
loss and degradation, and
its tributaries, Clear Lake
poor water quality, Upper
Reservoir and it tributaries,
Klamath Lake anoxic
Tule Lake and Lost River
conditions result in die-offs
up to Anderson-Rose Dam,
and algal toxins believed to
Klamath River downstream
harm juvenile health
to Copco Reservoir, and
probably to Iron Gate
Reservoir
Shortnose Sucker
Endemic to the Upper
Listed as endangered under
Damming rivers, instream
Chasmistes brevirostris
Klamath Basin of southern
the federal ESA and the
flow diversions,
Oregon and northern
California ESA
competition and predation
Lake dwelling, but spawn California, currently found
by invasive species, habitat
in tributaries
in Upper Klamath Lake and
loss and degradation and
its tributaries, Clear Lake
poor water quality, Upper
Reservoir and it tributaries,
Klamath Lake anoxic
Tule Lake and Lost River
conditions result in die-offs
up to Anderson-Rose Dam,
and algal toxins believed to
Klamath River downstream
harm juvenile health
to Copco Reservoir,
Gerber Reservoir, and
probably to Iron Gate
Reservoir
Bul trout
Historically occurred
Listed as threatened under
High nutrient levels
Salvelinus confluentus
throughout the Klamath
the federal ESA
resulting in algal blooms in
Basin, currently found in
impoundments behind
two streams of the Upper
dams. Generally poor
Klamath watershed, six
water quality and degraded
streams in the Sprague
habitat
river watershed, and one
stream in the Sycan River
watershed
Source: CRS, based on Public Draft Klamath Facilities Removal EIS/EIR 2011.
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Table A-2. Selected Anadromous Species of the Klamath Basin
(range and condition)
Fish Species
Current Range
Former Range
Condition
Coho Salmon
Throughout the Klamath
Formerly widely distributed
Listed as threatened under
(Oncorhychus kisutch)
River system below Iron
in the Klamath watershed
the federal ESA and
Southern Oregon/Northern
Gate Dam
including areas above Iron
California ESA
California ESU
Gate Dam to the vicinity of
Spencer Creek.
Chinook Salmon
The Southern OR/Northern
Populations reduced from
(Oncorhychus kisutch)
CA ESU includes all naturally
historical levels, but a 1999
Southern OR/Northern CA
spawned Chinook salmon in
status review determined
ESU
the Lower Klamath River
that a listing was not
downstream from the
warranted for either ESU
Trinity River confluence
Upper Klamath/Trinity River
The Upper Klamath/Trinity
Formerly widely distributed
The Upper Klamath/Trinity
ESU (both fal and spring runs River ESU includes all
in the Klamath watershed
River ESU is a candidate for
are included in the ESU
naturally spawned Chinook
including areas above Iron
ESA listing, alternatives
upstream of the confluence
Gate Dam in the Upper
include listing the entire ESU
of the Klamath and Trinity
Klamath Basin and tributaries
(fal and spring runs), the
Rivers, the spring run is
of Upper Klamath Lake
spring run within the existing
generally limited to the
ESU, or the spring run as a
Salmon and Trinity Rivers
separate ESU, (the spring run
has relatively low abundance
and varies widely by year)
Steelhead Trout
Throughout the Klamath
Formerly above Iron Gate
Reduced population level,
(Oncorhynchus mykiss)
River below Iron Gate Dam
Dam in the Upper Klamath
but not in danger of
Summer and winter runs are
Basin likely including the
extinction
part of Klamath mountain
tributaries to Upper Klamath
province ESU
Lake
Coastal Cutthroat Trout
Primarily in small tributaries
Likely similar to current
A status review in 1999
(Oncorhynchus clarki
to the lower 22 miles of the
range, generally species do
determined the ESU did not
clarki)
Klamath River mainstem
not move more than 100
warrant an ESA listing.
Southern Oregon and
miles from the coast, no
California Coast ESU
accounts of coast cutthroat
above Iron Gate dam
Pacific Lamprey
Klamath River and tributaries Formerly above Iron Gate
Petitioned for ESA listing in
(Lampetra tridentate)
below Iron Gate Dam,
Dam to Spencer Creek and
2003, but USFWS halted
(only anadromous species,
possibly to Upper Klamath
status review in 2004 due to
there are six Klamath
Lake.
inadequate information
resident species of lamprey)
Green Sturgeon
Spawn primarily in the lower
Likely similar to current
Northern population
(Acipenser medirostris)
67 miles of the Klamath
range, no evidence of native
segment is a species of
Northern green sturgeon
mainstem, in the Trinity, and
sturgeon above Iron Gate
concern, in Klamath the
distinct population segment
Lower Salmon River
dam
population appears to be
stable
Source: CRS, based American Fisheries Society, 2005, and Public Draft Klamath Facilities Removal EIS/EIR 2011.
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Appendix B. Summary of Previous Events
The 2001 “Water Crisis”
Recent controversies in the Klamath Basin have resulted from the interaction of Reclamation’s
annual operation of the Klamath Project for irrigation with other purposes and legal
considerations—specifically, the appropriate levels of and releases from Upper Klamath Lake—
and the effect of that operation on threatened and endangered species in the basins. The most well
known of these controversies occurred under drought conditions in April 2001, when the FWS
and NMFS each issued biological opinions concluding that Reclamation’s proposed operation of
the project for 2001 would jeopardize the continued existence of the two species of suckers and
the population of coho salmon. As a result, on April 6, 2001, Reclamation announced that “no
water [would] be available” for farms normally receiving water from Upper Klamath Lake to
avoid jeopardizing the listed species in question.142 The projected effect of this decision would be
to curtail irrigation water deliveries to approximately 200,000 acres of farm and pasture lands
within the roughly 235,000-acre Klamath Project service area. In the face of having no water for
the coming growing season in much of the project area, farmers threatened to open Reclamation
head gates by force, and federal officials were reportedly threatened. The crisis made national
news and created a virtual stand-off between federal officials and farmer activists.
Subsequently, in late July 2001, well into the growing season, Secretary of the Interior Gale
Norton announced that additional water would be released from Upper Klamath Lake. Coupled
with other water supplies, Klamath Lake farms eventually had access to approximately 30% of
their typical water supply in 2001;143 however, much of this water came from groundwater
supplies at added cost. While Lower Klamath National Wildlife Refuge received no water from
Upper Klamath Lake in 2001, the refuge subsequently received water from Clear Lake and a
number of other sources (including additional rainfall).144
Regional economic losses resulting from the 2001 Reclamation plan were in part mitigated by
measures including federal disaster payments, additional water allocations after the initial shutoff,
and water from water banks and groundwater pumping. A 2002 study estimated that the regional
economy “fared better than most observers expected in 2001” due to federal crop insurance and
other disaster assistance programs;145 however, the report also noted that regional economic
effects of the curtailed deliveries varied widely for individual irrigators, depending on whether
they owned or leased land, and other factors.146 Also, as noted above, not all project water users
142 See http://www.usbr.gov/mp/kbao/klamath_project.html. Prior to 2001, “normal” (non-dry or non-critically dry) net
water deliveries for agricultural use from the lake usually ranged from 325,000 af to 400,000 af. Written
Communication, U.S. Bureau of Reclamation, April 22, 2010.
143 William S. Braunworth, Jr., Teresa Welch, and Ron Hathaway, et al., Water Allocation in the Klamath Reclamation
Project, 2001, Oregon State University Agricultural Extension Service, Special Report 1037, 2002, p. 258,
http://extension.oregonstate.edu/catalog/html/sr/sr1037-e/. Hereafter “Braunworth et al.”
144 In sum, the refuge received approximately 23,815 af from May 1 through October 31 (74% of the minimum figure
required in the Biological Opinion). Under FWS’s Biological Opinion of April 5, 2001, the Refuge was to receive a
minimum of 32,255 af of any extra water that might be available from the Upper Klamath Lake. Communication from
Tim Mayer, Region 1, Fish and Wildlife Service, U.S. Dept. of the Interior, on April 2, 2002.
145 Braunworth et al., p. 14. Klamath water users previously cited a significantly higher number of between $160
million and $220 million in impacts before the relief efforts took hold.
146 Braunworth et al., p. 276. For example, federal disaster payments in most cases went to landowners, not tenants who
(continued...)
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were affected by the April 6 cut-off decision. Thus, while some farmers faced severe water
shortages for several months, others in the surrounding area did not.
Because of the controversy surrounding the 2001 biological opinions, the Secretary of the Interior
sought and secured review of the scientific decisions by the National Research Council (NRC), an
arm of the National Academy of Sciences. The committee concluded that scientific data were
insufficient to support any of the Upper Klamath Lake level management regimes proposed by
federal agencies for the 2001 growing season, although it did find support for other measures
included in the NMFS and FWS biological opinions.147
The “Fish Crisis” of 2002
While Klamath fisheries have declined significantly from historical levels, a dramatic event in
2002 renewed water management concerns throughout the Lower and Upper Basins. In
September 2002, thousands of adult salmon died in the lowermost 40 miles of the Klamath River
mainstem. While fall-run Chinook salmon were the primary species affected, coho salmon,
steelhead trout, and other species were also lost.148 This loss, reportedly one of the largest
recorded in U.S. history, prompted renewed focus on Klamath Project operations. Some believe
Klamath Project water management decisions—made in the spring of 2002—were responsible for
the 2002 fish kill; others dispute this view.
On March 29, 2002, Reclamation began water deliveries to farms for the 2002 growing season
based on two-month (April and May) “letters of concurrence” issued by the NMFS and the FWS.
By late April 2002, Reclamation had reduced mainstem flow below Iron Gate Dam to 1,350 cubic
feet per second (cfs), despite significantly increased rainfall in the Klamath Basin. This flow was
350 cfs less than the amount identified by NMFS’s 2001 biological opinion as the minimum flow
necessary to prevent coho salmon extinction. The Pacific Coast Federation of Fishermen’s
Associations (PCFFA) and others filed suit to enjoin these reduced flows, in a suit in which many
counties and Tribes intervened.149 Although the court determined the 2002 biological opinion and
resulting agency action to be arbitrary and capricious, it allowed their continued implementation
as to short-term flows.
On April 25, 2002, the FWS released its draft biological opinion on the impact of the Klamath
Water Project on Upper Klamath Basin species, indicating that Reclamation’s proposed 10-year
(June 1, 2002, through March 31, 2012) plan would jeopardize the continued existence of sucker
species, and noting a number of actions needed to mitigate impacts. Higher lake levels were not
(...continued)
may have not found other farm work—whereas well drillers were in high demand. Likewise, the impacts on
agricultural suppliers who experienced declines in demand for their services and products was different from firms
supplying goods and services to well drillers and other economic activities in the basin.
147 National Academy of Sciences, National Research Council, Endangered and Threatened Fishes in the Klamath
River Basin: Causes of Decline and Strategies for Recovery (Washington, DC: 2004), pp 5-9. http://www.nap.edu/
openbook.php?isbn=0309090970
148 State of California, September 2002 Klamath River Fish-Kill: Final Analysis of Contributing Factors and Impacts,
Department of Fish and Game, July 2004, http://www.pcffa.org/KlamFishKillFactorsDFGReport.pdf. (Hereafter
“California Analysis.”)
149 Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 2003 U.S. dist. LEXIS 13745
(N.D. Cal.2003).
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required except in dry and critically dry years. On May 16, 2002, NMFS released its draft
biological opinion, also concluding that Reclamation’s 10-year plan would likely jeopardize the
downriver coho salmon. The PCFFA lawsuit was the first challenge to Reclamation’s 10- year
plan, although the plan was criticized by fishermen and the California Department of Fish and
Game as reducing the chances for successful fish restoration and having devastating impacts on
down-river salmon fisheries.
The final biological opinions from both FWS and NMFS were released on May 31, 2002. Both
Final Opinions found Reclamation’s 10-year plan likely to jeopardize the continued existence of
ESA-listed species. The NMFS jeopardy determination focused on incremental depletions of Iron
Gate Dam flows over the 10-year plan, increasing risk to coho salmon. The FWS jeopardy
determination focused on (1) sucker “entrainment” losses150 at Project dams and diversions in
Upper Klamath Lake; (2) adverse Project effects on water quality and sucker health in Upper
Klamath Lake; and (3) sucker habitat loss in Upper Klamath Lake. FWS and NMFS each
developed “reasonable and prudent” alternatives to avoid the jeopardizing effects of Project
operations. On June 3, 2002, however, Reclamation formally rejected both final biological
opinions for the 10-year plan, and opted instead to operate under a one-year plan that it asserted
complied with the opinions.
Although Reclamation asserted that its plan complied with the NMFS and FWS biological
opinions, more than 33,000 adult salmon died in September 2002. Most of the salmon killed,
however, were Chinook salmon, not the ESA-listed coho (which enter the Klamath at a different
time). Coming on the heels of Reclamation’s controversial decision to curtail flows from Upper
Klamath Lake in 2001 and then to resume irrigation flows, many believed water management
decisions in the Upper Basin contributed to the 2002 fish kill; others believed flows similar to
2001 would not have prevented the fish kill. Regardless, the direct cause of this fish kill was an
epizootic disease.151 Several factors contributed to stressful conditions for fish, which ultimately
led to the epizootic disease—(1) an above average number of Chinook salmon entered the
Klamath River from the ocean between the last week in August and the first week in September
2002; (2) river flow and volume of water in the fish-kill area were atypically low (due in part to
drought); and (3) water temperatures were very warm.152 These three factors resulted in high fish
densities which may have been further exacerbated by impeded fish passage upstream due to low
water depths of certain riffles, perhaps caused by higher Trinity water flows several years earlier
that may have changed the stream bed. The warm water temperatures and high fish density
created ideal conditions for pathogens to infect salmon and spread quickly; however, neither the
flows nor the temperatures that occurred were unprecedented.153 It is not clear to what degree
Reclamation’s spring 2002 decisions contributed to these factors, but the NRC postulated that the
flows in the Trinity River “could be most effective in lowering temperatures,” presumably in the
future.154
150 Entrainment (i.e., entrapment) occurs when sucker larvae, juveniles, sub-adults, and adults enter water diversions
and become trapped. Screening of water diversions to reduce sucker entry is the primary means to address this concern.
151 This epizootic disease was a combination of ubiquitous ich (the ciliated protozoan parasite Ichthyophthirius sp.) and
columnaris (infection by the bacterium Flexibacter columnaris) pathogens.
152 California Analysis.
153 2004 NRC Report, p. 9.
154 2004 NRC Report, p. 9.
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Klamath River Basin: Background and Issues
2006 Klamath Fishery Disaster Determination
Chinook salmon stocks that spawn in California and Oregon rivers intermingle in the ocean and
are harvested together in the commercial salmon troll fishery off the coasts of these states.155
Klamath River fall Chinook salmon is a key stock with respect to both landings and regulation of
the fishery. When Klamath returns are projected to fall below 35,000 naturally spawning adults,
the Pacific Fishery Management Council (PFMC) is required to recommend a closure of the
salmon fisheries between Cape Falcon, Oregon and Point Sur, California (the Klamath impact
area). Although other salmon stocks may be in good condition, a weak Klamath Chinook salmon
stock may constrain a large portion of the West coast ocean salmon fishery.
In 2006, the number of naturally spawning adults was below the minimum conservation objective
of 35,000 naturally spawning adults. According to the National Oceanic and Atmospheric
Administration (NOAA), the low number of fish returning to the Klamath River likely resulted
from a combination of factors including poor ocean conditions, dry water years, and diseases
resulting from poor in-river conditions.156 PFMC recommended, and NOAA issued regulations to
restrict catch by closing most areas off Oregon and California from May 1, 2006, to August 31,
2006. Although a complete closure of the fishery was avoided, landings decreased in 2006 by
81% when compared to the average of the preceding five years.157
The governors of Oregon and California requested a fishery disaster determination from the
Secretary of Commerce based on the 2006 forecast of Klamath River fall Chinook salmon returns
and the actions taken in the spring of 2006 by the PFMC and NMFS. On July 6, 2006, the
Secretary of Commerce declared a commercial fishery failure under Section 308(b) of the
Interjurisdictional Fisheries Act, and on August 10, 2006, under Section 312(a) of the Magnuson
Stevens Fishery Conservation and Management Act. In May 2007, the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, (P.L. 110-
28) allocated $60.4 million to NOAA for eligible recipients affected by the commercial fishery
failure. Assistance was distributed by the Pacific States Marine Fisheries Commission to Oregon
and California fishermen and Indian tribes that rely on salmon. Salmon troll fishery landings and
revenue improved during the 2007 season, but in 2008 the ocean fishery was limited by low fall
Chinook salmon returns to the Sacramento River.
155 There also is a significant recreational ocean fishery for Chinook and coho salmon.
156 See, http://www.swr.noaa.gov/klamath/klam_disast_relf.htm.
157 From 2001 to 2005, the dressed weight of Oregon and California troll salmon landings averaged 8.025 million
pounds, but in 2006 landings dropped to 1.529 million pounds. For West coast troll salmon fishery statistics, see
http://www.pcouncil.org/salmon/salbluebook/salbluebook.html.
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Klamath River Basin: Background and Issues
Author Contact Information
Charles V. Stern, Coordinator
Cynthia Brougher
Analyst in Natural Resources Policy
Legislative Attorney
cstern@crs.loc.gov, 7-7786
cbrougher@crs.loc.gov, 7-9121
Harold F. Upton
Bill Heniff Jr.
Analyst in Natural Resources Policy
Analyst on Congress and the Legislative Process
hupton@crs.loc.gov, 7-2264
wheniff@crs.loc.gov, 7-8646
Pervaze A. Sheikh
Specialist in Natural Resources Policy
psheikh@crs.loc.gov, 7-6070
Acknowledgments
The authors thank Betsy Cody, CRS Specialist in Natural Resources Policy, for her contributions to this
report.
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