final paper - karen schmidt

7/30/2019 Final Paper - Karen Schmidt

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Management of Endangered and Threatened

Fish Species in the Klamath River Basin

Karen Schmidt

Extinction and Climate Change

Fall 2010

Word Count = 5,816



Introduction

The Klamath River Basin encompasses over 10 million acres of southern Oregon and

northern California, including approximately 96,000 acres of tribal trust lands, 4 million acres of private lands, and 6 million acres of public lands. Public lands are managed under the authorityof the Bureau of Reclamation, Bureau of Land Management, National Forest Service, andDepartment of Interior, while tribal lands serve six different tribes in the Basin.1 With anaverage annual discharge of more than 17,000 cubic feet per second, the Klamath is the third-largest river on the U.S. West Coast. The mean annual precipitation in the upper basin is only13.5 inches, and very little rain falls in the summer months. The headwaters of the Klamath arein Oregon, in the highly irrigated Klamath River Project area. The river is home to the third-largest salmon runs on the U.S. West Coast.2

Figure 1: Klamath River tributaries and barriers, FERC Final EIS 3-7 (2007).

Water demand in the basin exceeds supply about seven out of every ten years andagriculture in the basin is made even more challenging by the area's high elevation and short

growing season.3

Despite its aridity, the Upper Basin of the Klamath was once a vast system of interconnected shallow lakes and wetlands. However, today the vast majority of the region'swetlands have been drained for conversion to agriculture. Upper Klamath Lake is the largest

1 Nat’l Oceanic and Atmospheric Admin., Klamath River Basin, 2009 Report to Congress, 2 (2009),http://www.nmfs.noaa.gov/pr/pdfs/klamath2009.pdf.2 Reed D. Benson, Giving Suckers (and Salmon) an Even Break: Klamath Basin Water and the Endangered Species

Act , 15 TUL. E NVTL. L.J. 197, 201 (2002). 3 Holly Doremus, Fish, Farms, and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279, 291 (2003).

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remaining body of water from this vast system and is host to two endemic and endangeredspecies of fish – the Lost River and shortnose suckers. The lake is extremely shallow andsusceptible to overuse and pollution, averaging only eight feet deep when full, and falling to aslow as three feet on average in a dry year .4

Below the Upper Basin exist four hydroelectric dams blocking historical spawning

habitat for three species of salmonids – coho, chinook, and steelhead. These dams involve a vastreservoir system that provides some habitat for the endangered suckers but also poses a water allocation problem for the threatened coho salmon runs.

By the mid-1980s, many of the Klamath Basin's most important fisheries had crashed.The Lost River and shortnose suckers, historically so abundant that “a man with a pitch fork could throw out a wagon load in an hour,” were listed as endangered in 1988. In the listing of suckers, U.S. Fish and Wildlife stated the threats to the fish included significant populationdeclines with continued downward trends due to range reduction, habitat loss and fragmentation,competition and predation by exotic fishes, and other factors such as pollution.5 Coho salmonfor the Southern Oregon/Northern California Coast were listed as threatened in 1997 after historically low runs over decades.6

Most of California's native salmon, steelhead, and trout species face extinction by the endof the century without prompt measures to protect their habitat, largely due to increased pressure posed by climate change as a devastating stressor in addition to the well-known problems bydecades of water mismanagement.7 Accordingly, twenty-two percent of the state's 122remaining native fish species are already listed as threatened or endangered under the state andfederal Endangered Species Acts, and another forty-five percent are imperiled or qualified for listing.8 The endangerment of these species is critical in the face of global warming as the statemarks the southern end of the range of all anadromous species, while concurrently the dynamicgeology and climate has resulted in the evolution of many distinctive inland salmonid species.9

California salmonids are characteristic of most of California’s inland and coastal watersand they are exceptionally vulnerable to climate change, due to rising temperatures and reducedsummer flows.10 Of the 32 kinds of salmonids found in California, 20 are endemic to California andare in danger of extinction within the next century through increasing stream temperatures andreducing instream flows.11 Analysis of the status of California salmonids suggests that most taxa aredeclining rapidly and, if present trends continue, 65% will be gone within a 100 years, probablywithin 50 years.12

The issue of federal water management, private irrigation rights, and conflicting needs of endangered species management came to a head in the Klamath River fish kill of 2002. In an effortto keep water behind the reservoirs for irrigation needs and to meet minimum requirements for suckers in the Upper Basin during a drought, downstream water releases were reduced, with

devastating consequences. At least 33,000 adult salmonids died during mid to late September

4 Id. at 2915 15 TUL. E NVTL. L.J. 197, 217 (2002).6 62 Fed. Reg. 245887 Jack Tuholske, Hot Water, Dry Streams: A Tale of Two Trout , 34 VT. L. R EV. 927, FN 9 (2010). 8 Ellen Hanak et al., Myths of California Water – Implications and Reality, 16 HASTINGS W.-N.W. J. E NVTL. L. &

POL’Y 3, 10 (2010). 9 Peter B. Moyle et al., UC Davis Ctr. for Watershed Scis., Salmon, Steelhead, and Trout in California: Status of an

Emblematic Fauna, 5 (2008).10 Id. at 8.11 Id. at 12.12 Id. at 20.

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2002 in the lower 36 miles of the Klamath River. Factors leading to this kill were stressfulconditions for fish due to the atypically low river flow and volume of water, high densities of fish in holding patterns, and warmer than usual water temperatures. This created a situation for the rapid amplification of pathogens and resultant death. The total fish-kill estimate of 34,056fish was conservative and DFG analyses indicate that actual losses may have been more than

double that number.13

In 2010, the an agreement was signed between multiple stakeholders and the KlamathRiver dams’ owner to remove the four lower dams on the river and restore the river’s historicflow. Removal of hydroelectric power sources at a time of increasing concern over fossil fueluse and reduction of atmospheric carbon dioxide was a bold step promoting small-scaleecological concerns over broader and long-term concerns that will also eventually impact thesespecies. Hydroelectric power currently supplies almost one-fifth of the electricity consumedworldwide and as a source of electricity are second only to fossil fuels.14 As the world seeks newforms of energy to supplement fossil fuels, hydroelectric power is attractive in that dams canrespond almost instantly to changing electricity demands and, unlike other renewables, do notrely on weather conditions.15 One study suggests that globally a terawatt of capacity could be

added to current energy production.

16

Completing the largest dam removal in the face of calls for expanded hydroelectric capacity to meet growing demands may bring about positive ecologicalconsequences for the endangered and threatened fish in the Klamath Basin; however, removal of hydroelectric capacity will likely be replaced with fossil fuels, which in turn will have a negativelong term effect on the ecology of the basin.

This issue encompasses all of the most important direct drivers of biodiversity loss identified in the Millennium Ecosystem Assessment – habitatchange in the form of conversion to agriculture, climate change leading todisruption of migration events and availability of food, invasive species out-competing, overexploitation of resources due to overfishing, and pollutionand nutrient loading in critical habitats.17 What follows is an analysis of the

current threats to the endangered and threatened species in this watershed,actions taken under the Endangered Species Act to remedy these threats, acost-benefit analysis of maintaining or removing the lower four KlamathRiver dams, and a discussion of further options for mitigation and adaptation.

Threats to the Klamath River Fish

The Lost River sucker and shortnose sucker

The Lost River and shortnose suckers once inhabited all the major lakes of the Upper Basin and their tributaries and supported multiple canneries. These fish remained available for

13 California Dep’t of Fish & Game, September 2002 Klamath River Fish-Kill: Final Analysis of Contributing

Factors and Impacts, III (2004), http://www.pcffa.org/KlamFishKillFactorsDFGReport.pdf.14 Quirin Schiermeier et al., Electricity without Carbon, 454 Nature 816 (2008).15 Id. at 817.16 Id.17 Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Biodiversity Synthesis. World

Resources Institute, Washington, DC. 8-10 (2005).

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recreational and tribal fishery until catches sharply declined in the 1980s.18 Both suckers beginreproduction between 4-7 years of age, by migrating either to upstream tributaries or shallow,near-shore lake habitats (which are usually associated with freshwater springs) to spawn anddepositing between 18,000-236,000 eggs per individual in coarse, gravel substrates.19 Identifiedfactors explaining the endangered nature of these species populations include pollution of Upper

Klamath Lake with nutrients, introduction of non-native species leading to increased predationand competition, blockage of tributaries used by some portions of the population for spawning,destruction of habitat, and entrainment of fish into water management structures.20

The Klamath River Project consists of an extensive system of canals, pumps, diversionstructures, and dams capable of routing water to approximately 220,000 acres of irrigatedfarmlands in the Klamath Basin. This system leads to negative impacts on the suckers’ spawning behaviors by allowing for blockage of migration routes, entrainment of fish of all ages in canalsand other management structures, and alteration of flows and water levels either with respecteither to quantity or seasonal timing.21 The construction of the Sprague River Dam, located justupstream of the confluence of the Sprague and Williamson Rivers, eliminated more than 95 percent of the historical sucker spawning habitat.22

Furthermore, the Upper Basin includes sites with “some of the worst water quality in thestate.”23 Naturally nutrient-rich, Upper Klamath Lake has become hypereutrophic, largely due toagricultural runoff, which leads to massive algal blooms. This condition results in massive algal blooms, which in turn cause elevated pH, low dissolved oxygen concentrations, and elevatedlevels of un-ionized ammonia.24 In 1986, oxygen levels in the upper Klamath River fell lowenough to kill thousands of fish, prompting the Klamath Tribe to close its sucker fishery.Following this event, the shortnose and Lost River suckers were both listed as endangered in1988, after “drastic declines” in populations were observed and a biological opinion concludedthat there had been “no significant recruitment of young” into the populations for 18 years.25

Additional Upper Klamath Lake fish kills occurred in 1995, 1996, and 1997.26

The Klamath River in California has been listed as water quality impaired under theClean Water Act since 1993, largely due to impaired waters from the Upper Basin flowingdownstream. The Upper Basin suffers from both high summer temperatures and excessivenutrient loading.27 Given the shallow depth of Upper Klamath Lake and the warm summer air temperatures, algal blooms are prone to occur naturally; however, abnormally large algal bloomshave been a persistent problem since the 1960's. Under these degraded conditions, dissolvedoxygen may drop to concentrations less than the suckers' minimum tolerance level of 1-2milligrams per liter of water, creating a lethal environment for both species of endangered

18 30 ECOLOGY L.Q. 279, 292 (2003).19 Daniel J. McGarvey & Brett Marshall, Making Sense of Scientists and “Sound Science”: Truth and Consequences

for Endangered Species in the Klamath Basin and Beyond , 32 ECOLOGY L.Q. 73, 77 (2005).20 Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin:

Hearing on Endangered Fish in the Klamath River Basin Before the H. Comm. on Resources, 107

th

Cong. (2002)(statement of William M. Lewis, Jr., Ph. D., National Research Council/National Academy of Sciences).21

Statement of William M. Lewis, Jr., Ph. D., National Research Council/National Academy of Sciences22 Christine Swift, Crisis in the Klamath: New Considerations for Managing Water under the Endangered Species

Act , 22 TEMP. E NVTL. L. & TECH. J. 65, 75 (2003).23 30 ECOLOGY L.Q. 279, 293 (2003).24 22 TEMP. E NVTL. L. & TECH. J. 65, 75 (2003).25 53 Fed. Reg. 2713026 30 ECOLOGY L.Q. 279, 293-94 (2003).27 Id. at 294.

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suckers.28 The 1996 sucker fish kill is believed to have eliminated as much as 50% of the twospecies' adult populations.29

Authorities differ on the minimum water level necessary to restore and maintain goodwater quality for the suckers.30 Because of limited scientific consensus on the amount of water required to sustain these endangered populations and because of the competing federal agency

goals of delivering water allocations to agricultural users versus maintaining downstream flows,a zero-sum situation is created when managing water resources for listed species above and below the hydroelectric dams.

Southern Oregon/Northern California Coho Salmon ESU

Downstream from the Klamath Project, on the main stem of the Klamath River and itstributaries, water allocation upstream also has adverse effects on the threatened coho salmon.The coho, blocked from spawning in portions of the Klamath River basin above Iron Grate Dam,are affected in a variety of ways by depletion of flows and alteration of seasonality of flows inthe main stem through operation of the Klamath Project. Factors contributing to the decline of the coho may include excessive harvest, loss of tributary habitats, blockage of migration

pathways, warming of waters in reservoirs and in tributaries where riparian vegetation has beenremoved and flows have been reduced, physical degradation of tributary habitat, introduction of large numbers of hatchery-reared coho on an annual basis, and manipulation of the hydrologicregime for water management purposes.31

A critical element for the biology and conservation of coho is that they use at least some part of their spawning streams on a year around basis and require the habitat to be cold (notexceeding 22 degrees C), clear, running water. Spawning migrations begin after increasedstream flows in fall and early winter. The best spawning sites are often at the head of a riffle, just below a pool, where the water changes from a smooth to a turbulent flow. Spawning maytake about a week to complete and a female deposits 1,400-7,000 eggs. In the Klamath River,coho juveniles seek cool water refuges at the mouths of small tributary streams with plenty of riparian cover in early summer when feeding before migrating to the ocean. 32

Maximum estimates for the number of coho spawning in the state in the 1940s rangefrom 200,000-500,000 to close to 1 million. In the 1960s, spawning coho numbered 100,000statewide and then dropped to a statewide average of around 33,500 during the 1980s.33 TheShasta River tributary is reported to have been one of the most productive coho salmon streamsin California due to its combination of continuous flows of cold water from springs, lowgradients, and naturally productive waters. Because of this, California Department of Fish &Game has operated a fish counting facility on the lower Shasta River since 1930, providing thelongest record of abundance trends of anadromous salmonids in the Klamath River Basin.34

Between 1985 and 2000, counts of coho salmon at this fish counting facility have typically

28 22 TEMP. E NVTL. L. & TECH. J. 65, 75 (2003).29 32 ECOLOGY L.Q. 73, 84-85 (2005).30 22 TEMP. E NVTL. L. & TECH. J. 65, 75 (2003).31 Statement of William M. Lewis, Jr., Ph. D., National Research Council/National Academy of Sciences32 Moyle at 180-81.33 Id. at 185.34 Fed. Energy Regulatory Comm’n, Office of Energy Projects, Final Environmental Impact Statement for the

Klamath Hydroelectric Project No. 2082-027 , 3-198 (2007),http://www.ferc.gov/industries/hydropower/enviro/eis/2007/11-16-07.asp.

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contained less than 400 fish, with some annual counts as low as 30 fish or less.35 This small

tributary population on a once predominate spawning stream is likely below the minimum population size required to preserve the genetic diversity of the stock and to buffer them fromnatural environmental disasters and is indicative of the population on the whole of coho andchinook salmon.36

Figure 2: Shasta River Coho Salmon Annual Counts, FERC Final EIS 3-200 (2007).

35Id. at 4-23 (2007).36 Moyle at 187.

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Figure 3: Actual coho run size compared to the risk level where populations are at high risk of extinction, NOAA Report to Congress, 7 (2009).

The issues of the Shasta River tributary exist throughout the coho’s spawning habitat.The main known causes of coho population decline include dams, diversions, logging, grazingand agriculture, mining, estuarine alteration, pollution, alien species, harvest, and hatcheries.37

There exist hundreds of small diversions on Klamath coho streams, cumulatively reducing flowsand increasing temperatures.38 When the diverted water is used for flood irrigation for pasture,much of it flows back into the river at high temperatures and polluted with animal waste andhigh levels of nutrients. Historically, coho were found throughout most of the watershed,spawning and rearing primarily in cold-water tributaries above Iron Gate Dam.39 The Californiadams have cut off access of coho to upstream spawning and rearing habitat for an estimated 311km of stream habitat.40 Removal of trees for agricultural purposes and in national forests reducesshade, increases water temperatures, and reduces the amount of large woody debris that falls intothe streams which provide critical habitat for rearing salmonids.41 Further effects from logginginclude the creation of roads on unstable slopes, leading to high levels of erosion andsedimentation of spawning habitat. Many of the streams in California containing coho salmonare regarded as impaired under the Clean Water Act usually because of high sediment loads, withTMDL standards that are rarely met.42

The long-term decline of coho in excess of 95% in population size and a decline innumber of streams used annually on the order of 40-50% suggests that if this trend continues,extirpation of wild coho from California seems likely in 50-100 years or less.43 Current hatchery programs on the Klamath and Trinity Rivers reduce potential conservation benefits gained frominvestments in habitat restoration projects and continue to limit full restoration and recovery of wild salmon and steelhead populations.44 Periods of drought throughout the region have put pressure on limited water resources and increased tensions among Klamath River Basincommunities.45 Due to the extremely low populations of wild spawning coho, a single poorly-timed flood or severe drought may eliminate an entire brood year stock from existence.46 Suchdroughts or floods look to be increasingly likely in the face of climate change and increasingdemands on water allocation within the basin.

Threats to both Species Associated with Climate Change

Recent studies have established that increased temperatures lessen overall snowpack,cause early runoff, and exacerbate the effects of global warming on drought, leading to lesshabitable late-summer conditions for cold water fish survival.47 Even more troublesome for thetimed migration of salmonids, studies project that future daily temperature increases will causesnowmelt timing at high elevations to occur three weeks earlier in the late 21st century. 48

37 Id.38 Id. at 188.39

Id. at 184.40 Id. at 187.41 Id. at 188.42 Id. at 189.43 Id. at 191-92.44 NOAA Report to Congress, 1 (2009).45 Id.46 Moyle at 190.47 34 VT. L. R EV. 927, 938 (2010).48 Id. at 938-39.

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Further, warmer summer temperatures, coupled with resultant lower summer flows, will further increase water temperature, especially in late summer when irrigators and fish already competefor the naturally lower flows.49 Because populations of coho salmon are so low, stream flows areso greatly altered, and watersheds are so damaged, coho salmon are exceptionally vulnerable torapid climate change.50

Evaluations of trends in hydroclimatology suggest temporal changes inclimate have changed the volume and timing of snowmelt runoff in theUpper Klamath watershed, which in turn has influence water availability throughout the

mainsteam Klamath River.51 Some of the largest declines in snowpack over theWestern U.S. have been in the Cascade Mountains and Northern California.52

Total water withdrawal in California, Idaho, Oregon and Washingtonincreased 82 percent between 1950 and 2000, with irrigation accounting fornearly half of this increase, amidst increasing frequency of drought events.53

The Klamath River is increasing in water temperature by 0.5°C/decade,which will have adverse effects on sustaining cold water fish populations.54

Further, warm ocean regimes are characterized by lower ocean productivity,

which may affect salmon by limiting the availability of nutrients regulatingthe food supply, and thereby increasing competition for food.55

Actions Taken under the Endangered Species Act

Listing of Species and Assigning Critical Habitat

The shortnose and Lost River suckers were listed as endangered in 1988 followingfindings of drastic reductions in population and lack of young to sustain the population.56

USFWS has not promulgated a final ruling on critical habitat for suckers, it has merely proposedcritical habitat in 1994.57

The Southern Oregon/Northern California Coast coho salmon were listed as threatened in1997.58 NMFS designed critical habitat for coho in 1999, based on a watershed approach todesignation, underscoring the benefits of diverse watershed habitats in the multiple stages of salmonid life cycles and included upslope riparian areas in the habitat designation. 59 Thelisting of SONCC coho salmon includes all within-ESU hatchery programs.60

49 Id. at 943-44.50 Moyle at 190-91.51 Nat’l Marine Fisheries Service, Biological Opinion: Operation of the Klamath Project between 2010 and 2018,

32 (2010), http://swr.nmfs.noaa.gov/klamath/FINAL-Klamath_Ops_031510.pdf.52

Id. at 77.53 Id. at 32.54 Id. at 77.55 Id. at 39.56 53 Fed. Reg. 2713057 Nat’l Research Council, Endangered and Threatened Fishes in the Klamath River Basin: Causes of Decline and

Strategies for Recovery 319 (2004), http://www.nap.edu/catalog.php?record_id=10838.58 62 Fed. Reg. 2458859 National Research Council at 320; 64 Fed. Reg. 2405260 70 F.R. 37160

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Three large mitigation hatcheries annually release approximately 14,215,000hatchery salmonids into the rivers of the SONCC coho salmon ESU.61

The Southern Oregon/Northern California Chinook salmon ESU, the Upper Klamath andTrinity Rivers Chinook salmon ESU, and the Klamath Mountain Province steelhead DPS werereviewed by NMFS for possible federal listing, and were determined not to warrant protection

under the ESA.62

Biological Opinions, Recommendations in 2001, and Resulting Fish Kill

With an understanding that “the ESA is not a panacea for the long-term problems posed by an inadequate legal regime on a collision course with a hotter and drier West,” listings of theshortnose and Lost River suckers and coho salmon have been relatively inadequate in protectingeither species.63 In fact, concurrent management of these species sometimes has a debilitatingeffect on the other species as there is only so much water to go around in times of scarcity. TheESA is reviled in many parts of the West.

ESA protection for the suckers and salmon held major implications for the managementand use of Klamath Project water by the Bureau of Reclamation in the Upper Basin. The Lost

River and shortnose suckers inhabit the Upper Klamath Lake and the reservoirs in the Upper Klamath River system, the same places that the Bureau of Reclamation was using to store andsupply water for irrigation.64 The presence of endangered suckers required the Bureau of Reclamation to hold water in the lakes to preserve their habitat, while the coho listing addedgreat legal strength to the demands of the downriver tribes for the Klamath Project to increasereleases to the river below Iron Gate Dam.65 This problem becomes pronounced in drier summers and the effects of this management conundrum led directly to the 2002 Klamath fishkill conditions in the mainstem.

In 1999, in response to ESA listing of Southern Oregon/Northern California Coasts cohosalmon ESU, NMFS provided a Biological Opinion and an associated Incidental Take Statementto the Bureau of Reclamation containing terms and conditions that required it to provide for

specific instream flows at Iron Gate.

66

USFWS issued its draft Biological Opinion on March 13,2001, recommending a series of minimum levels in Upper Klamath Lake to protect habitat for the Lost River and shortnose suckers.67

The USFWS found that implementation of the 2001 Klamath Project operations plan as proposed by the Bureau of Reclamation would jeopardize the continued existence of suckersliving in the Klamath Basin. In making its jeopardy finding, USFWS noted that the Upper Klamath Lake water levels proposed in the operations plan would contribute to poor water quality, thereby affecting the suckers' chances of survival.68 The NMFS found that the Bureau of Reclamation 2001 operations plan for the Klamath Project would likely jeopardize the continuedexistence and critical habitat of coho salmon.69 The Biological Opinion noted that 2001 wasexpected to be the driest year on record, making the allocation of water for the survival of the

61 NMFS, Biological Opinion: Operation of the Klamath Project between 2010 and 2018, 37 (2010).62 NOAA Report to Congress, 3 (2009)63 34 VT. L. R EV. 927, 951 (2010).64 15 TUL. E NVTL. L.J. 197, 217 (2002).65 Id. at 218.66 FERC Final EIS, 3-367 15 TUL. E NVTL. L.J. 197, 223-24 (2002).68 Id.69 22 TEMP. E NVTL. L. & TECH. J. 65, 80 (2003).

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species in the basin critical.70 In March 2001, the Bureau of Reclamation informed USFWS thatthere was not enough water to satisfy both the requirements for suckers and coho. In fact, therewas so little water flowing into the Klamath Basin in 2001 that if the water needs of the suckerswere met, then the needs of the coho salmon would not be met, and vice versa.71 It was clear thatin order to meet the water needs for the listed species in the Klamath basin, a reduction in

allocation to irrigators must occur.The irrigators in the Upper Klamath filed a petition for the ‘God Squad‘ to convene inorder to receive an exception to the endangered species act, but the God Squad did not act;instead, in late July, Secretary of the Interior Gale Norton allowed farmers only twenty percentof what they would normally receive.72 Further, Norton asked the National Academy of Sciencesto review the 2001 biological opinions of the NMFS and the USFWS concerning the actionsnecessary to prevent harm to the suckers and salmon. This study found that the water levels setforth in the biological opinions for Upper Klamath Lake and the Klamath River below Iron GateDam were without an adequate scientific basis.73

However, before the biological opinions could be revised and a “reasonable and prudentalternative” implemented under ESA §7, the extremely dry 2002 summer season arrived.

Similar issues erupted and lack of downstream releases from Iron Gate dam resulted in the deathof up to 70,000 salmonids in the mainsteam (see introduction).

2010 Biological Opinion – Jeopardize Continued Existence Finding

This biological opinion, conducted by the National Marine Fisheries Service for theBureau of Reclamation’s Operation of the Klamath Project between 2010 and 2018, suggests thatthe threats from global climate change will increase water scarcity issues in the Klamath Basinand lead to further threats to coho salmon. NMFS found that “after reviewing the currentstatus of SONCC coho salmon and its critical habitat, the environmentalbaseline for the action area, the effects of the Project and the cumulativeeffects, the action, as proposed, is likely to jeopardize the continued

existence of SONCC coho salmon, and is likely to destroy or adversely modifySONCC coho salmon designated critical habitat.”74

As required under ESA §7, NMFS recommends as a “reasonable andprudent alternative” that the Bureau of Reclamation (1) increase fall andwinter flow variability from Iron Gate Dam and (2) increase spring dischargein select average and wetter years.75 This alternative will likely be effectivein the short term; however, long term alternatives must be approached inlight of the agreement to remove the four lower Klamath River dams by2020.

Costs and Benefits of Further Actions in Relation to Climate Change

70 Id. at 78-79.71 Id. at 80.72 Id. at 81.73 Id. at 83.74 NMFS, Biological Opinion: Operation of the Klamath Project between 2010 and 2018, 166 (2010)75 Id. at 167.

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The stated environmental benefit of the hydroelectric Klamath River Project is found inits Final Environmental Impact Statement, “the project provides low-cost energy that displacesnon-renewable, fossil-fueled generation and contributes to a diversified generation mix.Displacing the operation of fossil-fueled facilities avoids the release of some power plantemissions, including greenhouse gases, and creates an environmental benefit.”76 However, the

benefits of this finding must be contrasted with what the EIS also finds are the benefits of damremoval along the Klamath River. The EIS states that “r estoration of anadromous fish upstreamof Iron Gate dam could restore tribal and recreational fisheries over a very large geographicalarea (extending over more than 350 miles of riverine habitat), and could contribute to recovery of the SONCC coho salmon ESU. Increasing the abundance and geographic distribution of anadromous fish would increase the genetic diversity and resiliency of populations, and wouldhelp to restore and protect tribal, commercial and recreational fisheries both upstream anddownstream of Iron Gate dam.”77 Therefore, any analysis of the benefits towards climate changemitigation from maintaining this hydroelectric facility must also be compared and contrastedwith the potential costs and benefits that removal would affect on fisheries and irrigators. Indoing so, it is clear that dam removal is a viable option from the standpoint of ecosystem

restoration, mitigation of threats to listed species and will have little adverse effect on climatechange initiative goals.

Electricity Generation and the Global Warming Initiative

The current electric output of the Klamath Project is 716,800 MWh and if replaced withfossil-fueled electric generation, greenhouse gas emissions could potentially increase by 71,680to 111,100 metric tons of carbon per year (see figure 4).78 Any facilities that may be availablemost likely would be fueled by natural gas. The loss of hydroelectric facilities and replacement by energy facilities fueled by non-renewable natural gas would hinder the efforts of the WestCoast Governor’s Global Warming Initiative to reduce greenhouse gas emissions and increasethe percentage of energy consumed in the states produced by renewable resources.79 Oregon hasset a goal of supplying 10 percent of the power used in the state with renewable energy by 2015and increased the goal to 25 percent by 2025, while California has accelerated its RenewablePortfolio Standard to require 20 percent of all power used in the state to be generated byrenewable resources by 2010 and 33 percent by 2020 (see figure 5).80

76 FERC Final EIS, 4-2277 FERC Final EIS, 5-4778 FERC Final EIS, 4-2379 FERC Final EIS, 4-2480 FERC Final EIS, 4-23

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Figure 4: Electric Generation Capacity of Klamath Project, FERC Final EIS, 4-22 (2007).

Figure 5: Global Warming Initiative Goals, FERC Final EIS, 4-23 (2007).

Financial Impacts on Fishing and Farming Communities

Removal of the lower four dams and restoring the Klamath to its former flows will costan estimated $450 million, approximately equal to the cost of building fish passage as amitigation measure to comply with the NMFS 2010 Biological Opinion recommendations.81

Under the signed Klamath dam removal agreement, about $200 million would be covered by asmall surcharge on PacifiCorp’s customers while the rest of the money would come from thecompany’s customers in California and the sale of bonds there.82 Following the costly 2001 and2002 irrigation seasons and the closure of all commercial salmon fishing off the coast of California and Oregon in 2008 and 2009, removal of the dam as a mitigation measure may beworth the cost.

Farming in the Upper Klamath Basin and along main tributaries in the Shasta and ScottValleys remains an important part of the basin's self-identity despite the global forces thatcontinue to undermine its economic vitality. The basin has 2,239 farms, 1,744 of which areirrigated.83 Irrigators' direct financial losses from the dry 2001 summer, where compliance withthe USFWS 2001 Biological Opinion amounted to a complete suspension of water deliveriesfrom the Upper Klamath Lake have been estimated at $28-35 million.84 In response to suchfinancial losses to farmers, the 2002 Farm Bill gave Klamath farmers $50 million for conservation and water quality improvement measures.85

Throughout the 1990s, closure of the ocean coho salmon fisheries has cost the coastaleconomy some 4,000 jobs and $78 million annually.86 State officials estimated that the 2008commercial fishing ban for all ocean-going salmon alone resulted in a loss of $255 million and

81 Jesse McKinley, Plan Outlines Removal of Four Dams on Klamath River , N.Y. Times, Sept. 30, 2009,http://www.nytimes.com/2009/10/01/business/energy-environment/01klamath.html?_r=2&ref=salmon.82 Id.83 30 ECOLOGY L.Q. 279, 295 (2003).84 30 ECOLOGY L.Q. 279, 322 (2003); 32 ECOLOGY L.Q. 73, 78 (2005).85 30 ECOLOGY L.Q. 279, 333 (2003). 86 30 ECOLOGY L.Q. 279, 295 (2003).

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2,263 jobs.87 In response to the damaging effects of the two-year moratorium on salmon fishingto West Coast fishing communities, the federal government paid boat owners, tackle merchants,restaurants and hoteliers $230 million in disaster assistance to make up for salmon losses.88

While commercial chinook salmon fishing off the coasts of California and Oregon reopened for the 2010 season, the effects of lower spawning numbers in past brood years is yet unknown for

this current season. It is possible that more commercial fishing closures will occur in the futureand wreck further financial ruin on the coastal fishing communities, all while irrigators willlikely see more frequent droughts and drier summers.

Further Options for Mitigation and Adaptation

The water needs of the salmon and suckers could not be met adequately during 2001 or 2002,even when there were virtually no deliveries of water to irrigators, suggesting that even withoutthe intervention of human activity, it would be impossible to allocate the water resourcesnecessary to adequately protect both species.89 The Klamath experience confirms the disconnect between the ESA and state water laws, and the Act's limited ability to change long-established

water allocation patterns.90

The structure of the ESA is what has led to the system of consideringeach species in a vacuum. Once a species is listed as endangered or threatened under the ESA,that species is considered as valuable as all other listed species – the ESA makes no distinctions between listed species.91 Static policies of the ESA and management regimes surrounding biological opinions and §7 consultation lead to inability of federal operations to modify day-to-day or even year-to-year operations. The negative effect of this non-adaptive approach toecosystem management was exemplified in the 2001-to-2002 management of the Klamath River water allocation and releases from Iron Gate Dam.

Successful, broad-based ecosystem management requires some form of adaptivemanagement. Adaptive management in the Klamath River basin would provide for a process of continually refining the implementation of environmental restoration projects in response to new

scientific studies and allow for anticipation of extreme events such as drought, flood, andunexpected human.92 There has been little effort to implement adaptive-management strategiesin the Klamath basin. Management instead has been focused on causal observations andanecdotal reports and crisis management is common throughout most restoration efforts in the basin.93 Klamath Basin Restoration Task Force, created by the Klamath Act in 1986, creates the potential for adaptive management and facilitation of discussion between all the variousstakeholders.94 A species-specific focus and an ecosystem-focus should lead to differentmanagement policies and decisions. It is clear through the management experiences relayed

87 Maria L. La Ganga, Federal Officials Ban Salmon Fishing Off California Coast , L.A. Times, Apr. 9, 2009,

http://articles.latimes.com/2009/apr/09/local/me-salmon9.88 Jill Leovy, Salmon Fishing Will Return to West Coast , L.A. Times, Apr. 16, 2010,

http://articles.latimes.com/2010/apr/16/local/la-me-salmon16-2010apr16.89 22 TEMP. E NVTL. L. & TECH. J. 65, 82-83 (2003).90 30 ECOLOGY L.Q. 279, 348 (2003).91 22 TEMP. E NVTL. L. & TECH. J. 65, 93 (2003).92 Nat’l Research Council, 333-36 (2004).93 Id.94 Id.

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above that the ESA’s species-specific focus is an inadequate basis for an ecosystem-wide,adaptive decision making process in the Klamath River basin.95

Options for Adaptation within the ESA Structure

Recommendations for a multiagency consultation process under §7(a)(1) could be

effective in expanding recovery efforts beyond the Bureau of Reclamation and the KlamathProject.96 This would require agencies not only to look at the specific species within their

project’s effects but also all potential downstream effects their project may implicate on other listed species. Another likely successful recommendation includes development of a regionalHabitat Conservation Plan for suckers in order to avoid piecemeal administration of incidentaltake permitting and to enhance mitigation measures through multiagency efforts.97 Less likely to be successful due to the political conflicts that will likely arise is the recommendation for moreenforcement of §9 takes by individuals.98 This would further antagonize the fight of “farmsversus fish” to an unworkable standoff and create unnecessary barriers to more effectiveecosystem management outside of the ESA confines.

Options for Adaptation outside the ESAOn February 18, 2010, over 30 parties, including PacifiCorp, cametogether to sign the Klamath Basin Restoration Agreement. The KBRA isintended to: (1) restore and sustain natural fish production and provide forfull participation in ocean and river harvest opportunities of fish speciesthroughout the Klamath Basin; (2) establish reliable water and powersupplies which sustain agricultural uses, communities, and National WildlifeRefuges; and (3) contribute to the public welfare and the sustainability of allKlamath Basin communities.99 The Agreement lays out a process foradditional studies, environmental review, and a determination by theSecretary of the Interior by March 31, 2012 regarding whether removal of

four dams owned by PacifiCorp: (1) will advance restoration of the salmonidfisheries of the Klamath Basin; and (2) is in the public interest.100 Subject toan affirmative determination by the Secretary, removal of the dams istargeted for 2020 in order to provide for planning, permitting, and ratepayerfunding. The KHSA and KBRA together represent the largest dam removalproject and river restoration effort in U.S. history.101 Fish passage above the damswill result in the reintroduction of coho salmon, chinook salmon, steelhead and lamprey to morethan 350 miles of habitat above the Project area and significantly improve the viability of salmonid populations in the Klamath River Basin.102

Acquisition of land trusts in the region also presents significant opportunity for restoration efforts. In March 2009, The Nature Conservancy paid $14.2 million to acquire a

95 Id. at 316.96 Nat’l Research Council, 323 (2004).97 Nat’l Research Council, 328-29 (2004).98 Nat’l Research Council, 329 (2004).99 Nat’l Oceanic and Atmospheric Admin., Klamath River Basin, 2010 Report to Congress, 13 (2010),http://www.swr.noaa.gov/klamath/Klamath_2010.pdf.100 Id.101 Id. 102 NOAA Report to Congress, 19 (2009)

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4,136-acre former ranching property that includes the main spring sources of the Shasta River atthe Shasta Big Springs Ranch. The acquisition includes a majority of the Big Springs complex,and first priority use of water to ensure cold spring water remains in the creek.103 Thisacquisition is extremely important for preserving cold water refuge required for coho summeringand will preserve one of the most naturally productive coho tributaries.

The ability of multiple stakeholders to reach agreement on water allocation, watershedrestoration, land conservation trusts, and fishing moratoriums in order to mitigate the effects of salmon population collapse is empowering. However, much work is needed in order to sustainthe dwindling populations of coho and sucker fish within the Klamath River Basin. Byimplementing a more adaptive management attitude while maintaining the strict requirements of the ESA in the face of a reduction in water availability due to climate change, the governmentagencies and stakeholders should seek broad solutions to this problem. Solutions which in the past seemed politically and socially infeasible within this region are today being implementedwith rigor – dam removal and fishing moratoriums being the main examples. These drasticmeasures were implemented with the knowledge that with time, care, and effective restorationmanagement, these fish populations may strongly rebound.

Conclusion

The populations of Southern Oregon/Northern California Coast coho salmon andshortnose and Lost River suckers are extremely vulnerable to extinction due to the increasingthreats from climate change, overfishing, and poor water management. These species may beindicators for more to come in the California salmonid family. Biological monitoring andassociated adaptive management is essential to the survival of these species, especially withrespect to the current plans aimed at vast ecosystem restoration through dam removal.

103 NOAA Report to Congress, 7 (2010)

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final paper - karen schmidt

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