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 authority of the Bureau of Reclamation, Bureau of Land Management, National Forest Service, and Department of Interior, while tribal lands serve six different tribes in the Basin.1 With an average annual discharge of more than 17,000 cubic feet per second, the Klamath is the thirdlargest river on the U.S. West Coast. The mean annual precipitation in the upper basin is only 13.5 inches, and very little rain falls in the summer months. The headwaters of the Klamath are in Oregon, in the highly irrigated Klamath River Project area. The river is home to the thirdlargest 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 and agriculture 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's wetlands have been drained for conversion to agriculture. Upper Klamath Lake is the largest
1

Natl 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. ENVTL. 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).

remaining body of water from this vast system and is host to two endemic and endangered species of fish the Lost River and shortnose suckers. The lake is extremely shallow and susceptible to overuse and pollution, averaging only eight feet deep when full, and falling to as low 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 vast reservoir 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 population declines 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 salmon for 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 end of 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 by decades of water mismanagement.7 Accordingly, twenty-two percent of the state's 122 remaining native fish species are already listed as threatened or endangered under the state and federal 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 state marks the southern end of the range of all anadromous species, while concurrently the dynamic geology and climate has resulted in the evolution of many distinctive inland salmonid species.9 California salmonids are characteristic of most of Californias inland and coastal waters and they are exceptionally vulnerable to climate change, due to rising temperatures and reduced summer flows.10 Of the 32 kinds of salmonids found in California, 20 are endemic to California and are in danger of extinction within the next century through increasing stream temperatures and reducing instream flows.11 Analysis of the status of California salmonids suggests that most taxa are declining rapidly and, if present trends continue, 65% will be gone within a 100 years, probably within 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 effort to 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 291 15 TUL. ENVTL. L.J. 197, 217 (2002). 6 62 Fed. Reg. 24588 7 Jack Tuholske, Hot Water, Dry Streams: A Tale of Two Trout, 34 VT. L. REV. 927, FN 9 (2010). 8 Ellen Hanak et al., Myths of California Water Implications and Reality, 16 HASTINGS W.-N.W. J. ENVTL. L. & POLY 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 stressful conditions 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 34,056 fish 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 Klamath River dams owner to remove the four lower dams on the river and restore the rivers historic flow. Removal of hydroelectric power sources at a time of increasing concern over fossil fuel use and reduction of atmospheric carbon dioxide was a bold step promoting small-scale ecological concerns over broader and long-term concerns that will also eventually impact these species. Hydroelectric power currently supplies almost one-fifth of the electricity consumed worldwide and as a source of electricity are second only to fossil fuels.14 As the world seeks new forms of energy to supplement fossil fuels, hydroelectric power is attractive in that dams can respond almost instantly to changing electricity demands and, unlike other renewables, do not rely 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 ecological consequences 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 negative long 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 habitat change in the form of conversion to agriculture, climate change leading to disruption of migration events and availability of food, invasive species outcompeting, overexploitation of resources due to overfishing, and pollution and 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, a cost-benefit analysis of maintaining or removing the lower four Klamath River 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 Dept 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).

recreational and tribal fishery until catches sharply declined in the 1980s.18 Both suckers begin reproduction 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 and depositing between 18,000-236,000 eggs per individual in coarse, gravel substrates.19 Identified factors explaining the endangered nature of these species populations include pollution of Upper Klamath Lake with nutrients, introduction of non-native species leading to increased predation and 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, diversion structures, and dams capable of routing water to approximately 220,000 acres of irrigated farmlands 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 canals and other management structures, and alteration of flows and water levels either with respect either to quantity or seasonal timing.21 The construction of the Sprague River Dam, located just upstream 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 the state.23 Naturally nutrient-rich, Upper Klamath Lake has become hypereutrophic, largely due to agricultural 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 elevated levels of un-ionized ammonia.24 In 1986, oxygen levels in the upper Klamath River fell low enough 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 in 1988, after drastic declines in populations were observed and a biological opinion concluded that 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 the Clean Water Act since 1993, largely due to impaired waters from the Upper Basin flowing downstream. The Upper Basin suffers from both high summer temperatures and excessive nutrient 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 blooms have been a persistent problem since the 1960's. Under these degraded conditions, dissolved oxygen may drop to concentrations less than the suckers' minimum tolerance level of 1-2 milligrams per liter of water, creating a lethal environment for both species of endangered
18 19

30 ECOLOGY L.Q. 279, 292 (2003). 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, 107th 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 Sciences 22 Christine Swift, Crisis in the Klamath: New Considerations for Managing Water under the Endangered Species Act, 22 TEMP. ENVTL. L. & TECH. J. 65, 75 (2003). 23 30 ECOLOGY L.Q. 279, 293 (2003). 24 22 TEMP. ENVTL. L. & TECH. J. 65, 75 (2003). 25 53 Fed. Reg. 27130 26 30 ECOLOGY L.Q. 279, 293-94 (2003). 27 Id. at 294.

suckers.28 The 1996 sucker fish kill is believed to have eliminated as much as 50% of the two species' adult populations.29 Authorities differ on the minimum water level necessary to restore and maintain good water 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 its tributaries, 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 in the 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 been removed 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 hydrologic regime 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 (not exceeding 22 degrees C), clear, running water. Spawning migrations begin after increased stream 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 may take 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 range from 200,000-500,000 to close to 1 million. In the 1960s, spawning coho numbered 100,000 statewide and then dropped to a statewide average of around 33,500 during the 1980s.33 The Shasta River tributary is reported to have been one of the most productive coho salmon streams in California due to its combination of continuous flows of cold water from springs, low gradients, 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 the longest 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 29

22 TEMP. ENVTL. L. & TECH. J. 65, 75 (2003). 32 ECOLOGY L.Q. 73, 84-85 (2005). 30 22 TEMP. ENVTL. L. & TECH. J. 65, 75 (2003). 31 Statement of William M. Lewis, Jr., Ph. D., National Research Council/National Academy of Sciences 32 Moyle at 180-81. 33 Id. at 185. 34 Fed. Energy Regulatory Commn, 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.

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 from natural environmental disasters and is indicative of the population on the whole of coho and chinook salmon.36

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

35
36

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

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 cohos spawning habitat. The main known causes of coho population decline include dams, diversions, logging, grazing and agriculture, mining, estuarine alteration, pollution, alien species, harvest, and hatcheries.37 There exist hundreds of small diversions on Klamath coho streams, cumulatively reducing flows and 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 and high 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 California dams have cut off access of coho to upstream spawning and rearing habitat for an estimated 311 km of stream habitat.40 Removal of trees for agricultural purposes and in national forests reduces shade, increases water temperatures, and reduces the amount of large woody debris that falls into the streams which provide critical habitat for rearing salmonids.41 Further effects from logging include the creation of roads on unstable slopes, leading to high levels of erosion and sedimentation of spawning habitat. Many of the streams in California containing coho salmon are regarded as impaired under the Clean Water Act usually because of high sediment loads, with TMDL standards that are rarely met.42 The long-term decline of coho in excess of 95% in population size and a decline in number 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 from investments 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 Basin communities.45 Due to the extremely low populations of wild spawning coho, a single poorlytimed flood or severe drought may eliminate an entire brood year stock from existence.46 Such droughts or floods look to be increasingly likely in the face of climate change and increasing demands 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 less habitable late-summer conditions for cold water fish survival.47 Even more troublesome for the timed migration of salmonids, studies project that future daily temperature increases will cause snowmelt timing at high elevations to occur three weeks earlier in the late 21st century.48
37 38

Id. 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. REV. 927, 938 (2010). 48 Id. at 938-39.

Further, warmer summer temperatures, coupled with resultant lower summer flows, will further increase water temperature, especially in late summer when irrigators and fish already compete for the naturally lower flows.49 Because populations of coho salmon are so low, stream flows are so greatly altered, and watersheds are so damaged, coho salmon are exceptionally vulnerable to rapid climate change.50 Evaluations of trends in hydroclimatology suggest temporal changes in climate have changed the volume and timing of snowmelt runoff in the Upper Klamath watershed, which in turn has influence water availability throughout the mainsteam Klamath River.51 Some of the largest declines in snowpack over the Western U.S. have been in the Cascade Mountains and Northern California.52 Total water withdrawal in California, Idaho, Oregon and Washington increased 82 percent between 1950 and 2000, with irrigation accounting for nearly half of this increase, amidst increasing frequency of drought events.53 The Klamath River is increasing in water temperature by 0.5C/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 regulating the 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 following findings 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 proposed critical habitat in 1994.57 The Southern Oregon/Northern California Coast coho salmon were listed as threatened in 58 1997. NMFS designed critical habitat for coho in 1999, based on a watershed approach to designation, 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 The listing of SONCC coho salmon includes all within-ESU hatchery programs.60

49 50

Id. at 943-44. Moyle at 190-91. 51 Natl 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. 27130 57 Natl 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. 24588 59 National Research Council at 320; 64 Fed. Reg. 24052 60 70 F.R. 37160

Three large mitigation hatcheries annually release approximately 14,215,000 hatchery salmonids into the rivers of the SONCC coho salmon ESU.61 The Southern Oregon/Northern California Chinook salmon ESU, the Upper Klamath and Trinity Rivers Chinook salmon ESU, and the Klamath Mountain Province steelhead DPS were reviewed 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 the shortnose and Lost River suckers and coho salmon have been relatively inadequate in protecting either species.63 In fact, concurrent management of these species sometimes has a debilitating effect on the other species as there is only so much water to go around in times of scarcity. The ESA is reviled in many parts of the West. ESA protection for the suckers and salmon held major implications for the management and 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 and supply 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 added great legal strength to the demands of the downriver tribes for the Klamath Project to increase releases 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 fish kill conditions in the mainstem. In 1999, in response to ESA listing of Southern Oregon/Northern California Coasts coho salmon ESU, NMFS provided a Biological Opinion and an associated Incidental Take Statement to 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 suckers living 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 continued existence and critical habitat of coho salmon.69 The Biological Opinion noted that 2001 was expected to be the driest year on record, making the allocation of water for the survival of the
61 62

NMFS, Biological Opinion: Operation of the Klamath Project between 2010 and 2018, 37 (2010). NOAA Report to Congress, 3 (2009) 63 34 VT. L. REV. 927, 951 (2010). 64 15 TUL. ENVTL. L.J. 197, 217 (2002). 65 Id. at 218. 66 FERC Final EIS, 3-3 67 15 TUL. ENVTL. L.J. 197, 223-24 (2002). 68 Id. 69 22 TEMP. ENVTL. 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 that there was not enough water to satisfy both the requirements for suckers and coho. In fact, there was so little water flowing into the Klamath Basin in 2001 that if the water needs of the suckers were met, then the needs of the coho salmon would not be met, and vice versa.71 It was clear that in 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 in order 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 percent of what they would normally receive.72 Further, Norton asked the National Academy of Sciences to review the 2001 biological opinions of the NMFS and the USFWS concerning the actions necessary to prevent harm to the suckers and salmon. This study found that the water levels set forth in the biological opinions for Upper Klamath Lake and the Klamath River below Iron Gate Dam were without an adequate scientific basis.73 However, before the biological opinions could be revised and a reasonable and prudent alternative 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 death of 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 the Bureau of Reclamations Operation of the Klamath Project between 2010 and 2018, suggests that the threats from global climate change will increase water scarcity issues in the Klamath Basin and lead to further threats to coho salmon. NMFS found that after reviewing the current status of SONCC coho salmon and its critical habitat, the environmental baseline for the action area, the effects of the Project and the cumulative effects, the action, as proposed, is likely to jeopardize the continued existence of SONCC coho salmon, and is likely to destroy or adversely modify SONCC coho salmon designated critical habitat.74 As required under ESA 7, NMFS recommends as a reasonable and prudent alternative that the Bureau of Reclamation (1) increase fall and winter flow variability from Iron Gate Dam and (2) increase spring discharge in select average and wetter years.75 This alternative will likely be effective in the short term; however, long term alternatives must be approached in light of the agreement to remove the four lower Klamath River dams by 2020.

Costs and Benefits of Further Actions in Relation to Climate Change

70 71

Id. at 78-79. 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 in its Final Environmental Impact Statement, the project provides low-cost energy that displaces non-renewable, fossil-fueled generation and contributes to a diversified generation mix. Displacing the operation of fossil-fueled facilities avoids the release of some power plant emissions, 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 dam removal along the Klamath River. The EIS states that restoration of anadromous fish upstream of Iron Gate dam could restore tribal and recreational fisheries over a very large geographical area (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 would help to restore and protect tribal, commercial and recreational fisheries both upstream and downstream of Iron Gate dam.77 Therefore, any analysis of the benefits towards climate change mitigation from maintaining this hydroelectric facility must also be compared and contrasted with the potential costs and benefits that removal would affect on fisheries and irrigators. In doing 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 climate change initiative goals. Electricity Generation and the Global Warming Initiative The current electric output of the Klamath Project is 716,800 MWh and if replaced with fossil-fueled electric generation, greenhouse gas emissions could potentially increase by 71,680 to 111,100 metric tons of carbon per year (see figure 4).78 Any facilities that may be available most 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 West Coast Governors Global Warming Initiative to reduce greenhouse gas emissions and increase the percentage of energy consumed in the states produced by renewable resources.79 Oregon has set a goal of supplying 10 percent of the power used in the state with renewable energy by 2015 and increased the goal to 25 percent by 2025, while California has accelerated its Renewable Portfolio Standard to require 20 percent of all power used in the state to be generated by renewable resources by 2010 and 33 percent by 2020 (see figure 5).80

76 77

FERC Final EIS, 4-22 FERC Final EIS, 5-47 78 FERC Final EIS, 4-23 79 FERC Final EIS, 4-24 80 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 cost an estimated $450 million, approximately equal to the cost of building fish passage as a mitigation 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 a small surcharge on PacifiCorps customers while the rest of the money would come from the companys customers in California and the sale of bonds there.82 Following the costly 2001 and 2002 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 be worth the cost. Farming in the Upper Klamath Basin and along main tributaries in the Shasta and Scott Valleys remains an important part of the basin's self-identity despite the global forces that continue to undermine its economic vitality. The basin has 2,239 farms, 1,744 of which are irrigated.83 Irrigators' direct financial losses from the dry 2001 summer, where compliance with the USFWS 2001 Biological Opinion amounted to a complete suspension of water deliveries from the Upper Klamath Lake have been estimated at $28-35 million.84 In response to such financial 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 coastal economy some 4,000 jobs and $78 million annually.86 State officials estimated that the 2008 commercial 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 fishing to 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 future and wreck further financial ruin on the coastal fishing communities, all while irrigators will likely 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 without the intervention of human activity, it would be impossible to allocate the water resources necessary 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 considering each 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-today or even year-to-year operations. The negative effect of this non-adaptive approach to ecosystem 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 adaptive management. 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, and unexpected human.92 There has been little effort to implement adaptive-management strategies in the Klamath basin. Management instead has been focused on causal observations and anecdotal 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 various stakeholders.94 A species-specific focus and an ecosystem-focus should lead to different management 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. ENVTL. L. & TECH. J. 65, 82-83 (2003). 90 30 ECOLOGY L.Q. 279, 348 (2003). 91 22 TEMP. ENVTL. L. & TECH. J. 65, 93 (2003). 92 Natl Research Council, 333-36 (2004). 93 Id. 94 Id.

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above that the ESAs 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 Klamath Project.96 This would require agencies not only to look at the specific species within their projects effects but also all potential downstream effects their project may implicate on other listed species. Another likely successful recommendation includes development of a regional Habitat Conservation Plan for suckers in order to avoid piecemeal administration of incidental take 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 more enforcement of 9 takes by individuals.98 This would further antagonize the fight of farms versus fish to an unworkable standoff and create unnecessary barriers to more effective ecosystem management outside of the ESA confines. Options for Adaptation outside the ESA On February 18, 2010, over 30 parties, including PacifiCorp, came together to sign the Klamath Basin Restoration Agreement. The KBRA is intended to: (1) restore and sustain natural fish production and provide for full participation in ocean and river harvest opportunities of fish species throughout the Klamath Basin; (2) establish reliable water and power supplies which sustain agricultural uses, communities, and National Wildlife Refuges; and (3) contribute to the public welfare and the sustainability of all Klamath Basin communities.99 The Agreement lays out a process for additional studies, environmental review, and a determination by the Secretary of the Interior by March 31, 2012 regarding whether removal of four dams owned by PacifiCorp: (1) will advance restoration of the salmonid fisheries of the Klamath Basin; and (2) is in the public interest.100 Subject to an affirmative determination by the Secretary, removal of the dams is targeted for 2020 in order to provide for planning, permitting, and ratepayer funding. The KHSA and KBRA together represent the largest dam removal project and river restoration effort in U.S. history.101 Fish passage above the dams will result in the reintroduction of coho salmon, chinook salmon, steelhead and lamprey to more than 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 96

Id. at 316. Natl Research Council, 323 (2004). 97 Natl Research Council, 328-29 (2004). 98 Natl Research Council, 329 (2004). 99 Natl 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 at the 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 This acquisition is extremely important for preserving cold water refuge required for coho summering and will preserve one of the most naturally productive coho tributaries. The ability of multiple stakeholders to reach agreement on water allocation, watershed restoration, 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 sustain the dwindling populations of coho and sucker fish within the Klamath River Basin. By implementing 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 government agencies 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 implemented with rigor dam removal and fishing moratoriums being the main examples. These drastic measures were implemented with the knowledge that with time, care, and effective restoration management, these fish populations may strongly rebound.

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

103

NOAA Report to Congress, 7 (2010)

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