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| Statement of Andy Kerr, Senior Counselor,
Oregon Natural Resources Council [1]
before the Committee on Resources, U.S. House of
Representatives in Klamath Falls, Oregon, June
16, 2001 My name is Andy Kerr. I am Senior Counselor to the Oregon Natural Resources Council. ONRC has been involved in conservation issues in the Klamath River Basin for a quarter century. I have been involved as long, serving as a field representative, conservation director, executive director and now senior counselor. I won't talk today about the causes of the water crisis, other than to quote Oregon Governor John Kitzhaber:
Agriculture was in trouble long before the combination of record drought and the Endangered Species Act came into play. Implementation of the government's official biological opinions—on Klamath Project operations and their affect on the federally listed coho salmon, bald eagle, and two species of mullet—are projected to result in water conflicts between agriculture and endangered species, an average of six years out of ten. Not all years will be this bad with a snowpack less than one-quarter of average. These biological opinions detail the minimum amount of water necessary in the lake and the river to prevent the extinction of these species. They do not specify the water levels and flows—and the water quality—necessary to recover the species so the protections of the Endangered Species Act are no longer necessary, let alone the level to return salmon and mullet to healthy harvestable surpluses. The State of Klamath Basin Agriculture I do want to touch on the causes of the farm crisis in the Klamath Basin. First, it's marginal as farmland. It's at 4,000-feet elevation where frosts stay late and come early. Second, it's heavily subsidized farming, more so than most other farmlands in this nation. Besides the plethora of farm subsidy programs, both deliveries of the water and the electricity to pump it are heavily subsidized by taxpayers and ratepayers. Currently project farmers are paying 0.6¢/kilowatt hour. I'm currently paying ten times that at my home and anticipate a rise in October of around 50%. When the contract for electricity expires in 2006, project farmers electricity costs will increase by a factor of ten to thirty. The North American Free Trade Agreement, the General Agreement on Tariffs and Trade and the World Trade Association have caused more damage to Klamath Basin agriculture than the Endangered Species Act ever could. Farming is in decline in the basin due to market conditions—not a shortage of water, whether due to drought or the Endangered Species Act. Processing plants for sugar beets and horseradish have closed. Canadian potatoes, Chinese onions, and Mexican sugar are flooding into this country. With Congress poised to approve the Free Trade Agreement for the Americas, it will be NAFTA times two. The globalization of trade may be beneficial to the nation's economy as a whole, but it has been mostly disastrous to farming in the Klamath Basin. As it has been practiced in the Klamath Basin, farming is not economically, let alone environmentally, sustainable. Nationally, 48% of farm income is coming from the federal taxpayers. Locally, potatoes are being raised more for the government subsidies than the market. Klamath Basin farming is in trouble; but in reality, the Endangered Species Act (ESA) is the least of their problems. The Wrong Path: Attacking the Endangered Species Act Attacking the Endangered Species Act is a poor strategy for the "give-me-water-or-give-me-death" crowd. First, as noted previously, it would be more on target to attack the North American Free Trade Agreement. Second, seeking to invoke the Endangered Species Committee (the so-called "God Squad") is a bad idea. I was involved in the last time the God Squad was invoked by George Bush the elder. It did not work out well for either the timber industry or the Administration. In that case, large amounts of old-growth logging profits were involved. In this case, any "profits" are derived only from the result of massive federal subsidies. In that case, it was "timber jobs versus the spotted owl." In this case, the political debate will be framed as subsidized federal farmers raising crops at a price above market value, versus commercial fishers, Native Americans, endangered Pacific salmon, and the nation's national bird, the bald eagle. To win an exemption from the Endangered Species Act, the God Squad would have to find that the harmful activities are economically imperative and that no alternatives exist. Our attorneys are salivating at the prospect of invoking the God Squad in this case. Third, the God Squad cannot override tribal rights, the Clean Water Act, the National Environmental Policy Act or other federal law. Fourth, it would be a futile political effort to gut the Endangered Species Act. It has been tried numerous times by opponents with a much better set of legal and political facts than in this case. Unfortunately, each time controversy arises about enforcement of the Endangered Species Act; aggrieved parties always fancy themselves as the ones who will be the "poster children" that succeed in gutting the ESA. It has not yet worked. Fourth, attacking the underlying science supporting the biological opinions of the federal fish and wildlife agencies is probably flawed strategy as well. Every Secretary of the Interior that I've known since the Ford Administration has tried to substitute politics for science. The ESA is crystal clear on that point. The Secretary must follow the law by following the science. This is not a case of bad science, but of science taken badly. Even assuming that farm prices are going to increase soon and that magically the ESA was no longer an issue—exercises in irrational exuberance—, the environmental issues of the basin do not go away. Poor farming and other management practices have resulted in not only a severe lack of water quantity for fish and wildlife, but atrocious quality. In the late summer, the pH in parts of Upper Klamath Lake can be comparable to that of dishwashing detergent. The water that returns to the Klamath River is high in nitrogen and phosphorus carried in from fields ladened with pesticides. The need for enforcement of state water quality rules under the federal Clean Water Act is undeniable. The Right Path: Just Compensation Having said this, I am here today to suggest a difference course than the one of endless litigation and listings. Instead I offer a proposal that was developed by conservation and farming interests in the Klamath Basin. This joint-proposal balances farming and conservation (see A Voluntary Demand Reduction and Resource Enhancement Program for the USBR Klamath Project, attached). Specifically it would: 1. Acquire lands or interests in water from willing sellers for fish and wildlife purposes, or for the establishment of replacement lease lands, so commercial farming can end on the national wildlife refuges. 2. Provide for the acquisition from willing sellers to re-reclaim lake, wetlands and streams for natural water storage and cleansing. 3. Ensure that federal funding of local governmental units is maintained. 4. Provide for economic transition assistance grants for local governmental units. It is proposed—in addition to the payment of fair market value for the land—that a transition payment also be made, both of which would total $4,000/acre. To put this in perspective, before the water was cut off in this severe drought year by a combination of an Act of God and an Act of Congress, such lands were worth perhaps $2,500/acre. Prices have plummeted since then. $4,000/acre is 60% above the former market value. Precedent for such compensation exists. The federal government has bought down commercial fishing fleets. It is considering paying tobacco farmers to get out of tobacco farming. The benefits to remaining farmers of this joint proposal would be immense. With the reduction of water demand by reducing the amount of irrigated agriculture and the concurrent increase of natural storage by the re-reclamation of reclaimed and abused lands, irrigated water supplies will be much more reliable than today—perhaps even enough to cope with a severe drought year like this one. Conservationists negotiated this proposal with local landowners; most with roots that go back generations. They are ready to sell their lands to the federal government; there is no other buyer. Of course, $4,000/acre is not enough to compensate for the loss of a lifestyle. However, it is enough for most to get clear of the bank and have something left for retirement or for the kids college fund. This $4,000/acre figure can be justified to taxpayers as a savings over the current system of farm subsidies for these lands. More importantly, it is the right thing to do. Some of the landowners we worked with to negotiate this deal asked to testify today, but were told the witness list was already full. Others are afraid to speak up publicly about their desire to sell. Many would have sold years ago if there had been any market. Some are old, others are tired of losing money, others are tired of the uncertainty of farming these days. I'm sorry to have to note that these willing sellers have been verbally abused and threatened for their stance by some of their neighbors. One would have thought that one of the most basic of property rights is the right to sell it. Conclusion This joint proposal is ecologically rational, economically efficient, fiscally prudent, socially just and politically pragmatic. It has both the broad and deep support of the conservation community. I believe it to be a breakthrough in the thinking of conservation organizations. I hope that it will be a model to avoid or solve conflicts elsewhere. For it to be successful, this joint proposal must first gain the open support of the landowners that wish to have the option to sell their land. It is necessary for such landowners to ban together against bullies who would deny them their property rights and their future. My friend and Western writer, Terry Tempest Williams has stated that environmentalists must be "both fierce and compassionate—at once." The Oregon Natural Resources Council is strongly committed to this proposal with its:
The conservation community will use all of our powers of persuasion and political influence to see it enacted into law. There is only one specter on the horizon that could diminish our capacity to work for this joint proposal. If the conservation community has to instead use its resources to defeat yet another attack on the Endangered Species Act, our ability to advocate for this proposal will be diminished. For this proposal to be enacted, it must pass Congress. It is up to the Oregon and California congressional delegations to lead the way. The conservation community sees the Klamath River Basin as the "Everglades of the West". (see The Klamath Basin's Wildlife Abundance, attached). The federal and state governments have committed tens of billions of dollars to restore the Everglades. It can find a billion for the Klamath River Basin. The joint-proposal I am offering today is an important component to conserve and restore this great natural wonder and also provide economic justice to those affected by changing government policies. (See Blueprint for Restoration of the Klamath Basin, attached.) We are not such a poor nation that we must destroy species and ecosystems, nor are we so rich that we can afford to. We are a rich enough nation to fairly compensate those who are adversely affected by changes in government policies pertaining to Native American tribal rights, the conservation of fish and wildlife, and the globalization of trade. Thank you for this opportunity to testify. ____________ A Voluntary Demand Reduction and Resource Enhancement Program for the USBR Klamath Project This proposal was jointly created by an ad hoc committee of environmental, community, economic and landowner interests during a series of meetings in the Klamath Basin. Below are conceptual elements for a voluntary land and/or water use sale program for landowners being served by the United States Bureau of Reclamation's Klamath Project in Oregon and California. This proposal would also provide for the voluntary acquisition of lands, water rights and/or federal grazing privileges in the Klamath River Basin. Details would be filled in during consideration of the proposal by Congress. 1. The federal government, through the USDA Farm Services Agency, would offer to purchase irrigated farmland or a non-irrigation conservation easement in the US Bureau of Reclamation's Klamath Project from willing sellers at appraised value. For efficiency, individual appraisal of each eligible parcel will not be required. Rather the US Government would conduct statistically representative sample appraisals and apply the results to all lands within the project area. A similar process would be used to determine the value of the non-irrigation conservation easement, using January 1, 2001 as a reference date.
2. The closing date opting into the voluntary sale program will be 90 days after enactment of the law. The USDA Farm Services Agency would regularly publish information pertaining to participation in the program, including publication in a local newspaper and on a web page. Due to the potential interest in the voluntary sale program and limits on the amounts of funds appropriated by Congress each year, it may be necessary to implement the program over a several-year period. Priority for acquisition would be based on dire financial need as determined by criteria developed by the FSA. For the period between when participating landowners opt into the program and the transaction is completed, annual compensatory payments will be made to landowners to not irrigate their lands. 3. The sellers of lands in this willing seller program outlined in provision 1(a) will also receive an economic transition payment in the amount of $4,000/acre minus the appraised value of the land. The transition payment would only be available for those farmlands that are thereafter used in a manner that precludes their future eligibility for all United States Department of Agriculture programs, now in effect or later established, except for those lands specified under provision 6(a). 4. Landowners eligible for this program must have been the owner of record on January 1, 2001. The eligibility date is necessary to preclude lending institutions or speculators from benefiting from the recent financial misfortunes of others. 5. Those parcels of lands purchased by the federal government that are appropriate for inclusion into a unit of the National Wildlife Refuge System shall become part of the Tule Lake, Lower Klamath units or new refuges established for this purpose. Such holdings must generally meet criteria for inclusion in the National Wildlife Refuge System. 6. Those parcels of lands purchased by the federal government that are not appropriate for inclusion into a unit of the National Wildlife Refuge System shall either:
7. The Kuchel Act pertaining to the management of the Lower Klamath and Tule Lake National Wildlife Refuges would be repealed. The refuges would be managed just as other units of the National Wildlife Refuge System. The water rights associated with the lease lands within the refuges will remain with the land and be used for the purposes for which the refuges were established. The water rights shall be transferred to refuge purposes in such a manner as to maintain the 1905 priority date and the US Bureau of Reclamation shall give the same preference to the refuges as it previously gave to irrigation contracts covering said lands. 8. Except for the new lease lands described in Section 6, the water rights now attached (or that may become attached as a result of adjudication) to the parcels, or non-irrigation conservation easements in this voluntary land sale program, would be transferred to the US Fish and Wildlife Service which will be used to meet the purposes of refuges and for the benefit of threatened or endangered species in the Klamath River Basin. These species include the northern bald eagle, coho salmon, the Qapdo ("kup-tu", or shortnosed sucker), C'wam ("tshuam", or Lost River sucker) and other species that may be listed in the future. This includes lands that are added to the National Wildlife Refuge System or those managed in a custodial state pending final disposition. 9. $100,000,000 would be made available for the acquisition from willing sellers of appropriate lands and/or water rights from lands in the headwaters of the Klamath River Watershed, excluding the Klamath Project, or in the Scott and Shasta Valleys. This would include lands and interests in lands around Upper Klamath Lake, Klamath Marsh and tributaries to the lake and marsh that are suitable for re-reclamation as lake and/or wetlands, riparian restoration and for instream flow and lake and marsh level enhancement. It would also include appropriate lands in the Scott and Shasta Valleys in California. Such funds could also be used for the voluntary retirement of federal grazing permits. The result of such acquisitions would be to both increase the storage capacity and improve the water quality of the lake and marsh, and help meet tribal reserved water rights from instream flows in the tributaries and the lake and marsh. Doing so will increase the amount of water available for endangered species and tribal trust obligations, thereby increasing the probability of adequate water being available to landowners who choose not to elect to participate in the Voluntary Land Sale Program. 10. Tax revenues to local jurisdictions lost by participation in the voluntary sale program will be replaced by the federal government. Revenues from those lands that become part of the National Wildlife Refuge System will be mitigated via the Refuge Revenue Sharing Act in a way that fully funds the program. For those lands temporarily held by the US Bureau of Reclamation, the federal government would pay an amount to local taxing districts equivalent to what was being paid on January 1, 2001. 11. Federal transition assistance grants will be made to affected and eligible local government units. Such grants could be used for mitigating the impacts of the results of the voluntary sale program and/or to assist communities in preparing for the post-sale program period. The amount available for such grants will be specified in the legislation after consultation with local government units. The administering agency would be the USDA Farm Services Agency. It is mutually understood that this is a proposal to Congress to help resolve both the chronic and acute crises affecting farming and fish and wildlife in the Klamath Basin. For a voluntary land sale program to become law, Congress must develop a final package that it finds to be in the national interest. Changes to this proposal are inevitable. The greater degree of participation by project landowners, and the greater the support by local government and other community interests, the greater the possibility that this proposal—or something close to it—will be enacted into law. Finalized this 9th day of June, 2001. Endorsers
____________ The Klamath Basin's Wildlife Abundance by Oregon Natural Resources Council The statistics of former wildlife abundance (and decline) in the Klamath River/Basin have been well documented and noted in numerous US Fish and Wildlife Service (USFWS) and other agency publications. In 1994, the USFWS office in Klamath Falls wrote, in describing the need for habitat restoration, that "113 out of 410 wildlife species identified in the Klamath Basin are considered to be of concern or at risk." More over, for the entire Klamath/Central Coast Ecoregion there are "197 species that are considered sensitive (i.e. federal category species or species which are considered sensitive or species of concern by Oregon and California.)"--Klamath/Central Pacific Coast Ecoregion Restoration Strategy-USFWS, Volume 4, January 14, 1997. Much of the reason for these declines is due to habitat loss. Page 1-2 of the July 1995 Wood River Wetland Resource Mgt. Plan, for example, notes that particularly in the "upper" Klamath Basin , "wetlands have been reduced from over 350,000 acres prior to 1905 to less than 75,000 acres today due to agricultural conversion...and other human changes to the landscape (USBR 1992)." Yet, overall, the entire Klamath River/Basin still remains one of the richest biological areas in North America (and elsewhere in much of the world) for two major reasons: First, the area is geologically very old compared to most of western North America, having been covered continuously by vegetation for at least the last 65 million years (the entire Cenozoic Era). Thus, the basin has been a refugium for species destroyed in other areas by submergence, glaciation, desiccation, or lava flows. For example, the Siskiyou Mountains, in the lower river/basin, has the highest known diversity of conifer species: a 1-square mile area in the Sugar Creek Drainage of the Klamath National Forest has 17 species of conifers. Second, just to the west of Klamath Falls is a zone where four major bioregions-the Cascadian, Californian, Great Basin and Klamath/Siskiyou Mountains all converge-- supporting plant and animal species from all four regions. This meeting of biological regions is very pronounced in the Soda Mountain area located mostly south of Hwy. 66 between Klamath Falls and Ashland. To protect this particular area's superior ecological and scientific values, President Clinton last summer designated this area the Cascade Siskiyou National Monument. Some of the wildlife species we particularly find in the upper basin, such as White-faced Ibis, American White Pelicans, Red-neck Grebes, Snowy Egrets, Least Bittern, Green Heron, Ring-neck Duck, Yellow Rail, Pronghorn Antelope, Western Pond Turtle, Oregon Spotted Frog and others occur in the Klamath Basin and area wildlife refuges at what is generally the western, northern or eastern extremes of their broader breeding range. Protection of these species in their Klamath Basin wetland habitats is thus important, because individuals and populations at the edge of a species range are important for the viability of the species. Individuals and populations at the edge of a species range often possess the genetic constitution that expands the adaptive capability of the species. This capability affords the species protection from random catastrophic events and enhances its ability to adapt to large-scale disturbance. As for overall historical abundance, most recently, the USFWS's January 2000, "Programmatic Environmental Assessment of Klamath Basin Ecosystem Restoration Office Projects 2000-2010" quoted E.D. Cope's 1884: "On the fishes of the recent and Pliocene lakes of the western part of the Great Basin" (who was also author of a 1879 American Naturalist article titled: "The fishes of Klamath Lake.") Dr. Cope wrote: that Upper Klamath Lake sustained "a great population of fishes" and "was more prolific in animal life" than any body of water known to him at that time. In regards to waterfowl, an April 20, 1956 USFWS publication (and report to the Secretary of Interior): "Plan for Wildlife Use of Federal Lands in the Upper Klamath Basin" stated: "About 80 percent of all the waterfowl of the Pacific Flyway funnel through the Upper Klamath River Basin in their annual migrations. In the Fall of 1955, for example, there were at one time upward of 7,000,000 birds on Lower Klamath and Tule Lake National wildlife Refuges in the Basin. This is the greatest concentration of waterfowl in North America and probably in the world." While no one was counting much before then, it is estimated there were even more birds earlier in that century. Thomas C. Horn, the Klamath Basin National Wildlife Refuge manager in 1957 wrote: "At the time the area was made a refuge, in 1908, literally clouds of birds of many species darkened the sky; the thunder of their wings was like the roar of distant surf, and their voices drowned out all other sounds." Similarly, William Finley wrote in The Condor, 1907, in an article titled: "Among the Pelicans" of Lower Klamath as a "jungle"of tules, an "impenetrable mass" with numerous floating islands supporting a total of "four to nine thousand while pelicans, one of the biggest breeding colonies anywhere." Despite all that has been lost, the Klamath Basin today still represents the largest interior freshwater wetland west of the Mississippi River, and for that reason can well be termed the "Everglades of the West." ____________ Blueprint for Restoration of the Klamath Basin Prepared By A Coalition for the Klamath Basin June 16, 2001 A Coalition for the Klamath Basin is an alliance of local, regional, and national organizations dedicated to protecting and restoring the Klamath Basin. Members include Klamath Basin Audubon Society, Klamath Forest Alliance, Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Sierra Club-Oregon Chapter, The Northcoast Environmental Center, The Wilderness Society, and WaterWatch of Oregon. The Klamath Basin is one of the nation's great ecological treasures. Considered a "western Everglades," this area in southern Oregon and northern California once contained some 350,000 acres of shallow lakes and wetlands (only 75,000 acres of which exist today). The 200-mile long Klamath River was among the most productive salmon and steelhead rivers in the West. The upper basin is home to a remarkably large native trout, and once contained thriving populations of spring chinook salmon, steelhead, and Kuptu and Tshuam (Lost River and Shortnose suckers). These fish once provided a major source of food for Native Americans. The Klamath Basin attracts nearly 80% of the birds migrating in the Pacific Flyway and supports the largest seasonal concentration of bald eagles in the lower 48 states. While water is vital to maintaining the ecological integrity of the Klamath Basin, fishery dependent economies, and tribal trust resources, the dominant use of water in the Klamath Basin has historically been irrigated agriculture. To date more than 75% of the Basin's wetlands have been drained and converted to agriculture. Damming and diversion of rivers and draining of wetlands have taken an enormous toll on the Basin's ecology. Hydrology of the Basin has been radically altered and water quality has been severely degraded. These conditions have contributed to the decline of ESA listed species, the failure of streams and lakes to meet water quality and temperature standards, the failure to meet native American hunting and fishing rights, and insufficient water to maintain the wetlands on the basin's national wildlife refuges. Thousands of fishing dependent jobs have been lost as a direct result of salmon declines in the Klamath Basin. Federal assistance and support will be needed in resolving the numerous issues and conflicts over water in the basin. We need to do what we can to reduce the economic hardships this year's drought has brought on Klamath Basin farmers without sacrificing the incredible resources of Klamath Lake, the Klamath River, and the Klamath Basin Refuges. The Coalition hopes that careful consideration will be given to the actions outlined below so that the ecological wonders of the Klamath Basin will be preserved and restored. 1. Reform Management of the Klamath Project. The Klamath Project should be managed to meet the river flow, lake-level and refuge water requirements as set forth in the applicable biological opinions and ultimately should seek means to meet the full water requirements of the refuges for ducks, geese, eagles and other wildlife, while recovering fish species to harvestable levels. 2. Fund and Implement a Voluntary Demand Reduction Program. Water has been severely over allocated in the Klamath Basin. Any meaningful long-term solution will require considerable downsizing of the Klamath Project and the retirement of many other water rights throughout the basin. There are currently tens of thousands of acres for sale in the Klamath Basin. A voluntary program to give financial assistance to the farmers, who want to sell their lands, by buying their lands at a fair price would be an equitable way to reduce agricultural demand, while giving more security to those who want to stay in business. A federally funded buyout program should be developed and implemented in this regard. 3. Terminate Refuge Lease Land Farming. The lease of 20,000 acres of federal refuge land in the Tule Lake and Lower Klamath National Wildlife Refuges for commercial agriculture should be terminated. This would allow management of these lands for fish and wildlife, eliminate the use of pesticides on the refuges, allow refuge personnel to devote more time to refuge management, help secure a reliable source of water for refuge purposes, and ease the irrigation season water demands on the Klamath Project. 4. Restore Fish and Wildlife Habitats. Although fish and wildlife habitats have been degraded throughout the Klamath Basin, it remains one of the few major river systems in the US where substantial restoration is still possible. Reclaiming and restoring wetlands, especially in the Lower Klamath and Tule Lake Wildlife Refuge areas and around Upper Klamath Lake, are important to obtaining a more natural hydrological regime, improving and increasing fish and wildlife habitat, and improving water quality. Riparian areas need to be protected and restored. Dams and diversions need to be screened and provided with appropriate fish passage facilities, or removed. The water retention and flow regulation capability of upland forested ecosystems need to be restored through reforestation, canopy retention and work to reduce the impact of extensive unpaved road systems. 5. Meet Water Quality Standards. The Klamath River and several of its tributaries have been listed as water quality "impaired" under the Clean Water Act. Total maximum daily loads (TMDLs) should be established and implemented for the impaired streams and plans should be developed and implemented to meet water quality standards. 6. Implement Water Conservation Measures and Improve Water Management. There should be a thorough analysis of irrigation needs in the basin. Opportunities for improving conveyance system and on farm efficiencies should be carefully assessed, funded, and implemented. Water use measuring and reporting need to be required, and an active enforcement program needs to be implemented. 7. Augment Water Supplies. Every effort should be made to evaluate water supply augmentation possibilities and environmentally sound projects should be funded and implemented. ____________Footnotes[1] 5825 N. Greeley Avenue, Portland, OR 97217, 503/283-6343 voice, 503/283-0756 fax, andykerr@andykerr.net |
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