Appeal planned in lawsuit challenging state’s Clean Water Act authority


Capital Press

A livestock auction company is planning to appeal a federal judge’s dismissal of its lawsuit challenging the State of Oregon’s oversight of confined animal feeding operations, according to the company’s lawyer.

Last year, the Eugene Livestock Auction of Junction City, Ore., filed a complaint against two state agencies — the Department of Environmental Quality and the Department of Agriculture — claiming they were illegally administering federal law.

The complaint alleged that Oregon doesn’t have the proper authority to enforce the federal Clean Water Act, which means it “may not administer an independent state-based, water pollution control program related to confined or concentrated animal feeding operations.”

Even if the state can enforce that law, the plaintiff claimed the Oregon Department of Environmental Quality improperly delegated its authority to the Oregon Department of Agriculture.

U.S. District Judge Michael Simon has now dismissed the lawsuit, finding that the auction yard should have made those arguments during previous state administrative proceedings.

Between 2008 and 2010, the livestock auction was cited three times by the Oregon Department of Agriculture for allegedly failing to comply with the terms of its Clean Water Act permit, according to a previous opinion.

In each of the three cases, the company could have appealed the findings in state court but chose not to, the document said.

The underlying controversy in those proceedings was the same as in the federal case, so the livestock auction already had the opportunity to question the state’s power over CAFOs, the judge said.

“When plaintiff received the noncompliance notices, plaintiff could have raised the defense that the state did not have the authority to regulate plaintiff before ODA or before the Oregon courts,” Simon’s ruling said.

Bruce Anderson, owner of the livestock auction, said Oregon’s regulations don’t comply with the federal Clean Water Act and were never approved by the U.S. Environmental Protection Agency.

Anderson said that a drainage ditch from a state highway diverts water onto his property, causing it to flood.

He said the state entered into a settlement deal agreeing to correct the problem when it planned to build a prison nearby, but the project was scrapped and the flooding persists.

“It was the state causing the discharge on my property and the Oregon Department of Agriculture was fining me for it,” Anderson said.

Jacob Wieselman, attorney for the auction, said he believes the ruling was erroneous and plans to appeal it.

The previous state proceedings were separate from the company’s lawsuit, which asked the federal court to interpret the Clean Water Act, Wieselman said.

“We’re just looking at the law,” Wieselman said. “We’re not challenging the fines or prior actions.”

Capital Press was unable to immediately reach Stephanie Parent, the attorney representing the state agencies in the case, for comment.



Lawsuit Says Dams Are Polluting Columbia And Snake Rivers

August 1, 2013

PORTLAND, Ore. (AP) — An environmental group has filed a lawsuit alleging that hydroelectric dams on the Columbia and Snake rivers are illegally polluting water.

Columbia Riverkeeper filed the suit Wednesday against the U.S. Army Corps of Engineers in federal courts in Oregon and Washington. The conservation group says acute spills and chronic leaks of oil have occurred at dams including Bonneville, The Dalles, John Day and Ice Harbor.

Columbia Riverkeeper director Brett VandenHeuvel says in a statement that the river is a treasure and should be protected from oil pollution.

The lawsuit seeks a declaration that the corps has violated the Clean Water Act along with injunctions requiring the corps to stop releasing pollutants and to evaluate and fix environmental damage.

The Corps of Engineers did not immediately return a call seeking comment.


Judge upholds Klamath Tribes’ water rights

KLAMATH FALLS, Ore. — A Klamath Falls judge denied a request Tuesday to keep the state of Oregon from shutting off irrigation water in the upper Klamath Basin.

That leaves intact a state decision recognizing the senior water rights of the Klamath Tribes.

The water-rights decision came down this spring, as drought began to sap the water supplies in the high-desert basin.

The tribes have used their water rights to protect threatened fish, and state workers have been shutting off irrigation water in the upper basin where ranchers use the water to green up pastures and grow hay.

Judge Cameron Wogan ruled Tuesday against putting the water-rights decision on hold while it’s appealed. He said that could take five to 10 years.

A stay would give the ranchers water in violation of the “first come, first served” principle of Western water law, he said.

Granting a stay, Wogan said, “would elevate petitioners over everyone so they would be the only ones to get extra water if downstream rights are curtailed as they request.”

The ranchers have four cases before Wogan. He rejected stay requests in two. He said the plaintiff in a third may want to consider withdrawing to avoid exposure to liability for damages if a stay were granted but the appeal eventually failed. He set a hearing next week to schedule arguments in a fourth that still has a chance to make arguments for a stay.

The water-rights decision from the Oregon Water Resources Department came after nearly four decades of litigation, and it gave the tribal group a dominant position in the basin’s long water struggle.

It also turned the tables on upper-basin irrigators. During a drought in 2001 that brought national attention to the Klamath Basin, irrigators in the lower basin bore the brunt of irrigation cutbacks, while the upper-basin irrigators had the water they needed.

But this year, because of the water-rights decision, the upper-basin irrigators have less senior water rights and are facing shut-offs.



Agencies Release Draft Columbia Treaty

YAKIMA, Wash. (AP) — The U.S. agencies responsible for managing the Columbia River under a U.S.-Canada treaty say the treaty should be modernized to better reflect current Pacific Northwest priorities.

The 1964 Columbia River Treaty is an agreement between the two countries for developing and operating the river and its dams for flood control and power.

Either country may give notice beginning in 2014 that it wants treaty provisions changed or terminated. For the U.S., the Bonneville Power Administration and the U.S. Army Corps of Engineers are working with other stakeholders to develop recommendations on the treaty.

The agencies released their draft recommendations for public comment Thursday. The working draft notes that the treaty must be modernized to adapt to the impacts of climate change and to include the ecosystem as a focus.


Reaping the Whirlwind: Water War Along the California-Oregon Border



Posted: 06/19/2013 6:16 pm



Not clear how many HuffPosters go Biblical, but this one fits. With a fresh backdrop of unprecedented forest fires in the West, ferocious storms along the Eastern Seaboard (tornadoes attacking elsewhere), alternating drought and flood in the country’s interior wreaking havoc on the Mississippi and the next of many rounds on its way, you can almost hear the booming voice indicting us with a good, “they have sown the wind, and they shall reap the whirlwind.”


But before anybody cranks up the old Climate Deny Machine to deconstruct whether 19 of 20 scientists can agree these weather events are related, let’s pivot to something that we definitively know humans made happen: a burgeoning water war along the Oregon-California border. As you read this, Oregon state employees are traveling across the Klamath Basin, shutting down the irrigation systems of ranchers and farmers to make sure that the Klamath Tribes get water they just found out they are legally entitled to.


This water war, pitting tribes and fish and wildlife against ranchers and farmers, is truly the result of human actions: in every sense, this environmental whirlwind was engineered by America legally, physically and economically. It is the obvious result of the application of a century-old water law that struggles to keep up with changing demands and modern priorities.


The law that allowed this war to start, called “Prior Appropriation,” was drawn up to encourage the settling of a dry land for a nation in a hurry. Hastened by gold, railroads and Manifest Destiny in 1800s, we needed a practical and simple way to know who could use scarce water resources when. Prior Appropriation grew out of a time and place where the West seemed boundless. A world where no one could predict that someday in the future, just about every drop of water would eventually be promised to someone before it reached the ocean. Prior appropriation did just that: it allocated “water rights” to all comers on a first come first serve basis. And it over-allocated many: across the Western United States, more people hold water rights “on paper” than there is actual water in streams in a given year.


Despite the lack of water accounting, for a long time the system worked. Settlement grew. Agriculture grew. The desert literally bloomed. What didn’t grow was the water budget. In fact, we have no more water on Earth today than we did when the planet opened for business. But in this country, our water is highly managed–it moves when and how we say it moves. The plumbing system of the American West has enough water in ditches, canals and reservoirs to put all of Oregon, Washington, Idaho and a chunk of Montana under a foot of water simultaneously.

Prior Appropriation creates clear winners and losers during times of water shortage. In dry years, those with older (aka “prior”) water rights can tell those with younger water rights to shut off. And from this long-standing interpretation of water law came the current conflict in the Klamath. Before this year, most of the water right owners in the Klamath didn’t know who had the prior rights and who had the less valuable junior rights. That is because the basin had not yet finalized their Water Rights in a process called “adjudication.”


The Klamath water rights were finalized barely a month ago and this process once-and-for all legally determined who gets what water in dry years. It was through this process that the Klamath Tribes were awarded water rights with priority dates that go back to “Time Immemorial.” That trumps every other water right holder’s date in the Klamath Basin. As coincidence would have it, this year is off to a dry start. The Klamath Tribes have made a call on their water, shutting off an untold number of ranchers and farmers downstream, to ensure that they can use their water for traditional needs of fishing, hunting, and agriculture.


This has predictably upset the apple cart (quasi-Biblical) for those farming in the basin and tensions are as high as they have been since agriculture was shut off to help endangered salmon in 2001. Right now, for safety in the basin, watermasters (the state of Oregon employees who have to shut off junior users) have taken to going out in teams of two and notifying the sheriffs’ office where they are headed. In a developed nation, that seems pretty wild.


To me, the real question has become: What events will jar us into realizing we need to shift our water management style? Our high capacity to ignore big, observable facts gives preference to how things used to be over how things ought to be–and that won’t work on the road ahead. The environmental issues we will face will be violent, fast and unpredictable. Several factors will move beyond our control. But our water future is something within our control, and we should solve for that.


A pathway exists to achieve more optimized use of water, but it will look different than how we have done it in the past. We need to accurately quantify the annual water budget, leaving enough for streams and ecosystems to function properly. Then we need to allow the trading of water among uses to allocate the water to the most productive uses and users.


This won’t be an easy transition. Some enviros will say that the market is no way to allocate a public resource like water; some ranchers and farmers will claim that family farms will be out-competed for water by bigger, more sophisticated agribusiness interests. Risks have to be managed, but such a sea-change in water management is not without successful precedent Instead of creating winners and losers according to whose great-great-great grandfather settled first, a system in Australia efficiently and fairly promotes economic and environmental gains, and ours should too. A race to produce more with less rather than a race to the bottom of the well is the better one to run.


Klamath water fight goes to Washington

Klamath Basin water users are testifying before a Senate committee in D.C. Thursday.

The Klamath Water Users Association represents farmers and ranchers in the basin and is hoping a senate committee will help get the water turned back on for ranchers.

Greg Addington with the association is testifying today, and representing 42 interested parties.

There’s been a long running struggle in the basin to ensure everyone gets enough water in the dry months.

Addington says irrigators need to be part of the solution along with fish groups, tribes and the power company, “for us to really fix some of theses things we have to have the government involved and to do that we need we need legislation passed to do that.”

Water in some irrigated areas of the Klamath Basin was turned off last week.

Despite court pleas from irrigators, tribes are still getting priority, to protect fish.

Thursday, Senator Ron Wyden said, the price tag is too high for agreements made after the Klamath Basin water crisis in 2001.

Many say, this year’s partial shut-off could have been avoided if Congress had passed agreements to help restore tribal fisheries.


Oregon Legislators Ask Congress to Renew America’s Water

By Julia DeGraw and Ronnette Steed

May 22, 2013

It’s been a good week for clean water lovers. On Monday, May 20, the Oregon State Legislature gave final passage to a memorial to Renew America’s Water with overwhelming bipartisan support as the Senate voted 29-0 on passage. The House previously passed House Joint Memorial 7 by a vote of 55-0.

HJM 7 calls on Congress to reinvest in our deteriorating water infrastructure and it sets an important precedent for other states to follow. The resounding endorsement of the Oregon Legislature to adequately fund our sewer and drinking water systems is something Republicans and Democrats both agree on. Updating and maintaining our public water systems creates much-needed jobs in both urban and rural communities, improves the environmental quality of our lakes, rivers and beaches and ensures clean, safe water for kids in our schools and for families across America.

HJM Chief Sponsor Representative Michael Dembrow (D-45) summed up the need for reinvestment in our water systems with this statement:

“Safe, clean water is one of the most precious public resources that we have. Across Oregon and the rest of this country, our public drinking water and wastewater systems are facing a crisis. These public water systems have provided clean, affordable water to generations, but they are falling into a state of disrepair. Congress must act now to increase investment in state revolving loan programs that assist communities with repairing and upgrading their water infrastructure, to maintain access to affordable water.”

According to a Congressional Budget Office 2010 report, federal investment in water and sewer systems has fallen 82 percent from 1977 to 2009 from about $15.6 billion per year to a mere $2.8 billion. The dismal amount money set aside by Congress also varies widely from year to year, which means municipal public utilities cannot rely on that money to plan important projects. Our public water and sewer utilities need an adequate and reliable source of funding from the federal government. With water systems and pipes built 50 to 100 years ago aging out and new rules for water quality from the EPA, it is high time to bring our public water systems into the 21st century.

Getting our water systems up to snuff and properly maintained isn’t just critical for public health and safety, but it is also good business. If Congress fills the budget gaps for our aging water infrastructure it could create over 5,000 jobs in Oregon alone. Most of those jobs would be in rural communities that need the economic boost the most.

Congress could create jobs, boost the economy, improve the environment and ensure clean safe water for the majority of Americans by passing legislation to Renew America’s water. We have a trust fund for transportation; having one for our water systems is long overdue. If Republicans and Democrats in the Oregon State Legislature can get together to support a full-fledged endorsement to fix our water systems, hopefully they can motivate Congress to do the same.

Ronnette Steed is a Food & Water Watch volunteer in Portland, Ore.


Stricter Water Quality Standards for Temperature May Be Coming to Oregon

By Daniel L. Timmons

May 23, 2013

After rejecting revisions to Oregon’s water quality standards last year, a federal court has now approved two related settlements reached among EPA, the Oregon Department of Environmental Quality (ODEQ), and an environmental group that effectively amend the existing standards. Under the new rules, Oregon regulators will no longer have flexibility to deviate from statewide numeric maximum temperature criteria, even for streams that naturally supported healthy salmon populations despite temperatures exceeding the numeric criteria. Oregon’s agricultural and forest products industries may face new compliance challenges as stricter water quality temperature standards are implemented and applied to the activities of these industries. The settlement agreements, however, may be subject to challenge in light of a recent Ninth Circuit decision[1] that limits the ability of federal agencies to use private settlement agreements to modify broadly-applicable regulations. See related article in this edition of the Marten Law Newsletter, M. Conway, D. Timmons, Ninth Circuit Rejects Use of Consent Decree to Short-Circuit Rulemaking Procedures.

Oregon’s Water Quality Temperature Standards

Section 303 of the CWA requires states to set water quality standards that must be approved by EPA. Of critical importance in the Pacific Northwest are maximum temperature criteria established to support salmon, bull trout and other cold-water fish species. With the listing of salmon species and bull trout under the Endangered Species Act in the 1990’s, temperature standards have taken on new importance, and are now a central concern of environmental groups.

When water quality standards are not met on a particular stream, states are required to list the stream as Section 303(d) water quality limited, and to develop Total Maximum Daily Loads (TMDLs) limiting the total discharge to the stream. While EPA has no authority to regulate non-point source pollution under the CWA, TMDLs must be set by states and approved by EPA even on streams impaired only by non-point sources of pollution.[2] Importantly, water quality standards and TMDLs are then used by states to develop programs for the management of non-point source pollution. Thus, EPA’s authority to review TMDLs provides the federal agency with a mechanism to indirectly regulate non-point source activities, such as agriculture and forestry.

Revising Oregon’s Water Quality Standards – Easier Said than Done

The Oregon Department of Environmental Quality (ODEQ) has been discussing revisions to its water quality standards for nearly two decades. In 1996, ODEQ submitted revised temperature standards and other water quality criteria to EPA for approval as required under Section 303(c) of the CWA. After consultation with the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA), EPA partially approved Oregon’s standards, but rejected temperature standards for salmonids migrating and rearing in the Lower Willamette River. When neither ODEQ nor EPA took any action to develop new standards, an environmental group, Northwest Environmental Advocates (NWEA) filed suit in the U.S. District Court for the District of Oregon. In 2003, the court ordered EPA to develop its own water quality standards for Oregon. Nw. Envtl. Advocates v. EPA (Nw. Environmental Advocates I), 268 F. Supp. 2d 1255 (D. Or. 2003).

EPA then developed and published draft rules, but the rules were never finalized. See EPA’s Proposed Rule for Water Quality Standards for the State of Oregon, 68 Fed. Reg. 58,758 (Oct. 11, 2003). Instead, after further ESA consultation, EPA approved new water quality standards developed by ODEQ in March 2004. Once again, NWEA challenged EPA’s approval of the standards under the CWA and ESA, and the federal district court again rejected EPA’s approval of certain aspects of Oregon’s water quality standards related to temperature. Nw. Envtl. Advocates v. EPA (Nw. Envtl. Advocates II), 855 F. Supp. 2d 1199 (D. Or. 2012). This case was previously discussed in this Newsletter. D. MacDougal & D. Till, Split Decision on Oregon’s New Temperature Water Quality Standards, Marten Law, Environmental News (Apr. 10, 2012).

Alternative Compliance for Forestry and Agriculture

Among the challenges brought by NWEA was a challenge to Oregon rules that deem compliance with water quality regulations enacted pursuant to the Oregon’s Forest Practices Act[3] and Agricultural Water Quality Management Act[4] to be sufficient to meet the state’s CWA water quality standards. Those statutes and related regulatory requirements already provide comprehensive programs and require “Best Management Practices” (BMPs) to minimize water quality impacts of forestry and agricultural activities. For example, Oregon Department of Forestry (ODF) rules require written plans for operations near waterways, and provide riparian vegetation retention requirements as well as protection measures for springs, wetlands, lakes and other sensitive waters.[5] Under Oregon Department of Agriculture (ODA) rules, local water quality management areas have been created, and local area management plans have been developed to manage agricultural runoff and protect the quality of Oregon’s waters.[6] In recognition of these numerous regulatory requirements already placed upon the forestry and agriculture industries, ODEQ rules provide that compliance with the statutory and regulatory requirements of the Forest Practices Act or the Agricultural Water Quality Management Act is deemed to be compliance with the temperature water quality standards.[7]

NWEA challenged the ODEQ rules, arguing that the ODF and ODA regulations were de facto water quality standards that required EPA review and approval. Alternatively, NWEA argued that even if they were not water quality standards, they must nonetheless be reviewed by EPA because they affect water quality standards. EPA and ODEQ argued that they were not water quality standards requiring EPA approval, but simply detailed activities required for compliance with such standards. Further, EPA argued that it lacks authority to regulate non-point sources of pollution, such as agricultural or forestry practices, and so could not lawfully review these regulations.

The court agreed with NWEA, ruling that although the compliance standards “do not meet the traditional definition of water quality standards insofar as they do not ‘express constituent concentration, levels, or narrative statements, representing a quality of water that supports a particular use,’” they were “intrinsically intertwined with the promulgated water quality standards and have the potential to supplant, or at the very least, delay the attainment of those standards.” [8] The court reasoned that that the challenged provisions could hinder the attainment of water quality standards in the numerous Oregon rivers impaired by nonpoint source pollution because activities contributing to impairment would be deemed to be in compliance with the standards.

The court concluded that EPA has a nondiscretionary duty to review nonpoint source provisions “which are part and parcel of Oregon’s water quality standards, insofar as the provisions affect how, whether, and when those standards apply to bodies of water.”[9] This is potentially problematic, since EPA has no authority to actually regulate non-point source pollution. By requiring EPA to determine with ODEQ’s BMPs for forestry and agriculture are lawful, EPA will arguably be required to make a de facto judgment as to what BMPs are best – a result that could be viewed as an unlawful regulation of nonpoint sources by EPA.

The Natural Conditions Criteria

Also among the standards at issue in Nw. Environmental Advocates II was Oregon’s Natural Conditions Criteria (NCC), which provides that where ODEQ finds that a waterway’s temperature under natural conditions would exceed the numeric temperature criterion, then the less-protective, higher temperature natural conditions are automatically “deemed to be the applicable temperature criteria for that water body.”[10] While EPA approved this criteria based on its understanding that natural temperature conditions historically supported healthy salmonids populations, NWEA argued that the criteria failed to account for other factors that now limit the ability of cold-water fish to survive and recover under a natural temperature profile, including reduced population numbers, habitat degradation, and limited availability of cold water refugia. NWEA also noted that after promulgating the NCC, ODEQ applied it without exception when setting new temperature TMDLs, effectively swallowing the numeric criteria.[11] This widespread use of the NCC allegedly resulted in water quality standards set as high as 90˚ F, compared to the 64˚ F numeric criterion otherwise required for streams designated for salmon rearing and migration.

While narrative criteria are generally permitted under CWA regulations to “supplement” numeric criteria, the court found that the NCC instead “supplants rather than supplements the numeric criteria by allowing Oregon to replace the numeric criteria (determined to be protective of salmonids) with a new numeric standard during the TMDL process.”[12] In effect, the NCC effectively allowed ODEQ to replace the numeric standards approved by EPA with less-protective standards during the TMDL process, unlawfully circumventing the statutory requirement for EPA review and approval of all state water quality standards.[13] Accordingly, the court found that the NCC violated Section 303(c) of the CWA and rejected EPA’s approval of the flexible standard.

The Recent Settlement Agreements

In its February 2012 opinion, the court directed the parties to confer regarding remedies, resulting in an initial settlement of several issues, and a final settlement agreement resolving the remainder of the case. The initial settlement, approved by the court in January 2013, stays EPA’s review of the above-described forestry and agriculture BMPs, and requires ODEQ to propose amendments to the regulatory water quality standards to remove the forestry and agriculture BMPs from being deemed compliance with state water quality standards. If the Oregon Environmental Quality Commission (OEQC) does not pass such amendments, then EPA must review the forestry and agriculture regulations as water quality standards under Section 303(c).

A recent Ninth Circuit case, Conservation Northwest v. Sherman (Conservation Northwest II), No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013), however, may cast doubt upon the validity of this stipulated agreement. See M. Conway, D. Timmons, Ninth Circuit Rejects Use of Consent Decree to Short-Circuit Rulemaking Procedures, Marten Law, Environmental News (May 23, 2013). That case provides that EPA cannot enter into consent decrees that amend effectively amend regulations without going through otherwise required formal procedural requirements, and ODEQ is subject to similar procedural rulemaking requirements under the Oregon Administrative Procedures Act.[14] While the settlement agreement may not technically amend the ODEQ rules, it does define the content of the amendments that ODEQ is required to bring to the OEQC, thereby limiting public involvement in the drafting of the rules. Given the stipulation that EPA will review the rules if OEQC does not amend them accordingly, OEQC may have strong incentive to simply rubber-stamp ODEQ’s stipulated proposed amendments. While the public, including the agricultural and forestry industries, must be given an opportunity to provide comments on the proposed rules, this opportunity comes very late in the process. At the very least, this short-circuited procedure violates the spirit, if not the letter, of the Oregon APA and the Oregon Legislative Assembly’s stated policy that “whenever possible the public be involved in the development of public policy by agencies and in the drafting of rules.”[15]

The final settlement agreement, approved by the court in April 2013, sets aside the NCC and remands it to EPA for review within 120 days under Section 303(c). Given the court’s prior rejection of the criteria as unlawful, EPA will presumably have little choice but to deny approval of the criteria. EPA or ODEQ may then promulgate replacement regulations. For example, new standards might provide that where a natural temperature profile is warmer than the numeric criterion, individual deviations from the numeric temperature criteria could be allowed upon EPA review and approval under Section 303(c). Alternatively, EPA may simply deny any future deviation from the numeric criteria. Affected industries should participate in any rulemaking process to help ensure that any new rules adequately take their interests into consideration.

While the EPA has agreed to once again review Oregon’s NCC and will likely amend or eliminate the provision, the Settlement Agreement provides that it does not “preclude NWEA from challenging any final agency actions taken pursuant to this Order.” Thus, future lawsuits will likely continue to arise as Oregon implements the amended standards through TMDLs for individual streams and development of management programs for achieving water quality goals.


Water quality temperature standards in the Pacific Northwest will remain a hot-button issue, particularly for non-point sources, such as agriculture and forestry. With the Supreme Court’s recent decision in Decker v. NEDC confirming that forest roads are not required to receive discharge permits under the CWA, see M. McCurdy, No Permit Required for Stormwater Discharges from Logging Roads, Supreme Court Rules; Attention Shifts to EPA Rulemaking, Marten Law, Environmental News (Mar. 25, 2013), the forest products industry should expect environmental groups to look closely at state-level BMPS and other regulations designed to address non-point source runoff.

While ODEQ has historically provided that compliance with BMPs provided under ODOF and ODA regulations was sufficient to demonstrate compliance with water quality standards, ODEQ must now propose amendments to its regulations to eliminate these exemptions. With continued efforts to restore listed salmonids and heightened attention on forestry and agricultural practices as non-point sources of thermal pollution, these industries should be prepared for new efforts by ODEQ to implement BMPs or other regulatory requirements designed to implement water quality temperature standards, including standards that may require improvement over natural conditions.

For more information, please contact Daniel Timmons or any other member of Marten Law’s Water Quality practice group.

[1] Conservation Northwest v. Sherman (Conservation Northwest II), No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013).

[2] Pronsolino v. Nastri, 291 F.3d 1123, 1132 (9th Cir. 2002).

[3] ORS 527.610 to 527.992.

[4] ORS 568.900 to 568.933.

[5] OAR Chapter 629, Divisions 635 to 660 (Water Protection Rules).

[6] OAR Chapter 603, Divisions 090 to 095 (Agricultural Water Quality Management Program).

[7] OAR 340-041-0028(12)(e), (f).

[8] 855 F. Supp. 2d at 1209.

[9] Id. at 1212.

[10] OAR 340-041-0028(8).

[11] Nw. Envtl. Advocates II, 855 F. Supp. 2d at 1216.

[12] Id. at 1217–1218.

[13] Id. at 1218.

[14] ORS 183.310 et. seq.

[15] ORS 183.333(1).


Maine’s environmental movement reinvents itself for a new era of challenges

By LANCE TAPLEY  |  May 10, 2013 | Portland Phoenix

Link to Article

Maine’s cherished environment may be threatened as never before by the gargantuan forces of economic globalization. In reaction, the state’s environmental movement is coalescing into a force stronger than ever. There are new players in the game — including Occupy — augmenting the old guard.

Not surprising for a state that sticks up into Canada, several big threats have Canadian connections:

• a proposed east-west superhighway and utility corridor cutting across Maine’s middle from Quebec to New Brunswick;

• a proposal by a giant Canadian energy corporation, J.D. Irving, to dig a big open-pit mine for gold, silver, and copper at Bald Mountain in the heart of the fabled North Woods — allowed by a loosening of mining regulations rammed through the previous Legislature;

• the possibility that highly toxic Canadian tar-sands crude oil could be pumped through an existing pipeline from Montreal across numerous Maine (and New Hampshire, Vermont, and Quebec) towns to Portland Harbor to be loaded into tankers.

“Maine is in the way,” is how Jym St. Pierre, the longtime activist with the group Restore: The North Woods, describes the challenge to the state’s environment and environmentalists.

“An unabashed corporate takeover” is the way Jim Freeman, veteran Earth Firster and an Occupy organizer, describes the danger.

Big corporations, “the true eco-terrorists,” says Jonathan Carter, former Green Party candidate for governor, have become “more ferocious.”


In response to the challenges, “there’s certainly a burst of activity,” St. Pierre says. In particular, the environmental cause at the grass roots has been energized and synergized by the Occupy movement.

At recent, crowded legislative hearings on environmental bills — where the eco-friendly folk vastly outnumbered the corporate lobbyists — Occupy activists were numerous. In new groups that have sprung up to meet the specific new threats, including opponents to the East-West Highway and the tar-sands oil, Occupiers are well represented.

Occupy “woke up a lot of people. It was a shot in the arm” to various causes, Freeman says. “The Occupy movement normalized protest,” says Lew Kingsbury, an Occupy Augusta organizer now active with several of the causes.

There are signs, too, that the environmental movement has recently broadened far beyond the stereotypical coastal retired person, Portland yuppie, or back-to-the-land hippie.

Charles Fitzgerald, of Atkinson, a former Green Party congressional candidate, says, “One of the greatest pieces of good luck of my lifetime” — he’s 79 — is to participate in the East-West Highway opposition.

“It’s not just fringe people,” he says, but the “smart and focused” locals who have resided in his part of pastoral central Maine, the Piscataquis Valley, for many years — a “broad spectrum” including truck drivers, woodsmen, and farmers.

“Salt of the earth” folks, Freeman says, have joined three new grass-roots organizations: the Stop the East-West Corridor coalition; 350 Maine, an anti-fossil-fuel group opposed to the Portland-Montreal Pipe Line corporation’s use of tar-sands oil from Alberta; and Thanks But No Tank, the Searsport-based group that recently succeeded in blocking a 14-story-high liquid-propane tank from being constructed in that coastal community (the group is sticking around to deal with other possible industrial threats).


Peter Vigue, the Cianbro construction giant’s CEO and chief promoter of the East-West Highway, impoliticly calls the state’s central region the “empty middle.” The locals, however, have told him there’s somebody there. Testifying to the breadth of opposition, the towns of Monson and Sangerville have passed moratoriums on development connected to the highway.

Likewise, Casco, Bethel, Raymond, and Waterford in southern and western Maine have opposed the pipeline’s transport of tar-sands oil (along with 39 towns in Vermont and others in New Hampshire and Quebec, according to Bob Klotz of 350 Maine). The 236-mile pipeline at one point goes alongside Sebago Lake, a recreational mecca and source of Portland’s drinking water. (The present flow of regular crude oil would have to be reversed. It now goes from South Portland, where tankers unload it, to a refinery in Montreal.)

Even Democratic Senator Troy Jackson, the assistant majority leader from far-northern Allagash, who in a recent legislative hearing opposed bills that would put up roadblocks to a Bald Mountain mine, admitted in an interview that he has constituents “on both sides of the issue” — despite the touted economic benefit to his poor Aroostook County district. He also admitted he’s personally “not 100 percent for” the mine.

Remarkably, the biggest threats now exercising environmentalists are not imminent (see sidebar, “The Issues”). The quick and muscular reaction to them expresses the movement’s strength, but it also may be an expression in the Internet Age of the knowledge — or suspicions — on the part of environmentalists of the interconnected, long-range machinations of global capital.

The 350 Maine and anti-mining activists, for example, suspect connections between what they are opposing and the East-West Highway. They say it could be used as a conduit for tar-sands oil as well as ore extracted at Bald Mountain. Cianbro’s Vigue, after all, has promoted it as an “energy corridor.”

“It’s legitimate to worry” about the hidden agenda, says the Natural Resources Council of Maine’s longtime chief lobbyist, Pete Didisheim. Vigue’s statements about what the corridor would carry have been vague and ever-changing.


The environmental movement in Maine “has been strong for a long time,” says Didisheim. The pre-eminent state environmental organization, the 54-year-old NRCM has 12,000 members, a $2-million annual budget, and 21 staffers. It not only lobbies on legislation: it monitors the all-important rules promulgated after legislation is passed, speaks out on federal issues, and engages in legal actions.

Over the past 15 years — typically, in coalition with other groups — the NRCM has successfully pushed for conservation-land-acquisition bonds; the recycling of electronic waste; the dismantling of Kennebec and Penobscot River dams; and the creation of the Efficiency Maine trust, which financially assists businesses and residents to conserve energy. The NRCM recently helped restore the alewife run in the St. Croix River.

Despite national surveys showing a weakening of environmental concerns during the continuing economic doldrums, in Maine support for preserving the environment remains high — a “pretty stable sentiment,” Didisheim says. In a poll done for his group in 2011, over 90 percent of Mainers said environmental preservation should be a priority of lawmakers.

While in the past Maine’s established eco-organizations have found themselves at loggerheads with single-issue groups (in the 1980s it took years for the forces working to shut down the Maine Yankee nuclear power plant to bring the NRCM to an anti-nuclear position), the mainline outfits are now working on many issues with the new grass roots.

Klotz, 350 Maine’s chief organizer, notes that the NRCM and the Sierra Club are cooperating with his group on the pipeline issue and on other global-warming concerns. (The “350” comes from the group’s affiliation with, the international organization pushing for policies to reduce global-warming atmospheric carbon dioxide to 350 parts per million.)

Both the NRCM and the Sierra Club are opposed to the East-West Highway and are working to retighten the mining law. This effectively puts them in bed with radical Occupiers. Klotz, for example, received his political baptism with Occupy. For him, in fact, 350 Maine is “an Occupy working group.”

The two wings of the movement complement each other. The two biggest groups, the NRCM and the Maine Audubon Society, have money, constant legislative presence, political respect, and realism (speaking of state legislation, Didisheim observes, “We pursue what we believe can pass”). The grass-roots groups’ strengths include passion, intense focus, and the ability to bring in new blood.

Maine Audubon is seen among activists as more conservative than the NRCM. But it’s opposed to the East-West Highway, and it supports tightening the mining regulations — though for Audubon the highway issue is not a priority, says Jennifer Burns Gray, Audubon’s lobbyist. The group has not taken a position on the pipeline. Gray says it focuses on issues affecting wildlife and their habitat.


Not all divisions between the grass-roots activists and the environmental establishment have disappeared. The single-issue people tend to see the establishment groups as too conservative and too eager to compromise. For instance, while Stop the East-West Corridor is pushing for legislation to make it virtually impossible for state government to cooperate on highway projects with private corporations, the NRCM is only supporting bills to halt the present highway proposal.

It’s a class thing, Jim Freeman says: the proper folks in organizations like the NRCM, Maine Audubon, and the Sierra Club “live more in a bubble” and don’t mix with ordinary working people.

But the major division on issues among Maine environmental activists belies the class analysis — the development of windmills.

The flashing lights from “industrial wind” can be seen from all the mountains now, laments Jonathan Carter, who heads up the Forest Ecology Network and lives in Lexington, near the Appalachian Trail. He and some other grass-roots environmentalist types criticize the NRCM and Audubon for their support of mountain wind projects.

Both NRCM’s Didisheim and Audubon’s Gray use the same phrase to express their groups’ support for windmills: they should be “appropriately sited.” Both organizations have successfully opposed some wind projects, such as the turbines proposed for Redington Mountain, near Carrabassett Valley.

The division on wind power, however, most simply reflects the fact that, as an alternative to fossil fuels that pump greenhouse gases into the atmosphere, wind generation is popular among many rank-and-file environmentalists and, polls show, the general public — but it is not popular among hikers on Maine’s lovely mountain ridges or the folks who live nearby.

Even Occupy organizer Lew Kingsbury, involved in the anti-East-West Highway and anti-mining campaigns, says of windmills, “They’re not nuclear power. They’re not going to kill anybody.”


In spite of the NRCM’s position on wind power, Carter says the group “tackles important work,” citing its strong stand in the clash several years ago over Plum Creek’s plan for Moosehead Lake, the state’s largest inland water body.

The Land Use Regulation Commission’s 2009 go-ahead to Plum Creek to develop Moosehead was the NRCM’s biggest recent disappointment, although the group was successful in helping to reduce the project’s size. The other significant recent loss was last year’s loosening of restrictions on open-pit mining, allowing Bald Mountain and possibly other locations in Maine to be excavated on a large scale.

Because the first two years of Republican Governor Paul LePage’s term coincided with his party’s control of the Legislature, environmental groups had to go strong on defense. With Democratic support and the help of the few remaining Republican moderates, they beat back many of the most regressive bills, such as one gutting the returnable-bottle law. In the last session they lost also on several bills that weakened state agencies regulating the environment.

Now, however, the NRCM — emboldened by the seating of a Democratic Legislature and in cooperation with other established advocacy groups and the enlivened grass roots — is trying to take the initiative on a variety of environmental issues.

This spring, the movement is seeing a rebirth or, at least, a re-blossoming. Expressing this development in the sober tones of Maine Audubon, Gray says, “The voice of the environmental community has gotten stronger and more effective.”

In the end, the movement’s juices are flowing because the threats to Maine and the Earth are, for many people, enormous and becoming greater. The global Big Money behind these threats can sometimes seem like a Goliath. But as Melanie Lanctot, representing a coalition of “green churches” at a recent hearing on energy legislation, observed: “David won.”


SIDEBAR: The national park contradiction

• Yes, Maine people want their environment preserved, as the polls have shown. That point has been demonstrated in long-standing public approval of the idea proposed by Restore: the North Woods for a 3.2-million-acre Maine Woods National Park and Preserve, which would be bigger than Yellowstone and Yosemite parks combined.

Jym St. Pierre has a handout listing a dozen Maine opinion polls over the last dozen years showing firm support — with a majority even in the Second District, where park opponents have been most vocal.

But here’s the contradiction: strikingly, Maine’s political class, with the notable exception of Democratic 1st District Representative Chellie Pingree, will not even support a federal study of the value of a park. The Legislature two years ago swiftly and nearly unanimously passed a resolution opposing a study.

Deferring to this lack of political will, the major environmental groups have not gotten enthusiastically behind the Restore plan. A 3.2-million-acre park is “just not feasible,” the NRCM’s Pete Didisheim claims.

St. Pierre’s explanation is that support for the park is “broad and soft,” while opposition is “narrow and deep and loud and intimidating.” He lists the opponents: the politically powerful forest industry, snowmobilers’ groups, the Sportsman’s Alliance of Maine, and zealous property-rights advocates.

For a smaller park proposal, however, that situation appears to be changing. Both the NRCM and Maine Audubon are expressing interest in philanthropist Roxanne Quimby’s desire to give 100,000-plus acres to the federal government of land she has accumulated east of Baxter State Park for a combined park and multi-use recreation area.

Based a consultant’s recent study laying out the economic impact of such a park, says Didisheim, “we are enthusiastic about the potential benefits for the region and for Maine as a whole.” Neither the NRCM nor Audubon, however, has taken a formal position yet on the Quimby gift.

Even though, presumably, millions of people nationally would enjoy a national park for non-economic reasons, the economic argument is, locally, the important one.


SIDEBAR: The Issues

• How are Maine’s major environmental issues playing out in the legislative session now in progress? As Audubon’s Jennifer Gray puts it, there won’t be a “big leap forward this year.” LePage and his veto power still occupy the governor’s office. But with supportive Democratic leadership it’s possible that some reforms can be enacted and anti-environmental legislation beaten back.


Activists are behind seven, largely overlapping anti-highway bills. Although Cianbro is still pushing for the highway, it did not show up at the hearings. Anti-highway troops showed up in droves, including representatives of businesses on existing East-West roads who fear a diversion of traffic onto a superhighway. The Transportation Committee will probably combine the bills into one. Certain to be in it: rescinding the $300,000 for the study of the 220-mile, private toll road’s feasibility. Not even the governor supports the study now.


LD 1302, sponsored by assistant Democratic House floor leader Jeff McCabe, is supported by the mainstream environmental organizations. It would put many restrictions on mining — perhaps making open-pit mining impossible. At the Environment and Natural Resources Committee hearing on it and other mining bills, anti-mining speakers greatly outnumbered those who said let the rule-making take its course on last year’s loosening of restrictions. Irving has not announced definite plans to mine at Bald Mountain.

At the hearing, Democratic Representative Ralph Chapman of Brooksville told horror stories of past mining in his district that saw few jobs provided and huge, still-ongoing pollution costs. The NRCM’s Pete Didisheim thinks “some elements” of 1302 may pass. LD 1059, which would fully repeal last year’s law giving the green light to mining, is supported by grass-roots activists, but might have little chance to get by the governor’s veto.


The pipeline corporations trying to get permission to send tar-sands oil from Alberta through pipelines west, south (see: Keystone XL controversy), and east, have not announced whether they want to pump oil to Portland through the existing Montreal-Portland pipeline. But the Portland pipeline company, controlled by ExxonMobil, has expressed interest in that use, and one Canadian company, Enbridge, is asking for permission to send the oil to Montreal.

LD 1362, sponsored by Representative Ben Chipman, the Portland independent, would establish a two-year moratorium on tar-sands-oil use and require the Department of Environmental Protection to study the potential effects on Maine. The NRCM supports the bill, but, since pipelines are regulated by the feds, it also wants the Environment and Natural Resources Committee to get involved in making sure a proper federal permitting process is followed.


Several bills before the Energy and Utilities Committee promote the use of renewable energy, including LD 1085, An Act to Establish the Renewable Energy Feed-in Tariff, which has strong support from 350 Maine and the Sierra Club. It would give individuals the right to “feed in” to the electricity grid energy produced by their solar panels or a windmill and get paid for it.

Environment Maine, an up-and-coming activist group based in Portland — another example of the broadening of the state’s environmental movement — has raised the alarm about LDs 1187 and 1262, which are being pushed by some businesses. They ask the public to finance a natural-gas pipeline from the shale formations of the Mid-Atlantic states that produce gas using controversial “fracking” techniques.


Last year the Legislature allowed the Norridgewock private landfill to expand. This year Hillary Lister, the state’s tireless anti-waste warrior, is pushing for LD 1363, which puts a one-year moratorium on landfill expansion. Its prospects appear good, though she worries about what the sizable lobbying effort mounted by the waste industry may engender in other legislation.


SIDEBAR: Finding an economic argument

• A big contribution of the new people in the environment movement is their talk about the need for economic alternatives to the big threats. In the history of Maine environmentalism, this is an uncommon conversation — as a rule, the fight has been reactive.

The discussion has arisen because almost all development plans rely on a single argument: jobs — a forceful one in a poor state.

To be sure, environmentalists have long spoken about how Maine’s tourism industry will be protected by preservation of the environment — an argument freshly made by Thanks But No Tank. And they propose economic alternatives such as less-environmentally-damaging energy sources —decentralized solar, wind, tidal, and small hydro —as a counter to nuclear, coal, oil, and giant dams.

Those suggestions, however, are neither comprehensive responses to Maine’s general lack of good jobs nor specific alternatives to many job-promising industrial proposals.

But now Chris Buchanan, the statewide coordinator of Stop the East-West Corridor, is promoting local cooperatives, putting “workers and the environment first rather than the bottom line.” She cites historical models — Franklin D. Roosevelt’s rural electrical cooperatives created in the Great Depression — as well as current ones — the ubiquitous credit unions; Fedco, the Maine garden-supply co-op; and, in Spain, the Mondragon corporation, a co-op federation that has been a mainstay, she says, of that country’s economy throughout its current crisis.

Recently, at an anti-East-West-corridor meeting that saw 60 people attend in the tiny village of Parkman, in Piscataquis County, the cooperatives idea was a central topic and, she and others say, was well received. This type of business “does well because workers are happy and motivated,” Buchanan says. Usually, workers own the cooperatives.

The economic-alternatives conversation is spreading. Charles Fitzgerald, a successful businessman, talks about local, “agrarian” economic development. He mentions small farmers and a cheese-maker in his area.

Still, there’s no real economic plan articulated by the anti-highway folk — or by others in the grass roots. “Nothing concrete yet,” Jim Freeman says. Buchanan admits the cooperative idea requires a lot of public education.

Especially, there’s no alternative to corporate plans for Maine’s vast forest, its largest resource, which figures in many environmental battles and is owned by large, distant corporations — increasingly, by Wall Street investment firms with a hunger for immediate profits.

The last time Maine environmentalists took a big step toward an economic alternative for the forest was the Ban Clearcutting citizen-initiated referendum campaign of the 1990s, which Jonathan Carter directed. If industrial clearcutting were banned, labor-intensive forestry would have to be practiced.

Although the ban was highly popular at the start of the battle, it was beaten down by millions of dollars of fear-inducing advertising by the forest industry (about, of course, jobs). Most Maine politicians, Democrats as well as Republicans — and even the NRCM and Maine Audubon — didn’t support the ban (though the Sierra Club did). (Disclosure: the author was involved in the Ban Clearcutting campaign.)

The clearcutting battle demonstrated how, when public fears are raised about jobs — or when more jobs are promised — Democratic politicians are not certain votes for the environment.

There were some Democratic votes last year for relaxing the mining law and for the public funding, to the tune of $300,000, of a Maine Department of Transportation study of the East-West Highway’s feasibility, even though Cianbro’s Vigue had alleged the highway-corridor was to be created only with private funds.

Until there are well-thought-out and clearly articulated alternative economic plans for Maine’s future, however — and perhaps some appealing politicians enunciating them—the environmental movement will always be, fundamentally, playing defense.

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Water war between Klamath River farmers, tribes poised to erupt

KLAMATH FALLS, Ore. — For decades this rural basin has battled over the Klamath River’s most precious resource: water that sustains fish, irrigates farms and powers the hydroelectric dams that block one of the largest salmon runs on the West Coast.

Now, one of the nation’s fiercest water wars is on the verge of erupting again.

New water rights have given a group of Oregon Indian tribes an upper hand just as the region plunges into a severe drought.

Farmers and wildlife refuges could be soon cut off by the Klamath Tribes, which in March were granted the Upper Klamath Basin’s oldest water rights to the lake and tributaries that feed the mighty river flowing from arid southern Oregon to the foggy redwoods of the Northern California coast.

Within weeks, the 3,700-member tribes are poised to make use of their new rights to maintain water levels for endangered Lost River and Shortnose suckers, fish they traditionally harvested for food. Under the “first in time, first in right” water doctrine that governs the West, the Klamath Tribes can cut off other water users when the river runs low.

Low flows have already raised tensions between tribes and farmers who draw from the river’s headwaters. Cutting off water this year could dry up farmland and bring that looming conflict to a head.

“A lot of people’s water could be shut off, and that has huge implications and it affects peoples’ livelihoods to the core,” said Jeff Mitchell, a tribal council member and its lead negotiator on water issues. “But I also look at our fishery that is on the brink of extinction. We have a responsibility to protect that resource, and we’ll do what we need to do to make sure that the fish survive.”

The tribes’ cutting off water could also spell the end to a fragile truce that was supposed to bring lasting peace to the river. A coalition of farmers, fishermen, tribes and environmentalists forged the Klamath Restoration Agreements three years ago to resolve the distribution of water and restore habitat and bring back salmon by removing four hydroelectric dams. But the deal has languished in Congress, and a year of drought and discord could unravel it for good.

Before the attempt at compromise, the Klamath had lurched from crisis to crisis for more than a decade: water shut-offs that left farmland fallow, flows so low they caused a mass fish die-off, recurring toxic algae blooms that fouled reservoirs, and salmon population declines that closed 700 miles of coastline to fishing.

The tribes fear that exercising their new water rights will make them a target for retaliation or violence. Klamath County is 86% white, and the long history between Indians and some farmers is strained.

Some of the farmers resented payments that some tribal members received after the U.S. government terminated their federal recognition and dissolved their reservation in the 1950s.

In recent months, members monitoring water levels have reported being threatened by farmers, and the tribes have sought assurances from law enforcement that they will be protected. State officials have taken the unusual step of assembling a 15-person Klamath Action Team to protect public safety and stave off water conflicts as the region plunges into a severe drought, said Richard Whitman, natural resources policy advisor to Oregon Gov. John Kitzhaber.


The truce was supposed to bring peace along the Klamath. Instead the discord has surged since it was signed and sent to Congress, where it has sat unsigned.

Several environmental groups say the deal provides too much water to irrigation interests and not enough for fish and wildlife. Conservative groups have organized in opposition to dam removal and the Endangered Species Act through the Tea Party Patriots and have unseated pro-restoration officials from local posts in the watershed’s upper basin. In February, the Klamath County Board of Commissioners voted to withdraw from the deal altogether.

Tom Mallams, a hay farmer and tea party member from Beatty, Ore., who was elected Klamath County Commissioner in November, said the new tribal water rights are being used as a hammer to try to force opponents to sign on to the deal.

“The supporters of this are desperate,” he said. “They’re making a last-ditch effort to make it go through right now because they know it’s dying. I think some people will sign on to it in sheer desperation, but there is no trust in those agreements.”

Becky Hyde, a cattle rancher who lives across the road from Mallams on one of the Klamath’s upper tributaries, is a close ally of the Klamath Tribes and worked for years to build support for the settlement. Now, she is trying to assess how many of her and her neighbors’ pastures will go dry.

“A year like this,” she said, “may be the only thing that gets the people who represent us in Congress to get serious.”

Under the settlement, the Klamath Tribes agreed not to use their water rights to shut down the largest group of irrigators. In exchange, the tribes would see restored habitat and the probable return of their salmon fishery and would regain some 92,000 acres of private forestland, a small portion of the reservation the U.S. government dissolved when it terminated their federal recognition in the 1950s.

The Klamath River basin was harnessed for large-scale irrigation by the federal Bureau of Reclamation’s 1905 Klamath Project, turning a relatively dry expanse on the Oregon-California border into a rich belt of farms and homesteads, many settled by World War I and World War II veterans. The irrigated lands now support 1,400 farms on 200,000 acres, where fields of alfalfa, potatoes, grains and mint feed from an intricate system of canals, drains and pumps.

Clashes over the water supply boiled over in 2001, when the federal government cut off water deliveries to Klamath Project farmers in order to protect endangered suckers and coho salmon from a drought. The enraged farmers made national news after they formed a massive “bucket brigade” to manually pass water into irrigation canals as an act of civil disobedience.

The Bush administration resumed water deliveries the next year, leaving so little flow that tens of thousands of fish in the river’s lower reaches washed up dead. The fish kill devastated California’s Karuk and Yurok tribes, who depend on the salmon harvest.

Confidential settlement negotiations began in earnest around 2006, when regulators made it clear that PacifiCorp, a subsidiary of billionaire Warren Buffett‘s Berkshire Hathaway Inc., would have to make expensive modifications to its series of dams near the California-Oregon border to get them re-licensed. The company agreed to the removal, a condition that was ultimately linked to the 2010 agreement.

Last month, the U.S. Department of the Interior recommended the removal of all four Klamath dams. In one of his last acts in office, Interior Secretary Ken Salazar urged Congress to approve the agreement and fund $800-million worth of habitat restoration and water management programs.

“Once again the communities of the Klamath Basin are facing a potentially difficult water year under a status quo that everyone agrees is broken,” Salazar said in a statement.

Not everyone, though, seems ready to move on.

On country roads here, roadside signs in favor of the settlement compete with those reading “Stop the Dam Scams.” The Klamath Tribes keep their official seal off government vehicles to prevent windows from being broken and tires flattened. And a giant metal bucket still stands outside the county government building in downtown Klamath Falls to commemorate the demonstrations 12 years ago, when the flow of irrigation water stopped.