[env-trinity] Klamath Water Quality Put on Hold by State Water Board

[FISH1IFR at aol.com]

In a message dated 10/15/2010 3:31:14 P.M. Pacific Daylight Time,  
t.schlosser at msaj.com writes:

Maybe the press  release should have been entitled--why is PCFFA's regional 
director risking  California's water quality to protect PacifiCorp? Glen 
seems to think the  water board would have to choose between merely granting 
or denying  PacifiCorp's application; in fact, the board can place conditions 
on any  certification, conditions that protect fish and water quality. 
Recall PUD No.  1 of Jefferson County, 511 U.S. 700 (1994). Recall S.D. Warren, 
547 U.S. 370  (2006).

Tom ..... As you know, as a friend and colleague, I respectfully  disagree. 
 While a conditional permit IS the likely outcome of  continuing the 401 
Certification process under the current Application for FERC  Relicensing, 
since we have no idea how much "backbone" the Water Board would  actually 
assert (much less the Oregon EQC), or what conditions they might  impose, it is 
simply an article of faith that these unknown conditions  could NOT be met by 
PacifiCorp and that therefore this would automatically  result in dam 
removal.  However, if they COULD be cost effectively met  (or overturned in 
Court), this instead results in 40-year FERC  Relicensing!  As I noted in my 
prior comment, this is highly likely in  Oregon in any event under that FERC 
route.  
The Oregon EQC is not noted  for its 401 Certification backbone.  I am not 
willing to take that  risk when the dam removal result we all want could be 
more certainly achieved  through the KHSA, and within only ten years.  As 
these things go, that  is not actually that much time.
 
Yet even if these conditions cannot be met, however, that  alternative only 
results in AT LEAST ten years of litigation (first through all  the State 
Courts in both states, then through the federal Courts), during which  time 
PacifiCorp simply operates the dams just as they are, under automatic  FERC 
status quo one-year license extensions.  This is not  theoretical.  One 
well-known similar FERC relicensing case has limped along  on annual licenses for 
more than 23 years now, still with no resolution in  sight, all the while 
doing nothing to protect water quality.  A date  certain for dam removal 
within a mere ten years under the KHSA  is a hell of a lot more certain, 
contingencies and all, than relying on the  outcomes of litigation in which we 
would have to win at every stage on every  issue, likely against the efforts of 
the entire hydropower industry  terrified of setting such a precedent.
 

The board's  willing inaction on Sec. 401 is simply an effort to block the 
regulatory  process that would have forced PacifiCorp to remove the dams 
already, or face  the large costs of full upstream and downstream volitional 
fish passage. Why  does the hope of removal in 2020 sound so good to Glen? 
There are a lot of  contingencies in the Hydro settlement. FERC may not be a 
great alternative but  as the regulatory agency charged with licensing, its 
orders would produce dam  removal.
But as you know, FERC has NEVER ONCE ORDERED A DAM TO COME DOWN  AGAINST 
THE WISHES OF AN APPLICANT -- not once, during its entire history!   Based on 
that past record, the chances of such a FERC order for dam removal in  this 
case is essentially zero.  FERC is an agency that has never seen a dam  it 
does not like.  Again, it is an article of faith among those that oppose  the 
KHSA that the regular FERC process would ultimately result in the dams  
coming down.  But faith-based dam removal efforts are (in my analysis) far  
riskier than a deal in hand called the KHSA, even with its various 
contingencies  (major ones of which have now been accomplished, such as the Oregon PUC 
approval  of the KHSA 9/16/10).  None of those contingencies are in any way  
unreasonable nor unexpected for a project this size.

The further  notion that the TMDLs place on PacifiCorp a burden to "work 
out a TMDL  implementation plan" is just fanciful. All PacifiCorp must do is 
file a plan  that incorporates the "interim measures" they put into the Hydro 
settlement,  nothing more. The State board approved the NCWQCB's resolution 
no.  R1-2010-0026, which adopts TMDLs and establishes an action plan for 
carrying  them out. The action plan addresses PacifiCorp at page 4-13.00. I've 
added  bold in the text below. PacifiCorp's implementation plan need only 
incorporate  KHSA requirements. They've got 60 days to file that plan.

The Hydro  agreement interim measures PacifiCorp put forward are feeble 
indeed. They do  pay $150k per year for Boyle gravel; they fund maintenance of 
a couple USGS  gages; they provide $100k for a one-time conference; they pay 
$250k per year  for "studies or pilot projects" (That could rise if 
Interior makes an  affirmative determination to remove dams, perhaps as soon as 
2012.) It goes on  from there. Notably absent is any work in or near surface 
water to actually  improve water quality. Those suffering from blue-green 
algae, do you feel  better now?
Ignoring the sarcasm above, you should first ask what "Interim  Measures" 
would be required under a continuing FERC annual extension for the  next 
10-15 years of likely litigation?  Answer: NONE.  
 
As you also know, the current FERC license simply continues as long  as 
PacifiCorp is able to stall the process in Court -- which, as you know as a  
fellow Attorney, could potentially be a very long time.  Your  client the 
Hoopa Valley Tribe has ongoing litigation to impose such  interim measures for 
the first time in FERC history which could prove me wrong,  but so far they 
have not prevailed against long-established FERC policy to  require NO 
INTERIM MEASURES while a FERC relicensing application is pending,  just status quo 
automatic annual license extensions.  
 
While I agree that the Interim Measures in the KHSA are in  themselves 
weak, they are infinitely better than the result of forcing the FERC  process 
forward without them.  Under that pathway there are no Interim  Measures at 
all.
 
Just as you do, I believe the only ultimate solution is dam  removal, but 
that a ten year track to accomplish that under the KHSA  is far more certain 
than trying to force FERC, which has never ordered a dam  down in its 
existence against the wishes of an Application, to  suddenly do so now -- and even 
if achieved through the FERC process would  almost certainly be more than 
ten years down the road counting normal  litigation timelines.  
 
I wish it were otherwise.... but reality prevails over wishful  thinking in 
this, as in most other, issues.
 
Respectfully,
======================================
Glen H. Spain,  Northwest Regional Director
Pacific Coast Federation of Fishermen's  Associations (PCFFA)
PO Box 11170, Eugene, OR 97440-3370
Office:  (541)689-2000 Fax: (541)689-2500
Web Home Page: _www.pcffa.org_ (http://www.pcffa.org/) 
Email:  fish1ifr at aol.com
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