[env-trinity] Daily Triplicate: Klamath dams under pressure

[Andrew Orahoske]

http://www.triplicate.com/News/Local-News/Klamath-dams-Under-pressure

*Klamath dams: Under pressure*

By Adam Spencer, The Triplicate
<aspencer at triplicate.com?subject=Klamath%20dams:%20Under%20pressure>
September 21, 2015 09:43 am

On the heels of Yurok Tribe's rejection of deal to remove dams on the
Klamath, Hoopa Valley Tribe says it will challenge federal relicensing

The Yurok Tribe announced this week intentions to withdraw from the Klamath
Agreements that would help remove four dams on the Klamath River, but while
the complex, multi-party deals have collected congressional dust, the Hoopa
Valley Tribe — never a party to the deals — have been fighting for dam
removal in court.

The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of
Appeals challenging that the federal dam regulatory agency has violated the
Clean Water Act in its approach to the relicensing — or lack of it — of the
Klamath River dams.

The hydropower license needed for PacifiCorp to operate its hydroelectric
dams on the Klamath expired in 2006, but the Warren Buffett-owned power
company has delayed the relicensing of the dams since then using a
legal-gray-area strategy outlined in one of the Klamath Agreements. All in
hopes that Congress would pass legislation implementing the Klamath
Agreements. But that hasn’t happened after three years of sitting in
Congress with little traction.

Now, the Hoopa Valley Tribe’s tactic of forcing the hand of the Federal
Energy Regulatory Commission to get PacifiCorp to proceed with relicensing
of the dams seems to have a better chance of removing the aging dams have
decimated salmon runs in the Klamath Basin.

To relicense the dams in accordance with the Clean Water Act, PacifiCorp
needs to apply for Water Quality Certification from regulatory agencies in
both California and Oregon, where the dams are located.

“Plainly the operation of the hydro project violates the water quality
rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’
previous 1956 license pre-dates environmental law.

Complying with water quality requirements is not the only thing that would
make dam removal a likely option.

Even if water quality certifications were completed and a new license
issued, it would require PacifiCorp to install ladders to provide for
passage of migratory fish through the dams, an action already mandated by
National Marine Fisheries Service. Fish ladders would exceed the cost of
dam removal and the dams would produce less energy and be less profitable,
making dam removal the most economical option for shareholders and
ratepayers.

The public utility commissions of California and Oregon have already
decided that dam removal is the best option for ratepayers.

To avoid this process in hopes of passing federal legislation, the Klamath
Hydroelectric Settlement Agreement (KHSA), the agreement focused on dam
removal, states “PacifiCorp shall withdraw and re-file its applications for
Section 401 (water quality) certifications as necessary to avoid the
certifications being deemed waived under the (Clean Water Act) during the
Interim Period.”

The Clean Water Act says if a state fails or refuses to act on a water
quality certification “within a reasonable period of time (which shall not
exceed one year)” than the certification is considered “waived.”

The purpose of the waiver provision is “to prevent a State from
indefinitely delaying a federal licensing proceeding by failing to issue a
timely water quality certification,” according to case law cited in Hoopa
Valley Tribe court documents.

A waiver would lead to the relicensing process outside of the KHSA, a less
desirable option for PacifiCorp, which would have decreased liabilities and
cost for dam removal under the Klamath Agreements.

PacifiCorp has withdrawn and re-filed its water quality certification
application in both California and Oregon eight times to keep the
application active without having certification considered waived by the
state agencies. Withdrawing and re-filing the application is done with a
single email.

Attempts to reach PacifiCorp for comment Friday were not successful.

“Their theory is that the letter gives the water board another full year to
do nothing,” Schlosser said. “We kept saying ‘no, this is a violation of
the Clean Water Act and you can't get around it by this letter writing
campaign.’”

A spokesperson of the California State Water Resources Control Board said
the agency would not comment due to the pending legislation.

Although the FERC denied the Hoopa Valley Tribe’s request for a hearing on
the issue in October 2014, the agency said they do agree that PacifiCorp
and state regulators are “clearly violating the spirit of the Clean Water
Act” and possibly acting “contrary to the public interest by delaying the
issuance of new licenses that better meet current-day conditions than those
issued many decades ago.”

In the end, the FERC’s discussion concludes while it may violate the spirit
of the law “we do not conclude that they have violated the letter of that
statute.”

“They are essentially saying that this little routine that PacifiCorp is
using violates the spirit of the Clean Water Act but they are going to go
ahead and approve it,” Schlosser said.

Schlosser said the FERC’s actions are particularly egregious since the
agency has not even approved the KHSA plan although approving settlement
agreements for dam removal is in its purview.

“They are deciding to do nothing for a settlement agreement they never
approved or reviewed,” Schlosser said. “I’m optimistic that court of
appeals will say FERC has fallen down on the job and they ought to dismiss
the application for licensing.”

Since the Yurok Tribe appears to be moving towards withdrawing from the
Klamath Agreements, Schlosser said he hopes they will join the Hoopa Valley
Tribe in forcing dam removal through the FERC.

“It’s great when the tribes work together,” Schlosser said. “It’s been
helpful when they do in the past and I hope they do with this issue.”
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