[env-trinity] Klamath Water Quality Put on Hold by State Water Board
FISH1IFR at aol.com
Fri Oct 15 16:35:03 PDT 2010
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
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
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.
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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