[env-trinity] KHSA vs FERC -- which is most certain to lead to dam removal?

[FISH1IFR at aol.com]

In a message dated 6/15/2013 6:41:19 P.M. Pacific Daylight Time,  
rxcalvosa at gmail.com writes:

Glen.  The Hupa tribe is the only entity making HONEST efforts to protect 
the Klamath  basin. Forcing the re- licensing issue will result in the denial 
of the  license and based on clean water laws and the EPA. This is the way 
it should  be handled , and if there is a Trojan horse it is the KBRA and 
KHSA. 
Dear Rxcalvosa --
 
Thank you for your honest comment, which deserves a detailed answer.   
Unfortunately, your absolute certainty of this positive FERC-only dam  removal 
outcome is not shared by the many (well over a dozen) nationally  recognized 
dam litigation and relicensing independent experts that were  consulted by 
the Parties to the Settlement, nor by FERC itself (a FERC official  was 
assigned as liaison to the Settlement negotiations).  
 
Here are some facts you should also take into account in making such  
sweeping statements:
 
(1) FERC has never -- not once! -- ordered a dam removal when  there is an 
objection by the Applicant seeking dam relicensing.   The  Condit Dam, 
another PacifiCorp dam recently removed, was removed ONLY after such  a 
Settlement, and one that looks very like the KHSA.  Hoopa Valley's  Tribe's 
assertions that FERC went ahead and ordered Condit Dam removed  without such a 
Settlement in advance is flatly wrong.  And its easy  to verify, as all the Condit 
Dam documents, including the prior Settlement  Agreement for its removal, 
are at:   http://www.pacificorp.com/es/hydro/hl/condit.html.
 
(2) As noted in more detail in my prior email response copied to this  
group, FERC Staff has already provided its official recommendations on the  
question of the Klamath Hydropower Project's future.  FERC STAFF RECOMMENDS  
RELICENSING, with fish ladders, trap-and-haul trucking and some water quality  
techno-fixes (which could very well include perpetual use of algaecides).   
It is very rare indeed for FERC to completely overturn its own Staff  
recommendations.  The FERC process default, therefore, will be relicensing  -- not 
dam removals.
 
(3) Likewise no state water agency of any state has ever just flatly  
denied a 401 Certification Application for dam relicensing and made it stick in  
Court.  Such denials are always conditioned on various suggested mitigation  
measures, and these most often lead to many years of litigation -- during 
which  the dams keep getting automatic annual FERC renewals and continue in 
operation  for many more years with no changes.  And in most cases the 
ultimate  conditions proposed by or acceptable to the Company were upheld by the 
Courts,  and those dams then proceeded to be relicensed.  
 
(4) The California State Water Board's denial will be based on the  
asserted inability of PacifiCorp to meet current Clean Water Act TMDL  standards 
with the dams in place.  But those underlying TMDL standards  are already 
being challenged in Court, an action that is only stayed  (i.e., postponed) 
because the KHSA is in place and promises to resolve the  problem without the 
need for such litigation.  
 
But if the KHSA were to go away, that dormant TMDL litigation instantly  
revives, and would have to be resolved first before any subsequent litigation  
about the 401 Certification denial could be resolved -- this looks like 10 
years  of delaying litigation in at least two sequential lawsuits, through 
all the  levels of appeal in both cases, including to the California Supreme 
Court.  

Can you assure a victory for dam removal advocates on all major issues  in 
both cases at every level of appeal?  Do you have the several tens of  
million of dollars needed to fight a well funded PacifiCorp defense --  
especially since the entire Hydropower Industry would surely come to their aid  for 
fear of such a case setting a national precedent?   
 
And remember, under the FERC-only scenario all during all this next decade  
of litigation, PacifiCorp gets to run the dams based solely on the 1957 
FERC  license, as FERC's annual extensions are purely automatic -- and most of  
the interim mitigation measures of the KHSA would likely disappear without 
the  KHSA, leaving the fish much worse off under the FERC-only route than 
they are  under the pending KHSA with at least some interim mitigation 
measures  PacifiCorps has to also pay for (they now pay several million 
dollars/year for  those).
 
(5) And most telling of all, the most valuable of the four dams (J.C.  
Boyles, rated at 80 MW capacity -- fully half the capacity of the whole  
four-dam project), as well as the dam that causes the least water quality  
problems, is in OREGON -- and therefore the California State Water Board would  have 
no jurisdiction over it at all.  Any 401 Certification denial for that  
Oregon dam would be in the hands of the Oregon Department of Environmental  
Quality (DEQ) -- an agency frankly that is far less likely to "just say no" to  
such a 401 Certification request than even the California Water Board 
(which has  not been known for its courage) and in a State (Oregon) with far less 
stringent  water quality laws.  The chance of J.C. Boyle becoming FERC 
licensed  for another 50 years is significant in such a protracted litigation  
fight.  And keeping just the most valuable part of the Project could well  
pencil out as cost effective for PacifiCorps, as compared to the other three  
less valuable and more impactive dams.  But true Klamath Basin restoration  
cannot be done with one of these four dams still in place.  To really  
restore the river all four must come down.
 
(6) Then of course, after at least  decade of state litigation, there  
would be more years -- probably a LOT more years -- of following up with federal 
 litigation.  The statute by which the various fish ladder and fish passage 
 conditions would be imposed by FERC is a new statute and this would be  
challenged.  Any FERC decision not to PacifiCorp's liking would then be  
challenged.  these cases would also likely happened sequentially, not  
simultaneously.  Since some of these would be cases of first impression  with major 
national implications for the Hydropower Industry, those challenges  could 
well go to the US Supreme Court.  How long the federal phase of this  
litigation would last is anyone's guess.  It is conceivable that any final  decisions 
on the fate of the dams could be pushed out -- through the FERC-only  and 
litigation route -- to at least 2030 or beyond.  And ALL THE WHILE the  dams 
continue to run under the 1957 FERC license!  
 
     And all this is aside from the multiple benefits  of the KBRA, such as 
a lot more water in the river for fish, a first-ever  wildlife refuge 
guaranteed water supply, and multiple other salmon habitat  restoration benefits. 
 None of these benefits could be awarded by FERC --  river restoration of 
this sort is well outside the jurisdiction of FERC.   How are KBRA opponents 
proposing to secure the many valuable restoration  benefits of the KBRA 
without the KBRA itself?
 
*****
 
In short, the many professionals (myself included, as long-time General  
Legal Counsel for PCFFA) who participated in the almost 10 years of 
hard-fought  negotiations and litigation that led to the KHSA were neither fools nor  
naive.  More than a dozen outside experts were also brought in by various  
Parties at various times to advise us on risks and strategies.  
 
Our conclusion remains sound:  As between the two options, dam  removal 
under the KHSA presents far less risk and will likely result in  four-dam 
removal far faster than the two decades or more of litigation  and uncertainty 
that would be the inevitable outcome of contested proceedings  before the 
Oregon and California water agencies, in multiple state Courts,  in multiple 
federal Courts and before FERC.  
 
The KHSA provides for full four-dam removal by 2020.  The FERC-only  
process simply does not.
 
All in all it would be nice to have your kind of absolute certainty that  
the high risk, long-term, expensive and very tedious FERC-route litigation  
gamble would ultimately result in complete four-dam removal.  But  
unfortunately, none of the actual facts support that kind of blind faith.   Nor does 
the past history of FERC or of either state water  agency.  
 
Unfortunately, the whole FERC process is heavily slanted toward building  
and keeping dams, not removing them.  And those of us who support the KHSA  
do not want to play dice with the fate of the entire Klamath Basin, its  
fisheries and its communities with heavily loaded dice and a rigged  table.....  
 
 
=============================================
Glen H. Spain, NW  Regional Director
Pacific Coast Federation of Fishermen's Associations  (PCFFA)
PO Box 11170, Eugene, OR 97440-3370
O:(541)689-2000 --  Fax:(541)689-2500
Email: fish1ifr at aol.com
Home Page: _www.pcffa.org_ (http://www.pcffa.org/)   

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