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

Thomas Schlosser t.schlosser at msaj.com
Sun Jun 16 17:43:32 PDT 2013

Glen, Probably many on this list know to discount your diatribe of false
choices. But let me list a few:
(1) the choice you offer is not KHSA or FERC, it is KHSA* plus KBRA* vs.
FERC process. It's important to consider the costly dewatering of the river
that comes with KHSA. The linking of those two agreement is a major loss
for the region.
(2) No one suggests that FERC will simply order PacifiCorp to take out its
dams. Instead they impose conditions--as they must under Sec, 4(e) and 18
of the Act--that render the project uneconomic. As a result, the licensee
negotiates a surrender agreement.
(3) Yes, the Staff Alternative was for continued operation, but the Staff
Alternative with Mandatory Conditions is quite different. It shows (even
without considering water quality conditions--which the Water Board hasn't
yet prepared--that PacifiCorp loses less money if it removes Copco I and
Iron Gate dams. See page xxxix of the summary here:
made a convincing case to both the Oregon and CA PUCs that dam
removal is in their customers' best interest. That case is not changed by
possibly having to pay an extra $90 million of PacifiCorp and ratepayers
have to pay all the removal cost rather than billing the $90 million to CA
(4) Yes, PacifiCorp filed suit about the TMDL water quality standards and
the Water Board immediately agreed to stay implementation of them pending
termination of the KHSA. Does that say PacifiCorp will win or that the
Water Board wants to avoid an unnecessary fight? The TMDLs are not the only
basis for WQ standards in the Sec. 401 certificate.
(5) We know JC Boyle is in Oregon. But Oregon's 401 must achieve compliance
with the WQ standards of the downstream States--CA and HVT. So OR isn't
free to do what you suggest--sell out water quality--even if they wished to.
(6) Yes. litigation is likely regardless of whether FERC or Congress checks
PacifiCorp's reckless disregard of public health and modern environmental
law. And the list of "experts" you consulted--is that like the famous list
of 50 communists that Senator McCarthy had right here in his pocket? Who
are they and why isn't their analysis public? I've been litigating FERC
cases too, at least since 1984:
Glen, stop shilling for PacifiCorp and go back to advocating for fish.

On Sun, Jun 16, 2013 at 4:52 PM, FISH1IFR at aol.com <FISH1IFR at aol.com> wrote:

> **
> 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 *significan*t 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
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