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<DIV>In a message dated 10/15/2010 3:31:14 P.M. Pacific Daylight Time,
t.schlosser@msaj.com writes:</DIV>
<BLOCKQUOTE style="BORDER-LEFT: blue 2px solid; PADDING-LEFT: 5px; MARGIN-LEFT: 5px"><FONT style="BACKGROUND-COLOR: transparent" color=#000000 face=Arial>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).<BR></FONT></BLOCKQUOTE>
<DIV><STRONG>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. <BR>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.</STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>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 <EM>status quo</EM> 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 <U>date
certain</U> for dam removal within a <U>mere ten years</U> 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.</STRONG></DIV>
<DIV> </DIV>
<BLOCKQUOTE style="BORDER-LEFT: blue 2px solid; PADDING-LEFT: 5px; MARGIN-LEFT: 5px"><FONT style="BACKGROUND-COLOR: transparent" color=#000000 face=Arial>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.</FONT></BLOCKQUOTE>
<DIV><STRONG>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.</STRONG></DIV>
<BLOCKQUOTE style="BORDER-LEFT: blue 2px solid; PADDING-LEFT: 5px; MARGIN-LEFT: 5px"><FONT style="BACKGROUND-COLOR: transparent" color=#000000 face=Arial>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.<BR><BR>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?</FONT></BLOCKQUOTE>
<DIV><STRONG>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. </STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>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 <EM>very long time</EM>. 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 <EM>status quo</EM> automatic annual license extensions.
</STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>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.</STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>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, <U>which has never ordered a dam
down in its existence against the wishes of an Application</U>, to
suddenly do so now -- and even if achieved through the FERC process would
almost certainly be <U>more</U> than ten years down the road counting normal
litigation timelines. </STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>I wish it were otherwise.... but reality prevails over wishful
thinking in this, as in most other, issues.</STRONG></DIV>
<DIV><STRONG></STRONG> </DIV>
<DIV><STRONG>Respectfully,</STRONG></DIV>
<DIV><FONT lang=0 size=2 face=Arial FAMILY="SANSSERIF" PTSIZE="10"><STRONG>======================================<BR>Glen H. Spain,
Northwest Regional Director<BR>Pacific Coast Federation of Fishermen's
Associations (PCFFA)<BR>PO Box 11170, Eugene, OR 97440-3370<BR>Office:
(541)689-2000 Fax: (541)689-2500<BR>Web Home Page: </STRONG><A href="http://www.pcffa.org/"><STRONG>www.pcffa.org</STRONG></A><BR><STRONG>Email:
fish1ifr@aol.com</STRONG></FONT></DIV></FONT></BODY></HTML>