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<DIV>In a message dated 6/15/2013 6:41:19 P.M. Pacific Daylight Time,
rxcalvosa@gmail.com writes:</DIV>
<BLOCKQUOTE
style="BORDER-LEFT: blue 2px solid; PADDING-LEFT: 5px; MARGIN-LEFT: 5px"><FONT
style="BACKGROUND-COLOR: transparent" color=#000000 size=2 face=Arial>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.
</FONT></BLOCKQUOTE>
<DIV>Dear Rxcalvosa --</DIV>
<DIV> </DIV>
<DIV>Thank you for your honest comment, which deserves a detailed answer.
Unfortunately, your <U>absolute certainty</U> 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). </DIV>
<DIV> </DIV>
<DIV>Here are some facts you should also take into account in making such
sweeping statements:</DIV>
<DIV> </DIV>
<DIV>(1) FERC has never -- <EM>not once!</EM> -- 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 <U>flatly wrong</U>. And its easy
to verify, as all the Condit Dam documents, including the prior Settlement
Agreement for its removal, are at: <A
href="http://www.pacificorp.com/es/hydro/hl/condit.html">http://www.pacificorp.com/es/hydro/hl/condit.html</A>.</DIV>
<DIV> </DIV>
<DIV>(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.</DIV>
<DIV> </DIV>
<DIV>(3) Likewise no state water agency <U>of any state</U> 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. </DIV>
<DIV> </DIV>
<DIV>(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
<U>are already being challenged in Court</U>, 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. </DIV>
<DIV> </DIV>
<DIV>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.
<EM></EM></DIV>
<DIV><EM></EM> </DIV>
<DIV><EM>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? </EM> </DIV>
<DIV> </DIV>
<DIV>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).</DIV>
<DIV> </DIV>
<DIV>(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 <U>significan</U>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.</DIV>
<DIV> </DIV>
<DIV>(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! </DIV>
<DIV> </DIV>
<DIV> 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?</DIV>
<DIV> </DIV>
<DIV align=center>*****</DIV>
<DIV> </DIV>
<DIV>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. </DIV>
<DIV> </DIV>
<DIV><U>Our conclusion remains sound</U>: As between the two options, dam
removal under the KHSA presents <U>far less risk</U> and will likely result in
four-dam removal <U>far faster</U> 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. </DIV>
<DIV> </DIV>
<DIV>The KHSA provides for full four-dam removal by 2020. The FERC-only
process simply does not.</DIV>
<DIV> </DIV>
<DIV>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. </DIV>
<DIV> </DIV>
<DIV>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..... </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV><FONT lang=0 size=2 face=Arial FAMILY="SANSSERIF"
PTSIZE="10">=============================================<BR>Glen H. Spain, NW
Regional Director<BR>Pacific Coast Federation of Fishermen's Associations
(PCFFA)<BR>PO Box 11170, Eugene, OR 97440-3370<BR>O:(541)689-2000 --
Fax:(541)689-2500<BR>Email: fish1ifr@aol.com<BR>Home Page: <A
href="http://www.pcffa.org/">www.pcffa.org</A>
<BR><BR></FONT></DIV></FONT></BODY></HTML>