Wednesday, February 4, 2009

FERC comes to Yreka to listen

Three officials from the Federal Energy Regulatory Commission (FERC) came to the Klamath River Basin on January 29th to – as they put it – learn about the Agreement in Principle (AIP) on Klamath dams signed by PacifiCorp, the Department of Interior, Governor Schwarzenegger and Governor Kulongoski. Two FERC-sponsored sessions were held in Yreka on January 29th – one during the day and one in the evening. Well over a hundreds people attended the daytime meeting and about 40 attended the evening meeting. KlamBlog was at the evening meeting.

Most of the people attending the meetings were from Siskiyou County. FERC has been criticized for not holding a meeting on the coast. In a letter to FERC, Congressman Mike Thompson formally requested that FERC hold a meeting on the Northcoast.

The FERC folks opened the meeting by explaining that this was not a hearing but a fact finding meeting. Then they described FERC’s policy on settlements.

FERC staff said that the Commission favors settlement but can not accept all settlements because some proposed settlements conflict with the laws and regulations which govern FERC. They also mentioned that FERC frowns on “cost caps”, that all settlement provisions must be clearly “need based” and that they can not endorse settlement provisions that are beyond their jurisdiction or authority.

The Agreement in Principle contains a cost cap on the amount of funds that will come from PacifiCorp or its ratepayers for dam removal. Some of the expenditures mentioned in the AIP do not appear to be “need based” and the attempt to link the proposed Water Deal to a dam settlement would appear to be beyond the jurisdiction of FERC and therefore not appropriate for FERC endorsement.

The FERC folks also indicated that they will provide an observer for ongoing dam negotiations in order to assure that a proposed settlement “works for FERC” – i.e. that it complies with applicable laws and regulations.

Representatives of PacifiCorp, the Department of Interior and the California Department of Fish & Game were present at the meeting to answer questions about the AIP. Questions from the audience as well as to and from FERC staff occupied most of the meeting. Here are a few highlights of what was revealed:

¨ The Department of Interior’s representative was asked in both the daytime and evening sessions whether the “confidential” meetings which had produced the AIP and the Water Deal violated the Federal Advisory Committee Act (FACA). The representative said that it was a good question and committed to researching the subject but also asserted that the Department of Interior did not sponsor or lead the meetings. This was immediately challenged from the audience. It was pointed out that Interior had paid for the facilitator and that an Interior official had chaired the Klamath Settlement Group (KSG) up until the time FACA issues were raised. KlamBlog is reminded of the old saying: if it walks like a duck, swims like a duck and quacks like a duck IT MUST BE A DUCK! We think the courts would likely agree.

¨ One member of the audience stated that crashing the closed-door Klamath negotiations might be in the cards. The representatives of AIP signatories were asked what they would do if members of the public or ratepayers showed up and demanded to be let in. The representatives declined to answer.

¨ Some promoters of the Water Deal and of linking that Deal to an agreement on the Klamath dams have been arguing that federal legislation is necessary in order to remove the dams. FERC staff confirmed that this is not necessarily the case. In fact, most dam relicensing settlements do not go to Congress. It is only if federal funds are needed to implement the settlement that federal legislation is required. But the AIP allocates the cost of implementing a settlement to California taxpayers and PacifiCorp’s ratepayers. Since there is no proposal to appropriate federal funds to implement a dam settlement, an act of Congress is not needed. This tends to confirm what KlamBlog has long asserted: linking the dam settlement to the Water Deal is an attempt by certain interests to get a popular dam removal proposal to carry an expensive and controversial Water Deal.

¨ Representatives of AIP signatories were asked why the document substituted Cost-Benefit Analysis for the legal criteria by which dams must be judged, including the Clean Water Act and The Federal Power Act. The Department of Interior’s representative answered that they really didn’t mean Cost-Benefit Analysis but rather some other process by which the Secretary of the Interior would weigh the costs and benefits of keeping or removing the dams before making a decision on their fate. However, the representative offered no specifics about the decision process that will be used. Critics of the AIP contend that it substitutes Cost-Benefit Analysis for the requirement that the dams comply with the Clean Water Act and other applicable laws. As KlamBlog has previously reported, Cost Benefit Analysis has been used by the Bush Administration to ignore science and gut environmental protection.

¨ FERC staff disclosed that some of the measures proposed in the AIP as “Interim Conditions” had not been analyzed in the EIS which FERC prepared for the proposed relicensing. This means that these provisions would likely need independent environmental review – and possibly Clean Water Act compliance certification - before FERC could adopt them into the annual licenses which, under the AIP, would be given to PacifiCorp yearly until 2020. A member of the audience then brought up the petition by the Hoopa Tribe to get FERC to implement flows below J.C. Boyle dam for Redband Trout as recommended by federal and state biologists (see January 27th KlamBlog post). The FERC staff said that denial of this petition was under appeal and therefore they could not discuss it.

¨ Sponsors of the AIP were asked to explain why under the AIP dam removal could not begin until 2020. In the course of the presentation that followed it became obvious that all needed studies could be completed and dam removal could begin as early as 2014 and possibly earlier. From this admission it appears that delaying the commencement of dam removal until 2020 is not necessary “to complete needed studies” but rather is a gift to PacifiCorp Shareholders. The question is whether Coho and other salmon can survive that long before Klamath River water quality is significantly improved via dam removal. It is now well documented that many and perhaps most of the salmon produced in our watersheds die in the Klamath River prior to reaching the ocean. Biologists believe fish diseases which are related to the Klamath River’s poor water quality are the #1 cause of Klamath salmon mortality.

¨ Roy Hall Junior – chairman of the Shasta Nation – was in attendance and offered a perspective on the AIP. Mr. Hall is concerned about the rights of local people. Apparently he sees the Klamath Settlement Group effort as a power grab by the federal government designed to take away the rights of the people.[1] There have been tensions between the Shasta Nation and the Karuk Tribe for many years now. One source of that tension may be a proposal by the Karuk Tribe to build a casino along Interstate 5 in Siskiyou County in what is traditionally Shasta territory. The four dams which have been proposed for decommissioning are also all located in traditional Shasta territory. The Karuk Tribe has been one of the main promoters of the Water Deal and of linking that Deal to dam removal.

¨ One member of the audience asked FERC staff to speculate on how long it would take FERC to go through the formal relicensing process and make a decision on whether or not to relicense the dams. Staff was loath to make such a prediction, however, since it is a process which can be more or less lengthy depending on a number of factors. Members of the audience then speculated about whether the time-line laid out in the AIP would resolve the issue sooner than the formal process. This question is important because one of the arguments which promoters have made for negotiating a settlement with PacifiCorp is that this would speed up the process and secure relief for salmon much sooner than the formal FERC process. The 2020 start of dam removal in the AIP now appears to have resolved this question: under the AIP salmon would likely have to wait longer for relief from lethally bad water quality.

While it did not come up during the formal meeting, KlamBlog learned from conversations during breaks that at least some Interior Department Officials are having second thoughts about certain provisions of the proposed Water Deal. Specifically, these officials have cold feet about backing a legislative proposal that contains many millions in special interest subsidies at a time when the federal government is running huge deficits. It is likely that these officials are also concerned about how their newly appointed supervisors will view such support. The Water Deal and AIP are creations of the Bush Administration; regular Interior employees will be careful not to back proposals that the new political appointees at Interior may not favor.

The Interior folks’ cold feet reflect the traditional carefulness of government officials who must answer to political appointees. To date it is not clear whether President Obama’s appointees at Interior, Commerce and Agriculture will support the Water Deal or the proposal to link it to a dam settlement. Some of those nominations are yet to be made.

Influencing Obama appointees who will set the new Administration’s Klamath positions is likely to be a top priority for promoters and opponents of the Water Deal and the AIP in the months ahead. KlamBlog will do its best to keep you informed about efforts to influence the Obama Administration’s Klamath position.

[1] The Shasta Nation has requested but not received recognition by the federal government. The federally recognized tribes in the Klamath River Basin are (starting Upriver): the Klamath Tribes (Klamath, Modoc and Yahooskin Peoples), the Quartz Valley Indian Reservation (mostly Karuk Indians but open to some Shasta Indians as well), the Karuk Tribe, The Hoopa Tribe and the Yurok Tribe.

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