Hoopa Valley Tribe moves against salmon-killing dams: Tribe petitions FERC to reassert jurisdiction

Late last week the struggle over the future of four mainstem Klamath River dams entered a new phase. On May 25th attorneys representing the Hoopa Valley Tribe (HVT) filed a petition with the Federal Energy Regulatory Commission (FERC). In the petition the Tribe asks FERC to issue a Declaratory Order:
             “(a) finding that the license applicant, PacifiCorp, has failed to diligently pursue re-licensing of the Klamath Project; (b) ordering PacifiCorp’s re-license application dismissed; and (c) directing PacifiCorp to file a plan for decommissioning of Project facilities.”

The Petition comes in the wake of yet another delay by the State of California in processing PacifiCorp’s application for certification that the company’s Klamath Hydroelectric Project (Project) meets Klamath River water quality standards. Those standards were established by the State of California to protect beneficial uses of the River’s water. Beneficial uses include salmon and steelhead and tribal cultural uses as well as swimming and recreation.  The certification is necessary before FERC can issue a new license for operation of the Project. 

 The Hoopa Valley Tribe's Governing Council has led efforts to

scuttle the KHSA and return the fate of PacifiCorp's dams to FERC

California Water Board fails to act

Those who believe that the Klamath Dam Deal – the Klamath Hydroelectric Settlement Agreement or KHSA– is not in the public interest and will substantially delay removal of PacifiCorp’s Klamath River Dams, had hoped the California’s Water Resources Board – the SWRCB - would end the charade in which PacifiCorp withdraws and refiles its application for clean water certification each year. That maneuver causes FERC to delay a relicensing decision and instead to issue a one-year license for operation of the Project. So far the application for clean water certification has been withdrawn and refiled four times. Since PacifiCorp’s prior license expired, a total of six annual operating licenses have been issued by FERC.  

The delay in processing PacifiCorp’s relicensing application has allowed the company to operate its Klamath dams and powerhouses for six years without making changes already ordered in the FERC relicensing proceedings. Those changes include installing fish ladders and curtailing “ramping” in areas between the four dams. HVT wants to end the delays; it wants FERC to either order removal of the dams or to relicense PacifiCorp's Klamath Hydroelectric Project with fish ladders, new "ramping rates" and other changes designed to aide Klamath Salmon.

“Ramping” refers to the practice of cutting Klamath River flows between the dams to a trickle in order to maximize electric generation during parts of the day when wholesale electric rates are marginally higher, then turning the River back on and cutting electric generation when the wholesale rate is marginally lower.  “Ramping” is the key to Klamath Hydroelectric Project profitability.

Six years ago, an administrative law judge issued binding rulings as part of the FERC relicensing process. Attention focused then on the judge’s order that fish ladders would need to be installed on the dams. Of greater ultimate impact, however, was the judge’s finding that “ramping” as practiced by PacifiCorp was damaging resident Red Band trout and would need to be dramatically curtailed under a new license.

The “ramping” order meant PacifiCorp would lose up to $24 million each year if its Klamath Hydroelectric Project were relicensed.  That is what motivated the company to seek the KHSA Dam Deal. Under that Deal, PacifiCorp gets to walk away from the dams and facilities it owns free from responsibility for dam removal and free from all liability for toxic legacies which are likely lurking around 100 year old powerhouses.  

Under the KHSA Dam Deal, PacifiCorp shareholders would pay nothing to decommission the dams and powerhouses they own; instead taxpayers would pick up the shareholders’ costs. KlamBlog believes the KHSA is at its heart a deal tailored for the “1%” paid for by the “99%”.

 Warren Buffett - one of the world's richest men - is PacifiCorp's dominant shareholder

Will FERC act?

As the HVT notes in their petition, only Congress can authorize federal agencies to take on responsibility for dams and powerhouses PacifiCorp owns and only Congress can make federal taxpayers assume liability for PacifiCorp’s toxic legacies.  Since the required legislation is stalled in Congress, HVT believes FERC should reassert jurisdiction and order the company to decommission the Project it owns.

The HVT also points out in their petition that, in order for the KHSA Deal to move forward, the State of California must pass a bond measure by which California taxpayers will pay $250 million to remove PacifiCorp’s obsolete dams. But like the needed federal legislation, the California bond measure has been delayed and may never reach the ballot. California’s dismal financial position as well as opposition to new Sacramento Valley dams and a new pipeline to carry Sacramento and Trinity River water to Southern California, makes passage of the so-called “California Water Bond” unlikely any time soon.         

The HVT argues that poor prospects for federal legislation and for the California Water Bond should motivate FERC to end the delays, reassert jurisdiction, and to either order PacifiCorp to file a plan for decommissioning the Project or to relicense it with new requirements including fish ladders and reduced “ramping”. 

How FERC will respond is unknown; this is new territory for the Commission – an unprecedented situation. Will FERC tire of the state certification charade and reassert jurisdiction? Or will appointed Commission members – like members of the SWRCB – bow to the desires of those who hold the power to reappoint them?  FERC commissioners are appointed by the President for five year terms.

In the service of the 1%

It is clear that the Obama Administration's Interior Department wants the KHSA to proceed. They need the Dam Deal in order to carry the most controversial provisions of the KBRA Water Deal. If FERC reasserts jurisdiction over the fate of PacifiCorp’s dams, the KBRA can proceed - but it will be unlikely to secure the Congressional mandates and funding its promoters desire. 

The two deals have been artificially joined for purely political purposes.  The only thing they have in common is that both are at their core special interest deals for the 1% at the expense of the 99%.

 

 Seven very well off irrigators control much of roughly 200,000

irrigated acres within the Bureau of Reclamation's Klamath Project 

KlamBlog has argued that the KBRA Water Deal is not in the interest of the Klamath River or Klamath Salmon. Among other features, in order to maintain an over-sized Klamath Irrigation Project, KBRA legislation pending in Congress would lock-in Klamath River flows which are the minimum needed for survival of Klamath River Salmon. Like the HVT, we believe Klamath River communities deserve river flows which will restore salmon to abundance…not just keep them from going extinct. Abundant Klamath River Salmon will provide benefits to all Klamath River communities; the KBRA Water Deal mostly benefits the small group of irrigators who dominate Klamath Project irrigation. 

Does the HVT hold a trump card?

Whether or not FERC grants the HVT’s petition, it is likely that the Tribe has other arrows in its quiver with which it can attempt to end the multi-year delay in dealing with PacifiCorp's Klamath dams. The Hoopa, for example, are the only Klamath River Basin tribe which has the status of a state when it comes to the Clean Water Act. HVT has established its own water quality standards for the Klamath River and presumably can take action when its standards are not being met to compel action by those who are in violation. PacifiCorp's dams are in violation of both HVT and State of California water quality standards. 

This fall a large run of Chinook salmon is expected to enter the Klamath River at a time when flow conditions are likely to approximate those seen in 2002 when up to 60,000 adult salmon perished as a result of low flows and overcrowding.  The low flows expected this fall are a product of the KBRA Water Deal which guarantees that those irrigators who receive federally subsidized water will get roughly the amount of water they received on average before the Endangered Species Act began to limit irrigation water delivery. Application of the ESA is now being tailored by federal bureaucrats to comply with the “regulatory relief” promised in the KBRA. This fall we may get to see how well or poorly that works when a large run of salmon enters the Klamath River.  

KlamBlog will be on the scene; unlike many of those who seek to determine the Klamath River’s future, we actually live in the Basin. We’ll report on what transpires this fall, debunk the spin put on those events by federal bureaucrats, politicians, interest groups and others and we’ll interpret what it all means for the Refuges, the River, Klamath Salmon and Klamath River Basin communities.
Stay tuned.  
_________________________________

At publication time, the Hoopa Valley Tribe’s Petition to FERC is not yet available on line. For that reason we provide a copy of the petition below. For the convenience of the reader, we have eliminated page numbers, omitted the proof of service and we have moved all footnotes to the end of the document. 

Lower Klamath and the five other Klamath River Basin Refuges are key

stopover habitat for 80% of Pacific Flyway birds 

KlamBlog Alert_

Act Now To Prevent future bird deaths at Klamath Refuges

KlamBlog has learned that an Amendment to the Klamath Water Deal – the Klamath Basin Restoration Agreement or KBRA – currently being negotiated in secret, would further limit the ability of Tule Lake and Lower Klamath National Wildlife Refuges to secure an adequate water supply. The US Bureau of Reclamation dewatered these refuges from January until mid-March; an estimated 20,000 waterfowl and other birds died of Avian Cholera due to severe overcrowding on the few marshes which remained wet. Two to three million Pacific Flyway birds pass through the Upper Klamath River Basin each year; many overwinter on the Refuges.

The proposed amendment would prohibit all water stored in the Upper Lost River Basin from being used to supply wetlands on the Refuges. Ironically, if legislation to authorize the most controversial provisions of the KBRA becomes law, secretly negotiated amendments to the Deal - like the secret refuge-damaging amendment - would automatically be authorized by Congress. The Public would be locked out of such decisions which will only be publicly revealed after they are approved by KBRA “parties”. “Parties” are those organizations, tribes and agencies which signed the KBRA.

Ironically, adoption of the amendment would prohibit Tule Lake NWR – which is the terminus of the Lost River – from receiving water originating on the Lost River Basin’s public lands and stored in Clean Lake and Gerber Reservoir. Clean Lake is also a national wildlife refuge. 

The secret amendment process is discussed on a recent KlamBlog: here’s the refuge-damaging amendment’s text:
     "Notwithstanding any other terms of this Agreement, no call will be made for water from Clear Lake or Gerber Reservoir or the Lost River above Harpold Dam for delivery to meet the Refuge Allocation in this Agreement. This limitation with respect to the Refuge Allocation under this Agreement is subject to the first two sentences of Section 2.2.11 and any rights or privileges attendant to any water rights that may be determined".

“Parties” to the KBRA can block the refuge-damaging amendment but so far they have refused to do so. Glen Spain – who represents the Pacific Federation of Fishermen’s Associations, a KBRA “party” – has specifically refused to block the amendment. Spain claims it is unlikely water from the Upper Lost River would be available for distribution to the refuges.

Glen Spain ignores the fact that the Klamath’s six national wildlife refuges are in line to have their water rights affirmed early next year in Oregon’s Klamath Adjudication. Once that affirmation occurs, the refuges will be able to make “calls” when they need water. In response to a refuge “water call”, junior right holders would have to forgo irrigation and the Bureau of Reclamation would be obligated to deliver water to the refuges.

PCFFA’s refusal to come to the aid of the Klamath Refuges is repeated by the other “parties” to the KBRA including Trout Unlimited, California Trout, the Yurok, Karuk and Klamath Tribes. When the KBRA was signed, these “parties” assured the public in press reports that the KBRA would usher in a new day when no interest would be sacrificed to advance another interest.

Those assertions ring hollow in light of the unnecessary death of an estimated 20,000 migrating and wintering birds on Lower Klamath and Tule Lake NWRs this winter. The Refuges were dewatered for 2 ½ months in order to maximize irrigation water delivery this coming summer.  Now these same organizations are supporting yet another refuge-damaging action – the proposed anti-refuge KBRA amendment.

Those who value the Klamath’s world-class wildlife refuges are encouraged to ask the governing boards of KBRA Water deal “parties” to reject the proposed KBRA refuge-damaging amendment. Below is a list of organizational presidents, CEOs, tribal chairpersons/council members and their contact information. Please take a few minutes to contact those conservation organizations and tribes which should be looking out for the refuges. Ask these contacts to share your request with all members of the governing board or tribal council and ask the governing boards to reject the proposed KBRA refuge amendment.

Please do it for the birds!
                                  _______________________

Who to contact:

PCFFA: Dave Bitts, president, dbitts@suddenlink.net; Zeke Grader, ED, zgrader@ifrfish.org,     (415)561-5080.

California Trout (CalTrout): Jeff Thompson, CEO,  jthompson@caltrout.org; Klamath lead: Curtis Knight, cknight@caltrout.org, 415-392-8887.

Trout Unlimited: Chris Wood, President and CEO, cwood@tu.org; Brian Johnson, Klamath lead,  BJohnson@tu.org, (800) 834-2419.

Yurok Tribe:  Tommy O'Rourke, Chairman,  torourke@yuroktribe.nsn.us, 707-482-1350. You can ask the Tribal Council’s assistant, Taralyn Offins (tara@yuroktribe.nsn.us), to distribute your message to all Tribal Council members.

Karuk Tribe: Russell Attebery, Chairman, battebery@karuk.us. Mike Thom, Vice Chairman, mthom@karuk.us. (800) 505 – 2785. You can also ask Tribal Secretary Joseph Waddell to distribute your message to all Tribal Council members: jwaddell@karuk.us.

Klamath Tribes: Jeff Mitchell, mohiswaqs@aol.com; Larry Dunsmoor, ldunsmoor@aol.com. (800) 524-9787.

The KBRA’s Brave New World: Public again locked out of key decisions

“Parties” to the KBRA (the county, state and private organizations which signed it) are once again in secret meetings attempting to determine who will benefit from the Klamath River Basin’s Public Resources. KlamBlog has learned that a major amendment to the Klamath Basin Restoration Agreement, which was supposed to be ready for approval by the “parties” in February, is apparently still being negotiated. 

We suspect that federal officials are also attending those secret meetings. Federal agency officials planned, orchestrated and funded development of the KBRA but – because aspects of the Deal violate existing federal law and authorities - they cannot sign it without Congressional approval.  

KBRA current signatories include Humboldt County, the California Resources Agency, several Oregon state agencies, Pacific Coast Federation of Fishermen’s Associations, Salmon River Restoration Council, Yurok Tribe, Karuk Tribe, Klamath Tribes, American Rivers, Trout Unlimited, California Trout, Northern California Federation of Fly Fishers, Reams Golf and Country Club, Winema Hunting Lodge, Klamath Water Users Association and a host of irrigation districts which receive water via the Bureau of Reclamation’s Klamath Project. 

KlamBlog learned about the proposed amendment by chance while reading minutes of the February 7th meeting of KWAPA – the Klamath Water and Power Agency. KWAPA was set up by three Upper Basin irrigation districts and has already secured taxpayer funds in order to pursue lower electric rates for Klamath Project irrigation interests. Here’s what those minutes had to say about the amendment:   
    “Shall KWAPA approve the KBRA Amendments? Greg Addington reported that this is not complete and that it will take some time to finish. The amendments include some dates in some instances and that the Power Program is another item being vetted. A copy was included in the agenda packet the Board received."

 The Tulelake Irrigation District - home to the richest of the Basin's Irrigation Elite - uses dozens of pumps to move Klamath River water to and from irrigation canals and drains