Soon after KlamBlog published our August 6th post - KHSA or FERC: Which offers the best path to dam removal? -we invited Glen Spain and other partisans deeply involved in Klamath dam, water and salmon issues to provide guest KlamBlogs responding to the question: What is the best path to dam removal?
Glen Spain responded first with his post - Why the Klamath Settlement remains the best route to dam removal and salmon restoration - which KlamBlog published on August 21st. We now publish Tom Schlosser's guest post responding to Mr. Spain's post.
Thomas B. Schlosser is a director at Morrisset, Schlosser, Jozwiak and Sommerville - Attorneys at Law. He is widely published on Indian Law and has several Klamath-related publications including "DEWATERING TRUST RESPONSIBILITY: THE NEW KLAMATH RIVER HYDROELECTRIC AND RESTORATION AGREEMENTS"
KlamBlog invites additional dialogue on this blog concerning the best path to Klamath Dam removal. Comment on the posts or submit a post of your own. We hope dialogue here will be a precursor to face-to-face discussions and a reuniting of those who want to take down the dams, restore the Klamath River and recover Klamath Salmon.
The current impasse must end; the sooner the better.
Thanks for the opportunity to correct the claims about the Klamath Settlement Agreements put forward by Mr. Spain of PCFFA. We must think beyond Mr. Spain’s false choices and consider revising the two Settlement Agreements and separating water rights issues from dam licensing. It’s truly amazing that PacifiCorp has induced groups such as PCFFA to agree to defend operation of its obsolete hydroelectric projects indefinitely unless Congress passes hugely expensive legislation that allocates water poorly and authorizes the government to remove the dams.
Big federal legislation is not the usual trigger for dam removal; instead, when dam owners find they can no longer economically operate dams under applicable law, they ask, and the Federal Energy Regulatory Commission (FERC) directs, private removal of the dam. That would happen on the Klamath had not PacifiCorp and other parties agreed to block the FERC process and condition dam removal upon lop-sided Upper Basin water deals. The claim that “FERC has never in its entire history ordered dams to come down,” is entirely false. For example, PacifiCorp exploded Condit Dam in 2011 pursuant to a FERC order, not an Act of Congress.
The removal of Condit Dam on Washington's White Salmon River
was ordered by the Federal Energy Regulatory Commission (FERC)
Mr. Spain discusses Clean Water Act Section 401 Certification, but misunderstands its significance. A Section 401 Certification by California or Oregon is not needed for a FERC order that will cause dam removal. The volitional fish passage and operational conditions, already prescribed by the National Marine Fisheries Service and by the U.S. Fish and Wildlife Service (and upheld by Judge McKenna), make operation of the dams uneconomic under a FERC license. PacifiCorp proved to the Public Utilities Commissions that removal of four dams is now the cost-effective solution.
The States, rather than fighting for cleaner water, have agreed with PacifiCorp to use the Section 401 certification process to block FERC licensing to achieve other objectives in the (Sacramento-San Joaquin) Delta and Upper Basin. The States are not willing to fight with the utility. (“We might get sued!”)
While FERC cannot issue a license without a timely Section 401 Certification from the States, the Clean Water Act requires that such certifications be issued within one year of the application. That time lapsed in 2007. PacifiCorp convinced Oregon and California to extend that one-year period indefinitely by allowing PacifiCorp to annually file letters withdrawing and “resubmitting” its application. While FERC has not approved that trick, neither has it yet exercised its authority to rule that the States have waived their Section 401 permitting authority. The Hoopa Valley Tribe has asked FERC to so rule, and to incorporate the fisheries conditions into a license immediately.