Tom Schlosser: It’s time to move toward dam removal.

Editor's note: 

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.

Felice Pace
KlamBlog editor

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           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)

Section 401

          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. 

Glen Spain: Why the Klamath Settlement Remains the best route to dam removal and salmon restoration

 Editor's note: 

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 was the first to submit a guest blog; you will find it below. Glen has represented the Pacific Coast Federation of Fishermen's Associations (PCFFA) on Klamath River and salmon issues for many years. He represented PCFFA in Klamath Settlement Negotiations which led to the KHSA Dam Deal and the KBRA Water Deal. 

PCFFA signed the Deals and Glen Spain has emerged as one of the agreements' most ardent defenders. The KHSA and KBRA are separate unrelated agreements which have been politically joined. While, as Glen points out, many provisions of the KBRA and KHSA are already being implemented, others require Congressional approval. Senator Merkley's S.1851 and Representative Thompson's HR 3398 would provide those authorizations. 

It is my hope as KlamBlog editor that our August 6th post and Glen's submission below will advance understanding of options for removal of PacifiCorp's Klamath River dams. KlamBlog has invited other knowledgeable partisans to join the "conversation" by submitting related commentaries. We will not, however, invite opponents of dam removal to submit posts because we do not think relicensing the dams is a realistic option. Relicensed PacifiCorp dams would lose an estimated $24 million each year. No private, for-profit corporation (and no public entity in its right mind) will retain an asset which loses millions for shareholders (or taxpayers) each year.

You can join the "conversation" too by commenting on any KlamBlog post.

Felice Pace
KlamBlog editor
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WHY THE KLAMATH SETTLEMENT REMAINS THE BEST ROUTE TO FOUR-DAM REMOVAL AND SALMON RESTORATION IN THE KLAMATH

By Glen Spain, NW Regional Director
Pacific Coast Federation of Fishermen’s Associations (PCFFA)


     There is a raging debate within the Klamath Basin about how best to take out all four PacifiCorp hydropower dams (J.C. Boyle, Copco Dams 1 & 2 and the Iron Gate Dam).   Where one stands, however, depends mostly on how one believes the future will unfold -- and that debate is therefore all the more heated, since the future is inherently unknowable.   As the great Yogi Berra once said, “It is dangerous to make predictions -- especially about the future.” 

     However, since the current 50-year FERC license (issued in 1957) has now expired, and the Klamath Hydropower Project must limp along on automatic annual license renewals (as FERC allows while relicensing  is unresolved), opponents of the Klamath Hydropower Settlement Agreement (KHSA) believe there are now only two ultimate choices for these dams:  (1) move forward toward four-dam removal under the currently signed Klamath Hydropower Settlement Agreement (KHSA), which will push dam removal to 2020, or; (2) ditch the KHSA entirely and revert back to the standard FERC process where (they hope) FERC will unilaterally order four-dam removal sooner than another eight (8) years. 

     There is, unfortunately, a third alternative out of the FERC process -- i.e., partial relicensing, particularly of the J.C. Boyle Dams, which they fail to consider as a possible FERC outcome.  If this occurs we will have missed the chance for restoration of a free-flowing Klamath River for at least another 40 years -- i.e., until at least the year 2052.  This risk is rather high.

J.C. Boyle Dam is located in Oregon just north of the California border

     All available pathways – returning back to the FERC process or proceeding with the Klamath Hydropower Settlement Agreement (KHSA) -- have inherent uncertainties, to be sure.  But which is the fastest and most certain pathway?  On this even reasonable people of the best intentions disagree.  Here below is PCFFA’s reasoning, which also reflects the reasoning of the other 40+ Parties to the Settlement Agreement.

KHSA or FERC: Which offers the best path to dam removal?

The New York Times has embraced the Obama Administration’s interpretation of the conflict over PacifiCorp’s Klamath River Dams. In a July 19th feature, the Times accepted without question Interior Secretary Ken Salizar’s claim that the “Tea Party” is blocking plans to remove four Klamath River dams, restore the Klamath River and recover Klamath Salmon.

Salizar is promoting an us-v-them interpretation of conflict over the Klamath Dam and Water Deals. As was the case in 2001 when Dick Chaney got involved in Klamath River issues, the Obama Administration seeks to assure that its candidates carry Oregon this November.  

 The radical right was active in the Klamath River Basin long before the Tea Party.

This photo shows  a 2001 irrigation cut-off protest which attracted the Right's 
racist fringe. It is against federal law to fly the American Flag upside down. 

Klamath reality, however, is more complicated. While the Tea Party has embraced opposition to the Klamath Deals, they are also opposed by three of the Klamath River Basin’s six federal tribes as well as by those local and regional environmental groups which have worked on Klamath issues the longest. In addition to the Northcoast Environmental Center, Oregon Wild and Water Watch, the Sierra Club has advocated moving forward with state water quality certification for PacifiCorp’s Klamath River Dams – a move that would place the fate of the dams in the hands of the Federal Energy Regulatory Commission (FERC) rather than Congress.

A return to the normal FERC dam licensing process could scuttle not only the Klamath Hydroelectric Settlement Agreement (KHSA) but also the politically linked Klamath Basin Restoration Agreement (KHSA).

While the wider public’s attention is directed toward the Obama Administration-Tea Party conflict, a debate within the Basin’s environmental and tribal communities rages over the quickest, surest and best path to achieve removal of four Klamath River Dams owned by PacifiCorp. Partisans on both sides of the debate believe the dams will inevitably come down because – if they are relicensed with modern requirements – they will lose an estimated $24 million each year. No for-profit company will retain an asset which loses money each and every year.  For those who care the most about the Klamath River and Klamath Salmon, however, there is deep disagreement about the quickest, surest and best path to Klamath dam removal.

Two Paths

There are two paths which, along with variations, constitute options for removing PacifiCorp’s Klamath River Dams.  The dams can be removed as a result of the normal FERC dam relicensing process; or they can be removed under the KHSA Dam Deal.

California Trout’s Curtis Knight and Glen Spain of the Pacific Coast Federation of Fishermen’s Associations (PCFFA) have emerged as prominent defenders of the Klamath Dam and Water Deals – the KHSA and KBRA. Both gentlemen have published numerous pro-deal commentaries and opinions; most make the same points. Here are links to representative commentaries from Mr. Knight and Mr. Spain.

In the remainder of this post KlamBlog examines three key claims supporting promoter’s assertion that the KHSA Dam Deal is the quickest, surest and best path to removal of four of the five Klamath River dams owned by PacifiCorp.

As part of our mission to inform the public about complex issue, KlamBlog has previously examined and evaluated claims made by KHSA and KBRA promoters and opponents. The difference in this post is that here we do not rely primarily on our own analysis; this time we rely on a recent article on dam removal prospects published in the Seattle Journal of Environmental Law.