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.
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.
IS 401 CERTIFICATION THE “MAGIC BULLET?”
The legal pivot around which this choice turns is the two State’s Clean Water Act Section 401 certification authority. The Federal Power Act, which governs dams in the US, gives the States ONLY one legal “hook” into the FERC relicensing process -- the requirement under Sec. 401 of the Clean Water Act that the States must first certify that the Project, if relicensed, will meet all State water quality standards. Without that 401 Certification, FERC cannot issue a new license.
But PacifiCorp cannot be both advocating for relicensing and removal simultaneously. This is why the KHSA suspends this now obsolete relicensing process, to work toward dam removals.
Opponents of the KHSA Settlement Deal firmly believe that, if only the 401 Certification Relicensing Applications can go forward to a final decision, that the California State Water Resources Control Board (SWRCB) will simply say “no way” and will flatly deny the Application -- and any other later Application that could possibly be made -- on the grounds that the Project could NEVER pass water quality standards under ANY circumstances. This, they believe, will force PacifiCorp to take the dams down sooner than 2020.
THE FERC ROUTE IS FRAUGHT WITH DELAYS
However, FERC’s legal mandate is to license dams, not to remove them. In our view, opponents of the Klamath Settlement have a misplaced faith in FERC’s basic willingness to require dam removal, even though FERC has never in its entire history ordered dams to come down against the wishes of a relicensing Applicant without a Settlement such as the KHSA. They also have a very naïve belief that the California SWRCB will simply stand fast against this Relicensing Application -- and make it stick in Court -- when no other state water quality authority anywhere ever has. A flat-out state denial would be fought in court by the entire legal might of the hydropower industry, guaranteeing years of delay.
Here are some other factors that make a return to the FERC process, rather than Settlement, a much higher-risk proposition:
(1) FERC’s Staff Recommendation in its 2007 “Final Environmental Impact Statement” was for full FERC relicensing -- not for removal. FERC would give its own Staff Recommendation great deference in its decisions.
(2) Even if the California SWRCB flatly denied the current 401 Certification, it is still likely that the State of Oregon could not do so (or if it did, that such a decision would not survive Court scrutiny). J.C. Boyle Dams lies in Oregon and is by far the most valuable dam of the four, with an 80 MW power generation capacity. (Iron Gate’s, is only 18 MW). But Oregon not only has much weaker water quality standards than California, Oregon’s J.C. Boyle Dam also causes far fewer water quality problems. This means that Oregon’s 401 Certification flat denial would be far less likely to survive in Court.
(3) Even if the current 401 Relicensing Certification Applications are both rejected entirely by both states, these Applications could simply be rewritten by PacifiCorp and resubmitted any number of times, each time seeking full or partial relicensing. Each new submission would simply restart the regulatory clock all over again, even after years of appeals.
(4) And during each of those delays, the Hydropower Project would continue to run under the CURRENT (1957) FERC license, on automatic 1-year license extensions. There is no statutory limit to how many times PacifiCorp could, in essence “start the clock over” on such a process. Some FERC processes have gone on this way for more than two decades.
Again, no state Water Board has ever successfully just flatly denied a 401 Dam Relicensing Application. Most likely, the California State Water Board would have to condition acceptance of such a Certification on various water quality improvements and mitigation measures. KHSA opponents are convinced (without even knowing what those conditions might be) that these conditions “could never be met.” PacifiCorp, however, believes (with greater knowledge) that it very well might be able to meet them, particularly in Oregon.
Under full implementation of the Klamath Settlement Agreement, four-dam removal is assured to occur in 2020 – only 8 years away! The only major remaining uncertainty about the KHSA is the one-time Congressional authorization of the “Klamath Basin Economic Restoration Act” (S. 1851 and H.R. 3398 in the 112th Congress). Because so many other elements of the KHSA are already proceeding in parallel, including the collection of the initial $200 million from PacifiCorp customers, this implementing law can pass in Congress any time up to 2018 without seriously cutting into the 2020 dam removal schedule.
In a highly contested FERC relicensing process many more years of litigation become inevitable. Litigation delays alone under the FERC process could take 15 to 20 more years, pushing any possible dam removals (if they occurred at all) well beyond the 2020 target date for removal under the KHSA. And one Court loss could be fatal.
MOST INTERIM PROTECTIONS DISAPPEAR UNDER FERC
FERC has refused (and been upheld by the Courts) to impose any protective “interim conditions” to improve fish and wildlife survival rates within the Klamath Hydropower Project while its regular relicensing process is pending. Its annual license renewals merely extend the old 1957 FERC license, which provided for very little protection for fish or water quality -- predating both the ESA and the Clean Water Act by two decades.
Under the KHSA, however, many “interim measures” are already in place, separately paid for by PacifiCorp to the tune of about $2.5 - $3 million/year. Under the KHSA, these “interim measures” will remain in place until dam removal is achieved, targeted for 2020.
But under the FERC-only route, most of these important “interim measures” simply disappear, and will remain absent until the relicensing litigation is all resolved – which could take 20 years.
In short, as compared to the existing Klamath Settlement Agreements (KHSA), the traditional FERC process is very high risk, fraught with potential litigation delays that could take it well beyond 2020, and would be much less protective of salmon and other Klamath River natural resources in the meantime.
MOST SALMON BENEFITS ARE OUTSIDE FERC AUTHORITY
In addition to four-dam removal and the restoration of a free-flowing Klamath River provided for under the Klamath Hydropower Settlement Agreement (KHSA), the parallel Klamath Basin Restoration Agreement (KBRA) component of the Settlement provides for an aggressive, 50-year salmon habitat and water reallocation process that scientists say would greatly benefit salmon restoration (see: www.klamathrestoration.gov). These KBRA benefits include:
- Permanent restoration of between 130,000 to 230,000 acre-feet of additional non-winter river flows to the Klamath River (depending upon yearly rainfall) to help recover valuable salmon runs;
- Permanent water right “caps” on the federal Klamath Irrigation Project’s future irrigation diversions for the first time in its history -- at present there are no upper volume limits to the Project’s water right, so long as it is used for irrigation;
- A guaranteed minimum water supply to the Tule Lake and Lower Klamath National Wildlife Refuges which they have never had before, and the inclusion of “national wildlife refuge, fish and wildlife” protections as formal legal mandates for the Bureau of Reclamation’s Klamath Irrigation Project (Sec. 105(a) of the Klamath Act) for the first time in its history, assuring these values are better protected in the future;
- More than $60 million in dedicated funding for multiple TMDL and Clean Water Act compliance measures to improve water quality conditions within the river and upper basin, which in turn would help restore valuable salmon fisheries.
None of these key restoration measures could legally be ordered by FERC. They can ONLY be permanently achieved through the current Settlement process under the KHSA-KBRA.
THE SETTLEMENT MAKES NO CHANGES TO LAW OR
NON-PARTY TRIBAL RIGHTS
Most opponents of the KHSA oppose it because it is linked to the KBRA. But KBRA opponents are simply wrong in asserting, as they frequently do, that the KBRA contract somehow changes or undercuts the federal Endangered Species Act (ESA), or in some way “terminates” existing non-Party Tribal water or fishing rights. In truth, it does nothing of the sort. By law, no mere contract can change or modify federal laws or Treaties -- only Congress can do so.
The KBRA in fact states on its own terms that:
“Sec. 2.2.1. Nothing in this Agreement is intended or shall be construed to affect or limit the authority or obligation of any Party to fulfill its constitutional, statutory, and regulatory obligations or comply with any judicial decision….”
And to make certain that all applicable laws are respected, the implementing legislation itself (S. 1851, H.R. 3398) states explicitly:
“Sec. 101(d). Compliance With Existing Law. In implementing the Restoration Agreement, the Secretaries shall comply with --
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and
(3) all other applicable Federal environmental laws (including regulations).”
As to Tribal rights of any Tribe NOT a Party to this Settlement, the KBRA also specifically excludes them:
“Sec. 2.2.11. No Determination of Water Rights by the Agreement. No water rights or water right claims of any Party are determined or quantified herein. No water rights or potential water rights claims of any non-party to the Agreement are determined herein. No provision of this Agreement shall be construed as a waiver or release of any tribal water or fishing rights in the Klamath River Basin in California, including claims to such water or fishing rights that have not yet been determined or quantified….” (emphasis added)
Additionally, the implementing legislation itself (S. 1851; H.R. 3398), explicitly protects and preserves ALL non-Party Tribal rights:
“Sec. 106(k) Tribes Outside Klamath Basin Unaffected. — Nothing in this Act or the Restoration Agreement affects the rights of any Indian tribe outside the Klamath Basin.”
“106(l) Nonparty Tribes of the Klamath Basin Unaffected. — Nothing in this Act or the Restoration Agreement amends, alters, or limits the authority of the federally recognized tribes of the Klamath Basin, other than the Party Tribes, to exercise any water rights the tribes hold or may be determined to hold.”
“Sec. 207(b). Tribal Rights – Nothing in this title affects the rights of any Indian tribe secured by treaty, Executive Order, or any other law of the United States.”
To summarize, in our analysis the Klamath Settlement Agreements still represent the fastest and least risky pathway not only to full four-dam removal, but to long overdue Klamath Basin salmon restoration. The FERC process, on the other hand, carries very high risk of at least partial dam relicensing, after many more years of litigation and delay. Also, FERC has no power to order any of the many salmon restoration measures provided for under the 50-year Klamath Basin Restoration Agreement (KBRA). The science says that dam removal alone is just not enough for the damaged Klamath salmon runs to fully recover.
To discuss any of the above in detail, contact me directly at: firstname.lastname@example.org. See also: www.klamathrestoration.gov for NEPA and science reports.