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. 


Costs

         The cost of the Klamath Agreements ratification legislation is a “poison pill.”  PDF page 226 of the KBRA puts the price at $970.452 million.  The KBRA parties have discussed scaling down their “ask” and finding some funds by “reprogramming” other funds, but there is no agreement on how this would work, and the costs are still too high.  Not one dollar of its price tag goes for dam removal; most of the money goes to subsidies for irrigation operations.  The KBRA includes some fish restoration measures, but it sets no specific goals.  The tragedy is that the “albatross,” represented by the KBRA, was attached to PacifiCorp’s dam relicensing proceeding.  The KBRA blocks rather than expedites dam removal. 

Interim Measures

          Mr. Spain claims that most interim protections would disappear under the FERC licensing process.  This ignores the February 2012 Habitat Conservation Plan (HCP) that the National Marine Fisheries Service required because of PacifiCorp’s impacts on threatened Coho salmon.  The HCP incorporates most of the interim KHSA measures that are important to fish, including over $500,000 per year for projects.  KHSA Appendix C lists measures which are in the HCP.  KHSA Appendix D lists other interim measures, some of which are in the HCP, and some are not.

          While FERC could order PacifiCorp to implement any fish protection measure, using authority in the existing license, it might not require PacifiCorp to pay for water quality conferences or allow the additional flow for power generation which is called Interim Measure 14.  Thus, Mr. Spain is correct that some interim measures might be discontinued if PacifiCorp chose to terminate the KHSA.  On balance, that might be good.  PacifiCorp readily agreed to fund interim measures because they’re amply rewarded--after paying for them, PacifiCorp still makes about $27 million per year by operating under the annual licenses through at least 2020. See KHSA page 48.

Less River water, not more

          Most outrageous is Mr. Spain’s claim that the KBRA benefits include “permanent restoration of between 130,000 to 230,000 acre-feet of additional non-winter river flows to the Klamath River.”  Reclamation’s studies prepared in support of the still-unfinished EIS, and posted on the KlamathRestoration.gov website, show that in most water year types the KBRA will provide less water to the Klamath River, not more, even less than the ESA-required flows.

          In fact, the KBRA calls for reduction of the ESA flow requirements by means of the parties pressuring NMFS.  See page 149.  Technical Report No. SRH-2011-02, “Hydrology, Hydraulics, and Sediment Transport Studies for the Secretary’s Determination on Klamath River Dam Removal and Basin Restoration” and Appendix F of that document disprove Spain’s claim.  For example, “[t]he 90% exceedence [dry year] flows are similar for the two alternatives from March through September, but for the months of October to February the No Action Alternative [current flows, without KBRA] 90% exceedence flows are about 20 to 30% larger.”  Page 6-9.  “In these dry years, the agricultural supply is significantly reduced under the No-Action Alternative; therefore, more flow is released to the Klamath River under the No-Action Alternative than under the Dam Removal Alternative” [which includes KBRA].  Page 6-10.  Briefly, the KBRA delivers less water to the Klamath River than at present in hydrological conditions represented by 30%, 50%, 90%, and 95% exceedence water years. 

Limiting federal trust responsibility

          Mr. Spain is wrong about tribal water and fishing rights.  Under existing law, the United States, and the Bureau of Reclamation in particular, are obligated to ensure that irrigation projects do not interfere with the tribes’ senior water rights.  The United States has a trust responsibility obligation to ensure that its activities would not adversely affect the tribes’ fishing rights.  The KBRA, if approved by Congress, would change this.  In KBRA Section 15.3.9 the United States agrees that it will not assert tribal water or fishing rights in a manner that would interfere with the diversion of water for the Klamath Irrigation Project that is authorized by the KBRA.  That termination of the government’s trust responsibility would become lawful by enacting Section 106(f) of the proposed legislation.  As stated in that section, the United States acts on behalf of all of the tribes of the Klamath Basin, not merely the three tribes that signed the KBRA in exchange for certain benefits.  Mr. Spain is correct that this would not prevent a tribe from asserting its own rights against the dewatering of the River by Reclamation.  But the KBRA would terminate the federal government’s existing trust responsibility to protect the tribes’ rights. 

New directions

          Mr. Spain seems to believe that letting FERC address the licensing issues will cause more delay because of litigation.  But litigation is always a risk and nothing in the KBRA or KHSA will avert it.  The Klamath Agreements are themselves the reason FERC is not proceeding and they provide no guarantee of dam removal by 2020.  Indeed, the KHSA requires $27 million in “additional value” to be paid if dam removal actually begins by January 1, 2020.  See Page 48.  The failure to meet existing deadlines means that the parties must extend the KBRA or it will expire on December 31, 2012.  See Page 32.  Water rights claims in the Upper Basin will be resolved outside of the KBRA by the Oregon water adjudication, which is finally reaching a conclusion.  It is past time to revise the Klamath Agreements and address problems in a sequential, cost-effective fashion instead of defending the huge logjam that PacifiCorp, PCFFA, and others have created to the detriment of the Klamath.