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 So far the application for clean water certification has been withdrawn and refiled four times.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
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.
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.