Who’s on First? - California water quality meeting should clarify camps in Klamath River Dam and Water Controversy 

For some time now it has been difficult to decipher who is on whose “side” - and who is truly on the side of the Klamath River and Klamath Salmon - in the controversy over the fate of Klamath River Dams and of a controversial Water Deal which some interests seek to tie to removal of four of PacifiCorp’s five Klamath River dams. A fifth dam and reservoir – Keno – is proposed for transfer to the Bureau of Reclamation. The fate of that dam will likely become more prominent as its impact on Klamath River water quality becomes better known.

With the exception of Siskiyou County, the major players in the Klamath River Dam and Water Controversy all favor removing four of the five dams or have not taken a position on dam removal. The differences come in how these “stakeholders” think a dam removal agreement should be accomplished, how that removal and development of replacement power should be financed, whether dam removal should be linked to a billion dollar Water Deal and what PacifiCorp should be required to do between now and dam removal to address ongoing Klamath River water quality impairments which are linked to the company’s dams and reservoirs.

The last issue – water quality impairment and interim operating conditions for the dams to address these impairments – will likely dominate discussion when the California State Water Board receives input on February 17th in Sacramento on the Agreement in Principle (AIP) signed by PacifiCorp, Governor Schwarzenegger, Governor Kulongoski and the Depart of Interior.

The Water Board will not make a decision on February 17^th. The meeting should clarify, however, who supports PacifiCorp’s desire to again delay water quality hearings and who opposes that effort. Those hearings are a key part of the dam relicensing process. The California Water Board and Oregon’s Department of Environmental Quality must determine if the energy company’s Klamath River dams can comply with water quality standards establish for the Klamath River and, if the dams can’t comply, what changes must be made in order to achieve water quality standards. It is this process which will also be used to implement the Klamath TMDL Action Plan – the plan currently being developed by the North Coast Water Board to clean up nutrient, toxic algae and other pollution in the Klamath River. Oregon’s Departament of Environmental Quality is also developing a Klamath TMDL.

The question of whether the Klamath River dams can comply with water quality standards is critical not only to the fate of the dams but also to who will pay for removal or relicensing. Here’s what a Federal Energy Regulatory Commission (FERC) official told KlamBlog would happen if California or Oregon deny PacifiCorp’s request for water quality certification:
 

If water quality certification for the project is denied, then we can not issue a license and we would begin a surrender proceeding. The costs associated with surrendering the project would be borne by the licensee.

This statement reveals why PacifiCorp has twice delayed the water quality certification hearings and why the company appears to be seeking yet another postponement. According to the AIP electric ratepayers in Oregon and taxpayers in California will be asked to shoulder the cost of dam removal; if water quality certification is denied, however, PacifiCorp’s shareholders might have to foot the bill. That is one reason KlamBlog has called the AIP a sweetheart deal.

Such a deal may be appropriate for Valentine’s Day but not for government-corporate relations. In fact, it appears that Governor Schwarzenegger and Governor Kulongoski are favoring PacifiCorp over ordinary citizens by conspiring to shift the cost of dam removal from the corporation to the citizens.

Meanwhile the Hoopa Tribe is encouraging the California Water Board not to delay the water quality certification process yet again. The Hoopa are also asking FERC to establish interim conditions for dam operation which will protect salmon and other aquatic resources. Hoopa’s representatives have pointed out that the AIP is NOT an agreement to remove the dams but only an agreement to make a decision on dam removal by 2012. The Hoopa Tribe says the water quality certification process should not be delayed in part because PacifiCorp has yet to make an application to FERC to modify its operations while it and the federal government are deciding the long-term fate of the dams. A request to change the current operating permit would itself require state water quality certification.

The Hoopa Tribe has distributed a briefing paper on “Klamath Project Water Quality Certification.” In that paper the tribe states: “We encourage your organization to demand that the State Water Board continue with its certification proceeding. If PacifiCorp refuses to conduct the studies necessary to complete the certification process, or withdraws its application, the State Water Board should deny certification.”

The California State Water Board will receive input on the water quality certification and related CEQA process until February 23rd. Comments can be submitted electronically by sending e-mail to commentletters@waterboards.ca.gov or via snail mail to: Ms. Dorothy Rice, State Water Resources Control Board, PO Box 100, Sacramento, CA 95812. Klamath Riverkeeper has a form letter to the Water Board which can be sent from the group’s web site.

KlamBlog believes that PacifiCorp is maneuvering to avoid Clean Water Act certification because it knows the changes which would be required to address dam-related water quality impairments would render its Klamath Hydroelectric facilities unprofitable.

Oregon Wild (OW) has also written to the Water Board concerning the water quality certification process. OW's letter makes the following points:

The Agreement in Principle should not be the basis for continued extensions or delays in the water quality certification process.

Delays in 401 certification put human and natural communities at risk.

Interim conditions for operation of the dams designed to address Klamath River water quality impairments must be mandated.

KlamBlog has learned that the North Group of the Sierra Club’s Redwood Chapter, the Environmental Protection Information Center (EPIC). and the Center for Biological Diversity have signed on to the Oregon Wild letter. It is likely that other organizations have also signed it.

FERC has written to the California Water Board and Oregon DEQ concerning the water quality certification process. Here are excerpts from FERC’s letter to the California Water Board:

The Commission has been unable to act on the license application because neither the state of Oregon nor California has acted on PacifiCorp’s request for water quality certification under section 401 of the Clean Water Act.

The Federal Power Act, which governs the authorization of non-federal hydropower projects, calls for this Commission to move forward in the review of all projects, including the Klamath Project.

Bringing this relicensing proceeding to its conclusion is appropriate and may provide various measures to improve fisheries, water quality and other project-affected resources. Consequently, we encourage the Water Board to act as soon as possible on PacifiCorp’s application for water quality certification.

FERC also made a statement in the letters that points to the uncertainty introduced into the process by the attempt to tie dam removal to an expensive and controversial Water Deal:

In November 2008, an Agreement in Principle (AIP) was reached among PacifiCorp, the United States Departments of the Interior, Commerce, and Agriculture, and the states of California and Oregon, for the continued operation and potential future removal of the Klamath Project’s four main stem dams......The AIP, the envisioned Final Agreement, and the measures proposed therein are predicated on a number of items, most notably the passage of federal and state legislation…..We are uncertain whether and, if so, when this legislation will occur.

FERC staff members have confirmed that a clean dam removal settlement would not require federal legislation.

It is clear from the FERC letter that their staff suspect that - because it requires federal legislation including appropriation of up to a billion dollars in federal funds – the proposed Klamath River Basin Restoration Agreement – the Water Deal – has the potential to delay for many years to come a final decision on what to do with the Klamath River dams. KlamBlog has argued that – contrary to the claims of its promoters - the Water Deal makes dam removal less rather than more likely.

As predicted long ago by KlamBlog, water quality is proving to be at the heart of the controversy over what to do with the Klamath dams. It has been our contention that PacifiCorp’s Klamath River Dams can not meet water quality standards established to protect salmon and other beneficial uses of the Klamath River without the expenditure of sums of money which would eclipse the $300 million cost to put fish ladders on the dams. We believe completion of water quality certification in Oregon and California would make it clear that PacifiCorp can not make money on the Klamath Hydroelectric Project if the changes necessary to render the dams environmentally responsible were made.

In the maneuvering currently in process over water quality certification, the Hoopa Tribe appears to hold the trump cards. That is because the Hoopa are the only Klamath River Basin tribe which has taken the time and expense to secure certification as a state for purposes of the Clean Water Act. As a "state" whose lands cross the Klamath River, the Hoopa Tribe has the right to establish water quality standards of its own for the Klamath River. More importantly, upstream states have obligations to downstream states – including recognizing and meeting their water quality standards. And while the means by which the Hoopa could enforce their standards upstream are clearer with regard to point sources, there is also potential to force upstream states (California and Oregon) to regulate non-point sources of pollution in order to meet Hoopa water quality standards for the Klamath River.

While the State of California will not take action on February 17th to either grant or deny PacifiCorp’s request for yet another delay in the Clean Water Act certification process, those who tune in may get a better idea of which “stakeholders” are supporting PacifiCorp and the governors and which are not. One organization which bears watching is the Pacific Coast Federation of Fishermen’s Associations (PCFFA). Will PCFFA continue to support the AIP when most observers believe it will be used by Governor Schwarzenegger to sell his plan for new dams and a new canal to carry more Northern California water south? Will the trio of sport fishing groups involved – Trout Unlimited, Cal Trout and the Federation of Flyfishers - continue to support the AIP even as it becomes clear that such support will delay dealing with fish-killing water quality conditions in the Klamath River?

Those who want answers can tune in remotely to the California State Water Board meeting on February 17th. KlamBlog will be tuned in and will report which “stakeholders” line up behind PacifiCorp and Governor Schwarzenegger and which align with the Hoopa Tribe and others who reject the AIP because they believe it is not in the interest of the River, will delay dam removal and is intended primarily to shift the cost of dam removal from PacifiCorp shareholders to ratepayers and taxpayers.