“Plainly the operation of the hydro project violates the water quality rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’ previous 1956 license pre-dates environmental law.


September 21, 2015 09:43 am, By Adam Spencer, The Triplicate

      On the heels of Yurok Tribe's rejection of deal to remove dams on the Klamath, Hoopa Valley Tribe says it will challenge federal relicensing

      The Yurok Tribe announced this week intentions to withdraw from the Klamath Agreements that would help remove four dams on the Klamath River, but while the complex, multi-party deals have collected congressional dust, the Hoopa Valley Tribe — never a party to the deals — have been fighting for dam removal in court.

      The Hoopa Valley Tribe plans to file a brief by Friday in the U.S. Court of Appeals challenging that the federal dam regulatory agency has violated the Clean Water Act in its approach to the relicensing — or lack of it — of the Klamath River dams.

      The hydropower license needed for PacifiCorp to operate its hydroelectric dams on the Klamath expired in 2006, but the Warren Buffett-owned power company has delayed the relicensing of the dams since then using a legal-gray-area strategy outlined in one of the Klamath Agreements. All in hopes that Congress would pass legislation implementing the Klamath Agreements. But that hasn’t happened after three years of sitting in Congress with little traction.

      Now, the Hoopa Valley Tribe’s tactic of forcing the hand of the Federal Energy Regulatory Commission to get PacifiCorp to proceed with relicensing of the dams seems to have a better chance of removing the aging dams have decimated salmon runs in the Klamath Basin.

      To relicense the dams in accordance with the Clean Water Act, PacifiCorp needs to apply for Water Quality Certification from regulatory agencies in both California and Oregon, where the dams are located.

      “Plainly the operation of the hydro project violates the water quality rules,” Hoopa Valley Tribe attorney Tom Schlosser said, adding the dams’ previous 1956 license pre-dates environmental law.

      Complying with water quality requirements is not the only thing that would make dam removal a likely option.

      Even if water quality certifications were completed and a new license issued, it would require PacifiCorp to install ladders to provide for passage of migratory fish through the dams, an action already mandated by National Marine Fisheries Service. Fish ladders would exceed the cost of dam removal and the dams would produce less energy and be less profitable, making dam removal the most economical option for shareholders and ratepayers.

      The public utility commissions of California and Oregon have already decided that dam removal is the best option for ratepayers.

      To avoid this process in hopes of passing federal legislation, the Klamath Hydroelectric Settlement Agreement (KHSA), the agreement focused on dam removal, states “PacifiCorp shall withdraw and re-file its applications for Section 401 (water quality) certifications as necessary to avoid the certifications being deemed waived under the (Clean Water Act) during the Interim Period.”

      The Clean Water Act says if a state fails or refuses to act on a water quality certification “within a reasonable period of time (which shall not exceed one year)” than the certification is considered “waived.”

      The purpose of the waiver provision is “to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification,” according to case law cited in Hoopa Valley Tribe court documents.

      A waiver would lead to the relicensing process outside of the KHSA, a less desirable option for PacifiCorp, which would have decreased liabilities and cost for dam removal under the Klamath Agreements.

      PacifiCorp has withdrawn and re-filed its water quality certification application in both California and Oregon eight times to keep the application active without having certification considered waived by the state agencies. Withdrawing and re-filing the application is done with a single email.

      Attempts to reach PacifiCorp for comment Friday were not successful.

      “Their theory is that the letter gives the water board another full year to do nothing,” Schlosser said. “We kept saying ‘no, this is a violation of the Clean Water Act and you can't get around it by this letter writing campaign.’”

      A spokesperson of the California State Water Resources Control Board said the agency would not comment due to the pending legislation.

      Although the FERC denied the Hoopa Valley Tribe’s request for a hearing on the issue in October 2014, the agency said they do agree that PacifiCorp and state regulators are “clearly violating the spirit of the Clean Water Act” and possibly acting “contrary to the public interest by delaying the issuance of new licenses that better meet current-day conditions than those issued many decades ago.”

      In the end, the FERC’s discussion concludes while it may violate the spirit of the law “we do not conclude that they have violated the letter of that statute.”

      “They are essentially saying that this little routine that PacifiCorp is using violates the spirit of the Clean Water Act but they are going to go ahead and approve it,” Schlosser said.

      Schlosser said the FERC’s actions are particularly egregious since the agency has not even approved the KHSA plan although approving settlement agreements for dam removal is in its purview.

      “They are deciding to do nothing for a settlement agreement they never approved or reviewed,” Schlosser said. “I’m optimistic that court of appeals will say FERC has fallen down on the job and they ought to dismiss the application for licensing.”

      Since the Yurok Tribe appears to be moving towards withdrawing from the Klamath Agreements, Schlosser said he hopes they will join the Hoopa Valley Tribe in forcing dam removal through the FERC.

      “It’s great when the tribes work together,” Schlosser said. “It’s been helpful when they do in the past and I hope they do with this issue.”