The Resighini Rancheria believes the most promising avenue for dam removal is the Federal Energy Regulatory Commission (FERC) relicensing process. FERC filed only brief comments on the government's dam removal environmental documents saying only that the relicensing process was still active and only waiting for word back from California and Oregon on 401 Certification. Although FERC’s final Environmental Impact Statement (FEIS) did not favor dam removal, there are two parts of the relicensing process that are likely to trigger decommissioning:
California State Water Resources Control Board (SWRCB) 401 Certification: The California SWRCB has the authority to reject PacifiCorp’s application for certification under the Clean Water Act which is required if FERC is to re license the KHP. The SWRCB comments during the KHP FERC relicensing process made it clear that there is no way to stop water pollution and toxic algae in reservoirs short of their removal. Unfortunately, the SWRCB caved in to political pressure and chose to abdicate its authority on August 18, 2012 and continue its abeyance for another year.
NMFS Fish Ladder Requirements: The National Marine Fisheries Service (NMFS) terms and conditions for relicensing of the KHP require either removal of the dam, or installation of fish ladders that would cost $240 million. Because the power produced by the dams is insufficient to justify such an expense for rate payers, continued operation of the KHP would be economically infeasible, forcing PacifiCorp to consider abandonment and decommissioning instead. PacifiCorp appealed the NMFS fish ladder requirement, but was turned down by an administrative law judge.
KHSA Now Delays Dam Removal: The KHSA has stalled the FERC process and the SWRCB 401 Certification, and tied dam removal to the controversial KBRA. If the KHSA were implemented, dam removal would not occur until 2020; therefore, lower Klamath River toxic algae pollution would continue to reduce safe access to the river for recreational and ceremonial purposes.
PacifiCorp’s Vice President Dean Brockbank in testimony to the Oregon Public Utilities Commission stated that the company felt imminent KHP decommissioning and loss of their power generating facility was a possibility under the relicensing process:
“Throughout these negotiations, the federal government and the states of Oregon and California have expressed a strong policy preference that PacifiCorp’s dams on the Klamath River be removed.”
It is apparent that the KHSA and KBRA will not be ratified and both will be terminated automatically on December 31, 2012. Time to go back to FERC because the KHP with fish ladders becomes "uneconomic" and PacifiCorp will then be “required to submit an application to FERC for surrender of the Project license and decommissioning/removal of the facilities” according to Brockbank (2011).
Brockbank, D.S. 2011. Testimony regarding benefits of the Klamath Hydropower Settlement Agreement for PacifiCorp rate payers versus the Federal Energy Regulatory Commission relicensing process. Dean S. Brockbank, Vice President and General Counsel of PacifiCorp Energy, Portland, OR. 25 p.
Federal Energy Regulatory Commission (FERC). 2011, Comments on the Klamath Hydroelectric Project Facilities Removal Draft Environmental Impact Statement (DEIS) and Draft Environmental Impact Report (DEIR). FERC, Washington DC. 2 p.
Hoopa Valley Tribe v. FERC. 2010. On Petition for Review of Orders of the
Federal Energy Regulatory Commission. Case # 09-1134, U.S. Court of Appeals for the District of Columbia.
Hoopa Tribal Fisheries Department. 2011a. Letter to SWRCB Clerk Jeanine Townsend from Chairman Leonard Masten re: Hoopa Valley Tribe’s Request to Take Action on the Application for the Klamath Hydroelectric Project (P-2082), April 13, 2011. HVT, Hoopa, CA. 6 p.
McKenna, P.L. 2006. Appeal of National Marine Fisheries Service and Department of Interior requirement for fish passage facilities by PacifiCorp. Judgment by Administrative Law Judge Hon. Parlin McKenna. Docket # NMFS 2006-01. Decision rendered 9/29/06. 74 p.
National Marine Fisheries Service (NMFS). 2006. Comments, Recommended Terms and Conditions, and Preliminary Prescriptions for the Klamath Hydroelectric Project, FERC Project # 2082. Letter to Magalie Salas, FERC Secretary, from Rodney McGinnis, NMFS SW Regional Director. March 24, 2006. NMFS, Long Beach, CA. 161 p.
Resighini Rancheria. 2011. Request for Reinitiation of 401 Certification Process Related to the Application for the Relicensing of the Klamath Hydroelectric Project (P-2082). Letter from RR Tribal Council Chair Rick Dowd to Jeanine Townsend, State Water Resources Control Board. 5 p.
Resighini Rancheria. 2012c. Restarting the 401 Water Quality Certification Application for the Klamath Hydroelectric Project. Letter from Tribal Chair Donald McCovey to Charles Hoppin, Chair of the Sate Water Resources Control Board of 6/26/12. Resighin Rancheria, Klamath CA. 4p.