NEC Release: State Water Board Rebuffs Attempt to Delay PacifiCorp's Clean Water Process

February 23, 2009
News Release
State Water Board Rebuffs Attempt to
Delay PacifiCorp’s Clean Water Process

For Immediate Release
Contact:
Greg King, NEC Klamath Campaign Coordinator
Direct line: 707-498-4900

SACRAMENTO — California will not allow PacifiCorp to delay the
state’s processing of the company’s federal clean water permit
application for its Klamath River dams, and will move forward with
creation of a Draft Environmental Impact Report (DEIR), according to
a memorandum issued over the weekend by the California State Water
Resources Control Board.

The Board’s decision is a setback to the energy company’s attempt to
delay the processing of its application for a “401” permit. The number
401 refers to the section under the federal Clean Water Act that requires
states to process applications for a “clean water permit” under the Act.
The delay was requested by several, but not all parties negotiating with
PacifiCorp to remove four dams on the mainstem of the Klamath River.

PacifiCorp has said it may withdraw from dam negotiations if the
company is required to concurrently fund the dam removal negotiations
and the 401 permitting process.

Few observers believe that the water behind PacifiCorp’s three dams in
California — Iron Gate, Copco I and Copco II — can qualify for a 401
permit. Without the permit the Federal Energy Regulatory
Commission (FERC) cannot issue PacifiCorp a new license to operate
the Klamath Hydroelectric Project, which could lead to
decommissioning and removal of the dams.

“We appreciate the Water Board’s very rational decision to proceed
with a process that PacifiCorp has successfully delayed for the past
three years,” said Greg King, the NEC’s Klamath Campaign
Coordinator. “PacifiCorp knows that the toxic pea-green soup behind
its dams can hardly even be called water, much less ‘clean,’ and that
the only way to resolve this ecological catastrophe is to remove those
dams. We’re pleased to see the regulatory process work, and proceed,
as our lawmakers intended.”

The warm, nutrient-rich reservoirs behind the Iron Gate and Copco dams produce a toxin called
microcystin that has been measured at levels 4,000 higher than what the World Health Organization
has deemed a “moderate” human health risk. The toxin can be deadly to fish as well as to people.
Dorothy Rice, Executive Director of the California State Water Resources Control Board, issued the
Water Board’s Feb. 21 memo just two days before the deadline for submitting “scoping” comments
on PacifiCorp’s Clean Water Act application.

The Water Board had already granted one extension
of the comment period, in November last year. Previously PacifiCorp had twice delayed the clean
water certification process by submitting and then withdrawing its 401 application.

Rice said that the Water Board will now begin creating a Draft Environmental Impact Report
(DEIR), as required by the California Environmental Quality Act (CEQA), in order to evaluate
comments made thus far on PacifiCorp’s 401 application. She added that the scoping deadline is not
“rigid,” and that scoping itself is only the first step in processing PacifiCorp’s 401 permit
application. Parties will later be able to comment on the DEIR, she said.

“The State Water Board continues to support negotiated solutions to complex water resource
issues,” Rice said in her memo. “However, the State Water Board is obligated both under Clean
Water Act Section 401 and under CEQA to act without undue delay. While the State Water Board
has in the past exercised some timing flexibility to support a negotiated settlement, the current
situation makes it extremely difficult to accommodate further delay in the CEQA process.”

Rice went on to say, “If the State Water Board does not process the water quality certification in a
timely manner, it risks a FERC determination that the Board has waived certification, and the State
of California would have no regulatory authority to address water quality issues associated with the
Klamath Hydroelectric Project during the FERC relicensing.”

Rice appeared to head off PacifiCorp’s threat of abandoning dam removal negotiations by assuring
the company that “the decision to move forward on scoping does not amount to a decision to charge
PacifiCorp for the next stages of the EIR development process. The State Water Board is exploring
outside funding options for the CEQA document. …”

Previously PacifiCorp was required to contract with a private consultant to develop the DEIR under
the authority of the Water Board. “Outside funding options” is widely believed to mean “taxpayers.”
During its Feb. 17 meeting in Sacramento, the Water Board heard comments on delaying the DEIR
process from some of the 23 parties currently negotiating with PacifiCorp to remove four dams.

Representatives from Trout Unlimited, American Rivers, the Yurok Tribe, the Karuk Tribe and
PacifiCorp supported the delay; the Hoopa Tribe, Friends of the River and the NEC opposed it.

During his address to the Water Board, the NEC’s Greg King said, “At this point any further delay
would amount to a subversion of the letter and intent of the Clean Water Act and CEQA and must
not be allowed to continue, especially as PacifiCorp continues to generate power revenues on dams
whose long-term license expired three years ago — profits made on the backs of salmon and other
wildlife that suffer from the disastrous water quality and other forms of impaired habitat created and
exacerbated by the Klamath Hydroelectric Project.”

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