Judge's Decision Paves Way For Klamath Dam Removal 

Judge's Decision Paves Way For Klamath Dam Removal 

by Dan Bacher

An administrative law judge, in the first test of a controversial federal dam relicensing law, ruled on September 27 that the fish passage requirements sought by federal fishery agencies for the relicensing of PacifiCorp's Klamath River dams were “legally sound and based on solid facts.”

The ruling is a huge victory for Klamath Basin Tribes, commercial fishermen, recreational anglers and environmental groups that are pushing for removal of four Klamath River dams in order to restore salmon, steelhead and other fish to the watershed.

“The judge affirmed what we have been saying for years - the river is in a lot of pain caused by PacifiCorp's dams,” said Steve Rothert of American Rivers.

Troy Fletcher, FERC negotiator for the Yurok Tribe, also hailed the ruling. “The judge, in his 92 page document, ruled squarely for the government agencies, the tribes, fishermen and environmental groups,” said Fletcher. “It is a good, positive step for the restoration of Klamath fish.”

PacifiCorp, recently acquired by a company owned by billionaire Warren Buffett, challenged the prescriptions of the U.S. Fish and Wildlife and National Marine Fisheries Service, calling for a hearing on the disputed issues of fact. The judge made his decision after hearing 45 hours of testimony in Sacramento over a five day period and reviewing thousands of written pages and exhibits.

“It was an historic moment,” said Fletcher. “For the first time all the Tribes, fishermen, environmentalists, and federal agencies were supporting one another as we fought off PacifiCorp's challenge. We have never ALL been on the same page at once before.”

The ruling occurred during a week that featured a flurry of activity in the relicensing process for PacifiCorp's dams. First, the Federal Regulatory Commission (FERC) on September 25 issued a draft environmental impact statement (EIS) that recommends only modest changes to current dam operations and a 'trap and haul' program to drive fish around the Klamath dams,

On the next day, the California Coastal Conservancy filed a report concluding that dam removal could be done safely and affordably without leading to floods or exposing the river to toxic sediment.

The judge's ruling could force FERC to amend the draft EIS to include fish ladders. “We voiced disappointment Monday when we saw that FERC staff was recommending a 'trap and haul' plan. Today, a federal judge set the record straight,” said Karuk Vice-chairman Leaf Hillman on the day of the judge's ruling.

Dam removal would cost PacifiCorp and its ratepayers less than installing fish ladders, according to FERC's own analysis. FERC estimates that the annual cost of removing Iron Gate and Copco dams at approximately $14.4 million, including power losses. In comparison, the annual cost of installing fish ladders, screens and other passage measures as required by fisheries agencies is estimated to be $16.6 million, $2.2 million more expensive than dam removal.

The decision found that the proposal made by the Department of Interior and Department of Commerce would benefit salmon, steelhead lamprey eels and redband trout by providing access to 58 miles of habitat between the four dams. ”While the exact miles of habitat for use by anadromous fish within the Project reach is unknown, 58 miles is a reasonable estimate based on the evidence contained in the record,” said Administrative Law Judge Parlen McKenna.

McKenna concluded that “project operations have and continue to adversely affect” river health, including the resident trout fishery and riparian habitat.

Fish passage would also create the opportunity for the development and implementation of a plan to reintroduce salmon, steelhead and lamprey to more than 300 miles of historic habitat above the project. The exclusion of these fish from the upper basin began with the completion of the first dam on the Klamath in 1918.

Steve Thompson, Manager for the U.S. Fish and Wildlife Service California and Nevada Operations Office, also praised the judge's ruling. “I am pleased that these findings of fact substantially support the proposed prescriptions. We look forward to starting the restoration of this amazing river so that future generations may enjoy this vital and natural resource.”

PacifiCorp's FERC license expired on March 1, 2006. Until a new 30-50 year license is issued, it will operate on annual extensions of the existing license. The existing license contains no provisions for fish passage. Under the Federal Power Act, the Secretaries of the Department of Interior and Commerce have “discretionary authority” to require terms and conditions to be included in the new hydropower licenses.

In March 2006, the agencies submitted their preliminary prescription to FERC. This prescription includes fish passage both upstream and downstream for PacifiCorp's Iron Gate, Copco I and II and J.C. Boyle dams.

PacifiCorp had argued that the reaches of river between the dams were unsuitable for salmon while at the same time claiming that things were great for resident trout populations. “Obviously, salmon, including threatened coho, would use the same habitat that resident trout currently use. PacifiCorp's lawyers were essentially contradicting themselves as they desperately fought for status quo,” said Mike Belchik, a biologist for the Yurok Tribe and key expert witness in the proceeding.

Dam supporters have argued that the dam removal will raise power rates, result in the release of toxic sediment into the river and cause flooding.

“The residents of the Klamath Basin and of Iron Gate, Copco Lake and on up the river are tired of other people telling us what to do,” contended K. Walden, a landowner on Iron Gate. “We like our power rates as they are. The California power grid is strained enough. We want to keep our homes, property, businesses and lakes and river the way they are today.”

“Who is going to pay for the dam removals and the clean up from all the sediment that will kill the river for years if not removed correctly? Again, our tax dollars?” Walden said.

However, the Coastal Conservancy's FERC filing disputes dam supporters' concerns about toxic sediment, stating that “the toxicity of the sediment in the four lowermost dams is very low and will not affect method or cost of decommissioning.” Since most of the gold mining that occurred on the Klamath River took place below Iron Gate Dam, toxics such as mercury - which converts to the highly toxic methyl mercury in the ecosystem - were not found in sediments.

“Getting rid of these dams will actually solve problems by alleviating the massive blooms of toxic algae,” stated Karuk Klamath Coordinator Craig Tucker.

In reference to claims that removing the dams would result in flooding, the document says “sediment transport would be unlikely to cause flooding.”

In addition, dam removal advocates say the small amount of power lost in removing dams would be more than offset by the benefits of restoring salmon to the economy.

“PacifiCorp's Klamath Dams have been a disaster,” noted Glen Spain, Northwest Region Director of the Pacific Coast Federation of Fisherman's Associations. “These aging dams produce less than 2 percent of PacifiCorp's energy, but have nearly destroyed a river that was once the third most productive salmon producing system in America. If there are any dams that should come down, these are the ones.”

The judge's ruling, combined with the California Coastal Conservancy's release of its FERC report, is very good news, though nothing is now set in stone. Everything is in draft form and Tribes, fishermen and conservationists will be following the proceedings closely.

“This hearing was PacifiCorp's chance to challenge the agencies' restoration program - and they failed. They learned today that good science is unbeatable,” said Curtis Knight of California Trout.

“This ruling means that the agencies got it right and PacifiCorp got it wrong. If the company wants to operate the dams, it must change its practices to help restore the Klamath,” said Brian Johnson of Trout Unlimited.

Comments on FERC's draft EIS are due in 60 days and the current license expires in March, 2007. Tribes, fishermen and other basin stakeholders will resume settlement negotiations with PacifiCorp next month.

This significant court victory is a great example of how Indian Tribes, recreational anglers, commercial fishermen, environmental activists and other stakeholders, when working together with sympathetic government officials who believe in following good science, can win an important battle in the struggle to restore a fishery.  

Action Alert: Join Klamath Basin tribal members and other residents and the Klamath Riverkeeper on October 25th at 12 p.m. to ask the State Water Resources Control Board (SWRCB) to Clean Up The Klamath and Save the Klamath Salmon. The board building is located at 1001 I Street, Sacramento, California 95814.

The opportunity to ask state officials to deal with pollution through the Clean Water Act comes as a triennial review every three years. “This is our chance to tell California water managers to un-dam the Klamath and to protect our river and river-based economies,” said Klamath Riverkeeper Regina Chichizola Cleaning up the Klamath is a key part of bringing the Klamath salmon back.”

Water boards have the power to not give the Klamath dams necessary permits and to deal with poor water quality watershed wide. Currently, toxic algae is not addressed in the review, though the area with the toxic algae below Iron Gate Dam is.

Chichizola said they will hold a peaceful demonstration for the Klamath River at 12:30 p.m. and testify on what the Klamath River and salmon mean to them at the public forum at 1 p.m.

Written comments on the Triennial review are due on October 20th. Contact the Riverkeeper for sample comments. Check out http://www.swrcb.ca.gov/tmdl/303d_lists2006.html for more info. For more information, call or email Regina, the Klamath Riverkeeper, at 530 627-3280 or email at Klamath [at] riseup.net.