Tribe files dam lawsuit amicus

Tribe files dam lawsuit amicus
Yuroks join Hoopa Valley effort against Klamath dams
By Adam Spencer
The Triplicate

October 8, 2015

The Yurok tribe filed a friend of the court brief Friday in support of the Hoopa Valley Tribe’s lawsuit that asks the U.S. Court of Appeals to force a federal agency to end eight years of relicensing delays for dams on the Klamath River.

Relicensing of the Klamath Hydroelectric Project might force the removal of four Klamath dams due to the costs associated with bringing the dams into environmental compliance, including fish passage and water quality improvements, versus the $300 million estimated cost of dam removal.

The Yurok filed their amicus brief Friday, just a few weeks after withdrawing support from the Klamath settlement agreements that have caused the longstanding delay in relicensing.

Under the Klamath Agreements, environmental regulators of California and Oregon agreed to let PacifiCorp, parent company of Pacific Power and owner of the dams, to put water quality certification needed for dam relicensing on hold while Congress considered legislation that would implement the agreements. The Klamath Agreements would facilitate removal of the four dams, pump millions of dollars in fisheries restoration into the Klamath Basin and provide security for farmers that use Klamath water in the Upper Basin.

But a Klamath Agreements bill in the Senate has barely budged and a companion bill has not even been introduced in the House. One of the key pacts, the Klamath Basin Restoration Agreement, expires at the end of the year. Some recently speculated that the Yurok Tribe’s withdrawal of support from the agreements was a negotiating tactic, but joining the relicensing fight led by Hoopa, never a party to the Klamath Agreements, may indicate serious interest in paths to dam removal outside of the controversial settlement agreements.

The Yurok Tribe did not respond to request for comment.

Thomas Schlosser, attorney for the Hoopa Valley Tribe, said that the Yurok Tribe’s support “doesn’t change the legal calculus” or change the law that applies to the Federal Energy Regulatory Commission’s (FERC) responsibility to relicense the dams, but it helps.

“This will make it harder for the other sides to claim that it’s just Hoopa being a spoilsport about their wonderful Klamath Agreements, because Yurok agrees with us that the Klamath Agreements have failed,” Schlosser told the Triplicate by phone Wednesday.

“There is nobody but PacifiCorp and the irrigators and a few hangers-on that think the agreements are a good idea.”

Schlosser said it also helps that the Yurok Tribe “underscored” that FERC has never approved the agreements.

Although the Yurok and Hoopa Valley tribes have been legal allies in other Klamath Basin lawsuits, this is the first time the Yurok Tribe has joined the relicensing case Hoopa has been fighting since 2010, the same year the Yurok Tribe, irrigators, commercial fishing groups and environmental organizations signed the Klamath Agreements.

PacifiCorp has delayed relicensing of the dams through an annual withdrawal and resubmission of its water quality certification application, which it has done eight times since the dams’ license expired in 2006.

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)” then the certification is considered waived, and California and Oregon water quality regulators have interpreted the annual withdrawal and resubmission process as a way to maneuver around waiving certification.

In a previous decision, FERC said the withdrawal and resubmission process was ““clearly violating the spirit of the Clean Water Act” but not the letter of the law.

The Yurok brief states that “repeated withdrawals violate the reasonable time requirement for state certifications under Section 401 of the Clean Water Act. Allowing repeated ongoing withdrawals also disserves both the public interest and environmental protection.”

PacifiCorp representatives told the Triplicate that they have never left the water quality certification process and that PacifiCorp asked FERC not to review the Klamath Agreements because the agency’s approval would not be needed if the agreements passed Congress. As long as the agreements have life in them, PacifiCorp will prioritize that path, according to company spokesperson Bob Gravely.

Schlosser said that if the U.S. Court of Appeals sides with the tribes and forces FERC to consider the states’ chance at water quality certification “waived,” the relicensing process would resume and FERC could issue a license that would require water quality improvements outlined in a previous FERC environmental analysis and fish passage demanded by federal fisheries managers. Thus, PacifiCorp would be forced to move forward with either making those costly improvements or removing the dams.

Jim McCarthy, communications director and southern Oregon program manager for WaterWatch, a conservation group that was party to the Klamath Agreements negotiations until being “involuntarily expelled,” for disagreeing with part of the deal, called the Yurok Tribe’s amicus brief “significant” and agrees that the relicensing process would lead to dam removal.

“Our view is that we believe removal and building (electricity) capacity elsewhere is cheaper than fish ladder and water quality improvements and operating those dams with fish passage,” McCarthy told the Triplicate.

WaterWatch, McCarthy said, would support a settlement agreement to protect PacifiCorp from liabilities associated with dam removal and reduce the dam removal costs borne by ratepayers, but not when it requires an act of Congress to implement and is tied to the controversial water deals in the KBRA. WaterWatch also believes reaching that a dam-removal-only settlement will be more likely reached by a return to the relicensing process being demanded by Hoopa Valley.

And Hoopa Valley, for their part, welcomes having the Yurok Tribe on board.

“I think it’s great to have the two tribes working together, and they do on a lot of issues,” Schlosser said. Efforts to expedite dam removal through the courts instead of the Klamath Agreements can now be added to that list.