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NW Fishletter #383, July 2, 2018

[7] FERC Agrees To Delay Date On Order That Splits Klamath River Dam License

At PacifiCorp's request, the Federal Energy Regulatory Commission agreed to delay the effective date on its March 15 order that split the utility's Klamath Project into two licenses, writing in its June 21 order that "PacifiCorp's arguments demonstrate that justice requires a stay."

The order is now delayed until the federal agency rules on whether to transfer one of the licenses to Klamath River Renewal Corporation (KRRC), which was formed to decommission four of the project's eight dams and to restore the river and surrounding environment.

The commission noted that PacifiCorp, according to its motion, would be required to undertake costly compliance measures--estimated at more than $3.1 million--if the Klamath Project is split in two before the transfer takes place. Those costs include updating signage, public safety plans, emergency action plans and drawings that show the new project's numbers and boundaries. Citing PacifiCorp's request, FERC noted work would be duplicated if the license is later transferred to KRRC; or if the transfer is not approved, the work would serve no purpose and may later need to be reversed.

The decision noted PacifiCorp and KRRC filed the application to amend and concurrently transfer one of the project licenses to KRRC in accordance with the Klamath Hydroelectric Settlement Agreement.

"In our March 15 order considering the application for amendment and transfer, we found that transferring a project to a newly-formed entity for the sole purpose of decommissioning and dam removal raises unique public interest concerns, specifically whether the transferee--the Renewal Corporation--will have the legal, technical, and financial capacity to safely remove project facilities and adequately protect project lands," FERC's new order states.

This is why FERC authorized only the amendment to divide PacifiCorp's license in two, but deferred a decision on whether to transfer one of the licenses until additional information is provided. The information sought by FERC is still required and necessary before it can consider acting on the transfer, FERC said. "In the meantime, PacifiCorp will continue to operate the Klamath Project and the Lower Klamath Project pursuant to annual licenses."

The decision comes on the heels of two other recent filings in the FERC case.

On June 14, the Upper Klamath Outfitters Association, which represents river rafters, asked FERC to allow it to weigh in as a late intervenor, saying it was unaware of the case and wants to ensure the river's world-class whitewater rafting is considered if the dams are removed.

And on June 19, an attorney representing Siskiyou County, Calif., filed a letter with FERC saying that removing the dams would harm the Lost River sucker and shortnose sucker, two endangered species with populations in the reservoirs above the four dams proposed for removal. Addressed to the U.S. Fish and Wildlife Service and the California Department of Fish and Wildlife, the letter says that initial impacts of removing the dams would be harmful to salmon, but acknowledges dam removal could eventually benefit salmon "provided it does not result in extinction of the runs in the near term."

However, it says, the proposal has no benefits for the two endangered species of suckers, and would eliminate the populations now living in those reservoirs, "thereby increasing the risk of extinction of both species." Suckers are a lake species and are not likely to survive in the river after it is returned to a free-flowing condition, the letter said. These subpopulations could help prevent a catastrophic loss of the overall group, it said.

The county claims the Fish and Wildlife Service has downplayed the importance of the reservoirs when designating critical habitat for Lost River and shortnose suckers in recent years. Those plans are contrary to the agency's 1993 recovery plan, which included the reservoirs as proposed critical habitat.

USFWS has initiated a five-year status review of both endangered species, as required by law. The letter asks both agencies to complete status reviews before authorizing the removal of dams. The letter also asks the agencies to require KRRC and PacifiCorp to come up with a monitoring plan for both sucker species, and criticizes an "exceedingly rare" proposal before the California Legislature that would waive protections for these suckers.

The other filing, by the Upper Klamath Outfitters Association, asks FERC to approve its request to be a late intervenor in the case. Its motion says rafting guides do not intend to seek reconsideration of any issues that have already been determined, but would like to be a recognized party when PacifiCorp and KRRC file a final plan to remove the dams.

"UKOA fully supports a healthier Klamath River system including eventual dam removal and increased flows," their motion states. However, the outfitters worry that without mitigation and proper planning, summer whitewater opportunities could be decimated--even if just for a few years--which would hurt local economies.

The upper Klamath offers Class IV-plus rapids and exciting whitewater all summer long, the outfitters say. More than 10 companies have permits to guide guests on an especially challenging stretch of river, where over 90 percent of boating is commercial due to the difficult logistics and rapids. The outfitters serve from 3,000 to 5,000 visitors annually, and collect more than $500,000 a year from trips on this section of the Klamath River, the motion says.

"With the current river flows and water allocation plans, summer whitewater rafting and commercial rafting would cease to exist on the Hells Corner run post dam removal," the filing states. Instead, "there would only be a very short and unpredictable spring season post dams," it says. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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