A ruling of a U.S. appellate court could force a decision on whether the four Klamath Dams get relicensed. On Jan. 25, the U.S. Court of Appeals for the District of Columbia decided in favor of the Hoopa Valley Tribe and Siskiyou County, both of which argued that the states of Oregon and California have been purposefully delaying the relicensing process by refusing to complete water quality certifications required for the relicensing.
In question is whether four hydroelectric dams along the Klamath River, which supply enough power for about 60,000 residents, should be relicensed or destroyed. The dams’ 50-year operating license (held by energy company, PacifiCorp), expired in 2006, requiring the Federal Energy Regulatory Commission (FERC) to relicense them. The dams are operating under a one-year provisional license until FERC decides to issue or deny a normal, long-term license.
In order for FERC to relicense the dams, federal law requires Oregon and California to complete water quality certifications. Under Section 401 of the Clean Water Act (CWA), any applicant seeking a federal license for an activity that “may result in any discharge into the navigable waters” must first seek water quality certifications from the controlling states. Such certifications are to be issued or denied by the state within one year of an application. After that, the states have effectively waived their certification authority.
According to court precedent, this waiver provision is intended “to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification…”
Indeed, “indefinite delay” seems to have been the strategy of California and Oregon, which oppose dam relicensing and are instead advocating for dam removal. While dam-removal proponents attempt to work out the messy details of the largest dam removal proposal in U.S. history—details such as how to pay for it and how to deal with the liability—the two states and PacifiCorp have attempted to circumvent the waiver provision of CWA’s Section 401 by having PacifiCorp withdraw and resubmit its water quality certification requests every year.
This “withdraw-and-resubmit scheme” has gone on for “more than a decade,” according to the court ruling. If allowed to continue, it will “undermine FERC’s jurisdiction to regulate such matters.”
Up to now, FERC, instead of compelling the states to fulfill their obligations under Section 401, has allowed the process to stall out.
But now, “FERC shall proceed with its review of, and licensing determination for, the Klamath Hydroelectric Project,” the court decision reads.
Hoopas and Siskiyou on opposing sides
Interestingly, while they sided together in the Section 401 argument, the Hoopa Valley Tribe and Siskiyou County come down on different sides of the dam removal debate.
The Hoopa Tribe, located downriver from the dams, argues they should come out. Their press release asserts that the dam-removal efforts of the states, environmentalists, and other tribes are “faltering” under the Klamath Hydroelectric Settlement Agreement (KHSA). The withdraw-and-resubmit scheme was written into the KHSA—a scheme which was intended to stall the process until the funding and liability issues surrounding dam removal could be resolved.
But this court ruling blew up that strategy, and the Hoopas believe that it “may expedite action” by FERC to remove the dams.
But Siskiyou County sees things differently. Ray Haupt, Director of the County Board of Supervisors, told WLJ in an interview that a FERC decision doesn’t necessarily mean a decision to remove the dams.
“I think it’s a stretch to assume that,” he said.
Siskiyou County filed an amicus brief supporting Hoopa Valley Tribe’s petition.
“It was part of our effort to force this to the federal level,” Haupt explained. “Because if [the relicensing decision] is left to the state, it’s a foregone conclusion that the dams have to come out. But we’re trying to get this—the certification process—back to the federal level.”
He added that the five-person FERC commission, now comprised of four Trump administration appointees and one Obama administration appointee, could well come down in favor of saving the dams. — Theodora Johnson, WLJ editor
