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HOW TO COMMENT ON THE KLAMATH DAM REMOVAL + JACKSON COUNTY’S COMMENT

FIRST, the latest – Jackson County Commission KNOCKS IT OUT OF THE PARK with its comment submitted to FERC today (3/29/22)  to NOT remove the Klamath Dams.

Here’s a PDF of the letter you can download and read: 2022_03_29_FERC_KlamathDamRemovalComments_Signed

EXCELLENT comment, imo. It might give you some ideas in your own public comment to FERC. The following is from my original post and podcast info on how to comment, plus the link to sign up with FERC in order to comment. All Comments need in no later than April 25, 2022.

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HOW TO COMMENT TO NOT REMOVE THE KLAMATH DAMS

  • Here is the link to sign up to electronically comment at FERC:

https://ferconline.ferc.gov/Login.aspx

VERY IMPORTANT – The electronic commenting system (once you get your account) will ask for a “Docket Number” . You’re commenting on the Hydropower License Surrender and Decommissioning of the Lower Klamath Project No. 14803 (Docket No. P-14803-001)

SOME POINTS TO HELP GENERATE A COMMENT

Ed “Mr. X” and I discussed this in depth on my Wednesday 3/16/22 show. Here’s a link and you can download the mp3 and listen to this hour for background and suggestions:

https://oregonedeals.com/podcast/index.php?p=episode&name=2022-03-16_03-16-22_wednesday_7am.mp3

Captain William E. Simpson has written critiques of Dam Removal – good thought-starters here:

1)  Critical Points on Klamath Dam Removal – Potential Epic Disaster

https://www.einnews.com/pr_news/547785001/klamath-river-and-klamath-river-dams-critical-points-regarding-krrc-s-proposal-to-remove-klamath-dams

https://www.capitalpress.com/opinion/columns/commentary-what-the-public-needs-to-know-about-klamath-river-dams/article_9c3f9a46-fbc8-11eb-9cc2-6bf85aa00c75.html

You can make as many comments as you wish, deadline is April 18th, 2022.

You can talk about the beneficial use of the water, its use in firefighting that is so necessary, the potential environmental degradation caused by flushing millions of tons of sediment down the Klamath as part of the dam’s destruction.

The Water behind the Dams is a Public Trust Resource for the Beneficial Use or the residents of our region.

Speak from the heart and make it meaningful.  

It’s good to remember that this dam removal scheme is a “Consensus Process/Dispute Resolution”, designed to bypass the Constitution and the Superior Law of the Klamath Basin Compact, an act of Congress.

The dispute resolution section of the Compact was never considered to be used for dam removal

Here’s an Oregon law appropriate for our purposes:

ORS 183.502 Authority of agencies to use alternative means of dispute resolution; model rules; amendment of agreements and forms; agency alternative dispute resolution programs. 

  • Unless otherwise prohibited by law,

 (Note from Bill and Ed: The Klamath Compact is Superior Law, and is what should be followed, not dispute resolution)

agencies may use alternative means of dispute resolution in rulemaking proceedings, contested case proceedings, judicial proceedings in which the agency is a party, and any other decision-making process in which conflicts may arise. The alternative means of dispute resolution may be arbitration, mediation or any other collaborative problem-solving process designed to encourage parties to work together to develop mutually agreeable solutions to disputes. Use of alternative means of dispute resolution by an agency does not affect the application of ORS 192.311 to 192.478 to the agency, or the application of ORS 192.610 to 192.690 to the agency.)

Here’s another interesting Oregon law regarding administrative rules:

(ORS 183.400 Judicial determination of validity of rule. (1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court.

      (2) The validity of any applicable rule may also be determined by a court, upon review of an order in any manner provided by law or pursuant to ORS 183.480 or upon enforcement of such rule or order in the manner provided by law.

      (3) Judicial review of a rule shall be limited to an examination of:

      (a) The rule under review;

      (b) The statutory provisions authorizing the rule; and

      (c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures.

      (4) The court shall declare the rule invalid only if it finds that the rule:

  • Violates constitutional provisions;

Note from Bill and Ed – Remember, The Compact is Superior Law, and a constitutional pathway. The consensus/dispute resolution process used to remove the dams is bringing forth an administrative technicality based on licensing of hydroelectric power.  The administrative technicalities do not overwhelm or overpower the constitutional pathway created by the Klamath River Basin Compact) How important was hydroelectric power in the compact? It was FIFTH down in priority. Just because Pac Power wants the hydro license to go away doesn’t mean the higher priority uses of the water disappear and go away and the dams come out because of “no hydropower in the dam”.

Proof – Here is the list of priority of water uses in the Klamath River Basin Compact https://oregon.public.law/statutes/ors_542.620

 

  • Domestic use,
  • Irrigation use,
  • Recreational use, including use for fish and wildlife
  • Industrial use,
  • Generation of Hydroelectric Power,
  • Such other uses as are recognized under the laws of the state involved.

ALSO – ASK IN YOUR COMMENT TO USE FERC’s “NO ACTION OPTION”. Here it is from the FERC announcement in February:

No-action Alternative (Bill’s NOTE – THIS IS THE ONE WE LIKE) Under the no-action alternative, the Lower Klamath Project would continue to operate as it does today, under the terms and conditions of the existing annual license. There would be no disturbance of existing environmental conditions at the site, and there would be no new environmental protection, mitigation, or enhancement measures. The project dams would remain in place. The no-action alternative would not address the water quality and disease issues which, when combined with the ongoing trend of increased temperatures, poses a substantial risk to the survival of one of the few remaining Chinook salmon populations in California that still sustain important commercial, recreational, and Tribal fisheries. If hydropower generation were to continue under the no-action alternative, the Commission’s relicensing proceeding would resume, and the Commission would ultimately have to determine whether and under what conditions to relicense the project. The current licensee, PacifiCorp, has decided not to seek a license for the project and no other entity has come forward to continue operating the project for hydropower generation. Until it is relicensed, the project features would be maintained and operated by KRRC and the states, assuming acceptance of the transfer of the license, or by PacifiCorp, the current licensee. Ultimately, the project would have to be either relicensed or decommissioned because perpetual annual licensing is not authorized under the FPA.

 

Okay, there’s a lot of thought starters for your comment.

 

FINALLY

The following is the full FERC EIS announcement from late February for background and your understanding.

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This afternoon, Federal Energy Regulatory Commission staff posted its draft Environmental Impact Statement for the surrender, decommissioning, and removal of project works of the Lower Klamath Hydroelectric Project No. 14803. The project sits near the California and Oregon border on the Klamath River. Comments on the draft EIS are due April 18. A summary of the draft EIS is below; the link is available here: FERC Staff Issues the Draft Environmental Impact Statement for the Hydropower License Surrender and Decommissioning of the Lower Klamath Project No. 14803 (P-14803-001) | Federal Energy Regulatory Commission

Statement for the Hydropower License Surrender and Decommissioning of the Lower Klamath Project No. 14803 (P-14803-001)

February 25, 2022

Docket Number: P-14803-001
Issued: February 25, 2022

Commission Staff prepared a draft Environmental Impact Statement (EIS) for the surrender, decommissioning, and removal of project works of the Lower Klamath Hydroelectric Project No. 14803.

On November 17, 2020, the Klamath River Renewal Corporation and PacifiCorp filed an amended application for surrender of the license and removal of project works for the Lower Klamath Hydroelectric Project, located on the Klamath River in Klamath County, Oregon, and in Siskiyou County, California. The project occupies approximately 400 acres of federal land administered by the U.S. Department of Interior, Bureau of Land Management (BLM) and consists of four developments:  J.C. Boyle, Copco No. 1, Copco No. 2, and Iron Gate.

The Commission issued a license for the original Klamath Hydroelectric Project No. 2082, in January 1954.  The license expired in 2006, and in 2004, PacifiCorp filed an application to relicense the project.  Filing of the surrender application follows PacifiCorp’s decision not to relicense the Klamath Project, as recommended in Commission staff’s 2007 EIS in which staff analyzed various alternatives to licensing the project, but ultimately recommended issuing a new license with mandatory conditions, including provisions for fish passage.  PacifiCorp determined that implementing those conditions would require operating the project at a loss.  Since 2007, negotiations among the parties have led to the development of two transfer applications, an amendment application to create the Lower Klamath Project, and the amended surrender application. 

The primary issues associated with license surrender and removal of project works are: potential effects on aquatic biota, including Chinook salmon, Endangered Species Act-listed coho salmon and suckers, and other fish and wildlife species; adequacy of measures proposed to restore vegetation on formerly inundated lands; effects on riverine and reservoir-based recreation; effects on local property owners due to effects on waterfront access, wells, firefighting/prevention, slope stability, reservoir aesthetics, and property values, as well as effects on traffic, emergency response times, air quality, and noise during construction; effects of dewatering on culturally important sites and removal of historic project features; and socioeconomic effects on disadvantaged communities.

In the draft EIS, Commission staff recommends the staff alternative, which consists of mitigation measures included in the application, as well as mandatory conditions made by state and federal agencies, and additional measures developed by Commission staff.

The deadline to comment on the draft EIS is April 18, 2022.

Thank you and please let us know if you have any questions.

 Rob

 __________________________________________

Rob Thormeyer

Director, State, International, & Public Affairs Division

Federal Energy Regulatory Commission

Robert.thormeyer@ferc.gov

(w) 202-502-8694

(cell) 202-465-5717

 

MORE BACKGROUND

The KHSA included over 20 interim measures that have been implemented by PacifiCorp since 2010 to assess and address environmental conditions and improve fisheries prior to dam removal. The KHSA defines the interim period as the period between the date that the KHSA was originally executed (February 18, 2010) and the decommissioning of the dams, which would occur once there has been a physical disconnection of the facility from PacifiCorp’s transmission grid. The KHSA measures include funding for coho salmon habitat restoration and acquisition, measures to improve water quality, hatchery operations, studies and pilot projects, and removal of several diversion dams on tributaries to the Klamath River. The KHSA interim measures and their completion status are described in section 2.5.

No-action Alternative (Bill’s NOTE – THIS IS THE ONE WE LIKE) Under the no-action alternative, the Lower Klamath Project would continue to operate as it does today, under the terms and conditions of the existing annual license. There would be no disturbance of existing environmental conditions at the site, and there would be no new environmental protection, mitigation, or enhancement measures. The project dams would remain in place. The no-action alternative would not address the water quality and disease issues which, when combined with the ongoing trend of increased temperatures, poses a substantial risk to the survival of one of the few remaining Chinook salmon populations in California that still sustain important commercial, recreational, and Tribal fisheries. If hydropower generation were to continue under the no-action alternative, the Commission’s relicensing proceeding would resume, and the Commission would ultimately have to determine whether and under what conditions to relicense the project. The current licensee, PacifiCorp, has decided not to seek a license for the project and no other entity has come forward to continue operating the project for hydropower generation. Until it is relicensed, the project features would be maintained and operated by KRRC and the states, assuming acceptance of the transfer of the license, or by PacifiCorp, the current licensee. Ultimately, the project would have to be either relicensed or decommissioned because perpetual annual licensing is not authorized under the FPA.

33 U.S.C. § 1341(a)(1)

https://www.law.cornell.edu/uscode/text/33/1341

In February 2010, PacifiCorp and 47 other parties, including the States of

Oregon and California, Department of the Interior, and NMFS, executed the KHSA, which provided for the removal of the four developments after passage of federal legislation and approval by the Secretary of the Interior. Congress, however, did not enact the required legislation by January 2016, which triggered the KHSA’s dispute resolution procedures. The Klamath Basin Restoration Agreement, which was executed concurrently with the KHSA and was part of the basis for federal legislation to remove the dams, expired on December 31, 2015. Following several dispute resolution meetings, the States of Oregon and California, Department of the Interior, U.S. Department of Commerce, and PacifiCorp proposed amendments to the Settlement Agreement that would eliminate the need for federal legislation and instead achieve dam removal through a license transfer and surrender process, which led to the 2016 amended KHSA.

Public Involvement and Areas of Concern

Before KRRC and PacifiCorp’s Surrender Application Since the late 1990s, the potential removal of the Lower Klamath Project dams has been the subject of environmental studies leading to multiple federal and state agency regulatory analysis under the National Environmental Policy Act of 1969, section 401 of the Clean Water Act16 (CWA), and the California Environmental Policy Act to consider and disclose the effects of relicensing or decommissioning of the J.C. Boyle, Copco No. 1, Copco No. 2 and Iron Gate Developments. This environmental analysis through the 2000s contributed to the KHSA17 (2010, as amended in 2016), in which state and federal agencies, PacifiCorp, and many stakeholders agreed on a process to decommission these four developments. The KHSA included over 20 interim measures that have been implemented by PacifiCorp since 2010 to assess and address environmental conditions and improve fisheries prior to dam removal. The KHSA defines the interim period as the period between the date that the KHSA was originally executed (February 18, 2010) and the decommissioning of the dams, which would occur once there has been a physical disconnection of the facility from PacifiCorp’s transmission grid. The KHSA measures include funding for coho salmon habitat restoration and acquisition, measures to improve water quality, hatchery operations, studies and pilot projects, and removal of several diversion dams on tributaries to the Klamath River. The KHSA interim measures and their completion status are described in section 2.5. After KRRC and PacifiCorp’s Surrender Application On December 16, 2020, the Commission issued a notice of application for surrender of license, soliciting comments, motions to intervene, and protests. On June 17, 2021, the Commission issued a notice of intent to prepare an EIS for the proposed Lower Klamath Project surrender and removal, request for comments on

Staff Conclusions

Based on our independent review and evaluation of the environmental and economic effects of the proposed action, the proposed action with staff modifications, and the no-action alternative, with the best available information at the time of this analysis, we recommend the proposed action with staff modifications as the preferred action. We recommend this because: (1) the environmental protection, mitigation, and enhancement measures proposed by KRRC, along with staff’s additional recommendations, would adequately protect environmental resources, restore project lands to a good condition, minimize adverse effects on environmental resources, maximize benefits to the Chinook salmon fishery that is of vital importance to the Tribes, and restore the landscape of the areas that are currently impounded within the project reach to a more natural state consistent with the Wild and Scenic designated sections between J.C. Boyle and Copco No. 1 Dams and downstream of the hydroelectric reach18; (2) any short- and long-term, adverse environmental effects and the loss of power generation resulting from the proposed action would be outweighed by the substantial long-term environmental benefits gained from project decommissioning; (3) no entity has come forward willing to ensure the long-term maintenance or needed upgrades to facilities left in place under the no-action alternative; and (4) section 6 of the Federal Power Act and the Commission’s regulations allow licensees to surrender existing project licenses and cease project operation. Under the proposed action with staff additional recommendations, the Commission would authorize the decommissioning of the J.C. Boyle, Copco No. 1, Copco No. 2, and Iron Gate Developments. However, license surrender would become effective only after all measures required by the surrender order are adequately completed.

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