Judge is Asked to Lift Fish Ladder Demands
By Jeff Barnard, Associated Press
August 22, 2006

GRANTS PASS, Ore. - Using a new provision of federal energy law for the first time, PacifiCorp is asking a judge to let it off the hook on building fish ladders to help salmon over four Klamath River hydroelectric dams.

A weeklong trial began Monday before a federal administrative law judge in Sacramento, Calif., and a ruling is expected next month that promises to be a key factor in whether the Portland-based utility decides to keep operating the dams, which are blamed by fishermen, American Indian tribes and conservation groups for contributing to declining salmon returns to the Klamath River in Northern California.

Diminishing returns

Three straight years of low returns of wild chinook to the Klamath led federal fisheries managers this summer to shut down most commercial salmon fishing along 700 miles of California and Oregon coastline. The Commerce Department has estimated the catch this year will be just 16 percent of average, with direct losses of $16 million to the 1,500 fishermen in the area.

Administrative Law Judge Parlen McKenna will decide whether federal agencies were justified in prescribing that as a condition of getting a new operating license for the dams, PacifiCorp build fish ladders over them, install fish screens on turbines and leave more water in the river, rather than running it through turbines.

Based on the judge's findings of fact, the agencies will revise their prescriptions for the dams next year.

The utility estimates the changes would cost about $250 million, reduce energy output, make the dam project inoperable at some times of the year and "severely reduce the project's value for producing electricity," with no assurances that salmon will re-establish themselves in 300 miles of river blocked for a century, said Pacifi¬Corp spokesman Dave Kvamme from Sacramento.

Arguing it would be equally beneficial to salmon but much less expensive, the utility has proposed trapping salmon and trucking them around the dams to see whether they can re-establish themselves. The cost is estimated at $100 million.

"If the agencies' terms and conditions (for protecting salmon) stick, that project is going to be a lot more expensive to relicense all of a sudden," said Craig Tucker, Klamath Campaign coordinator for the Karuk Tribe in Orleans, Calif. "Then there will be a different economic equation for PacifiCorp."

At the same time the Federal Energy Regulatory Commission is processing PacifiCorp's application for a new operating license, the utility is in talks with Indian tribes, conservation groups and fishermen to find a solution agreeable to all sides, rather than seeing what the government will demand.

Buffett company

PacifiCorp is owned by MidAmerican Energy Holdings Co. of Des Moines, Iowa, which is controlled by billionaire Warren Buffett. It serves 1.6 million customers in Washington, Oregon, California, Idaho, Utah and Wyoming.

The four dams - Iron Gate, Copco No. 1, Copco No. 2 and J.C. Boyle - straddle the Oregon-California border and produce 150 megawatts, enough electricity for 70,000 customers. That amounts to about 2 percent of PacifiCorp's production.

Until now, the U.S. Fish and Wildlife Service and NOAA Fisheries could impose prescriptions on power companies to help fish and wildlife, which sometimes led utilities to conclude it was cheaper to remove aging dams rather than to make them safer for fish.

But the Energy Policy Act enacted last year gave utilities the chance to challenge those prescriptions before an administrative law judge in the course of relicensing, rather than waiting until the end of the process.

The PacifiCorp case is the first to go to trial under the new provisions, Kvamme said.

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Klamath Dams Stand Trial
Craig Tucker, Karuk Tribe
August 21, 2006

Sacramento, CA – In the first hearing of its kind, the fight over PacifiCorp’s Klamath River Dams continues this week in a Sacramento, CA courtroom. The so called ‘Energy Policy Act Hearing’ was created by an amendment to the Federal Power Act passed by congress last year.

“The EP Act Hearing essentially provides power companies an additional opportunity to challenge federal agencies’ requirements for a new dam license,” according to Craig Tucker, Klamath Coordinator for the Karuk Tribe.

In March, Federal agencies issued the terms and conditions for a new license which include fish ladders and flow improvements to benefit dwindling Klamath River salmon, steelhead and lamprey runs. PacifiCorp is fighting these mandates arguing that suitable habitat for salmon no longer exists upstream of the dams.

However, in reaches of river between and above the dams, healthy populations of redband trout flourish and support a popular sport fishery. “Salmon and steelhead would use the very same habitat as redband trout if they could reach it,” stated Toz Soto Lead Fisheries Biologist for the Karuk Tribe.

PacifiCorp witnesses have also testified that there are no suitable salmon stocks to make use of fish ladders. Salmon advocates see this argument as cynical. “Of course salmon have not evolved to use ladders. But all over the country salmon adapt to use ladders,” according to Soto who goes on to add, “the best way to restore fish is simply to remove the dams all together as NOAA Fisheries recommends.”

“PacifiCorp is essentially arguing that they have screwed up this river so much that they shouldn’t have to do anything to fix it,” according to Leaf Hillman, Vice Chair of the Karuk Tribe. “PacifiCorp is just another large energy corporation that thinks it can run rough shod over rural communities. Its time for PacifiCorp to realize that Klamath communities are going to demand that they act responsibly and fix the mess they created,” adds Hillman.

This year California and Oregon will lose an estimated $150 million in fishing revenues due to the commercial fishery closures. The closures were instituted to protect dwindling Klamath runs. Tribes cannot harvest enough salmon to feed their people and recently the reservoirs behind the dams became a health hazard when the toxic blue green algae Microcystis aeruginosa bloomed turning the water into a thick green sludge.

Despite the vitriolic debate in the courtroom, company officials did state a willingness to give up the dams under the right circumstances. In a press statement PacifiCorp President Bill Fehrman asserted, “We have heard the Tribes’ concerns. We are not opposed to dam removal or other settlement opportunities as long as our customers are not harmed and our property rights are respected.”

Still, the company continues fight any deviation from status quo in the courtroom.

This courtroom dispute pits PacifiCorp against every other major entity on the river, including the Federal Government, the States of Oregon and California, the Klamath Tribes, the Hoopa Valley Tribe, the Yurok Tribe, as well as a coalition of conservation and fisheries groups.

“In their court documents, PacifiCorp essentially gives up the Klamath salmon fishery as doomed, largely as a result of their own facilities. We simply are not willing to give up and throw in the towel like that. Unlike PacifiCorp, we believe that this river is not a lost cause, and that the Klamath is restorable. I think that after the evidence is weighed, people will be able to see through PacifiCorp’s cynical strategy of futility,” said Hillman.

After the hearing, the parties will file post-hearing briefs with the Judge, who will issue his findings of fact at the end of September, 2006. The agencies will issue final license conditions sometime in early 2007 based on the facts found by the judge, a consideration of alternative conditions filed, and public input.

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.