Project number P-2082-027 
Relicensing of the Klamath River Dams

 November 2006, Letter to FERC 

Comments by James Foley
Hamburg, CA. 96050
jfoley@sisqtel.net

The Klamath River dams have been in place for almost one hundred years. They were built for very specific and beneficial purposes; i.e. flood and drought mitigation, cost effective, clean power generation and regulating seasonal water flows. They have served these purposes very well and by doing so; they have benefited and enhanced the lives of people and helped our community’s growth, both in Northern California as well as Southern Oregon.
 
Tribal and environmental activists are engaged in a massive, well funded campaign to convince the commission that they represent the majority of citizens in the Basin. Nothing could be farther from the truth; they represent a small, but very vocal minority that has the capability to mount a well funded campaign because of support from special interests outside of the Klamath Basin.
 
In short, these dams are a benefit to our society, while conversely their removal would be the same as throwing away 100 years of progress, destroying an entire   ecosystem that has developed above the dams, adversely impact endangered species, and eliminate federally protected wetlands.
 
It is not even reasonable to consider hydroelectric dam removal in a time when the State of California must buy power from other states because we cannot meet our own power needs. The cost of dam removal and the resulting rate increases will be      borne entirely by those who must depend on local electric utilities for their power needs.
 
Any recommendation for dam removal by the commission must be backed by peer reviewed science to determine the impact to people, fish, game, communities and resources. To contemplate dam removal on this scale without knowing its effects is irresponsible and very possibly illegal on the part of a federal agency. No scientific studies exist that could assess the damaging affects of dam removal on this scale.
 
The overriding impetus in support of dam removal is to save the Klamath River salmon fishery. There is no science that proves that dam removal will accomplish this goal. There is also no science to show that dam removal will not actually do   more harm to salmon.
 
There is no science showing that dams are responsible for salmon decline. There is historical evidence showing a 2% per year increase in salmon stocks, due to hatchery efforts. There is also a mounting body of recent scientific evidence to show that adverse ocean conditions may have more of a catastrophic effect on salmon that any actual river condition could.
 
In the one hundred years since the dams have been built, returning salmon stocks have peaked and ebbed numerous times. This should be undeniable evidence that dams are not the cause of salmon decline. In 2002, the year of the large fish kill, the  numbers of returning salmon stocks were at an all time high. While tribal and environmental factions point to river conditions and dams as the cause of the great fish kill, there is verifiable evidence that it was caused by a “meth lab” dumping its refuse into a creek which is a tributary of the Klamath.
 
Klamath River history, recounted by some of our surviving seniors who were alive before the dams were built, verifies that there were massive fish die offs even then, and no dams to blame.
 
Pacificorp has offered to truck fish around the dams, which is a very reasonable alternative to tearing down the dams. I would urge the commission to fully explore this alternative in their deliberations. Tearing down fully functional dams that benefit our communities before trying a tactic that might be viable is unconscionable. This is especially true in light of the lack of any science showing that dam removal will help salmon.
 
There are wetlands, refuges and endangered species behind these dams (an entire ecosystem). Any action on the part of the FERC that would conflict with the    Endangered Species Act, the Corps of Engineers wetland policies and federally sanctioned refuges, may result in years of litigation and is in conflict with other federal agencies congressionally approved mandates.
 
The FERC, as a federal agency, must abide by all applicable federal law put in place to protect citizens, regulate how an agency conducts its mission and assure that all egal aspects of a particular agency’s action comply with the law. An instance in point is the Federal Regulatory Flexibility Act. (FRA)
 
Federal Agencies to Comply with the RFA.  (5 USCS §§ 601 et. seq.)

The RFA requires administrative agencies to consider the effect of their actions on small entities, including small businesses, small non-profit enterprises, and small governments.  The purpose of the RFA is to enhance agency sensitivity to the economic impact of rulemaking on small entities and to ensure that alternative proposals receive serious consideration by agencies.

The RFA was amended by the Small Business Regulatory Enforcement Fairness Act ("SBREFA") in 1996.  SBREFA makes judicial review of compliance with the RFA available, 5 USCS § 611, largely because of complaints that "agencies have given lip service at best to RFA." (See 142 Cong. Rec. S3242, S3245 (daily ed. Mar. 29, 1996))

The RFA provides that, whenever an agency expects to propose or to promulgate any rule which is likely to have a significant economic impact on a substantial number of small entities; it shall publish a Regulatory Flexibility Agenda. (5 USCS § 602(a))  The RFA also provides that, whenever an agency is required by the APA to publish a general notice of proposed rulemaking for a proposed rule, it must prepare and make available for public comment an Initial Regulatory Flexibility Analysis ("IRFA"). (5 USCS
§ 603(a))  The agency must then also conduct a Final Regulatory Flexibility Analysis ("FRFA") when it promulgates the final rule. (5 USCS § 604)

The RFA further requires an analysis of "any . . . significant alternatives" that would accomplish the agency's objective, 5 USCS § 603 (emphasis added), and an explanation of "why each one of the other significant alternatives to the rule" was rejected in favor of the final rule. (5 USCS § 604 (emphasis added))  Importantly, the agency must consider "alternatives that minimize any significant economic impact of the rule on small entities." (5 USCS § 603 (emphasis added))

Multitudes of small and large business entities would be affected by adverse decisions on the part of FERC concerning removal of the Klamath River Dams. Such impacts are deemed significant economic impacts.

Effects on small businesses and industry-wide changes in regulatory expenses, however, are precisely what the procedural safeguards of the RFA and the APA are set in place to address. See, ”(Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 15 (DDC, 1998).)

Failure to comply with the requirements of the RFA would amount to violations of the notice and comment requirements of both the RFA and the APA for failure to publish a Regulatory Flexibility Agenda, or an adequate IRFA for public comment prior to promulgation of the Renewal/Regulations. (See 5 USCS §§ 553 & 609(a))

Should the FERC fail to so comply with the RFA, Revised regulations would also be arbitrary, capricious, and unlawful within the meaning of the APA, 5 USC §706.
 
Consideration must be given to the loss of private property, financial hardship to homeowners and the resulting loss of property value as well as our county’s tax base from any dam removal. Siskiyou County, while large geographically, is one of the      poorest California Counties due to lack of a large population base. Dam removal will be devastating to this county in a financial sense. We would be tearing down a vital part of the progress the county has made in the last century.
 
The dams provide electricity to 70,000 residents. If the dams are removed we will have to buy power at a time when California already has to buy power from other states to meet our needs. Electrical rates will soar in the wake of dam removal.
 
With dam removal we will once again be at risk for the major flooding and drought below the dams that was prevalent before the dams were built. Who will be responsible for the catastrophic effects of drought and flood?
 
It is patently wrong to remove dams on the premise of saving salmon when there is no scientific proof that dam removal will accomplish that goal. This is why it is so important to explore every option or alternative before taking the drastic and dangerous action of removing our dams.
 
          Please re-license these dams and consider all stakeholder concerns in their proper   perspective.
 

James Foley
Property Rights Advocate