State Water Resources Control Board

Mr. Parker Thaler
PO Box 2000
Sacramento, CA 95812-2000 

RE:       
California Water Board
KRRC/ Scoping Hearing
Klamath Dams

Dear Mr. Thaler,

My name is Richard Marshall and I am President of the Siskiyou County Water Users Association representing our organization of some 200 members as well as thousands of Siskiyou County citizens who indicated by voting nearly 80%  their desire to keep the Klamath Dams in place.  I would hasten to add that a recent vote in Klamath County, Oregon produced approximately the same result.  In addition I am also a rancher in the Scott Valley.

Mr. Thaler, nearly exactly one year ago on January 26, 2016 we met in the same room on practically the same subject that is a scoping session regarding water quality and the Klamath Dams.   There was a large crowd in attendance that evening again on short notice.  At that time we registered the same concern regarding the seeming inability of the Water Board to properly notice the public regarding this most important meeting.  Certainly it is important to us, if not to you and your associates that we participate in the process.  It seems we are constantly finding out about these “public scoping” meetings at the last minute.  Even though I am registered on two of the notice lists i.e. yours and the FERC.   I never received notice from your organization and surprisingly did get notice until just prior to the proposed meeting of the 20th from the FERC.  I don’t know the rules that you follow but when I used to conduct public hearings it was required generally speaking to give 90 days’ notice of an EIR scoping meeting so that the public could fully participate.  I therefore question for the record the authenticity and legality of this meeting because of lack of proper public notice.

At that meeting of Jan. 26, 2016 we were asked to submit our concerns in writing which we did, thinking that our questions and opinions deserved some sort of response from your organization who is willing to take our tax dollars and spend without reserve.  However, no such luck as a thank you letter for our thoughts or a response to our considered opinions.

CEQA vs NEPA

Our first issue with the project proposal is that this proposed project requiring an environmental study is not properly done by using CEQA.   The Klamath River is a federally designated Wild and Scenic River and also qualifies under the navigable river federal waterway. The project as proposed impacts two states, Oregon and California. This alone demands that an environmental analysis concerning the destruction of the hydroelectric and associated storage facilities; the destruction of environmental protected fish species not the least of which includes the Coho Salmon and the Green Sturgeon; as well as the short and long nosed suckerfish; and much of the aquatic life in the river system; together with the pollution of the riverine system by toxic sediment demands that the EIR/ EIS be done under NEPA rules and prepared by the US Commerce Department and the Department of Interior.

Furthermore, one can’t study just part of the Klamath River system in California especially when it comes to sediments and pollution. One must look to the headwater source of the Klamath in Oregon. The production of nitrogen and microcystin which is wrongly attributed to the presence of the hydroelectric facilities occurs naturally and by way of the byproduct of farming operations and particularly the bird life in the Oregon side of the River system.  The studies done previously by the Bureau of Reclamation make this point very clear.  Among others they concluded that the pollution problems could be substantially reduced or even eliminated by the installation at Keno Dam of a water quality treatment facility.  Within this same study the removal of the hydro facilities and storage capability will dramatically impact the ability to modulate the river flow especially in low water times.  The BOR estimates that replacing this flow capability may cost upwards of Eighteen Billion dollars.

Therefore we object strenuously to the proposed actions which absent a thorough analysis of the Pacific Decadal Oscillation as well as all seven reaches of the Klamath cannot determine the full impact of the effort to remove the hydroelectric facilities.  The study should further include an examination of the impact of the destruction of the facilities will have on the economic well- being of the counties which are impacted.  For example there will be an immediate destruction of property values particularly at Copco Lake where owners have already experienced a loss in value.

Finally  in this section we raise an objection to the State of California spending tax payer dollars to benefit a private 501 (3) c non- profit corporation the KRRC which although recently filed as a California Corporation came out of New York. It is bad enough that we have been forced to pay an electric surcharge to remove the hydro facilities for many years now against our will and best interest for Siskiyou County.  Either KRRC or PacifiCorp should be paying for the studies to be submitted to the State for review, analysis and potential approval.  The KRRC has not been recognized by either the FERC or the CPUC to carry out the proposed activity.   In fact the FERC raised an objection to the KRRC both filing simultaneously the license transfer from PacifiCorp to KRRC and filing to terminate the license and remove the hydro power facilities.

Amended KHSA

On April 6, 2016 after the resounding failure of the previous KBRA and KHSA agreements, which had been pursued for many years by the Department of Interior, State of California, State of Oregon and numerous agencies and NGO’S, and rejection by Congress, despite numerous attempts by the environmental arms of California and Oregon reconstructed the previously failed KHSA calling it the amended KHSA.  This is the underpinning of your organizations efforts to legitimatize the effort to destroy the hydroelectric facilities.  It is our opinion that this document is illegal as the Governor of California had no legislative authority to bind the State in a potentially disastrous project without the benefit of appropriate studies and deliberations by the State Legislature.  In short Governor Brown had no authority to enter into an abortive attempt to create a Federal Interstate Compact.

Klamath Bi State Compact

The Klamath Basin is governed by the 1957 Compact between the States of California, Oregon and the Federal Government.  This governing doctrine is referred to as “the law of the River”.  It is a Federal Statute enacted by both legislatures of Oregon and California and codified by the US Congress by Statute enacted on August 30, 1957 (71 Stat. 497).  This document arrived after many years of negotiation between the States and their representatives set forth the process for prioritization of beneficial uses of the Klamath River including the hydropower element which was negotiated at the time by COPCO the predecessor to PacifiCorp. The negotiating team included officials from both Oregon and California and the Federal government. The Compact is still in effect and is still the “law of the River”.  This magnificently versatile agreement arrived at by earnest and artful negotiations included a right to 60,000 acre feet of water to be taken from behind Iron Gate Dam and 200,000 acre feet from behind Keno Dam for the Butte Valley area.  Amongst those at the table were members of the Siskiyou County Board of Supervisors under the guidance of Senator Collier.  It also resulted in the development of the very successful fish hatchery at Iron Gate which draws cold water to stimulate the development of SIX MILLION FINGERLINGS (6,000,000) per year to keep the Salmon population well stocked.  This process if the dams were destroyed would go with them.  There will be no way to make up the difference.

Siskiyou County Flood Control and Water Conservation District

A unique piece of legislation flowed from the adoption of the Compact to the benefit of Siskiyou County.   Through the legislative process in California Assemblywoman Pauline Davis authored a AB 1592 which was further codified under the California Water Code as Section 89-1.  This unique piece of legislation blessed the County of Siskiyou with special water rights to govern all waters of Siskiyou County including subterranean and surface water excluding the water controlled by the upper basin federal project. This was intended to insure that Siskiyou County would be the master of its own fate to provide for development of hydropower and water usage to benefit industry, agriculture and domestic.  Again we would postulate that this unique water right conferred on the County of Siskiyou by the State of California trumps the efforts of the Water Board.  These were “quid pro quo” for the County’s spearheading the effort to develop the Federal Interstate Klamath Compact.

Conclusion

We reiterate our concerns over the legitimacy of the scoping session by the Water Board first because the notice period was exceedingly short and begs the question of the intent of the board in giving such short notice to the group most impacted by the potential destruction of the hydro facilities i.e. Siskiyou County in which three of the four facilities to be destroyed are located and which has the greatest river frontage to be impacted by the release of sediment and opening up the prospect of flooding and resultant damage.  Secondly, we object to the use of state funding to conduct the EIR/EIS for the benefit of a private company, the KRRC, which is not even recognized by either the FERC or by the CPUC.   The KRRC has no demonstrated capability to manage such a huge undertaking and they have no significant funding. Thirdly, we believe that the Governor of the State of California had no authority to enter into the Amended KHSA as it had never been reviewed or approved by the Legislature and by signing the agreement he has put the State of California and the citizens of Siskiyou County at great risk and peril. Fourthly, the Water Board planned action violates at least three Federal laws (NEPA, Federal Interstate Compact, Article 1 Sec. 10 US Constitution, and Endangered Species Act) and two State laws (Quo Warranto, and Water Code Sec. 5900-5901).  Fifth, the proposed objectives of the project under the KRRC are physically and scientifically unattainable.  Sixth, most importantly the existing Interstate Federal Compact has not been dealt with by Congress and therefore remains the law of the river.

Finally, we respectively demand that the Water Board respond in writing to the issues we have raised on or before February 15, 2017.

Sincerely yours