Attorney Tom Schlosser didn't seem all that worried last week. He had just issued a news release announcing that his client, the Hoopa Valley Tribe, had lost another bid to force the Federal Energy Regulatory Commission to impose specific interim flows on the Klamath River below the JC Boyle Dam to protect a species of landlocked, formerly anadromous fish called the redband trout.
"It is a disappointment," Schlosser said by phone last Tuesday. "But this is not the end of the story. We knew it was an uphill battle. And there are other ways to pursue these conditions."
The interim conditions would have required PacifiCorp to increase the amount of water it releases below JC Boyle from the 100 cubic feet per second it lets out now to at least 470 cubic feet per second, and to reduce its current ramping rate -- by which it raises and lowers the water level below the dam -- of nine inches per hour to no more than two inches per hour. These are the conditions the federal government and fish experts had worked out in 2006, and which were upheld by a federal judge, as being the most beneficial to the fish, and they were to be imposed on PacifiCorp's Klamath Hydroelectric Project once it was relicensed. The project has been up for relicensing for several years now, however, with annual extensions, as numerous groups with a stake in the river have hammered out two monumental agreements that could determine the future of the river: the Klamath Hydroelectric Settlement Agreement (KHSA), which could see several dams dismantled; and the Klamath Basin Restoration Agreement (KBRA), which would determine how the resource is divvied between upper Klamath Basin and lower Klamath Basin water users.
One effect of the agreements is that the relicensing may be stalled for another 10 years or more, said Schlosser. "Worse than that, the parties that signed onto the KHSA agreed that PacifiCorp could continue to operate under the conditions of the old license," he said.
The Hoopa Valley Tribe, which did not sign onto the KHSA, doesn't think the fish can wait 10 years.
"JC Boyle is the middle dam in the project," Schlosser said. "And the way it works is, it diverts water from the Klamath River for some distance. PacifiCorp leaves very little in the river for bypass flows -- most is going through the turbines -- and they also ramp the flows up and down very quickly. And it kills a lot of fish."
In 2007, the tribe filed a motion with FERC to impose the conditions immediately. FERC denied the motion, saying the fishery was healthy and that the tribe hadn't shown, as the news release from Schlosser puts it, that "the conditions were needed to prevent 'irreversible environmental damage' pending completion of the relicensing." The tribe appealed, saying FERC had not used adequate data to make that determination. On Dec. 28, the D.C. District Court of Appeals denied the appeal, basically saying it was up to FERC's discretion to determine serious impacts.
The tribe thinks those impacts could affect more than just this one stretch of river.
The area of the Klamath influenced by the JC Boyle dam harbors a species of fish called the redband trout, which appear to be landlocked steelhead that once had access to the ocean. If the river is restored someday to some semblance of itself pre-dams, these redband trout might prove to be an important broodstock for steelhead, said Schlosser.
"So it's very important that we build up the strength of stock like this, as we prepare to remove obstacles to the ocean," he said.
Tribe spokesperson Allie Hostler last week agreed this was a technical setback, and a disappointment, but that the tribe was discussing other strategies. She added that she thinks the big river management agreement that so many of the river stakeholders have signed onto will, ultimately, change.
"After another couple of years go by, people will start to see that nothing has improved on the river," she said.