No. 7: Hoopa Valley Tribe wins lawsuit against feds

A federal court of appeals ruled in favor of the Hoopa Valley Tribe in January, stating PacifiCorp, the owner and operator of several dams along the Klamath River, would no longer be able to use a controversial tactic to delay improving the health of the river.

The U.S. Court of Appeals for the D.C. Circuit decided on Jan. 25 that PacifiCorp can no longer delay its licensing process with the Federal Energy Regulatory Commission for four dams along the Klamath River. The dams’ licenses originally expired in 2006 and getting them re-licensed would mean modernizing the dams so they adhere to newer regulations, such as the Clean Water Act and the National Environmental Policy Act, that were implemented after PacifiCorp received the license in 1956.

Meeting those newer standards would require PacifiCorp to invest tens of millions of dollars into the dams, which a PacifiCorp spokesman said makes no sense since there is an effort to have the dams removed.

The Hoopa Valley Tribe would like to see the dams removed, but PacifiCorp has been operating the dams under interim annual licenses while the relicensing process takes place.

However, PacifiCorp has delayed the re-licensing process for over a decade by constantly submitting and withdrawing applications for water quality certification.

Section 401 of the Clean Water Act requires any project that is seeking a federal license and “may result in any discharge into navigable waters” to get a water quality certification from the state the project will be in. If the state doesn’t act within a year, the certification requirement is waived.

PacifiCorp used a workaround where it would submit the application for water quality certification and then withdraw the application to restart the one-year clock. The company did that for 13 years, making about $27 million a year at the same time.

The court ruled that because PacifiCorp’s water quality certification application had “been complete and ready for review for more than a decade,” the states waived their rights to certify the project’s water quality.

That means FERC must proceed with reviewing the dams’ licensing, which could have the ultimate effect of expediting dam removal.

THE ASSOCIATED PRESS FILE The J.C. Boyle dam is one of four dams set to be removed from the Klamath River. A federal court ruled in favor of the Hoopa Valley Tribe, which wants to remove the dams, in January, deciding that PacifiCorp, which owns and operates several dams along the Klamath, cannot avoid implementing mandatory requirements to protect the health of the river.