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PacifiCorp loses challenge of fish ladders over dams
9/27/2006  By JEFF BARNARD, Oregonian

GRANTS PASS, Ore. (AP) Salmon and steelhead would take back hundreds of miles of habitat above a series of hydroelectric dams on the Klamath River if they had fish ladders to get there, an administrative law judge found late Wednesday.

The finding by Administrative Law Judge Parlen L. McKenna, following a two-day hearing last month in Sacramento, Calif., adds to increasing public relations and economic pressure on PacifiCorp to remove the four dams straddling the Oregon-California border to help the Klamath River's struggling salmon runs.

The Portland-based utility has estimated it would cost $250 million to build fish ladders and make other improvements for salmon mandated by federal fisheries agencies, and would cut power production at the 150-megawatt facility in half.

In the first case of its kind under a new provision of federal energy law, PacifiCorp had challenged mandates from federal fisheries agencies that it restore free-swimming fish passage past the dams, screen turbines and devote a smaller proportion of the river to power production.

The utility lost on 11 out of 14 findings of material fact, none of which applied directly to whether salmon could be restored to the upper river with fish ladders.

In the past, utilities had no way to challenge mandates from federal agencies to make dams more fish friendly. But last year, federal energy law was changed to give them a chance to dispute the facts leading to the mandates. The law was applied retroactively to the Klamath dams.

The judge's findings make it much more likely that the mandates will stick, and that the Federal Energy Regulatory Commission will not be able to ignore them, said Glen Spain of the Pacific Coast Federation of Fishermen's Associations, which represents California commercial salmon fishermen.

They also undermine PacifiCorp's proposal, supported by FERC, to use trucks to haul salmon around some of the dams to see if they survive before taking bigger steps, Spain added.

Though it has no power to mandate dam removal, NOAA Fisheries, the federal agency in charge of restoring salmon runs, has said removing the dams is best for Klamath salmon.

Salmon have been struggling in the Klamath for decades, with 70,000 spawning adults dying in low warm water conditions in 2002. This year federal fisheries managers practically shut down commercial salmon fishing on the West Coast to give wild fish a better chance to return to the river to spawn, costing fishermen $16 million.

Indian tribes, salmon fishermen and conservation groups are pressing PacifiCorp to remove the dams, but the Federal Energy Regulatory Commission, which decides whether to grant a new operating license, has agreed in preliminary findings with PacifiCorp's proposal to truck fish around the dams.

Judge McKenna found that salmon and steelhead historically spawned and reared in the reaches of the Klamath, Upper Klamath Lake, and tributaries before the first of the dams was built in 1917.

Habitat above the dams is good enough, and fish living below the dams are genetically suitable to repopulate the new areas, despite warm water in the summer, diseases in the water, and predators in the reservoirs, the judge found.

"The fact that anadromous fish currently complete life cycles through eight dams and reservoirs on the Columbia and Snake rivers, and historically completed life cycles through Upper Klamath lake, provides strong evidence that anadromous salmonids could also migrate through the reservoirs created by Project facilities," McKenna wrote.

PacifiCorp spokesman Dave Kvamme said the company had not seen the findings, and would have to reserve comment until it had studied them.

In other developments, the California State Coastal Conservancy issued studies finding that sediments trapped behind the dams contain very low levels of toxic materials, and only 5 percent of the 21 million cubic yards of sand and gravel would wash out if the dams were removed.

Conservancy project manager Michael Bowen said the studies showed removing the dams was "feasible and affordable."

 
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