On June 17, 2021, the Federal Energy Regulatory Commission (Commission or FERC)

issued a “Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Lower

2021, the Commission held virtual scoping meetings to take agency and public comment on the

scope of an environmental impact statement (EIS). The NOI established August 19, 2021 as the

deadline for timely submission and proper recording of all written comments.

On August 18, 2021, the Klamath River Renewal Corporation (Renewal Corporation) filed

Corporation expressed our appreciation for the Commission’s efforts to appropriately scope and

evaluate the environmental effects of the Proposed Action and to address the regulatory needs of

cooperating agencies, the Army Corps of Engineers (USACE) and the U.S. Environmental

Protection Agency (EPA). Scoping provides an opportunity to bring agencies and applicants

20210818-5111.

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together for setting time limits, integrating other environmental reviews, and identifying issues for

further review. The Renewal Corporation is actively working with all federal and state agencies

to adhere to a timeline that allows dam removal to be completed in 2023. We respectfully request

the Commission staff to undertake their best efforts to complete environmental review as soon as

possible.

The Renewal Corporation welcomes the agency and public comments offered in support

of the application and acknowledges comments filed in opposition to the application. As they

relate to the Commission’s environmental review of the Proposed Action, these comments inform

the scope of the analysis that the Commission must undertake to fulfill its obligations under the

Corporation offers the following reply to such comments to further inform the Commission in this

regard.

The record before the Commission now includes the comments of parties with divergent

interests in the Lower Klamath Project, over a period that spans nearly two decades. This record

and natural resources in the Klamath Basin. The Definite Decommissioning Plan filed with the

20170623-5103.

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The Definite Decommissioning Plan is augmented by final design specifications and

Dam Removal--Klamath River Dams” (July 2012), the “Definite Plan Report” (July 2018), and by

the Lower Klamath Project Board of Independent Consultants. The record also reflects that this

progressive design was informed by the same or similar comments, and in most cases the same

commenters, that responded to the NOI. The progressive design of the Definite Decommissioning

Plan has been open, transparent, and inclusive of all interests responsive to our offers for

collaboration.

order that is “materially inconsistent” with the Definite Decommissioning Plan is inconsistent with the settlement.

26, 2021) FERC accession no. 20210226-5093.

20190729-5074. The progressive design also reflects input from the Lower Klamath Project Independent Board of

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The Definite Decommissioning Plan incorporates conditions and analyses contained in two

supporting documents include relevant portions of two prior NEPA environmental impact

reviews and analyses were informed by the same or similar comments, and in most cases the same

commenters, that responded to the NOI.

The vast majority of issues raised in comments received in response to the NOI have been

raised before, carefully considered by parties in reaching the KHSA, further considered by the

Renewal Corporation, studied by qualified and independent experts, including the Lower Klamath

Project Independent Board of Consultants, reviewed by state and federal regulators, and are fully

rely on and incorporate relevant portions of this record as it prepares its environmental analysis of

the Proposed Action.

We also ask FERC to consider the following reply comments pertaining to the scope of the

alternatives to be considered in the EIS, the scope of the environmental analysis and potential

§ 401 Water Quality Certification (September 2018); FERC accession no. 20201117-5191 (Exhibit E).

assessment was determined to be sufficient to initiate formal consultation with FERC by USFW (FERC accession

no. 20210903-5069) and NMFS (FERC accession no. 20210819-5201).

20071116-3005.

identical form. The record evidence on which the State Water Board relied is now in the docket for this proceeding.

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mitigation to be considered in the EIS, and suggestions that further study is needed before this

application is ready for environmental review.

The NOI states that the Commission will consider the Proposed Action, the Proposed

Action with any staff modifications, and the No Action alternative. However, some commenters

argue that the Commission should consider a broader range of alternatives, including partial dam

removal, retrofitting the existing dams with new fish passage facilities, federal takeover, and other

suggestions that are materially inconsistent with the KHSA. The Renewal Corporation recognizes

The Proposed Action (license surrender and the physical removal of the Lower Klamath

Project) is to achieve volitional fish passage and free-flowing conditions in the Klamath River

below Keno Dam. The Proposed Action (as described in the Definite Decommissioning Plan) is

based on the KHSA and is a settlement proposal presented to the Commission as an alternative to

relicensing the Project. In considering such a proposal, the Commission has established procedural

relicensing proceeding is being held in abeyance while the Commission considers the settlement

proposal. If the Commission cannot determine that license surrender based on a settlement

proposal is in the public interest, then it will reject the application and the licensee and other parties

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The NOI’s proposed scope of alternatives under NEPA is consistent with the posture of

this proceeding. The “Proposed Action with any staff modifications” alternative allows for

consideration of a reasonable range of alternatives that are technically and economically feasible,

meet the purpose and need for the Proposed Action and meet the goals of the applicant. This also

aligns with the Commission’s policy of respecting a settlement when possible while allowing for

accommodations necessary to address the public interest. Alternatives that are materially

(volitional fish passage and free-flowing conditions).

Commission staff may find the analysis of partial dam removal alternatives in prior

environmental documents helpful in scoping alternatives for this EIS and to prepare a summary of

alternatives that require the dams and the FERC license to be retained (such as retrofitting the

existing dams with new fish passage facilities) are not reasonable. The Renewal Corporation and

the States of California and Oregon are not seeking a license to operate and maintain the Project

when possible, we favor accommodating settlement parties on this issue in the absence of other considerations that

would make such an accommodation contrary to the public interest.”).

relicensing proceeding in abeyance, pending our determination on the license transfer and surrender applications that

the Amended Settlement Agreement provides will be filed with the Commission on or around July 1, 2016.”).

20

21

22

40 C.F.R § 1502.17.

[W]e reiterate that, as noted in the June 2021 Transfer Order, the license transfer itself is not effective until

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KHSA protects the interests of the power customers in the six western states comprising

The Renewal Corporation believes that the NOI states a reasonable range of alternatives

for purposes of environmental review. Any alternatives that are materially inconsistent with the

KHSA amount to disapproval of the ALSA and, under the terms of the Abeyance Order,

reinstatement of the relicensing application. Any such alternatives are, in effect, the No Action

alternative for purposes of NEPA, and appropriately scoped as the continuation of the operations

The Proposed Action is responsive to FERC policy and precedent defining the appropriate

scope of obligations for a licensee upon license surrender. Once the surrender of a license is

approved and the project dam and other works are removed, there is no public interest in keeping

applicants file the instruments of conveyance, which must be provided within 30 days following a

Commission order on the surrender application”). Accordingly, the transfer will not be effective until after

the Commission completes its full NEPA review for the surrender, if approved.

176 FERC ¶ 61,202 (September 23, 2021) at p.7 n.34.

operate its project; the Commission evaluates whether a surrender is in the public interest and does not solicit license

FERC ¶ 61,069 (2008) (the Commission cannot force a licensee to seek a new license upon expiration of the

existing license).

(OPUC) are attached at Exhibits D.1, D.2, D.3, D.4 and D.5 to the Initial Surrender Application. FERC accession

no. 20160923-5370. Subsequent orders implementing the financial plan under the KHSA were appended to the

ALSA at Exhibit D-4 Orders of the OPUC (January 24, 2017; May 23, 2019) and Exhibit D-6 Orders of the CPUC

(December 4, 2017; July 10, 2019), FERC accession no. 20201117-5191.

FERC accession no. 20201117-5191.

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not require, as a condition of license surrender, the former licensee to install new facilities or

Some commenters urge the Commission to undertake analysis of long-term investments or

resource enhancements. They argue for mitigation measures that are beyond the scope of a license

surrender proceeding. FERC does not require a license surrender applicant, as it would a

relicensing applicant, to invest in protection, mitigation and enhancement measures required by

rejected arguments to impose such measures in license surrender proceedings:

As we explained in the surrender order, such long-term measures as ensuring the

maintenance of recreational access or of the condition of the remaining project

facilities would necessitate continuing Commission jurisdiction, whereas surrender

of a license entails the termination of the Commission’s jurisdiction. [citation

omitted]. Once the surrender becomes effective, any continuing issues would be

properly addressed under applicable state regulation. In some respects surrender

and dam removal might create costs or losses for the Town and its residents, but

the opponents do not explain why avoidance of those impacts should require the

1994).

FERC ¶ 61113, 61447 (2002) (Commissions applies a “public interest” standard to licensee surrender, not the same

as the comprehensive development standard that applies to licensing “because license surrender is a very different

proposal”).

62300 (once surrender of a license is approved, a project ceases generation, and a project dam and other works are

removed, there is no public interest in keeping that project under the Commission’s jurisdiction for an extended

time).

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The Proposed Action is the removal and decommissioning of licensed facilities and

restoration of project lands, as appropriate to the public interest, to the degree necessary for FERC

to relinquish jurisdiction to the States of California and Oregon. The scope of FERC’s

environmental analysis and potential mitigation measures should stay focused on the impacts of

dam removal and any actions necessary to facilitate FERC’s release of jurisdiction over project

lands.

As noted above, the record supporting this application is extensive and complete. The

record includes detailed studies and analyses of the environmental issues that the Commission may

choose to include in the scope of its EIS. These existing studies and analyses were informed by

successive rounds of public comment over decades. The work product is based on sound science

and substantial evidence. Qualified experts did this work. The work product was reviewed by

federal and state agencies with jurisdiction or subject matter expertise and by the Lower Klamath

Project Independent Board of Consultants. The Yurok, Karuk, and Klamath Tribes actively

The body of scientific, technical, engineering, economic and environmental work that has been

done to develop the Proposed Action is comprehensive, if not unprecedented, for a license

surrender application.

The Tribe emphasizes that for over 20 years studies have been conducted on all aspects and details

of Klamath dams including possible removal and starting with the EIS scoping done by FERC in

2004 the public has had ample time to identify and comment on issues important to them. The

record before FERC includes adequate and up-to-date information regarding the issues related to

dam removal.

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It is the Commission’s prerogative to determine, and indeed the Renewal Corporation

supports, any further work the Commission believes is necessary to fulfill its NEPA obligations.

However, comments received in response to the NOI suggesting that the environmental record is

not based on sound science or is out-of-date are without merit. These are subjective arguments

made by parties that disagree with the outcomes of these studies and analyses. The credibility and

integrity of this record speaks for itself. In this regard, we again direct FERC to the “cross walks”

The NEPA rules provide the proper guidance to determine the need for any further studies

Commission in support of the Proposed Action fully comport with these rules and provide an

excellent foundation for environmental review.

The Renewal Corporation again expresses our appreciation to the Commission and to the

cooperating agencies to appropriately scope and evaluate the environmental effects of the proposed

license surrender and decommissioning of the Lower Klamath Project. We renew our request to

discussions and analyses in environmental documents but are not required to undertake new scientific and technical

research to inform their analyses.); 40 C.F.R § 1502.21 (Agencies may rely on existing credible scientific evidence

followed the NEPA procedures, which require agencies to take a hard look at the environmental consequences of the

proposed action, the court will not second-guess the wisdom of the ultimate decision. Perfection is not required by

the NEPA process.) (quotations omitted).

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Commission staff to please undertake their best efforts to complete environmental review on a

schedule that allows dam removal to be completed in 2023. We renew, as well, our offer to support

this work in any way that we can.

DATED: September 29, 2021

Richard Roos-Collins

Attorneys for Klamath River Renewal Corporation

Markham A. Quehrn,

Laura G. Zagar

Attorneys for Klamath River Renewal Corporation

154078387.1

I hereby certify that, on this 29th day of September 2021, I have served KRRC's Reply to

Comments on Scoping Document 1 for FERC Project Nos. 14803-001 and 2082-063 via email

containing a link thereto, or via U.S.P.S. if no email address was available, upon each person

designated on the official service lists compiled by the Secretary in these proceedings.

/s/ Karen Campbell

Karen Campbell

Legal Practice Assistant

Perkins Coie LLP

Bellevue, WA 98004-5579

(425) 635-1400

KCampbell@perkinscoie.com