FERC Approves Surrender License for Lower Klamath Project

Nossaman LLP

[co-author: Noah DeWitt]*

On November 17, 2022, the Federal Energy Regulatory Commission (“FERC”) voted unanimously to issue an Order Modifying and Approving Surrender License and Removal of Project Facilities Order (“Order”) for the Lower Klamath Project (“Project”). The Order allows the dams’ private operator to surrender its operating license and was one of the final hurdles for the largest dam removal project in United States history. The $450 million project involves the removal of four dams along the Klamath River near the border of Northern California and Southern Oregon.

A noteworthy aspect of the Project that its advocates and the press have failed to acknowledge is that it is expected to result in the loss of thousands of endangered Lost River and shortnose sucker fish in the hopes of providing benefits for native salmonids. The federal and state wildlife agencies rarely approve of this type of triage of native, at-risk species. But because this dam removal project has the support of the federal government, the States of California and Oregon, and a number of vocal tribes, those agencies have embraced the tradeoff. In fact, in 2018 the California legislature passed AB 2640, which created a carve-out to one of its so-called “fully protected species” statutes to waive application of its protections to the Project.

The Project is anticipated to begin as soon as March 2023. It is estimated that the reservoir drawdown and demolition phase will take nearly two years, while the subsequent cleanup and restoration efforts will continue for another five years. Throughout the Project’s planning and development, local communities have cited concerns about the environmental and economic effects of the Project. FERC’s order approving the Project includes conditions intended to address some but not all of these adverse Project effects.

You can read the full Order here.

*Pending admission to the State Bar of California

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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