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Board denies Klamath algae pleas

John Driscoll The Times-Standard 03/16/2007

Federal energy law pre-empts regional water quality officials' regulation of blue-green algae in the Klamath River's reservoirs, officials said Thursday in denying requests by the Karuk Tribe and fishing and environmental groups for strict limits on Pacificorp's hydropower operations.

The North Coast Regional Water Quality Control Board agreed with its counsel that the Federal Power Act trumps its authority, and that the restriction on the production of toxic algae would have to come through state certification of the federal license Pacificorp is seeking.

In that process, Board Executive Officer Catherine Kuhlman said, state regulators are bound to follow existing parameters in the North Coast Basin Plan.

The Karuk Tribe, the Pacific Coast Federation of Fishermen's Associations and Klamath Riverkeeper asked the board to impose waste discharge requirements on Pacificorp's project. Michael Lozeau, an attorney for the tribe, argued that the state and federal processes don't address the need to take action on the algae problem now.

”The operation itself is producing the problem,” Lozeau said. “It's not flowing in from somewhere else.”

He said that the federal Clean Water Act preserves the state's right to veto any hydropower license, and gives it the authority to take interim measures to deal with the algae problem. The blue-green algae is prolific in Pacificorp's reservoirs, and can produce a liver toxin that the World Health Organization identifies as a moderate risk -- even in concentrations thousands of times less than water quality sampling has shown in some summer months in recent years.

Pacificorp attorney Robert Donlan said that the state's role is through the license certification process. He also claimed that characterizing the reservoirs as in violation of state law is premature, although he admitted that the project stretch is impaired. The company also argued that the petition goes too far in claiming the algae is “waste” produced by the project, which triggers state water quality restrictions.

”I think it's fair to say that there are impairments,” Donlan said, “but they're being worked on.”

The State Water Resources Control Board is working on a certification for the 30- to 50-year license renewal the Federal Energy Regulatory Commission is considering issuing to Pacificorp.

Others characterized the algae problem as becoming steadily worse. Biologist Pat Higgins described the reservoirs as “engines of nutrient pollution,” and said California should develop guidelines like Oregon's which shut reservoirs to recreational use when they contain such high levels of the toxic algae.

Ron Reed, a biologist and Karuk ceremonial leader, said diarrhea and rashes at camps during summer ceremonies in which participants spent days in the water are common. He implored the board to take immediate action.

”We are not a Third World community,” Reed said, “so we shouldn't be treated like one.”

Prior to rejecting the petition, board member Heidi Harris told the group that laws aren't written with feelings, although she sympathized -- as a Trinity River resident -- with not being able to use the river at times.

”Remember we can only do what we can do,” Harris said.

The board voted unanimously to direct its staff to come to its April meeting with recommendations for clarifying existing basin plan standards for algae, which will be provided to the State Water Resources Control Board as it drafts its water quality certification for the hydropower project.

John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.

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