CA Court Sides With Tribes, Fishermen, Conservationists On Clean Water Case

Judge Orders CA Water Board to Reconsider Regulation of Toxic Waste in Klamath River

June 16, 2008

Santa Rosa, CA – In a recent ruling that may have broad implications for dams throughout California, Superior Court Judge Elaine Rushing has invited the North Coast Regional Water Quality Control Board to exercise its congressionally mandated authority to regulate water quality.

The ruling stems from a suit filed by Klamath Riverkeeper, the Karuk Tribe, and the Pacific Coast Federation of Fishermen’s Associations against California’s North Coast Regional Water Quality Control Board. The groups filed suit last August after the Board rejected their petition to regulate toxic waste discharges from PacifiCorp’s Klamath River Dams. PacifiCorp is owned by billionaire investor Warren Buffett.

In 2004, the Karuk Tribe found that the massive blooms of blue-green algae behind PacifiCorp’s Iron Gate and Copco dams was indeed the toxic algae Microcystis aeruginosa. This algae secretes a potent liver toxin known as microcystin. Levels of the toxin can exceed water quality standards set by the World Health by as much as 4,000 fold. When no agency took responsibility to regulate the toxin, the Karuk, PCFFA, and Klamath Riverkeeper took action.

“We will not sit idly by and let Buffett’s dams poison the Klamath River, while California does nothing to protect the people of the Klamath from this toxic pollution,” said Regina Chichizola, Klamath Riverkeeper.

The groups first petitioned the North Coast Regional Water Quality Control Board to regulate the toxic discharge from the dams into the river citing California’s Porter-Cologne Water Quality Act. The Board argued that they were pre-empted by the Federal Power Act from taking such an action. The groups then challenged the board’s argument in Superior Court.

According to the groups’ attorney Michael Lozeau, “with this ruling the court invites the Board to rethink its assertion that it is powerless to regulate water quality and protect the public from PacifiCorp’s toxic pollution of the Klamath River.”

The discovery of Microcystis aeruginosa has led regulatory agencies to post signs warning the public to not contact the Klamath River for over 200 miles from Copco Reservoir to the ocean. The warnings come when the blooms are at their zenith during the heat of summer. Unfortunately, this is the time when the public most wants to use the river.

“The state is warning people to not contact the Klamath River during the height of fishing season and during our most important ceremonies. However, our medicine men are obligated to bathe in the Klamath River in late summer in preparation for our World Renewal Ceremonies,” according to Karuk ceremonial leader and Vice-chairman Leaf Hillman.

The judge’s ruling gives the Board 90 days to reconsider the groups’ petition and act. A decision is expected late this summer. If the board accepts the petition and acts to regulate PacifiCorp’s toxic discharge, the ruling could result in the Regional Board’s issuance of water quality requirements and enforcement orders requiring PacifiCorps to take immediate steps to reduce its extreme toxic pollution of the Klamath, as well as its harmful temperature and oxygen-depleted releases.

“It’s high time that somebody stood up to PacifiCorp and held them accountable for their destruction of our river. The Water Board should use its clear authority to protect the public now,” concludes Chichizola.

The EPA recently listed PacifiCorp’s reservoirs on the Klamath River as impaired due to toxic algae and have committed to creating pollution clean up plan, or TMDL to deal with the algae issue.

Glen Spain, Regional Director, Pacific Coast Federation of Fishermen’s Associations – 541-689-2000