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Only FERC will decide dam removal, not Klamath River Compact Commission

  • Guest Opinion  

(H&N Online note: "The JC Boyle Dam in Klamath County, Oregon, is one of four slated to be removed from the Klamath River under a Memorandum of Understanding between the Klamath County Commission and the Klamath River Renewal Corp.")

A response to the general counsel of KRRC: Why Klamath Compact decision-making matters, FERC’s own regulations (18 C.F.R. § 9.2) require FERC to determine the “qualifications of the transferee [here, KRRC] to hold such license.” KRRC is not qualified, because it was created in violation of federal law."
KRRC's Attorney Richard Roos-Collin extensive biography on KBC's Whose Who page.

Various parties have recently claimed that the Klamath River Compact Commission has authority over the proposal to remove four dams in the Klamath Hydroelectric Project.

They argue that the Klamath Hydroelectric Settlement Agreement (KHSA) is illegal because it does not petition for the consent of the Compact Commission.

This argument, while creative, is wrong. The Federal Energy Regulatory Commission (or FERC) will decide whether the proposed dam removal is in the public interest.

The Compact Commission has certain authorities under the 1957 Klamath River Compact. It must approve the siting of a facility to store and convey water from one state to the other. It must approve any related effort by one state to acquire land in the other. And it may resolve water quality disputes between the states. But it does not have authority to regulate hydropower projects.

The Federal Energy Regulatory Commission licensed the Klamath Hydroelectric Project in 1954. When the term of that license was about to expire in 2004, the current licensee (PacifiCorp) applied to FERC to renew it.

Later in 2016, PacifiCorp and the Klamath River Renewal Corporation jointly applied to FERC to transfer the license to the KRRC for the purpose of dam removal under the KHSA’s terms. Over the course of the past 60 years, the Compact Commission has never asserted authority over the project.

There’s good reason. The 1935 Federal Power Act established a comprehensive program for hydropower development in our nation. FERC administers that program, regulating more than 1,000 hydropower projects to advance the public interest in power, flood control, recreation, fish and wildlife, and other beneficial uses.

FERC is not subject to the consent of interstate compact commissions (and there are more than 200 of them across the nation) to make these licensing decisions.

The U.S. Supreme Court has repeatedly decided that Congress meant exactly what it said in authorizing one federal agency, FERC, to assure that hydropower advances the public interest in our nation’s rivers.

FERC has started the hearings on the license transfer and surrender applications to implement the KHSA. All interested stakeholders are being heard. Indeed, the very stakeholders who argue that the Compact Commission controls the fate of this project are also before FERC, advancing other arguments.

FERC will consider all arguments, and facts, as it moves forward to decide whether the proposed dam removal advances the public interest.

And meanwhile, KRRC is actively working with diverse stakeholders on local hiring, future recreational facilities, and other measures to assure that the project improves the economy and ecosystem of the Klamath Basin.

Please contact us with your suggestions at our website: www.klamathrenewal.org

Richard Roos-Collins, KRRC General Counsel



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