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A response to the general counsel of KRRC: Why Compact decision-making matters

  • Only FERC will decide dam removal, not Klamath River Compact Commission, Guest Opinion by RICHARD ROOS-COLLINS General Counsel, KRRC, Herald and News Online, posted to KBC 5/19/19. ""The JC Boyle Dam in Klamath County, Ore., 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 hallmark of the campaign to remove the Klamath River Dams has been false or misleading statements by those who have made it their life’s work to seek destruction of dams and more government control over water, to the detriment of rural communities in the West.

The recent assertion by Klamath River Renewal Corporation General Counsel Richard Roos-Collins, a longtime anti-dam activist, that “only FERC will decide dam removal, not [the Klamath River Compact Commission]” is yet another one of these misleading statements.

In moving to dismiss KRRC’s license application before FERC, the Siskiyou County Water Users Association is not disputing FERC’s power to grant or deny hydroelectric power licenses, including the power to rule on a properly presented application to assume the license for the Klamath River Dams by an entity qualified to remove them.

However, 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.

The Compact Clause of the U.S. Constitution requires that “No State shall, without the Consent of Congress... enter into any Agreement or Compact with another State.”

California and Oregon did enter into an agreement (along with some federal agencies) to allow KRRC to take the license and remove the dams, but the agreement is illegal, because Congress has approved a different agreement, creating the Klamath River Compact Commission, and granted that commission, as a matter of federal law, jurisdiction over the “orderly, integrated, and comprehensive development, use, conservation and control [of the water resources of the Klamath Basin] for various purposes, including, among others, the use of water for industrial purposes and hydroelectric production.” (71 Stat. 497.)

Simply put, the only way California and Oregon can act jointly in compliance with the U.S. Constitution to remove the dams is to follow the procedures Congress has established in federal law for such decision-making, including a vote of the commission.

Instead, the agencies attempted an end-run around the Compact Commission by entering into so-called settlement agreements purporting to empower KRRC to seek dam removal.

Those agreements were never approved by Congress, and, indeed, Congress has repeatedly refused to approve them.

Thus, the Water Users have asked FERC to determine that it cannot approve KRRC, the product of that unlawful agreement, as a qualified license holder. The Water Users’ motion remains pending before FERC.

In short, FERC certainly has power to issue licenses to those FERC finds qualified to hold them, but if FERC finds KRRC qualified, FERC will be aiding and abetting a violation of the Compact Clause and federal law, and the Water Users will seek review of its decision in federal court.

— James Buchal, an attorney from Portland, Oregon, represents Siskiyou County Water Users, which has maintained a consistent effort to protect and preserve the Klamath Dams. He is a very successful attorney in complex litigation matters who authored the Treatise “The Great Salmon Hoax.” Mr. Buchal graduated with a B.S. in Physics from Harvard College (1981) and then attended Yale School of Management and obtained his J.D. from Yale Law School in 1985. He has been very active in civic affairs in Oregon.




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