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KBRA lacks necessary rigor, legal precision
By DENNIS LINTHICUM Guest writer Klamath Falls Herald and News
July 4, 2010
In order to shed light on the Klamath Basin Restoration
Agreement, we, as a community, need to address the details
buried in the document’s legal jargon. I would suggest getting
your copy of the documents from the website
KlamathRestoration.gov. If we are not willing to look at the
reality entangled in the legalese of these documents, then we
will certainly not be prepared when those details become law.
The KBRA is an enormously complex topic that can easily create
confusion. Unfortunately, most of the confusion stems from the
fact that the Klamath Basin Restoration Agreement (KBRA) and the
Klamath Hydroelectric Settlement Agreement (KHSA) are
inseparable. This essentially doubles our workload and there is
no meaningful way of expressing support for one, but not the
other, because in the KBRA we find: 8.2.1 As provided in
Sections 1.5.1 and 37, each “nonfederal party shall execute this
agreement and the hydroelectric settlement concurrently.” This
unrelenting tangle of federal bureaucracy has created an
environment where it is easier for us to spout sound bites
rather than deliver facts. Yet, only by breaking down these
agreements into manageable pieces can we unravel their
complexity and clear up common misconceptions.
The most prevalent sound bite is, “The KBRA is about guarantees
of access to available water resources, even in times of
drought...” This statement is flatly false. First, there
currently is no drought plan: 19.2.3.A The lead entity shall
develop a draft Drought Plan by Sept. 30, 2010.
Second, there are lots of loose ends, but absolutely no
guarantees: • 2.2.6 Nothing in this agreement is intended or
shall be construed to be a pre-decisional commitment of funds or
resources by a public agency party.
• 2.2.7 Nothing in this agreement shall be interpreted to limit
the discretion under applicable law of any public agency party
to alter any program, plan, policy, or action of such party in
response to information and considerations developed during the
environmental review process. • 3.3.1.A The parties acknowledge
that implementation of certain obligations under this agreement
will require additional authorizations and appropriations by the
United States Congress, the California Legislature, and the
Oregon Legislature. Obligations that require such additional
authorization or appropriations shall become effective upon
enactment of that legislation. In plain English, these
paragraphs combine to mean:
• We don’t know what might happen during a drought. • Nothing is
concrete. • There will be no limits on any policy, plan or
action that might be developed.
• Whatever future legislation gets created will become law —
period. Additionally, PacifiCorp’s Klamath River Hydroelectric
Project consists of seven hydroelectric developments, four of
which are targeted for removal. These facilities have a total of
12 turbine-generators, which provide 169 megawatts of
sustainable, clean energy. Where is the clean energy
replacement? Green energy is not cheap and currently only makes
economic sense with government subsidies. That means you, and I,
are paying on both sides of the equation. For Klamath County,
the capital required for destroying and rebuilding our energy
infrastructure will come from federal funding, which means
taxpayers will pay the costs. Wait: If the dams belong to
PacifiCorp, shouldn’t PacifiCorp decide their future? Certainly,
however, there is an 800-pound gorilla at the negotiating table.
The legislative and regulatory agencies are playing the gorilla
and wreaking havoc with the environment and the free market.
Examples: • Oregon Legislation: Senate Bill 76 transfers the
burden for dam removal onto ratepayers. • KBRA transfers $21
million from taxpayers to the Tribes for the Mazama Tree Farm, a
90,000-acre private property parcel.
• The Federal Energy Regulatory Commission controls dam
re-licensing through regulations from the departments of
Interior and Commerce. These are just a handful of the reasons
that I will continue to voice my objections to the current
agreements. The KBRA does not contain the necessary rigor, legal
precision, or any legally enforceable methods for ensuring the
appropriate interests of Klamath County residents. Therefore,
while it may have been well-intentioned, I believe it was a
mistake to legally endorse a commitment to this complex
combination of future uncertainties.
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