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Letter to Attorney General questions legality of dam agreement processes 

by David Smith, Siskiyou Daily News 2/16/10
Yreka, Calif. - The legality of the Klamath Basin Restoration Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement (KHSA) processes is the subject of a recent Siskiyou County letter to Attorney General Edmund G. Brown, in which the county is seeking Brown’s opinion as to whether or not it can legally sign the documents in question.

The two agreements, which are to be executed concurrently, would set a course for potential removal of four dams along the Klamath River and create a restoration plan for the entire basin for a 50-year period, which would include the setting of water allocations, restoration activities and designation of funding for various groups and projects.

The letter, drafted by Siskiyou County Counsel Thomas Guarino, claims that the KHSA and KBRA each would require legislative revisions to the Public Resources Code and the National Environmental Policy Act (NEPA) in order to be signed.

Section 2.2.7 of the KBRA specifically states that nothing within the agreement “is intended or shall be construed to modify the application of [NEPA], California Environmental Quality Act (CEQA), or other Applicable Law, to the environmental review of any program, plan, policy, or action (or project) under this Agreement.”

The date for the signing by all required parties, or execution, of the documents is slated for Feb. 18, and the legislation that is to accompany the agreements is currently being drafted. According to the KHSA, the legislation is expected to be enacted within 90 days of the effective date of the two agreements.

The letter states that the legislative revisions are contained in appendices to each agreement.

In the KHSA, it is proposed that legislation “confirm that execution of the KBRA by the Secretary of the Interior, Secretary of Commerce, and the Secretary of Agriculture or their designees is not a major federal action for purposes of the National Environmental Policy Act, 42 U.S.C. § 4321, and direct all Federal Agency Parties to comply with all applicable environmental laws in consideration and approval of actions in implementation of the KBRA following its execution.”

The NEPA code referenced in that section states that any action considered a major federal action that significantly affects the quality of the human environment must be accompanied by a detailed statement on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposed action be implemented, alternatives to the proposed action, the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

The proposed legislation in the KHSA also includes the authorization for federal agencies to participate in the implementation of the KBRA, which is required by that document.
Section 1.1.2 of the KBRA states that, “Prior to the enactment of Authorizing Legislation, neither the United States nor any of its agencies, officers, or employees shall be a Party to this Agreement, or shall be required to implement any obligation under this Agreement.”

According to the KBRA, upon the enactment of legislation authorizing federal involvement, the National Marine Fisheries Service, the United States Department of Agriculture and the United States Department of the Interior will become parties to the agreement.

Under a section titled “Proposed CEQA Legislation Language” in the KBRA, three activities are listed that would not be considered “projects” as defined in the Public Resources Code section 21065. Those attributives include the execution of the KBRA and KHSA and a request to the California Public Utilities Commission to establish a surcharge to fund dam removal activities as per the KHSA.

The definition of “project” contained in the Public Resources Code reads “‘Project’ means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment” and which is undertaken by a public agency or is otherwise supported by a public agency.

“There is a concern that signing the Agreements could be considered a violation of [CEQA]  and the [NEPA] because the commitments in the Agreements are being undertaken with no environmental review,” the letter reads.

While both agreements claim that the act of execution of the documents is exempt from environmental review, the act of implementing each is not, and would be subject to NEPA, CEQA and all other applicable law.

The questions posed by the county are: “How can these documents be concurrently executed prior to these legislative revisions without violating CEQA?” and “Can the County of Siskiyou legally enter into a multi-state agreement with the State of California, the State of Oregon, a private corporation (PacifiCorp), and the United States as contemplated in these Agreements?”

The letter states that there is a “degree of urgency” in the request for Brown’s input because of the impending execution of the KHSA and KBRA and the ensuing 60-day period the county will have to deliberate whether or not it will sign them as well.
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