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Another Closed Door Deal Emerges

by Oregon State Senator Doug Whitsett, Senate District 28,  2/9/16

It is axiomatic that no bad idea is ever really dead in the Oregon State Capitol. Supporters of defeated proposals will recycle, reprocess, or reincarnate, but they never give up.

Governor Brown's office recently announced that an Agreement in Principle (AIP) has been reached between the States of Oregon and California, PacifiCorp and the federal government to move forward with amending the Klamath Hydroelectric Settlement Agreement (KHSA). The KHSA requires the demolition of the four PacifiCorp-owned dams on the Klamath River. Governor Brown’s announcement is another unfortunate example of environmental activists’ refusal to take “no” for an answer.

According to the press release, the target date for signing the amended version of the Klamath Hydroelectric Settlement Agreement (KHSA) is February 29. The amended agreement would then be facilitated within the administrative processes established through the Federal Energy Regulatory Commission (FERC), including public comment periods. Under the new AIP, title of the dams would be transferred to a non-federal entity that would assume liability for, decommission and remove the dams by 2020. 

The Governor’s press release states that those four main parties will pursue implementation of the AIP through an administrative process governed by FERC. It also claims that the States of Oregon and California and the federal government are working with all Klamath Basin stakeholders, including members of Congress, the Native American tribes and farmers.

The current KHSA proposal to destroy the four hydroelectric dams clearly requires the consent of the United States Congress before the process can even begin. For the past five years, the proposal has failed to even reach a floor vote in either Congressional chamber. It continued to fail during Democrat majority control of both chambers. It has also subsequently failed during Republican majority control of both chambers

Nevertheless, Brown and her Natural Resource advisor have negotiated another agreement behind closed doors to attempt to destroy the dams. Unfortunately, under the Kulongoski, Kitzhaber and Kate Brown administrations, this process has become the New Oregon Way.

Richard Whitman met with Representative Whitsett (R-Klamath Falls) and me on behalf of the Governor in my Senate office the day before the new AIP was released to the press. The Governor’s natural resources advisor asked for the meeting in order to inform us of the new plan to demolish the hydroelectric dams.

During that briefing, he told us he had been working with the state of California, Klamath County, Upper Basin and Project irrigators, PacifiCorp and Congressman Greg Walden’s office to close the deal. The unmistakable message was that everyone was on board for moving forward.

Whitman admitted he had not talked with Siskiyou County Supervisors, even though three of the four dams are located in Siskiyou County. He reasoned that the Supervisors had simply never been a part of the deal. Recent polls show that as many as 80 percent of Siskiyou County citizens oppose destruction of the dams.

Working in the Capitol for over a decade has taught me to listen respectfully, but to always verify. That same evening, I made and received a number of telephone calls and e-mails.

Representatives of both the Klamath Irrigation District and Klamath Water Users Association indicated they had no previous knowledge of a new deal to remove the dams. They expressed their concern that they were not consulted regarding the negotiation of an agreement that would fundamentally alter their livelihoods.

Two of the three Klamath County Commissioners had not previously heard of the new deal. Apparently, Whitman did have a conversation with Commissioner Kelley Minty-Morris. She apparently chose not to share the content of the conversation with the other two Commissioners.

Congressman Walden’s office actually called me before I was able to reach out to them. They wanted to know if I knew any of the details about a new AIP.

It is my understanding the Congressman’s office had neither participated in nor been consulted with regarding the new dam removal deal. They had only been told they would be briefed, on the day the AIP was announced.

Both California Congressman Doug LaMalfa and Tom McClintock were also kept out of the loop, according to their staffs. Their offices had not yet seen the AIP and were to receive a first briefing the day after it was made public.

Unfortunately, this represents just another day in Governor Brown’s promise of a new clear and transparent state government.

Under the AIP, the federal Department of the Interior, which oversees the Bureau of Land Management, the States of California and Oregon and the federal Department of Commerce will be able to forge an administrative path at FERC for the dam removal. The clear intent is to completely bypass the need for Congressional approval and the vote of our federal elected representatives in Congress.

The AIP further states the principles concur with the Klamath Water Users Association notice of potential termination of KHSA. It is alleged that the notice initiates a “meet and confer” process within that existing agreement. The intent appears to be to pivot to the directed manipulation of the FERC administrative process to facilitate the demolition of the dams.

The AIP then, oxymoronically, states that nothing within the text of the agreement is “intended…to predetermine the outcome of any regulatory approval or other action by an agency” of the United States or the States of Oregon or California. That statement is in direct conflict with the AIP’s stated purpose of facilitating the removal of the dams by 2020. It is beyond credible to accept the veracity of these two conflicting intents.

We asked our Legislative Counsel (Counsel) for their legal opinion regarding whether the states of Oregon and California can legally join in a project to demolish the dams without Congressional approval. In their opinion, the two states cannot participate in a joint agreement to remove the dams without Congressional approval.

Counsel goes on to explain that Oregon cannot spend more to demolish the dams than is allowed under current law. That law limits Oregon expenditures to no more than its share of the $200 million currently being collected from its ratepayers by the PacifiCorp surcharge under Oregon Revised Statute chapter 757.

Counsel further states the combined cost of removing the dams, and paying for the immense liability related to the 20 million cubic yards of potentially toxic sludge accumulated behind the dams, cannot exceed the surcharge amount.

Current Oregon law prohibits the state from expending any public money for the purpose of facilitating the destruction of the dams. In keeping with that prohibition, the AIP obligates no state funding for the dam removal. Neither does it obligate any federal funding. 

Mr. Whitman and the Governor appear to respectfully disagree.

It is my understanding that the Governor believes the dams can, and will be demolished, without further action by the Legislative Assembly. Governor Brown and Whitman appear to believe the dams can and will be destroyed through administrative actions that purposely bypasses Legislative and Congressional authority.

One might ask the Governor who is to pay the potentially enormous liability cost of blowing up the four dams. Is her plan to encourage the Public Utility Commission to determine the expense to be “prudently incurred costs” and allow PacifiCorp to charge their ratepayers? Is her plan to amend current law to allow the state of Oregon to charge its taxpayers? Is the plan to pay the costs through some federal administrative action without Congressional approval?

It would seem that clear and transparent government would require bureaucrats to actually consult with elected legislators and Congressmen prior to making monumental decisions. Further comment will have to wait until the bureaucrats allow our elected representatives of the people to see their actual written Agreement.

Click the image below to view a video of my remonstrance on the Senate floor regarding this issue.

Senate Floor Remonstrance


Please remember--if we do not stand up for rural Oregon, no one will.

Best Regards,

Senate District 28


Email: Sen.DougWhitsett@state.or.us I Phone: 503-986-1728
Address: 900 Court St NE, S-311, Salem, OR 97301




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