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Draft Klamath Hydroelectric Settlement Agreement

e-newsletter by Oregon Senator Doug Whitsett, 10/2/09

Another Draft of the Klamath Hydroelectric Settlement Agreement was released September 30th. After only a cursory reading, it appears that this agreement does not differ from the previous Agreement in Principle in material matters such as cost, liability, water quality and salmon predation and health issues.

Even though all credible cost estimates for dam removal exceed $450 million, this document caps state and ratepayer cost liability at $450 million and flatly denies any federal cost responsibility. The document appears to continue to deny environmental liability responsibility by any participant including the states, PacifiCorp and the federal government, although irrigation interests are saliently not exempted. The document ignores PacifiCorp empirical data clearly demonstrating that the hydroelectric project serves as a nutrient and temperature sump so that river water below Irongate dam is actually cleaner and cooler than river water above J.C. Boyle dam.

Also the participants continue to refuse to quantify the perpetual cost of replacing the carbon free electricity generated by the dams with the alternative sources of renewable power called for in the agreement. Replacing the loss of the unique peaking function provided by these hydroelectric dams is ignored as well.

We should all look forward to the opportunity to participate in public comment and to ask informed questions regarding this flawed proposal.


Two weeks ago I traveled to Spokane Washington to attend the Council of State Governments Committee on River Governance. The Committee is composed of sixteen Legislators, four appointed from each of the four Northwest States located in the Columbia River Basin.

The potential decommissioning and destruction of the four Lower Snake River Dams owned by the Army Corp of Engineers is of great concern to the Committee. The Federal Columbia River Power System is the largest source of electricity in the Pacific Northwest, and the largest source of renewable electricity in the United States. The four Lower Snake River dams have the capacity to generate nearly 3,100 megawatts of electricity. Under emergency conditions, for several hours they can produce nearly 3,500 megawatts. This capacity is nearly six times the capacity of the huge coal fired plant located at Boardman.

The Agreement in Principle to decommission, and destroy, the four PacifiCorp dams on the Klamath River was discussed by the committee members as a dangerous omen, a forerunner of the possible fate of these critical Columbia River sources of Northwest power. The River Governance Committee is concerned that the same methods are being applied to force removal of the Lower Snake River dams that are being applied to force PacifiCorp to contemplate abandoning their four dams on the Klamath River. These methods include increasing the cost on environmental compliance, increasing the cost of water quality compliance, increasing the cost of endangered species compliance, increasing the cost of fish passage compliance, and decreasing the volume of water that is allowed to be used for power generation. At some point the artificially escalated costs exceed the reduced benefits of generation rendering the dams an economic liability.

The Northwest Power Council estimates that replacing the four Snake River dams’ generation capacity with Natural gas fired generation would result in increased cost of $500 million each year. That estimated cost is $500 million above and beyond the current $38 million annual operating cost for the four dams that is already significantly increased by compliance with environmental, water quality, and fish passage regulations. That cost estimate soars to $850 million per year in the event that the hydropower generation capacity were to be replaced with other sources of renewable power generation and conservation measures.

Hydropower is a renewable resource that produces virtually no greenhouse gas emissions. The Council estimates that replacing that greenhouse gas-free hydropower generation, with the cleanest natural gas fired plants, would increase the production of carbon dioxide by 4.4 million metric tons each year. The Northwest Power Council states that “discarding existing carbon dioxide free power sources has to be considered counterproductive”.

The Bonneville Power Administration is scheduled to have about 3,000 megawatts of wind power generation on line by the end of this year. Wind power generation is variable. It must be backed up by either hydropower or thermal generation plants, megawatt for megawatt.

For instance, during the very cold ten day period just after Christmas 2008, the wind simply stopped blowing throughout the Columbia River Basin. Wind generation actually flat lined for ten consecutive days. Hydropower from the Snake River dams was essential in filling this sudden prolonged hole in the BPA generation and transmission capacity. The Northwest Power Council stated that no other source of generation capacity was available to prevent blackouts during that extremely cold period.

In fact, hydropower generation is essential to keep the system in balance because of the constant fluctuations in wind power generation.

Hydropower generation can be ramped up, or down, in seconds. Thermal plants may take hours, or even days, to be either brought online or shut down.

The Columbia River Automatic Generation Control System interconnects the entire transmission grid, to instantaneously keep a balanced generation capacity online. The system is capable of offsetting the sudden, even catastrophic, shutdown of major generation resources.

The four Lower Snake River dams are critical components of this Automatic Generation Control System.

Also, the Snake River dams provide necessary voltage regulation on the long transmission lines that run from Western Montana to Eastern Washington. Decommissioning and removal of the dams would require replacement of that generation capacity. That generation capacity would have to be located in the same general vicinity as the dams in order to maintain the function of those transmission lines.

Obviously, the increased costs of environmental compliance, as well as the costs of replacement generation capacity, are always passed on to the utility ratepayers, in the form of higher rates paid at the meter. The Public Utility Commission is directed to allow the utilities to set their rates to provide sufficient funds to offset the utility’s prudently incurred costs plus a modest profit. Virtually any act that the utility is forced to do perform by government mandates is considered to be a prudently incurred cost.

About one third of the current BPA ratepayers’ monthly bills reflect the cost of compliance with these environmental, fish passage, water quality and endangered species regulations! Those higher costs already total more than one billion dollars each year on the Columbia River System. The Northwest Power Council estimates that breaching the lower Snake River Dams will add between $500 million and $850 million more to that annual cost.

The bipartisan Committee on River Governance members are from Montana, Idaho, Washington and Oregon.. We are virtually unanimous in our concern for the precedent being established on the Klamath River.

One would need to be blind not to see that the methods being applied to devalue the dams owned by Corp of Engineers on the Snake River are the same methods that are being applied to the PacifiCorp owned dams on the Klamath River.

The Committee clearly understands that the Biological Opinions being applied to devalue the dams on the Snake River will likely have the same outcome. That outcome will be decommissioning of the lower Snake River dams and sharply increased power rates for BPA ratepayers.



The 1972 Clean Water Act established federal government control over the navigable waters of the United States. The Act’s enormous expansion of federal authority was deemed to be constitutional because it was restricted to navigable waters that are considered to be under the authority of the Commerce Clause of the U. S. Constitution.

Rules established by the Army Corp of Engineers, and the Environmental Protection Agency, in 1986, 1988, and 2001, expanded the authority of the Clean Water Act to include virtually all of the waters of the United States. The United States Supreme Court decided in the 2001, and again in 2006, that important sections of these rules actually expanded the Clean Water Act regulatory powers beyond that which was authorized by Congress. The Clean Water Restoration Act, now before Congress, seeks to overturn those United States Supreme Court decisions.

The stated purpose of the Clean Water Restoration Act is to reaffirm the original intent of Congress to restore and maintain the chemical, physical, and biological integrity of the Waters of the United States, and to clearly define the waters of the United States as those features that were identified in the Corp of Engineers and Environmental Protection Agency rulemaking.

Rules must be authorized by laws and therefore cannot exceed their statutory authority. Never the less, the supporters of Senate Bill 787 are declaring that in spite of the Supreme Court decisions, the rulemaking by the EPA and the Corp of Engineers was indeed just what Congress had in mind in 1972.

Senate Bill 787 would amend the Clean Water Act to replace the term “navigable waters” that are now subject to the Act, with the term “waters of the United States”. The proposed Act defines waters of the United States to mean “all waters subject to the ebb and flow of the tides, the territorial seas, and all interstate and intrastate water and their tributaries, including lakes, rivers, streams. intermittent streams, mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution”.

Obviously, this definition includes virtually every drop of surface water in the entire country. Neither the original Clean Water Act nor the proposed Clean Water Restoration Act, Senate Bill 787, attempts to regulate ground water. However, language in SB 787 addressing hydrological systems could be construed to include connections between ground water and surface water resources.

The language of the Act specifically includes intrastate waters, those are waters located entirely within a state, that have neither direct connection to navigable waters nor any bearing on interstate commerce.

The language of the Act then attempts to speak into existence nebulous relationships to interstate commerce and to the constitutional “necessary and proper clause”.

Examples of these relationships include the suggestion that commerce originates with people from out of state that enjoy recreational activities on waters located entirely within a state. It includes the allegation that use of intrastate waters by migratory birds is a form of interstate commerce. Moreover, they consider any alteration of intrastate waters that effects endangered or threatened species to be detrimental to interstate commerce. It states that channelization or filling of intrastate waters could result in flooding, and that flooding could have detrimental effects on interstate commerce.

Further, the Act states that protection of all the waters of the United States is a “necessary and proper” means of protecting lands owned by the federal government. It also states that protecting the regulating activities affecting the waters of the United States is a “necessary and proper” means of enforcing treaties including those protecting species of fish, birds, and other wildlife.

These tortured efforts are clearly attempts to create constitutional authority where no constitutional authority exists.

In my opinion, the Clean Water Restoration Act would be an unconstitutional infringement on states rights under the Tenth amendment, which declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Further, it would be an unconstitutional infringement on individual private property rights under the Fifth Amendment to the United States Constitution which states in part …”nor shall private property be taken for public use without just compensation”.

Waters of the state belong to the state, and by extension, to the people of the state.

The right to own and enjoy private property is the keystone of all our constitutionally guaranteed freedoms.

The Clean Water Restoration Act, as currently amended and promoted, would create the greatest extinction of state and private property rights in our nation’s history.

Its potential devastation to the Western United States is virtually immeasurable..

I urge you to contact our congressional delegation today to express your concern and your opposition to Senate bill 787.


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