Whitsett’s
argument is based on a legal
opinion he received from
Oregon Legislative Counsel
Dexter Johnston, who told
him in a letter that “any
interstate compact that
creates a joint entity, or
that affects matters
explicitly reserved to the
federal government … is
unconstitutional unless
approved by Congress.“If the agreements fail, any modified or later compact or other agreement providing for facilities removal would still require congressional approval,” Johnston wrote.
“PacifiCorp and the government agencies appear poised to manipulate the Federal Energy Regulatory Commission’s administrative process in order to bypass congressional approval of the agreement,” Whitsett said.
However, PacifiCorp spokesman Bob Gravely said most dam-removal proposals are handled by FERC and that the Klamath project was unique in seeking approval from Congress because it was thought that the project would need federal funding.
PacifiCorp has been collecting a surcharge from ratepayers to raise $200 million for dam removal and now plans to cover any further costs with non-federal funds. A “non-federal” private entity is being formed to obtain permits, insurance and contracts for removing the dams in 2020, Gravely said.
“We’ve tried to involve Congress in this for the last six years and they apparently don’t want to be involved in dam removal at all, which has put us on this course,” Gravely said. “As a result, the way we’re looking at doing it now is the formation of a non-federal entity, a private corporation. PacifiCorp and the private entity would jointly file with FERC this summer for transfer of the license from PacifiCorp to the new entity.”
PacifiCorp, the states of Oregon and California and the U.S. Departments of Interior and Commerce outlined their plan in an agreement in principle unveiled last month. Since then, the company and agencies have been crafting an amendment to the 2010 Klamath agreements and hope to have the 42 original signatories on board by the end of this month, Gravely said.
The parties “are making good progress and on track to reach an agreement” with the larger group, Department of the Interior press secretary Jessica Kershaw said in an email.
The Klamath Hydroelectric Settlement Agreement and Klamath Basin Restoration Agreement expired at the end of 2015 after failing to win approval from Congress — a key element of the pacts. Various bills to authorize removal of the dams have languished in Congress since 2011.
Rep. Greg Walden, R-Ore., a longtime opponent of dam removal, unveiled an eleventh-hour draft bill in December to move forward on other aspects of the agreements while putting the approval of dam removal in the lap of FERC. However, the bill received a cool reaction from proponents of the agreements, and no efforts were made to merge it with one by Sen. Ron Wyden, D-Ore., which included dam removal.
“As Gov. (Kate) Brown said when the agreement in principle was first announced, Congressman Walden took a step forward by drafting legislation late last year, and the dam removal plan is part of a broader movement to work with him and others to get the Klamath Basin agreements back on track,” Chris Pair, the Oregon governor’s press secretary, said in an email.
Whitsett said it’s politically “poisonous” for any politician in the Klamath Basin to be seen as embracing dam removal.
“I think what (Walden) was attempting to do was remove the dam removal part … so the rest of the issues could be quite easily resolved,” Whitsett said. “If you want to lose an election in Klamath County or Siskiyou County, support taking the dams out.”
Proponents of the agreements say they’re fundamentally a legal settlement that aims to resolve long-standing differences and grievances. Over the years, the parties have sought to identify solutions and build goodwill throughout the basin, they argue.
While he would prefer that the dams remain in place, Whitsett said he understands that PacifiCorp has a right as a property owner to remove them.
“What I have a problem with,” he said, “is trying to force the ratepayers and taxpayers to pay for it.”