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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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