Klamath Dam Removal Agenda

The nonprofit Institute for Trade, Standards and Sustainable Development (ITSSD) has once again waded into the local and D.C. swamps surrounding the ongoing Klamath Basin dam removal agenda of legacy bureaucrats and self-interested politicians. Last week, ITSSD notified the U.S. Court of Appeals for the District of Columbia of its intent to participate as an Amicus Curiae in the action filed in that court this past November by the Siskiyou County Water Users Association (SCWUA). The SCWUA had filed a Petition for Issuance of a Writ of Mandamus endeavoring to persuade the Court to compel the Federal Energy Regulatory Commission (FERC) to make a determination on SCWUA's earlier administrative motion to dismiss the FERC dam license transfer, decommissioning and removal proceedings initiated by PacifiCorp. FERC, of course, filed its opposition to SCWUA's motion claiming it wasn't merited under the facts presented.

A writ of mandamus is a rare and extraordinary tool used in federal appellate court proceedings in exceptional circumstances to compel a federal official to fulfill his/her official duties and/or to correct an abuse of discretion, where no other remedy is available. The urgency underlying SCWUA's petition, in part, concerns Oregon's and California's violation of the U.S. Constitution's Compact and Supremacy Clauses, and state and federal agencies' failure to adequately protect Klamath Basin residents from the human health and welfare risks that would be triggered upon dam removal when many decades' worth of extremely hazardous and toxic chemicals aggregated and synthesized on the PacifiCorp dams' reservoir bottoms are released into the atmosphere and surrounding riverside communities. As the Appellate Court had ruled on January 25, 2019, FERC had abused its discretion by continuing for over a decade to accept PacifiCorp's repeated withdrawals and resubmissions of Clean Water Act Sec. 401 water quality certification requests incident to its efforts to postpone its relicensing of its four owned & operated Klamath River Dams the Obama administration had slated for removal. FERC's dilly dallying provided sufficient time for former Obama administration U.S. Department of Interior officials to establish and staff the Klamath River Renewal Corporation ("KRRC") with persons loyal to Obama' political legacy and dam removal agenda which is now occurring nationwide, including in the Midwest. This past Wednesday, ITSSD filed its motion and Amicus Curiae brief supporting SCWUA's mandamus petition. The motion and brief reveal how FERC's delay tactics which the Court considered "arbitrary and capricious," also allowed former Obama administration Interior officials to work with the States and tribal and green stakeholder groups to execute two new interstate agreements (the Amended KHSA and the KPFA) in violation of the Klamath River Basin Compact, which remains the primary federal law governing the use and allocation of Klamath River Basin waters. In fact, these agreements, combined with the Wyden-Merkley bill (SA 3288), had been used to effectively amend the Compact but without invoking the Compact's formal amendment provisions, and without securing the Congressional consent and authorization typically required when a Compact previously enacted into federal law is amended or otherwise terminated and reconstituted into a new Compact.

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FERC's dilatory tactics also enabled such officials to work with Oregon's self-interested congressional representatives (e.g., Cong. Greg Walden (OR-R), Sen. Ron Wyden (OR-D), Sen. Jeff Merkley (OR-D)) for the purpose of having Congress secretly pass the Wyden Merkley Amendment tucked away within the omnibus 2016 energy bill. Had that bill passed with the amendment, it would have funded and supported all the same water use reallocation activities the now defunct KBRA, KHSA and UKBCA had provided for. As ITSSD's Amicus Curiae motion and brief further reveal, former Obama administration EPA officials had directed Oregon and California to address water quality issues pursuant to the CWA Sec. 401 process rather than through the CWA 303(d) and 304 process. EPA compelled California to calculate total daily maximum load ("TMDL") (i.e., the carrying capacity) of the Klamath River considering upstream point source and nonpoint source pollutants and contaminants, but without regard to the decades-old aggregation and syntheses of such pollutants and contaminants behind the PacifiCorp dams' walls within the sediments of the adjacent reservoir bottoms. As the result of this shift in federal jurisdiction, Interior officials, lacking the experience and knowledge of environmental regulators, rather than EPA, had conducted the core sampling of the reservoir bottom sediments, the results from which were incorporated within the federal studies and evaluations that serve as the justification for dam removal. These evaluations, however, do not measure up to more rigorous EPA scientific human health risk assessment standards. Since ITSSD's brief filing, the socialist governments of the States of Massachusetts, New Jersey and Oregon filed motions urging the D.C. Circuit Court of Appeals to reconsider its January 2019 ruling against FERC in the Hoopa Valley Tribe case, presumably, to ensure states' ability to circumvent EPA's otherwise more rigorous human health and welfare evaluation of impaired waterbody quality. Hopefully, the Court will seriously consider ITSSD's findings and order EPA to the table, and/or that third parties, including members of the United States Congress, will now find it necessary and compelling to intervene in this disturbing matter. The Court should disregard as a sham PacifiCorp's apparent effort to conceptually isolate the dam license transfer issue from the dam decommissioning and dam removal issues. Much to the contrary, the Klamath dam license transfer, hydroelectric decommissioning and removal issues are all integrally related and cannot be separated from one another. It's high time Klamath Basin residents opposing dam removal contact Congress and the U.S. Court of Appeals to have their voices heard.