Sierra Club & CELP Will Appeal Ecology’s Avista-Friendly Remedy for the Spokane River
If Washington officials needed an example for how to actually do something to address the serious environmental problems caused by Avista Corporation’s dams on the Spokane River, says Center for Justice attorney Rick Eichstaedt, they didn’t have to look very far.
Two hundred miles almost directly south of Avista’s Spokane headquarters is the Brownlee dam on the Snake River.
Brownlee dam shares something in common with Avista’s Spokane River dams, and especially Long Lake Dam. It creates a slack water reservoir in the Snake that is prone to serious dissolved oxygen deficiencies for the same reasons Long Lake (now known as Lake Spokane) has historically been plagued by algae blooms. Nutrients, principally phosphorus from sewage treatment plants and other sources, flow into the reservoir where the sluggish water warms and stratifies. As has been the case in the Brownlee reservoir, the nutrient-fueled algae blooms at Lake Spokane cause chronic declines in dissolved oxygen that make the lake perilous to fish and other aquatic life.
The federal Clean Water Act requires that such serious environmental problems be rectified with measures that, by law, will provide “reasonable assurance” that the water quality violations will be eliminated. At least in that respect, Avista and Idacorp (formerly Idaho Power Company), the operator of Brownlee dam, have been on very similar tracks. Both companies operate dams on waterways that have been listed as out of compliance with water quality standards, and both companies have been compelled to submit themselves to regulatory processes that, by law, should result in enforceable plans to solve the problems caused by their dams.
Today the operators of the Brownlee dam on the Snake River have a precise target for dissolved oxygen they are required to meet, CFJ’s Rick Eichstaedt notes. Avista’s Long Lake Dam, the main cause of the Spokane River dissolved oxygen problem, still does not. This, even though the Avista dam’s contribution to the problem has been documented and studied since 1972, before Eichstaedt was even born.
Not only are both rivers subject to water quality compliance processes (so-called TMDLs) under the Clean Water Act. But both power companies are seeking to have their dams relicensed by the Federal Energy Regulatory Commission (FERC). Under federal law, states have the power to enforce their water quality standards as part of the FERC relicensing process–a process that only occurs once every thirty to fifty years. Thus, states have a very powerful, once-in-a-lifetime tool to leverage the FERC relicensing process to protect and restore the environmental and aesthetic qualities of their waterways.
To be sure, says Eichstaedt, there is room for argument about what the best remedies are for dealing with complex water quality problems, such as those that afflict both the Spokane and the Snake. But these are largely arguments about methods. Where Eichstaedt thinks the Washington Department of Ecology has “dropped the ball” in managing the much-needed environmental rescue of the Spokane River is in the area of securing commitments from Avista for results that Ecology should have demanded with the power given the state during the dam relicensing process.
And this is why he brings up the Brownlee example. Today Idacorp has a dissolved oxygen requirement from Oregon and Idaho regulators that the Idaho utility must meet to come into compliance at the Brownlee reservoir.
Avista Corporation does not.
Despite the fact that Washington state scientists have known and documented since “before I was born” that Avista’s dams are the primary cause of the Spokane River’s dissolved oxygen problems, Eichstaedt says, the utility still manages to elude meaningful, binding regulation of its dams by the State of Washington.
As important an example as the lack of a dissolved oxygen requirement is, Eichstaedt and the environmental groups he represents, have many other examples. They’ve laid them out in a notice of appeal filed a few days ago with the Washington state Pollution Control Hearings Board.
The appeal to the PCHB challenges Ecology’s June 10th certification that Avista’s four dams will operate in compliance with federal and state environmental rules, as those operations have been described by Avista. Ecology’s certification is known as a 401 Certification, in reference to the section of the federal Clean Water Act that requires applicants for federal licenses to apply for state review and sign-off.
“I think it’s fair to say that this is about the worst one of these [401 certifications] I’ve seen,” says Rachael Paschal Osborn. Paschal Osborn guides the efforts of both the Center’s clients–the Sierra Club’s Upper Columbia River Group and the Center for Environmental Law and Policy (CELP)–on Spokane River issues. She is one of the region’s foremost experts and students on water laws and is genuinely baffled by how toothless Ecology’s proposed certification of Avista’s dams is compared to others she’s examined and been involved with.
“If the state would just stand up and use the tool [the certification process], they could solve the water problems that plague the river,” Paschal Osborn says, “including the dissolved oxygen problem.”
•Despite the fact that heavy metals, polychlorinated biphenyls (PCBs) and other toxic substances are known to have made their way into the Spokane River, Ecology’s ruling will allow periodic dredging of the sediments in front of the Monroe Street dam, with the sediments being discharged back to the river (on the downstream side of the dam) without consideration of the sample results of what is in the sediments.
•Not only have the Avista dams fragmented the river’s native redband trout fishery, but the dams control the volume of water flow (known as instream flow) that is crucial to the health of both redband trout and whitefish. Although both Ecology and the state’s Department of Fish & Wildlife agree that a minimum flow of 850 cubic feet per second is needed to protect fish downstream of the Monroe Street dam, Ecology balks at actually requiring Avista to provide the minimum flow.
•Despite the fact that Ecology has extensively studied the river and the Avista dams effects on river health for more than thirty-five years (and has taken two years, instead of the typical one year, to review Avista’s proposed plan) Ecology’s ruling “defers a significant amount of assessment, plans, and studies and development of mitigation measures until after the issuance of the license by FERC. Over 35 actions, including 20 plans, will occur after the issuance of the license and outside the scope of public review and comment.”
It is this part of Ecology’s “certification” that leaves Eichstaedt shaking his head. While people rightly expect that Ecology’s certification of Avista should be tantamount to the process and consequences of having your car exhaust “certified” prior to obtaining a registration to drive the vehicle, that’s not nearly the case here.
“If you go into those [auto air emissions] check stations and you need additional work,” Eichstaedt points out, “you have to come back. You don’t get your certificate until your exhaust is meeting the standards. But the opposite is happening here. And to a large extent, using this analogy, Ecology’s not even putting the probe into Avista’s exhaust pipe. Ecology’s saying, ‘we don’t know, you figure it out, and then let us know and maybe we’ll come up with some mitigation measures.'”
•For what appears to be a purely arbitrary decision by Avista to make more money running water through its Monroe Street powerhouse, Ecology would continue to let the company continue to divert water away from the river’s downtown north channel for several hours a day. And then, when the water is turned on, Avista’s state certified plan would limit to a mere 350 cubic feet per second the amount of water in the north channel during late summer and fall.
It is the state’s sign-off on this continued aesthetic blight in the heart of Spokane that Paschal Osborn thinks is so demoralizing in terms of what it shows about Ecology’s unwillingness to buck Avista for such a clear and compelling public benefit.
“It’s a deeply cynicism-inducing process,” she said. “For Pete’s sake it’s so obvious and it’s such a pittance of water in power production terms. What City has a waterfall like this?”
Paschal Osborn says she is truly mystified by why Ecology seems to have wasted a once in a lifetime opportunity, at a time when there is so much obvious public support for restoring the river.
“So, if you’re asking me why Ecology failed to use this [certification] tool to solve the problems of the Spokane River, I don’t know. It’s hard to fathom.”
To that mystery Paschal Osborn shares what, in her experience with Washington’s leaders and the law, is a remarkable backstory. It’s a chapter of state and national history that would lead one to have expected that Washington’s long-awaited opportunity to reign-in Avista would have gone quite differently than it is going thus far.
The fifteen year old case is known by several names, but in the annals of the U.S. Supreme Court it was argued and decided as PUD No. 1 of Jefferson County v. Washington Department of Ecology. It is a landmark national environmental case because of how the state’s lawyers successfully argued it. They used Section 401 of the federal Clean Water Act to protect what, in both biological and spiritual terms, is the living symbol of healthy rivers in the Pacific Northwest, the presence of salmon and salmonid fish (trout and steelhead).
The case arose during the FERC licensing of the proposed Elkhorn dam on the Dosewallips River, which has viable populations of steelhead and coho and chinook salmon. Although the Department of Ecology didn’t reject the dam, it used its Section 401 certification powers to insist that the dam provide a baseline amount of water flow to protect fish in the “bypass reach” of the river. (The plan to build the dam was eventually scrapped.)
The City of Tacoma and the Jefferson County PUD #1 fought Ecology’s decision, arguing all the way to the U.S. Supreme Court that the 401 certification could apply only to water quality conditions, that the state had no business or authority to dictate water flows.
In a 7 to 2 opinion authored by Sandra Day O’Connor and announced in May of 1994, the U.S. Supreme Court upheld Ecology, and firmly established that the regulation of water flows as part of the Section 401certification process was a right that the states could exercise to protect fish and other natural resources. The ruling clearly gave Washington (and all other states) much broader powers to regulate federally licensed facilities that impede or otherwise alter state waters. It was, in short, a historic coup–winning a strong U.S. Supreme Court decision with an argument that had even failed on its first administrative appeal in Washington.
Paschal Osborn points out that the youthful assistant attorney general widely heralded as the architect for the Elkhorn dam challenge was Jay Manning. Manning is now the Director of the Washington Department of Ecology. Manning was the state’s lead attorney on the case until it reached the nation’s highest court. At that point, he handed the case off for oral argument to Washington’s then-Attorney General. Her name is Christine Gregoire. She is now Governor Gregoire. Gregoire’s oral argument in the case can be heard here.
It was a remarkable win, Paschal Osborn remembers, but now it raises a poignant question, given how casually Ecology bent to Avista’s wishes about stream flow and the other problems that have come up with the Spokane River dams certification.
“Now they have the power to use the tool that they [Manning and Gregoire] invented,” she says. “They haven’t done so. And this just isn’t any place. It’s the Spokane Falls.”
Posted July 7th