Counties
threaten to sue over Condit Dam removal
Thursday, July
11, 2002
WHITE SALMON -- Skamania and Klickitat counties will sue the
Department of Ecology under state water quality rules if the agency
grants PacifiCorp permission to breach Condit Dam, their Seattle
attorney warned Tuesday.
An Ecology official acknowledged that issuing
such a permit would be "a stretch," given the dramatic,
short-term impacts of dam removal on water quality in the White
Salmon River. But he said agency attorneys believe the Clean Water
Act provides a legal basis for the state to permit the project.
The staff of the dam-licensing Federal Energy
Regulatory Commission gave the project a green light two weeks ago.
The aging dam, built in 1913, would be the highest ever removed in
the United States.
But Portland-based PacifiCorp, the dam's
owner, still must obtain what's known as 401 certification from the
state of Washington before it can proceed with plans to take out the
dam in October 2006.
Ecology must determine that the project will
meet state water quality rules and comply with the State
Environmental Policy Act. But that finding may be hard to reach.
According to FERC's final environmental impact
statement, breaching the dam will release between 451,000 and
897,000 cubic yards of sediment trapped behind the 125-foot-high
dam. The sediment will wash into the river's lower 3.2 miles,
filling deep pools near the mouth of the river that are used by
salmon and steelhead and permanently raising the river's level by 10
feet.
Extremely high levels of suspended sediments
-- as high as 500,000 parts per million the first day -- will rob
the water of oxygen and kill virtually all aquatic life downstream
at first. In addition, pesticide residues from nearby orchards that
have polluted Northwestern Lake behind the dam will be flushed into
the lower river.
FERC estimates suspended sediments will return
to normal levels within a year, with possible spikes during the
second year after dam removal.
Joseph Brogan of the Seattle firm Foster
Pepper & Shefelman, retained by the counties to fight the
PacifiCorp proposal, said at Tuesday's hearing that those impacts
clearly violate the state's water quality anti-degradation standard.
"Ecology must have 'reasonable
assurance''' that the state standard can be met before it can issue
401 certification, Brogan said. Yet Ecology's own consultant, URS
Corp., pointed out in its comments to FERC that the likely duration
of the sediment flush remains unknown, he added.
Klickitat County is footing the bill for the
services of Brogan's firm, a Washington, D.C., lawyer who
specializes in FERC regulatory matters, and an engineering firm that
analyzed the PacifiCorp proposal.
Tom Tebb, water quality section manager for
Ecology's Yakima-based Central Region, said after the hearing that
state and federal laws allow temporary deterioration of water
quality to achieve long-term benefits, such as restoration of salmon
habitat.
"If that weren't the case, we couldn't
build bridges, couldn't dredge," Tebb said. "We try to
mitigate that. In this case, it's going to be at a grand
scale."
Tebb said he agrees with Brogan that
"it's going to be a stretch," but added, "Our
attorneys believe we can meet the standard."
State water quality rules allow Ecology to
consider both "present and potential water uses," Tebb
said. That means the state can take actions that will help salmon in
the long term. In addition, the Clean Water Act directs states to
"restore and maintain the biological integrity of the nation's
water."
"Taken together, we believe we have found
a regulatory pathway to permit the project should we decide to
permit it."
Conflict of interest?
About 60 people attended Tuesday's hearing,
with testimony about evenly split between proponents and foes of
PacifiCorp's dam removal proposal. Several speakers criticized
Ecology for signing the 1999 dam removal agreement negotiated by
PacifiCorp, calling that decision a clear conflict of interest.
Jim Rhoads of Husum, a leader in the campaign
to block dam removal, called the hearing "an exercise in
futility." Rhoads said it was "fraudulent" for the
Department of Ecology to seek public comment on the PacifiCorp
proposal because the agency was on record as favoring it.
"The fix is in; the skids are
greased," Rhoads said.
William Paulsen of the White Salmon
Steelheaders Club said he opposes PacifiCorp's plan to blow up the
dam without first dredging sediment behind it because the resulting
loss of resting pools at the river's mouth will affect threatened
upriver steelhead runs.
"These are 'drop-in' fish that are on
their way to the upper reaches of the Columbia," Paulsen said.
"They come into the White Salmon to rest, to oxygenate. This is
the most important role the White Salmon River plays. They will not
come into a river full of silt and sediment."
Supporters of dam removal expressed confidence
that the damage would be short-lived, and several said it would be
shortsighted not to take advantage of an opportunity to take out a
fish-blocking dam at the dam owner's expense.
Dawn Stover of Snowden, near White Salmon,
said it's instructive to look at the many dam removal success
stories around the country. In nearly every case, she said, rivers
restored to a free-flowing state have quickly returned to a healthy
condition.
"No dam lasts forever," Stover said.
"We're fortunate that the owner of this dam is willing to pay
to remove it."
In its 1999 settlement agreement with
environmental groups, public agencies and Columbia River tribes,
PacifiCorp capped its costs for dam removal at $17.15 million. But
several speakers Tuesday questioned whether that amount will cover
the full costs of removing the dam and cleaning up the mess. The
U.S. Army Corps of Engineers told FERC in formal comments that it
will not pay for dredging sediments unleashed by the removal of
Condit Dam.
Gail Miller, PacifiCorp's project leader for
dam removal, said the company plans to respond to the cost cap issue
and other issues raised by FERC by July 19.
In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]
|