Salmon jumping Similkameen Falls. (photo: Colton Miller, July 2014)
CELP and partners returned to court on Friday, April 3, to challenge a water right that could reduce water flowing in Similkameen Falls, in north central Washington, to a trickle. The Falls, located on the Similkameen River just downstream of Enloe dam, are a popular scenic attraction and have important cultural and ecological values.
Okanogan Public Utility District (OPUD) purchased Enloe dam in 1953, but has not generated power since 1958. After two failed attempts to re-electrify the dam in the 1990’s, OPUD obtained a federal energy license in 2013. CELP challenged the water quality certification and won a decision that the proposal to divert 90-99% of the natural flows around the waterfalls lacked scientific foundation.
After oral argument on the water right appeal, Judge Gary Tabor of Thurston Superior Court ruled from the bench in favor of the Department of Ecology and OPUD. For CELP, the courtroom saga continues a 10-year effort to restore and protect the Similkameen River, including opposition to two new dam proposals, the Shankers Bend and the Fortis BC projects, that are sidelined for the time being.
Search is on for a lead agency to remove Enloe dam
One very positive development has occurred in the face of continued litigation and local ratepayer opposition to the project’s $50 million price tag. On April 6, OPUD Commissioners passed a resolution indicating willingness to work with CELP and its conservation partners in finding a lead agency for Enloe dam removal. Both the Lower Similkameen River Band in B.C. and the Confederated Colville Tribes have endorsed the concept of dam removal.
OPUD is exploring all options, including its original plan to re-energize Enloe. However, the case in favor of dam removal is persuasive:
- Re-energizing the dam will be a major money-loser for local ratepayers;
- De-watering Similkameen Falls is illegal, and CELP’s water quality challenge creates significant uncertainty about the amount of water available for power generation; and
- Removing Enloe dam will clear the way for salmon and other species to access 300-plus miles of river and stream habitat, a huge opportunity for both fish and people.
Salmon, blocked at Enloe dam. (photo: Colton Miller, July 2014)
The ongoing legal challenge
CELP, American Whitewater and North Cascades Conservation Council have challenged a decision by the Department of Ecology to issue a water right to the Okanogan PUD for renewed operation of Enloe dam. The water right appeal raises two issues. First, as Andrea Rodgers of the Western Environmental Law Center, puts it: “Ecology is required to determine whether granting a water right will harm the public interest before issuing a permit. Here, they propose to defer that decision until after the project is built, violating the four-test requirement for allocation of public water resources.”
Attorney Rachael Paschal Osborn described the second argument in the case: “The new water right for the dam fails to protect instream flows as adopted into the Similkameen River rule. This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules function as ‘water rights for the river’ and may be violated only in the most narrow of circumstances.
Economic studies show that re-energizing Enloe Dam doesn’t make financial sense as is, and will be even more expensive if minimum flow releases are increased. OPUD, having spent $12 million to obtain a federal energy license for the project, is placing ratepayer dollars at substantial risk. Depending on the outcome of the aesthetic flow studies to protect Similkameen Falls, OPUD may have far less water to divert for hydropower than originally permitted.
The river advocacy groups in the legal challenge are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers of the Western Environmental Law Center and Rachael Paschal Osborn and Dan Von Seggern of CELP.
Conservationists’ Petition for Review