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Litigation News: Freeing the Similkameen River and Dungeness River Rule Challenge

by Dan Von Seggern

CELP Continues Fight to Free Similkameen River

The long-running battle to remove this environmentally damaging and economically unjustifiable Enloe Dam continues. A major tributary to the Okanogan River, the Similkameen flows through 122 miles of potential salmon habitat in British Columbia and Washington. A fish-blocking dam was constructed on the River in 1922 and has not generated power since 1958. The Okanogan County Public Utility District (PUD), which owns the dam, is attempting to restart power generation at the dam. The power the dam would produce is not needed and would be much more expensive than the PUD’s current sources of electricity.

On September 13, along with the Sierra Club and Columbiana, CELP filed a Notice of Intent to Sue the Okanogan County PUD as well as the National Marine Fisheries Service (NMFS) and the Federal Energy Regulatory Commission (FERC) over the dam’s effect on ESA-listed Upper Columbia steelhead and Chinook salmon. The Notice is the first step towards filing a lawsuit under the Endangered Species Act. We contend that the dam unlawfully harms ESA-listed fish species, that the process of evaluating the dam’s impact on fish was inadequate, and that FERC unlawfully failed to consult with NMFS regarding the listed fish, as the Endangered Species Act requires.

In a separate action, CELP has asked the 9th Circuit Court of Appeals to review FERC’s giving the PUD additional time to begin construction. The Federal Power Act requires that construction be started within the period of a hydroelectric license, and allows only a single two-year extension. When the PUD failed to begin construction within the required time, FERC “stayed” revocation of the license, effectively giving the PUD additional time. CELP believes that FERC lacked authority to “extend” the license in this manner and that it should have allowed public participation in the license amendment process.

Dungeness River Rule Challenge

This case (Bassett et al. v. Ecology, Case No. 51221-1-II) is a challenge by a group of property rights activists and developers to the Department of Ecology’s Instream Flow Rule for the Dungeness River, WAC 173-518.  CELP supports the Rule, which provides for mitigated use of new permit-exempt wells while protecting instream resources.  After the plaintiffs filed suit against Ecology, CELP joined in the case as an intervener to argue in favor of the Rule. CELP and Ecology prevailed in Thurston County Superior Court, and plaintiffs appealed.   Division II of the Washington Court of Appeals heard oral argument in the case on October 18 and we are now awaiting the Court’s ruling.

Conservation groups ready to go to court over endangered species harmed by north-central Washington dam

Today, river advocacy groups notified federal agencies and a local public utility of their intent to sue over harm inflicted on Similkameen River endangered steelhead and threatened bull trout by Enloe Dam. New video evidence shows fish at the base of the dam unable to access stream areas above the dam that may be critical to their recovery. However, the Federal Energy Regulatory Commission (FERC), the National Marine Fisheries Service (NMFS), and the Okanogan Public Utility District (OPUD) have failed to reinitiate consultation to address how this new information affects a permit to construct a power generating facility at the dam. Today’s notice starts a 60-day clock until a lawsuit can be filed.

“This new evidence showing fish, most likely Chinook salmon, jumping at the base of Enloe Dam provides new evidence that FERC’s analysis that re-energizing Enloe Dam would have ‘no effect’ on the critically imperiled species that live in the river was incorrect,” said Andrew Hawley of the Western Environmental Law Center. “The upper Columbia River steelhead that use the Similkameen River for example are known to be better leapers than Chinook, and according to NMFS’s own biologists, it is very likely that steelhead are indeed navigating the falls below the dam. This fact requires a new analysis of the dam’s impacts under the Endangered Species Act.”

“This new information only adds to the body of evidence showing that leaving Enloe Dam in place is a mistake,” said Trish Rolfe, Executive Director of the Center for Environmental Law and Policy. “As we continue to look for ways to rehabilitate our flagging salmon and steelhead populations, it makes little sense to ignore the impact this project will have on the ability of these fish to access the 200 or so miles of viable habitat upstream of the dam.”

OPUD has faced strong local opposition to its plan to re-energize Enloe Dam due to environmental concerns as well as economic issues. Multiple economic analyses show that power generated by the project will cost far more than electricity from other sources, burdening ratepayers that live in one of the most economically disadvantaged counties in Washington. The PUD’s project would also continue to impact the culturally, ecologically and recreationally significant Similkameen Falls (also called Coyote Falls), which lies immediately downstream of the dam.

“The plight of Puget Sound orca starving for want of salmon combined with the fundamental lack of economic viability should lead to removing this century-old cement plug,” said John Osborn, physician and coordinator of Sierra Club’s Columbia River Future Project. “Fish jumping in vain at the base of Enloe Dam is yet another terrible reminder of federal agencies failing to make the correct diagnosis for salmon, steelhead, and other species in trouble.  Fortunately, the Governor’s Task Force on Orca is now looking at removing Enloe Dam – as has occurred for restoring the Elwha River on the Olympic Peninsula and other rivers in Washington state.”

“OPUD’s FERC license allows it to operate Enloe until 2063,” said Jere Gillespie of Columbiana. “To avoid red ink, OPUD will have no choice but to pass the costs along to the ratepayers into the next generation. What makes sense for the Similkameen and for ratepayers is to free the river of this cement plug and not throw good money after bad. It’s more compelling to restore the river. Coyote Falls is an increasingly important regional attraction because of an expanding local and regional trail system, and salmon can be seen swimming above waterfalls to the base of the damA free flowing Similkameen will enhance economic growth for the local community.”

The groups note that they have been and remain willing to work with the PUD to develop a path forward for restoring the river that addresses ecological and cultural issues and the economic concern for ratepayers. The Western Environmental Law Center sent the notice on behalf of the Center for Environmental Law & Policy, Columbiana, and Sierra Club.

Video of Chinook jumping at the base of the dam can be viewed here. Letters from NMFS and USFWS supporting reinitiating consultation are available here and here.

Contacts:

  • Andrew Hawley, Western Environmental Law Center, 206-487-7250, hawley@westernlaw.org
  • Trish Rolfe, Center for Environmental Law & Policy, 206-829-8299, trolfe@celp.org
  • John Osborn, Sierra Club, 509-939-1290, john@waterplanet.ws

July Issue of Washington Water Watch

Click here to read the July issue of Washington Water Watch.

In this month’s issue of Water Watch, read an update on the Enloe case, a background of the Chehalis watershed and recommendations, articles on the H2KNOW Cammpaign, Ecology’s draft CAFO permit, and an introduction of our Summer 2016 Legal Intern. In addition, learn more about CELP’s special Summer Membership special!


Court to hear Arguments on the Legality of Water Rights to Operate Enloe Dam

 Center for Environmental Law & Policy
American Whitewater * North Cascades Conservation Council

News Advisory – April 19, 2016
Contacts:

When: Wednesday, April 20 at 9:30 a.m.

Where: Seattle – Washington State Court of Appeals, District 1; One Union Square, 600 University St.

What: Oral argument in a challenge to the Washington State Department of Ecology for issuing water rights that would nearly completely dewater a segment of the Similkameen River while burdening ratepayers with substantial costs.

Plaintiffs: Center for Environmental Law & Policy, American Whitewater, and North Cascades Conservation Council – members of the Hydropower Reform Coalition.

Defendants: Washington State Department of Ecology, Public Utility District No. 1 of Okanogan County, Washington, and Washington State Pollution Control Hearings Board

 

Enloe Dam is a cement plug blocking the free-flowing Similkameen River in north central Washington State and British Columbia. The dam has not generated power since the 1950s, with prior efforts to re-energize the dam being rejected by regulators. The local Public Utility District, Okanogan PUD, once again proposes to electrify the old Enloe Dam, almost completely dewatering an important stretch of the river including Similkameen Falls in violation of Washington water law.

Economic studies, including one by the Okanogan PUD itself, conclude that the project would result in substantial financial losses. The economic risks increase when one considers the fact that the water rights to operate the project violate a forty-year-old regulation that protects instream flows for people and fish. If Okanogan PUD were to move forward, then they could spend millions of ratepayer dollars to build a project without water to operate it. Ratepayers in the Oroville area have vigorously opposed the PUD proposal for financial and other reasons.

Despite the fact that a legally required study to assess the impacts of the Project on aesthetic and recreational resources has not been completed, the Washington State Department of Ecology (Ecology) issued a water right to the PUD to divert water from the Similkameen River. River advocates challenged the State’s decision to exploit the public’s waters for an economic loser of a project. On Wednesday, Division 1 of the Court of Appeals will hear oral arguments in the case. The attorney for the river advocates is Andrea Rodgers of the Western Environmental Law Center.

Quotes

On the PCHB (the Pollution Control Hearings Board or “Board”) correctly requiring an aesthetic analysis of dewatering a river — and then incorrectly approving water rights that would dewater the river:

“Ecology granted a water right for this project at the expense of bedrock principles of Washington water law,” said Andrea Rodgers the Western Environmental Law Center attorney representing the coalition groups. “In particular, the board ruled that it was not necessary to gather information about the aesthetic and recreational impacts of the project until after the hydro project is built. Ecology has put the cart before the horse and in doing so broke laws that protect our state’s precious water resources.”

On the importance of the Similkameen River to the people of Washington State:

“The Similkameen River is a valuable resource to the community for recreation, scenic values, and fish and wildlife. As with other rivers across the state, recognition of the importance of flows for aesthetic and recreational purposes is important to our organization. We will continue to press legal issues that protect the Similkameen River and Falls as multi-use public resource given the significance of this decision for rivers statewide,” said Thomas O’Keefe, Pacific Northwest Stewardship Director with American Whitewater.

On the statewide significance of this case:

“The water permitting process is designed to make sure that the public’s waters are allocated wisely and protected from over-exploitation. In this case, the Department of Ecology issued a permit that would remove nearly all water from this stretch of the river without ensuring that aesthetic and recreational values would be protected. The Enloe Dam appeal sends a message of statewide significance that the Department of Ecology must promote balanced use of Washington’s waterways,” said Dan Von Seggern with the Center for Environmental Law & Policy.

Links –

Economic Analysis

Appeal Court Brief

Conservationists’ Petition for Review

 


Check out our April edition of Washington Water Watch

Click here to read our newest installment of the Washington Water Watch newsletter.

This month, you’ll find articles introducing our new Staff Attorney, Dan Von Seggern, discussing the drought declaration in the state, the status of the Enloe Dam Hydro Project, a summary of the recently released”Freshwater Withdrawals in WA, 2010″ report, and more.

04172015 drought areas - dept of ecology


Okanogan PUD Takes Steps To Explore Enloe Dam Removal

salmon jumping Similkameen Falls, Colton Miller, July 2014

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 by Enloe dam, Colton Miller, July 2014

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.

Links –

Conservationists’ Petition for Review


Uncertainty Remains About Water Availability for Proposed Hydro Project

Similkameen Falls2

Similkameen Falls in front of Enloe Dam

Olympia, WA – River advocacy groups will return to the courtroom on Friday, April 3, to challenge a decision that could reduce Similkameen Falls in Northeastern Washington to a trickle. The Falls, located on the Similkameen River just downstream of the abandoned Enloe Dam, are a popular scenic attraction and have important cultural and ecological values. Okanogan Public Utility District is currently seeking to re-energize Enloe Dam, although uncertainties surrounding the amount of water available for the project raise questions about its future costs and viability.

The Center for Environmental Law & Policy, American Whitewater and North Cascades Conservation Council are challenging a decision by the Washington Department of Ecology to issue a water right to the Okanogan PUD for the renewed operation of Enloe Dam. A Pollution Control Hearings Board (PCHB) decision in 2013 allows Ecology and PUD to delay required aesthetics studies until after the project is completed, raising concerns that there is not enough water for both hydropower production and aesthetic flows.

“Ecology is required to determine whether granting a water right will harm the public interest before issuing it. Here, they are deferring that decision until after the project is built, something they cannot do when allocating public water resources” said Andrea Rodgers, an attorney representing the river groups.

Economic studies show that re-energizing Enloe Dam doesn’t make financial sense, and will cost local ratepayers even more money if aesthetic and minimum flows are required.

“Ultimately, the PUD doesn’t know how much water they will actually have to work with to generate power,” said Thomas O’Keefe, Pacific Northwest stewardship director for American Whitewater. “This puts a huge amount of ratepayer dollars at risk.”

Despite the economic uncertainty, the PUD has stated that it plans to move forward with re-energizing the dam, which has sparked backlash from ratepayers.

salmon jumping over Similkameen Falls

Salmon jumping over Similkameen Falls

“To avoid this monumental loss, OPUD has no choice but to pass the costs along to the ratepayers,” said Jere Gillespie of the Columbia River Bioregional Education Project. “If Enloe proceeds, costs to construct, maintain and operate, and later remove the dam, would place in debt the rate-paying families $180 million over 50 years.”

“The new water right for the dam fails to protect instream flows as required by the Similkameen River rule,” said Rachael Paschal Osborn.  “This directly contradicts a 2013 Supreme Court decision regarding the Skagit River, holding that these rules are ‘water rights for the river’ and may be violated only in the most narrow of circumstances.”

Oral argument will be held on April 3, 2015, 1:30 p.m. at Thurston County Superior Court, 2000 Lakeridge Drive SW, Building 2, Olympia, Wash. The river groups are all members of the Hydropower Reform Coalition, and are represented by public interest attorneys Andrea Rodgers and Rachael Paschal Osborn.

Helpful Links and Documents:

PCHB Decision

Conservationists’ Petition for Review

Enloe Dam remains an Economic Loser

Contacts: 

Andrea Rodgers Harris, Attorney, 206.696-2851, rodgers@westernlaw.org

John Osborn (Center for Environmental Law & Policy) 509.939-1290, john@waterplanet.ws

Thomas O’Keefe (American Whitewater) 425.417-9012, okeefe@americanwhitewater.org

Rich Bowers (Hydropower Reform Coalition) 360.303-9625, Rich@hydroreform.org


Enloe Dam remains an Economic Loser

News Release – November 18, 2014

Similkameen Falls2Study confirms that project will lose money on every megawatt hour produced –

project represents an ANNUAL rate increase of approximately $50 for each ratepayer.

Today, Conservation Groups release an updated review of the economics of restoring hydropower at Enloe Dam on the Similkameen River. The original economic review was completed in 2011, and the most recent review addresses how mandated and potentially increased minimum flows through the bypass reach would further impact the Public Utility District No. 1 of Okanogan County’s (OPUD) 2008 projections. This 2014 analysis, prepared by Rocky Mountain Econometrics of Boise, Idaho, concludes:

  • Construction costs continue to increase. RME estimates that inflation will drive Enloe’s cost to about $40 million and above in subsequent years.
  • Enloe dam will, depending on the amount of water dedicated to minimum instream flows over the falls, lose between $1.1 million and $1.5 million for each year the project operates. A loss of $25 to $41 on every MWh of electricity it produces.
  • OPUD will see operating income of only $2.1 million each year. With operating costs totaling $3,193,696 it will cost OPUD $1.1 million more each year to operate the Enloe Project than it would cost to purchase the power on the open market.

The report also addressed OPUD statements regarding potential premium pricing for power generated at Enloe Dam, Enloe’s ability to back up wind and solar energy, and that OPUD can run the project at a long term loss (40+ years) and then see a profit once construction debt has been retired. The report found:

  • Enloe does not qualify as green power. In the unlikely event that regulations are amended that would include Enloe, the premium would not be enough to cover Enloe’s losses.
  • As a run-of-river project, Enloe’s generation cannot effectively back up intermittent wind and solar projects.At the end of year 40, when the original loan for the project is paid off, accumulated losses plus interest will have grown to nearly $170 million, more than four times the original construction cost.
  • At that time, Enloe will be losing about $10 million per year and the net present value will never generate a profit.

“To avoid this monumental loss, OPUD has no choice but to pass the costs along to the ratepayers,” said Jere Gillespie of the Columbia River Bioregional Education Project. “If Enloe proceeds, it would increase electrical costs by $50 for each ratepayer, each year, in perpetuity.”

On July 9, 2013, OPUD received its Order approving a new license from the Federal Energy Regulatory Commission. Today, notwithstanding evidence of project monetary losses, greatly increased debt, and other uncertainties, OPUD continues to pursue repowering the project.

The Enloe Dam project has long been controversial for both environmental and economic reasons. Of particular concern is the current proposal to bypass virtually all of the river flow into the new turbines, de-watering Similkameen Falls for most of the year. Conservation Groups would prefer to remove the dam abandoned in 1958 and to restore more than 200 miles of free-flowing river on the Similkameen and its upstream tributaries.

“There is great uncertainly associated with the Enloe Project, including how much water must remain in the river to protect Similkameen Falls,” says Rachael Osborn with the Center for Environmental Law & Policy. “As the RME report shows, this could make the bad economic picture even worse, something the Okanogan PUD has failed to consider.”

“OPUD has repeatedly said, given the money already sunk in the project, that repowering is the only way to provide a return to its ratepayers,” said Thomas O’Keefe with American Whitewater. “At some point, they need to stop digging the hole deeper. And with this level of loss, that time is today.”

The conservation groups are Hydropower Reform Coalition, Center for Environmental Law & Policy, American Whitewater, North Cascades Conservation Council, and Columbia River Bioregional Education Project

Links –