Counties threaten to sue over Condit Dam removal

Thursday, July 11, 2002
By KATHIE DURBIN, Columbian staff writer

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.


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