Courtroom Updates:

Department of Ecology’s decision to dewater Similkameen Falls

Pollution Control Hearings Board

April 16-19 and May 15-16

Tumwater, Washington

Contact -

- Rich Bowers | Hydropower Reform Coalition  360.303.9625  rich@hydroreform.org

- John Osborn MD | Sierra Club & CELP  509.9391290  john@waterplanet.ws

Courtroom Day #1:  Local residents - Jere Gillespie and Joseph Enzensperger

On Tuesday our judges asked this question:   what does 10 cubic feet per second of water (cfs) look like?   Compare 10cfs with 500 cfs - the average monthly median flow over Similkameen Falls. 

Today (Wednesday) our experts on aesthetic flows take the stand and we get into the science, methodology, and reason on how and why aesthetic flows should have been required and completed, and the importance of protecting water quality standards and all beneficial uses of rivers in Washington State.

Jere Gillespie with the Columbia River Bioregional Education Project, and Joseph Enzensperger (both local Okanogan County residents) did a great job of explaining and demonstrating in both testimony and cross examination (through video and photos) exactly why the Similkameen River and Falls are important cultural, historic, and aesthetic benefits to the community.  Since conservation and recreation organizations are Appellants in this case before the Pollution Control Hearing Board (Ecology and the Public Utility District No. 1 of Okanogan County are Respondents) our witnesses were up first. 

Our legal representatives Andrea K. Rodgers Harris and Kristen J. Larson did a great job of preparing our witnesses, evidence, and legal arguments, leading through opening comments, and setting the stage for the Board to find that the 401 Certificate is unlawful and invalid, and to remand the 401 Certificate to Ecology with specific instructions to comply with the Clean Water Act and all applicable state laws.

Courtroom Day #2:  Waterfalls expert Doug Whitaker

What are the lessons from restoring water to Spokane Falls – the successful settlement between Sierra Club, CELP and Avista Corp. -- for at-risk waterfalls throughout Washington State, including Similkameen Falls?    The 3 judges heard repeatedly about what worked at Spokane Falls – and how Department of Ecology failed to  learn those lessons in reaching its decision to dewater Similkameen Falls.

On Wednesday our waterfalls expert Doug Whitaker with Confluence Consulting explained to the 3 judges with the Pollution Control Hearing Board why the Department of Ecology (“Ecology”) and the Okanogan PUD should have conducted an aesthetic flow study, but failed to do so.  For waterfalls such as Similkameen Falls, the federal Clean Water Act and applicable state laws require aesthetic analysis.  Since 2008 river advocates have asked for additional aesthetic flow information, and both Ecology and the PUD have responded that such a study is impossible.

Dr. Whitaker then went on to explain how such a study could have been done, and explained how he and others gathered critical aesthetic flow information in one afternoon during an October 2012 visit to Similkameen Falls.   He demonstrated to the Board that not only was a more detailed study possible, but that an analysis could have been done quickly and without undue effort and expense.

Also addressed today were Ecology and the PUD’s contention that flow reduction in the Similkameen and over the falls to 30 to 10 cfs for more than eight months each year would be minimal.  Testimony yesterday and today showed existing low-flow photos and videos (236 cfs is the lowest flow photographed) and then went to explain the impacts of reducing these historically natural low-flows by an additional 87 to 90 percent.

Witnesses explained important elements of our case:

1. •finding a more elegant solution (one that doesn’t sacrifice any of the important beneficial uses of the Similkameen),
   

2. •demonstrating how that solution could have been found,
   

3. •explaining why that did not occur since the driving goal of this process unfortunately centered on the economics of the project, and
   

4. •discussing how the minimum flows of 30 and 10 cfs were pre-determined based on this economic factor and not on a balance of public beneficial use – of which power production in just one use.
   

Once again our legal representatives Andrea K. Rodgers Harris and Kristen J. Larson did a great job of guiding everyone through what has become a grueling schedule; one that appears will require all of today and tomorrow, and perhaps additional days, to complete.

Courtroom Day #3:  Department of Ecology

On Thursday, Department of Ecology staff took the witness stand.  Ecology testified on the agency's decision to dewater Similkameen Falls that they:

1. •Never considered any flow that would make the project uneconomic for Okanogan PUD (so nothing over 100 cfs).
   

2. •Did look at different waterfall flow scenarios, such as diverse flows, weekend flows and partial flows.  However, this data disappeared early on, never to surface again.  Diverse flow data were discarded with no additional input, even though stakeholders (Appellants) had asked for this exact aesthetic information since 2008.
   

3. •Throughout the process, no aesthetic information was gathered, only economic data in reference to what the project could afford to make a profit for the Okanogan PUD.
   

4. •Early in the process, Ecology supported no flows in the bypass, totally dewatering the Similkameen, and today believe that the recommended 30 to 10 cfs flow (for more than eight months each year) will provide a benefit for fishing in the river, and that 10 cfs is “adequate to protect the fishery” in the bypass. Staff also stated that “building the project is good for fish because the PUD has built in mitigation.”     (Compare the 30/10 cfs decision with the average monthly median waterfall flows of 500 cfs.)
   

In testimony, Ecology staff recognized the “irony” of the situation.  That PUD mitigation money was being proposed to improve access to the river, Enloe Dam and Similkameen Falls, to build public overlooks over the dam and falls, and to improve camping -- all while the project would effective dry up the waterfalls which is the primary public attraction, and replace the sound of falling water with the loud hum of turbines.

We learned that while Ecology staff can approve a 401 Water Quality Certificate, only the Director can deny a certification.  We also heard Ecology staff state that only rarely does Ecology address aesthetics as a beneficial use (Snoqualmie Falls and Spokane River were the only examples Ecology staff could give), and that they do so only on projects located in populated areas.  

Appellants note that the Department of Ecology is charged with protecting all beneficial uses of Washington’s rivers, and they cannot restrict this to just popular, urban or other subjective criteria. Does Ecology restrict in this manner regarding water quality or fishery issues.  If not, why would you restrict aesthetics which is also a state-required beneficial use?

Ecology staff testified incorrectly that throughout the Enloe process, conservation groups never specified that they were unsupportive of the 30 to 10 cfs. minimum flow.  To reach this conclusion, Ecology had to disregard years of comments, meetings, and involvement in both the Federal Energy Regulatory Commission and 401 Certification process.

On Friday we hear more from Ecology staff, then testimony from PUD witnesses, and finally closing arguments from all parties.  The hearing is scheduled to end on Friday, April 19.

Courtroom Day #4:  Okanogan PUD

On Friday, we continued to hear testimony from the Department of Ecology's instream flow scientist, who discussed how the decision was made to de-water Similkameen Falls.   The Board also heard from Okanogan PUD's relicensing manager and a consultant who managed the aesthetic flow process.

What was clear from all testimony is that the PUD and Ecology very deliberately agreed to remove 90% of the water from the River during the lowest flow months of the year.  As approved, the water quality certification would allow the river to be reduced from its average monthly median flow of 500 cubic feet per second (cfs) to just 30 or 10 cfs for more than eight months each year.  The agencies also disregarded several requests to further study and protect aesthetic and recreational values, including requests from the National Park Service, Bureau of Land Management, Washington Department of Natural Resources, and the appellants.

By mid-morning it became clear that the Board would not have time to hear from all witnesses by the end of the day.   The hearing adjourned in late afternoon, with another 1-2 days of witness testimony to be scheduled in May or June.   Still to come are the PUD's water quality, fisheries and recreation experts.

Similkameen Sunday April 21

In attendance that afternoon:  more than 200 friends and supporters as well as elders of the Lower and Upper Similkameen Tribe.  Tribal members shared music as well as stories of their people and the river.

Courtroom Day #5:  Okanogan PUD

Wednesday May 15th was the continuance of our appeal before Washington’s Pollution Control Hearing Board, regarding the 401 Water Quality Certificate issued by the Department of Ecology for Enloe Dam.  As issued, this 401 would effectively dry up that part of the Similkameen River at Similkameen Falls:  reducing monthly median flows of 500 cubic feet per second (cfs) to just 10 to 30 cfs. for more than eight months each year.  

Throughout the day, we heard witness testimony from the Okanogan Public Utility District (PUD) on fisheries, temperature, recreation and flows:

1. •On fisheries, we heard that the bypass reach was extremely poor habitat for fish, with no gravel, no wood, and a scoured bedrock channel.  There was no mention of the role of Enloe dam restricting sediment travel (gravel and wood), or the relationship of the dam to creation of the conditions in the bypass. 
   

2. •On temperature, both Ecology and the PUD realized early on that temperature would be the most important issue affecting fish. But they took no measurements or looked at range of flow, other than 10 to 30 cfs., that would have affected temperature.  
   

3. •On recreation, 2006 surveys were taken over 20 days but no questions were asked on visitor preferences on the river or the falls, nor did surveyors alert visitors that flows were going to be dramatically reduced.
   

4. •On flows, we learned that the Okanogan PUD never supplied Ecology with any flow information (including temperature information), or modeling data on flows above 10 to 30 cfs.  The PUD’s explanation was flow information was not requested.  Ecology – to protect the public interest – needs to be asking the hard questions and collecting data, and failed to do so.
   

Courtroom Day #6:   Closing Arguments

The Enloe case ended on May 16 (Thursday) but the 3-judge Pollution Control Hearings Board did not issue a ruling.  As is typical of the Board’s practice, we expect a decision within the next few months. 

What’s at stake -

In this case, appellants challenged the Department of Ecology’s certification that the Enloe project meets state water quality standards for aesthetics and recreation because the Okanogan PUD’s project will remove all the water from Similkameen Falls except for 10 or 30 cubic feet per second (depending upon the month).  To give a little context, lowest flows in October are well above 500 cubic feet per second and in July exceed 1000cfs. In short, these falls, which are important to the Oroville community and are a viewpoint along the newly built Similkameen River trail, would be reduced to nothing more than a trickle. 

What became clear in the course of the hearing was that the reason that Ecology did not require the PUD to leave more water in the river and in the Falls was because the PUD insisted that any more water left in the Falls beyond 30 cfs would kill the hydropower project economically.  The PUD’s intransigence meant that neither Ecology nor the PUD gathered any data on how much flows should be increased over a mere 30 cfs to preserve the beauty of the Falls for the local community, what the impacts would be, and what it would cost the PUD to do so.

Appellants proved their case that the Clean Water Act requires more protection of the public’s interest in these beautiful falls and that Ecology’s certification falls short of providing the public with reasonable assurance that the aesthetics of the Falls are protected. We eagerly await the Board’s decision.

Closing Arguments -

During closing arguments, all in the courtroom recognized that the decision from the court likely will impact rivers and waterfalls throughout Washington State. 

The Department of Ecology (Ecology) asked the 3 judges of the PCHB to defer to the agency.  Okanogan PUD asserted that any water left in the waterfalls and not diverted for power generation would raise water temperatures and kill fish – despite the absence of any supporting evidence provided during the proceeding.

Andrea Rodgers Harris, representing advocates for the waterfalls, made the following 5 points in our closing arguments:

1.Ecology improperly relied upon alleged Economic constraints provided by the PUD in deciding not to evaluate a reasonable range of aesthetic flows.

2.The PUD’s own evidence shows that state temperature criteria will be met at every flow that has been studied or modeled.   The assertion that temperatures in the Similkameen River will exceed water quality standards due to aesthetics flows (which are not even determined) is completely contradicted by the PUD’s own data and modeling. 

3.Ecology’s aesthestic analysis was based merely on Ecology’s staff going to the waterfalls and visualizing where water will go and what it will look like at low flows:  a process both severely flawed and unreasonable.

4.Ecology failed to account for the area’s high cultural and recreation values and potential, including a new Pacific Northwest National Scenic Trail to the waterfalls.  BLM characterized the view of the waterfalls from the trail as “spectacular”.   The site may be remote from the cities of Seattle and Spokane, but it is still used and valued and it is not entitled to less protection under the state water quality standards.

5.Ecology unreasonably ignored the connection between recreation and the aesthetics of flows over the Falls.   To mitigate the loss of the waterfalls, Ecology would improve road access and camping facilities – bring people to a place where the beauty and sound of waterfalls are replaced by a dry riverbed and the hum of power generators.

River advocates asked the 3-judge panel to revoke the 401 Certification and remand to the Department of Ecology to conduct appropriate data collection and modeling, and to ensure that all elements of water quality standards are met to promote the overall purposes of the Clean Water Act.

View: Closing Argument of Waterfalls’ Advocates

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Appellants are the Center for Environmental Law & Policy, American Whitewater, Columbia River Bioregional Education Program, North Cascades Conservation Council, and Sierra Club (all members of the Hydropower Reform Coalition).   “Respondents” are the Washington Department of Ecology and Okanogan PUD #1.

Legal representatives for Appellants are Andrea K. Rodgers Harris and Kristen J. Larson, with support of many including CELP staff Suzanne Skinner and Rachael Paschal Osborn.