SUMMARY

A power company built 2 dams, power houses, diversion pipes, and transmission lines on NE Washington’s Sullivan Creek almost a century ago. Ever since, the owners of the project have used water from the small creek to generate power. Then in 2007, they asked the Federal Energy Regulatory Commission to give up jurisdiction over the project because it had fallen into disrepair they apparently they have no plans to fix it. In other words, they wanted a free ticket to abandon the project or operate it however they choose to benefit generation at downstream dams. AW was the only public interest organization that intervened and protested, along with the Tribe, the US Forest Service, and Washington State. The FERC decided to let the dam owners off the hook, leaving in place impacts fish passage, fish spawning, sediment transport, and potentially to recreation. American Whitewater challenged this decision and in March of 2008 we won. The project now must formally be surrendered.

The operation of the dams on Sullivan Creek may currently benefit whitewater boating through providing fall releases into the Class IV/V Gorge between the dams and the long disfunctional powerhouse. Without FERC jurisdiction however, past operations are no indication of future operations, and these releases may be discontinued. Removal of the project may eliminate these recreational benefits, but may reveal new boating opportunities, and would absolutely benefit the stream and its inhabitants which include bull trout. Whatever happens to this beautiful little creek, it deserves better than to have a hydro project abandoned on it, and the US citizens should not be stuck with the cleanup.

DETAILED HISTORY

The Sullivan Creek Project was constructed by the Inland Portland Cement Company in 1909, and was used to generate power until 1956, when the Project’s wood flume was damaged. The Project is located on Sullivan Lake, Outlet Creek and Sullivan Creek, a tributary of the Pend Oreille River.

Washington State’s water quality standards designate Sullivan Creek as a Class AA stream. Designated uses include fish migration, rearing, spawning and harvesting, wildlife habitat, water supply (domestic, industrial, agricultural), recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment), commerce and navigation. State standards require that water quality of this class shall markedly and uniformly exceed the requirements for all or substantially all uses.” WAC 173-201A-030. The antidegradation policy requires that, “Existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed.”

The Project occupies lands of the United States within the Colville National Forest. The Project, as originally constructed, consisted of Sullivan Lake Dam and Reservoir, Sullivan Creek diversion dam and conduit, and Mill Pond Dam and reservoir, conduit, penstock, power plant, and transmission facilities. See Public Utility District No. 1 of Pend Oreille County, Washington, 20 F.P.C. 753, 754 (1958).

The Licensee purchased the Project and its associated water rights from Inland in 1959, and has operated the project reservoirs to benefit hydroelectric generation at downstream projects and for water supply to the town of Metaline Falls. The Federal Power Commission (“FPC”) issued a 50-year license for the Project effective October 1, 1958. See id. The FPC licensed the Project as a storage project benefiting the downstream generation projects, with provisions for the Licensee to study the feasibility of enlarging or rehabilitating the Project for purposes of power generation.

Prior to accepting the license, the Licensee requested that the FPC modify the license so that it did not describe certain of the project works as abandoned, thus requiring a Forest Service permit for the occupancy of National Forest lands by these project works. See Public Utility District No. 1 of Pend Oreille County, Washington, 21 F.P.C. 284 (1959). The Licensee stated that the project works had not been abandoned and requested that the diversion dam and conduit and the flume section of the power conduit from Mill Pond be included in the license as project works. See id. The project boundary was modified to include the lands occupied by the discontinued project works, thus eliminating the need for a Forest Service permit. See id. at p. 285.

Over the course of the existing license, the Licensee twice has filed license amendments proposing changes to allow for power generation. Licensee withdrew its 1994 application for license amendment in 2002.

On September 23, 2003, the Licensee filed a notice of intent not to file an application for a new license for the Project. On October 22, 2003, the Commission published notice of the licensee’s intent, and required that any applications for a new license for the Project must be filed by September 30, 2006. No applications were filed.

On October 5, 2006, Licensee filed a Petition for Declaratory Order (“Petition”) requesting the Commission to determine that the existing license for the Sullivan Creek Project (P-2225) is void. See e-Library no. 20061005-5016 (Oct. 5, 2006). In the alternative, the Licensee requested a determination that the license will expire on October 1, 2008, with no further action required by the Commission or the Licensee. On November 20, 2006, American Whitewater filed a timely, unopposed Motion to Intervene and Protest (“AW Protest”) in response to the Petition. See e-Library no. 20061121-5081. The U.S. Department of Agriculture, through the U.S. Forest Service (“Forest Service”), also filed a timely, unopposed Notice of Intervention and Protest (“Forest Service Protest”) in response to the Petition. See e-Library no. 20061117-5106 (Nov. 17, 2006).

On July 18, 2007, the Director of the Division of Hydropower Administration and Compliance (“Director”) issued the instant Order. The Director declined to declare the existing license void. However, he found that the Project is not required to be relicensed upon expiration of the existing license in 2008: “The current license will expire by its own terms with no further Commission action on October 1, 2008.” Order, Ordering ¶ A.

On August 17th, 2007, American Whitewater, with the superb help of the Natural Heritage Institute, filed a Request for Rehearing with the FERC. This filing asked FERC to reconsider their decision, based on significant legal grounds, and asks that the FERC require settlement talks to discuss project removal and/or transfer of jurisdiction to the Forest Service. The US Forest Service and Washington State also filed similar requests for rehearing.

On March 20th, 2008 FERC partially granted and partially rejected our rehearing request. They agreed that the project must be licensed, and therefore that the licensee must no immediately initiate a license surrender proceeding. They further ordered that the Licensee must secure a special use permit from the USFS for any project works that will remain. Paradoxically they decided that once part of the project was removed (Millpond dam, the flume, and the powerhouse), the remaining parts would no longer require FERC oversight (Sullivan Dam). This is logical and legal hole that you could drive a raft through. Regardless, the result for Sullivan Creek will be highly positive.