State Board Rules: Similkameen Falls Deserve Water (WA)
By: Thomas O'Keefe
On July 23, 2013, the Washington State Pollution Control Hearings Board issued an order directing the Department of Ecology to do an aesthetic flow study if Okanogan PUD decides to build its economically troubled Enloe Dam project. The Board ruled that the water quality permit (called a "401 Certification") does not protect the scenic and associated recreational values of the Similkameen Falls. A coalition of local, state and national river advocacy groups* challenged the permit for failure to comply with federal and state Clean Water Act requirements that protect scenic values of rivers. A trial was held at the Board's offices in Tumwater, Washington on April 16-19 and May 15-16, 2013.
"The Board's decision could not be more clear: the Board held that the coalition proved that Ecology had simply failed to study and protect the proposed project's impact on the scenic values of Similkameen Falls, and instead improperly chose flows based upon the Enloe Project's economics," said Suzanne Skinner of the Center for Environmental Law & Policy. The Board found that Ecology's "401 certification is deficient" to protect the Similkameen River "without further conditions" on aesthetics. (Decision p. 33).
The Board criticized Ecology's after-the-fact evaluation of the minimum flow regime, which reduces natural flows by more than 90% to 30 cfs during summer months, and 10 cfs from October through March each year. The Board stated that "selection of a minimum flow in this manner results in Ecology considering the impact of aesthetic flows on the operation of the [Enloe Dam] Project, rather than considering the Project's impact on the aesthetic values of the flows. This is not the proper standard." (Decision p. 27).
The Board noted that Similkameen Falls, although remote, is attracting an increasing number of viewers due to development of local and regional trail systems. The Falls’ value as a scenic stop on the Similkameen River Trail is a factor to be considered in protection of flows over the dam as well as at the Falls.
"The Similkameen River is a valuable resource to the community for recreation, scenic values, and fish and wildlife. This decision affirms that the Similkameen remains a multi-use river and is not for the sole use of power generation," said Jere Gillespie, Columbia River Bioregional Education Project.
The Board's decision comes at a time of growing uncertainty about Okanogan PUD's ability to finance the Enloe Dam project given electrical rate increases to PUD customers for the next several years. There is growing opposition by Okanogan PUD ratepayers to pursue Enloe Dam given its outdated cost and revenue projections.
"Okanogan PUD customers are already feeling a big pinch with proposed 30% rate increases," said Rich Bowers of the Hydropower Reform Coalition. "Enloe Dam will take a big bite out of ratepayers' pocketbooks. The PUD has failed to assess the economics of the project since 2007 despite an independent economic analysis showing the Project will be a big money-loser. The PUD spent nearly a million dollars in the last year, fielding attorneys and consultants in this appeal, all of which has resulted in an adverse decision for the PUD and the ratepayers who are footing the bill."
The Board's decision has statewide significance given the number of dams that are up for federal licensing, and that Ecology will now have to consider aesthetic, scenic and recreational values of rivers. "The state cannot issue permits that take all of the water out of rivers. The Enloe Dam appeal sends a message of statewide significance that the Department of Ecology must issue permits that promote balanced use of Washington's waterways," said John Osborn with Sierra Club.
"The board's finding has important implications for those who cherish the scenic and recreational values of rivers across the state, even those in remote areas," said Thomas O'Keefe with American Whitewater. "We are pleased that the board affirmed the importance of analyzing flows regardless of the location and number of visitors."
The parties (including the Department of Ecology and Okanogan PUD) have 30 days to appeal the Board’s decision.
*The appellant groups are Center for Environmental Law & Policy, American Whitewater, Columbia River Bioregional Education Project, North Cascades Conservation Council, and Sierra Club (all member groups of the Hydropower Reform Coalition). The waterfalls advocates are represented by attorneys Andrea Rodgers Harris of Mattson Rodgers law firm, and Kristen J. Larson of Sound Law Center, both in Seattle.