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DWT Client, Avista, Succeeds Under New Hydroelectric Hearing Process

By Craig Gannett, Dan Adamson
01.16.07
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On Jan. 8, 2007, a Department of Interior Administrative Law Judge ruled that  many of the costly license conditions that Interior’s Bureau of Indian Affairs  (BIA) seeks to impose on Avista’s Post Falls Hydroelectric Project are factually  unfounded. Avista is only the second hydroelectric licensee to complete the new  trial-type hearing process created by the Energy Policy Act of 2005. Prior to  the new law, hydroelectric licensees had almost no opportunity to challenge the  factual bases of a federal agency’s mandatory conditions.

The Post Falls Project ("the Project") maintains the summer level of Coeur  d’Alene Lake about 7.5 feet higher than it would be naturally, largely for the  benefit of homeowners and recreational interests. BIA contends that doing so  causes catastrophic consequences to the Reservation of the Coeur d’Alene Tribe,  located on the southern third of the lake. In response, BIA and the tribe seek  to impose burdensome license conditions regarding alleged impacts on fish,  erosion, water quality, cultural resources, and wetlands.

In sweeping language, Judge Andrew Pearlstein rejected BIA and the tribe’s  claim that maintaining the summer lake level has a significant adverse impact on  native fish, ruling instead that the Project “has had only minor impacts on the  decline of native salmonid fish in the lake, that are dwarfed by the devastating  impacts of non-Project factors, primarily the introduction of non-native  species, and the degradation of tributary spawning habitat.”

Similarly, the judge rejected BIA and the tribe’s claim that maintaining the  summer lake level significantly affects the lake’s water quality. Specifically,  BIA and the tribe had argued that maintaining the summer lake level increases  the solubility of the metals contained in approximately 100 million tons of  mining waste on the bottom of the lake. They argued that, in turn, the increased  levels of metals in the water are harming fish and other aquatic life. The judge  instead found that the Project “has no effect, or only a negligible effect, on  the amount of metals that dissolve in the lake.”

The judge also rejected BIA and the tribe’s claim that Avista should be  responsible for repairing all erosion on Reservation shorelines. Instead, the  judge ruled that Avista was responsible for only 50 percent of the erosion on  the lower tributaries to the lake, and only 30 percent of the erosion on the  lake itself. These percentages are very close to the levels previously  acknowledged by Avista, both during the alternative licensing process and at  trial.

The judge also rejected BIA and the tribe’s claim that Avista’s cultural  resource survey was inadequate. Finally, the judge concurred with Avista that it  is not feasible to eradicate Eurasian watermilfoil from the lake, another  requirement proposed by BIA and the tribe.

On the other hand, the judge agreed with BIA and the tribe that maintaining  the summer lake level has impaired the functioning of wetlands on the  Reservation, has potential impacts on some tribal cultural sites, and  facilitates illegal artifact gathering.

BIA is now required to revise its final conditions to be consistent with the  judge’s factual findings. Those facts require major revisions to BIA’s proposed  conditions regarding fish, water quality, erosion, cultural resources, and  Eurasian watermilfoil.

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