[7] Condit Removal Delayed Again; PacifiCorp Cites Permits
Delays in securing permits prompted PacifiCorp in May to notify FERC it has again pushed the date to commence removal of the 14 MW Condit project back another year. Progress was made this month when the state of Washington released findings that are expected to accelerate issuance of a water quality certification, but the plan still faces local opposition among its host counties.
Dam removal has the potential to restore 32.4 miles of new steelhead habitat and 15.3 miles of new salmon habitat. The 97-year-old project is on White Salmon River, a tributary to the Columbia River in south central Washington (FERC No. 2342). Its previous license expired in 1993.
Under the original 23-party settlement agreement signed Sept. 22, 1999, the dam was to be removed in October 2006 for a total cost of $17.1 million. But by 2005, the estimated $2 million for permitting and mitigation costs had ballooned to $5.3 million (all 1999 dollars), so the parties agreed to push the date back to 2008 to give the project time to generate a share of the increased cost. Then in May 2008, PacifiCorp said it had to push commencement of removal to October of 2009 due to permitting delays. For aquatic purposes, October is the best time to begin removal.
But on May 20, PacifiCorp told FERC it needs still more time. The settlement on removal is contingent on having all the permits in, the utility noted; and to date, three remain outstanding--a dredge-and-fill permit from the Army Corps of Engineers; FERC's decommissioning authorization; and a Section 401 water quality certification permit from the Washington Department of Ecology (DOE).
After the permits are secured, it's estimated that it will take nine months to allow any appeals to run their course and complete procurement and mobilization of a contractor. The licensee "is hopeful that it can obtain final permits in time to allow dam removal to commence in October 2010." In the meantime, Condit will continue to generate power.
"No one is happy that it's getting pushed back another year, including PacifiCorp," said Rich Bowers of the Hydro Reform Coalition, which represents settlement signatories such as American Rivers and Trout Unlimited. "But we understand. The permit process just bumped it out of the construction phase. We hope it won't be delayed any further."
The settlement caps permitting and mitigation costs at $5.3 million. PacifiCorp project manager Todd Olson said the total cost of the removal package is now $28 million in 2009 dollars. "We hope it will come in around that, but won't know until we get contractors bidding on the work."
There is also the possibility that the host counties, Klickitat and Skamania--neither of which signed the settlement--will resist. Both oppose dam removal, "but if the dam is to be removed, it must be in the most environmentally sensitive way," said P. Stephen DiJulio, the counties' special deputy prosecuting attorney. "The counties are particularly opposed and will challenge the 'blow and go' method that is currently advocated by PacifiCorp."
PacifiCorp originally wanted to relicense the project, but decided to go the removal route in 1996 after FERC issued a final EIS estimating that a new license would likely include fish passage and other conditions costing $30 million in 1996 dollars, which is equal to approximately $40 million in 2009 dollars.
On May 12 of this year, PacifiCorp withdrew and immediately resubmitted its Section 401 permit application to give DOE more time to complete processing. It was the ninth time the 401 permit has been withdrawn and refiled. As a precursor to the 401, DOE published a draft supplemental environmental impact statement (SEIS) on Sept. 30, 2005, and said it would publish a final SEIS in March 2006. In January 2005, state officials reported "considerable progress," but didn't publish a final SEIS until March 2007.
Before March was out, however, DOE received information that mercury levels in the sediments of the lake created by the dam were higher than originally thought. State and federal agencies worried how the release of such sediments during dam removal would impact aquatic resources, so a second SEIS was ordered.
Over two years later, on June 5, 2009, DOE released its report on the mercury issue. It found "the release of the material during dam removal would actually reduce risks from the mercury by making it less likely to accumulate in fish," and that concentrations "would be sufficiently diluted" upon entering the Columbia River that neither DOE's standard for aquatic life nor EPA's for the protection of human health would be exceeded. It proposed no new mitigation measures and is taking comment on the report through July 20.
The report also evaluated the settlement parties' new plan to place concrete from the dam in the "bench" cut along a nearby hillside for the flowline, instead of merely storing it in one or two piles and covering it over.
A DOE spokeswoman said it's unclear when the final second SEIS will come out. But while DOE has until next May to complete the Section 401 permit, she said it hopes to issue it by the end of this year.
Meantime, the Army Corps is waiting to see the 401 permit before it will issue a 404 permit.
Release of DOE's mercury report came after PacifiCorp notified FERC of the most recent delays but didn't change its assessment of the timeline. PacifiCorp's Olson said the mercury report serves to "break loose the rest of the agencies to get moving." He expects the 401 and Army Corps permits this summer and a FERC order by year's end, setting the table for removal to begin in October 2010.
FERC has taken no substantive action on the removal plan since issuing a declaratory order in May 2005. In that ruling, the commission affirmed that the Federal Power Act pre-empts all local jurisdictions, but nevertheless added that it could not give prospective assurance that FERC would not require the licensee to comply with any local county ordinances. "To the extent that state or local regulations make compliance with our orders impossible or unduly difficult, we will conclude that such regulations are pre-empted," FERC wrote.
PacifiCorp maintains the declaratory order means it does not have to get state or county permit approvals, but that FERC may opt to include them if it feels they don't conflict with its surrender order. But the host counties--Klickitat and Skamania--reject PacifiCorp's interpretation of the declaratory order.
PacifiCorp said it went ahead and applied for county permits in June 2007, "not because such permits are required," but because it wanted to find out what requirements the counties would like to see imposed as part of FERC's surrender order.
The counties responded in September 2007, saying their ordinances require PacifiCorp to reimburse their costs to process the permit applications. PacifiCorp maintains that under the declaratory order, it does not have to comply with the reimbursement provision, but nevertheless requested an estimate. It received no response until it wrote again in June 2008.
According to PacifiCorp, the counties' counsel again disputed the meaning of the declaratory order and accused PacifiCorp of acting in bad faith by maintaining its interpretation. PacifiCorp denied the assertion of bad faith and reiterated its desire "to work collaboratively with the counties" to see what requirements they want imposed.
The parties finally met last September, and in November the counties sent a proposed reimbursement agreement. They said that based on other large-scale projects that have been undertaken in the counties, the cost of the permit review could exceed $50,000.
PacifiCorp asked for a more specific "good faith" estimate of the cost and scope of the review. In March, the counties wrote back, saying they had already done so. They added that until a reimbursement deal is reached, or until PacifiCorp gets a FERC order explaining why the counties' land use review processing fee requirement is--in the declaratory order's words--"impossible or unduly difficult," their "review will continue to be delayed."
The counties' DiJulio said PacifiCorp has "refused to cooperate" because it has neither signed a reimbursement deal nor proffered an alternative. He said the counties can't provide the information PacifiCorp wants until the agreement is in place.
On June 11, PacifiCorp wrote the counties, at length parsing what it said were inaccuracies in the counties' March letter. The letter said the utility "regrets" that the counties are, for reasons it says are "unfounded," delaying review of the material it sent them. It said it is willing to fund up to $75,000 for the review and to work with the counties to help them develop conditions that FERC could include in the surrender. But it "is not willing to support the process of developing proposed decommissioning requirements if that process is allowed to devolve into an unnecessarily expensive or time-consuming exercise." It warned that if the counties delay much longer, FERC may simply go forward with a surrender order without their input.
The counties also have a beef with DOE, arguing the agency had no business signing the removal settlement in 1999. "They entered into an agreement for removal before even evaluating the impacts of that decision, which flies in the face of every state agency obligation" under the state Environmental Protection Act, DiJulio said.
"It is the position of the counties that DOE has been proceeding with the assumption that [removal] is a fait accompli" and that all DOE's reports have been "directed to dam removal." The agency has given no consideration to alternatives to the "blow and go" approach. Also, he said, there are now less expensive fish passage and more efficient trap-and-haul options than those FERC studied in its 1996 FEIS. -Ben Tansey
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