The Public Power Council claims the U.S. Army Corps of Engineers violated federal laws when it decided to turn off turbines at Detroit Dam during critical power generation hours this winter.
PPC took the unprecedented step of suing the agency, filing Public Power Council v. U.S. Army Corps of Engineers [21-32] in the U.S. District Court for the District of Oregon Jan. 8.
On Nov. 9, the Corps announced a new interim measure that it already implemented to benefit ESA-listed salmon and steelhead in the Willamette River. The agency said that from Nov. 1, 2020, through Feb. 1, 2021, it would not operate turbines from 6 a.m.-10 a.m. and 6 p.m.-10 p.m. in an effort to improve juvenile salmon survival (WPW No. 25 ).
According to PPC, the lost generation from this measure will amount to about 15 percent of Detroit Dam's annual generation, and about 60 percent of its output during the critical winter months. Detroit Dam generated 30 aMW, or a total of 262,100 MWh in 2019, according to the Corps.
"The Corps' decision to turn off turbines in the middle of the winter-peak power-using season came as a complete surprise to PPC and our public power utility members across five states, as there was no public process to let anyone know," PPC Executive Director Scott Simms said in a prepared statement.
A news release said that the lawsuit seeks to block the "unilateral, unlawful, and inequitable actions at Detroit Dam."
"The Corps sprung its decision to adopt the measure on the unsuspecting public, including Plaintiff Public Power Council ('PPC'), who did not learn of it until well after it was already being implemented, through the Corps' posting of a news release on its website," the lawsuit says.
Corps spokesman Tom Conning said in an email to Water Power West that his agency does not comment on pending litigation.
Simms told Water Power West the Corps' decision goes beyond a normal variance in operations. He said his 21-member executive committee that represents a broad distribution of public power across five states voted unanimously on Jan. 7 to file PPC's first-ever lawsuit against the Corps.
The issue was looked at by PPC's fish and wildlife committee before being brought to the executive committee, he said. "Everyone was very moved and compelled by the point that the Corps had clearly operated outside of its authorizations," Simms said.
The lawsuit claims the Corps' decision to suspend power generation during high-demand hours violated the Administrative Procedure Act; the Flood Control Acts of 1938, 1948 and 1950; the National Environmental Policy Act; and Congress's authorizing legislation governing operations of the project. The Corps did not consult impacted parties, or conduct a review of the environmental impacts of the decision, it said.
It asks a judge to find that by adopting and implementing the interim measure, the Corps is violating federal laws. It also asked to prevent the agency from implementing the measure "or any other measure that will substantially interfere with hydropower production at Detroit Dam, or any measures that will adversely affect hydropower production at Detroit Dam without first complying with NEPA and its other procedural duties."
In its Nov. 9 announcement, the Corps said the new operation is "part of a suite of interim measures" planned to benefit ESA-listed salmon in the Willamette River basin while it works to complete consultations with the National Marine Fisheries Service, and a new EIS for the Willamette Valley Project. Those actions were the result of another lawsuit, Northwest Environmental Defense Center et al. v. U.S. Army Corps of Engineers et al. [18-437], which alleged that the Corps was not acting quickly enough to complete measures to recover the Endangered Species Act-listed upper Willamette spring Chinook and steelhead.
In August, U.S. District Judge Marco Hernandez ruled that the Corps had missed numerous deadlines from its 2008 BiOp designed to aid the threatened fish. That case is in the remedy phase, which will determine interim measures for operating the dams while a new consultation is underway, and a BiOp is being developed.
According to PPC's lawsuit, hydropower production was added as an authorized purpose at Detroit Dam in 1948, and during the fall and winter months, "releases and storage (within the confining limits of flood control) are determined by the power requirements." The Corps must manage and operate the dam in accordance with a water control manual, water control plan, and water control diagram, the lawsuit says.
In a news release about the lawsuit, PPC states, "Detroit Dam was authorized by Congress to serve specific operational purposes, including power generation. The congressional authorization, and supporting Corps documents preserve a portion of the dam's reservoir for power generation and recognize that generation during peak winter hours is the primary purpose of the power function."
It also states the Detroit Dam project is already far costlier to ratepayers to operate compared with other federal hydroelectric projects, "such as the Lower Snake River Dams, which provide more power and flexibility for the grid at a fraction of the cost."
The news release adds that the "best path forward at Detroit Dam" is to study deauthorizing power as a purpose. The Corps was directed by Congress to study that option in the Water Resources Development Act of 2020, a bipartisan bill, which passed Dec. 21, and was signed into law on Dec. 27.
Under a provision in that bill, the Corps will analyze deauthorizing hydropower as a purpose for operating the Cougar and Detroit dams, along with Big Cliff, a re-regulating dam that operates in conjunction with Detroit.
Together the three projects produced 49 aMW in fiscal year 2019, or a total of 428,200 MWh, the Corps' Conning said.