Washington Trout Files Notice to Sue Puget Sound Energy and the FERC

by Ramon Vanden Brulle

On January 11, Washington Trout led a coalition of environmental organizations and wild fish advocates in submitting 60-day notices of intent to sue Puget Sound Energy and the Federal Energy Regulatory Commission under the Endangered Species Act. The notices alleged that PSE’s hydroelectric operations on the Baker and White Rivers violated the ESA by harming and killing federally listed bull trout and chinook salmon, and that the FERC had not fulfilled its responsibilities to regulate PSE’s dams to comply with the ESA.

On the morning of November 23, 2000 WT Vice President Bill McMillan woke to find that the Skagit River had dropped precipitously overnight – the direct result of PSE dam operations on the Baker River – exposing miles of gravel bars and dewatering hundreds of salmon redds.

Washington Trout was joined by the Center for Environmental Law and Policy, the Federation of Fly Fishers, Northwest Ecosystem Alliance, People for Puget Sound, the Skagit Audubon Society, the Washington Environmental Council, and the Wild Salmon Center. We were led to this action by PSE’s demonstrated pattern of disregard for their legal responsibilities and agreements, the advice of resource agencies, the needs of the listed fish. PSE actions likely violated the ESA in September 2000 on the White River, harming and killing bull trout and Puget Sound chinook salmon, both listed as Threatened. In November 2000, PSE operations at its hydroelectric dam on the Baker River were likely responsible for harming chinook salmon eggs. Similar actions planned by PSE on the Baker that may have harmed chinook were scheduled for after the effective date of the Puget Sound 4d Rule, and would likely have violated Section 9 of the ESA, which forbids the "taking," or harassing, harming, or killing of listed species.

On November 23, 2000, to perform scheduled maintenance, PSE shut off the flow from its Lower Baker River Hydroelectric Project on the Baker River, a major tributary of the Skagit River. Within a few minutes, the flow of the Baker River plunged from 2,600 cfs to 130 cfs. As a result, flows on the Skagit quickly dropped from 9,000 cfs to 5,700 cfs. With a brief exception, flows on the Skagit remained at this level for the next four days, despite PSE’s previous assurances to Federal and Tribal agencies that it would release sufficient water to maintain a flow of 7,500 cfs on the Skagit River at Concrete during its maintenance operation.

The reduced flows exposed gravel bars for more than 20 miles downstream on the Skagit River, exposing hundreds if not thousands of salmon redds to the air for at least four days, significantly reducing survival for eggs deposited in the redds. Many redds were dried out or frozen, and it is likely that millions of eggs deposited within the exposed redds were destroyed. NMFS personnel have estimated that from 200 to 350 redds built by Threatened chinook salmon may have been dewatered during the event, and that some percentage of those were likely dewatered enough to cause egg mortality. Many chum salmon nests were also dewatered.

WT Vice-President Bill McMillan, who lives on the Skagit, witnessed the dewatering on the morning of the 23rd, and photographed and catalogued scores of dewatered chum-salmon redds on the exposed gravel bar in front of his property. McMillan, with fellow Skagit Valley resident and wild-fish advocate Jack DeYoung, attempted to report the event to relevant agencies, including WDFW, NMFS, and the Washington Department of Ecology. Unfortunately, immediate action was difficult to obtain over the long Thanksgiving Holiday weekend. McMillan and DeYoung were able to alert and elicit response form regional and local media.

After the subsequent media reports, PSE increased Baker River flows to about 1250 cfs. Unfortunately, this level was inadequate to restore full flows to the Skagit, and many salmon redds remained out of the water in the partially restored flows for several more days. PSE claimed to have been caught unprepared by the abnormally dry fall weather, but it is possible that PSE may have previously exhausted its reservoir to take advantage of high power rates in California. At the time, PSE was planning similar maintenance operations for early 2001 that may have again dewatered chinook redds or harmed or killed emerging fry, resulting in likely ESA violations.

PSE has demonstrated a pattern at the Baker River and other facilities of actions that harm chinook salmon and bull trout, both federally listed species. At its White River Project in September 2000, PSE "took" adult chinook salmon and bull trout, stranding and killing bull trout and chinook salmon in isolated pools and dewatering chinook salmon redds. These incidents occurred despite explicit warnings by state agencies that PSE’s planned actions would likely kill or injure listed fish.

PSE’s White River hydroelectric project diverts water from the White River near Buckley. The water is transported via a canal and pipeline system to Lake Tapps. Water from Lake Tapps passes through a powerhouse, back into the White River, 21 miles downstream from the diversion.

PSE occasionally closes the diversion for maintenance, allowing natural flows in the normally bypassed reach of the river. After maintenance is completed and the diversion is turned on again, the reach is again largely dewatered. These scheduled outages have often occurred in late summer or early fall when spawning salmon are present below the diversion. In October 1998, a number of dead adult coho salmon were found below the diversion just after a project outage. The timing of the project outages has long been of concern to resource agencies, Indian Tribes and the public due to the potential to strand adult and juvenile fish and dewater salmon redds.

PSE operates both the Baker and White River Dams under license from the FERC. However, it’s license for the White River facility was not issued until 1997. The license includes minimum flow requirements and restrictions on the timing and rate of downramping, or reductions of flows.

Over Thanksgiving weekend, PSE essentially shut off flows from its Lower Baker River Project, dropping flows in the Baker from 2600 cfs to 130 cfs in a matter of minutes.

In 1999, triggered by the listings of chinook and bull trout, FERC initiated consultation on the White River project with both NMFS and the US Fish and Wildlife Service under Section 7of the ESA. Under Section 7, all federal agencies are required to consult with NMFS and the FWS if their actions may harm a listed species. FERC’s "actions" regulating PSE dam operations require them to comply with Section 7. The White River consultation process is still incomplete.

In the meantime, FERC issued a two-year stay of license for the White River dam, to give time for the completion of the Section 7 consultation. The stay requires PSE to comply with interim minimum flow requirements, restrictions on ramping rates, and timing limits for scheduled outages.

Last August, PSE officials notified state and federal agencies of a planned maintenance outage on September 12 through 17. The Washington Department of Fish and Wildlife immediately asked PSE to cancel the outage because it would likely kill fish, including Threatened chinook salmon, also noting that the outage was proposed for a date beyond the September 15 cut-off provided for in the FERC stay order. PSE agreed to change the end date to the 15th, but went ahead with the outage, despite further warnings and requests to cancel from WDFW. After the outage, the river level at Buckley dropped at a rate as high as 3.84-inches per hour, almost four times higher than the 1-inch per hour maximum down-ramping rate authorized by the FERC stay order. Dropping the water level so quickly increased the chances of fish being stranded on dewatered gravel bars.

On September 16, personnel from NMFS, WDFW and the Muckleshoot and Puyallup Tribes conducted a salvage operation on the river near Buckley. In one pool, they recovered two dead chinook salmon and one juvenile bull trout among scores of other dead and dying salmon and trout.

Washington Trout believes that the Baker and White River events constituted clear violations of the ESA, and in January, joined by our partners, filed notice that if PSE did not stop actions that would likely repeat the events on the Baker, Skagit and White Rivers within 60 days, we would bring suit under the ESA. Further, while FERC had initiated a Section 7 consultation for the White River Dam, it had up to January failed to do so for the Baker River project. The Baker River dam had harmed listed salmon and was likely to do so again, therefore requiring FERC to consult NMFS under Section 7. Washington Trout and its partners notified FERC that if it did not initiate a consultation within 60 days, we would sue to force it. To meet an administrative requirement, Washington Trout and its partners, joined by American Rivers, simultaneously filed a petition with FERC requesting that it initiate the consultation and amend PSE’s current operating license to comply with the needs of listed fish.

In February, PSE filed an "Answer" to FERC regarding the petition and in the meantime, had been coordinating with NMFS, USFWS, and WDFW on their current dam operations on the Baker. They also filed a request with FERC to be appointed their "non-federal representative" in a formal Section 7 consultation, but only pertaining to their upcoming re-licensing in 2006.
On the one hand, PSE appeared to be acting in good faith to conform the Baker River Dam to the needs of fish, and to initiate at least some kind of Section 7 consultation. On the other hand, their "Answer" to the petition made clear they intended to fight attempts to amend their current Baker River license, and that they wanted to keep FERC out of the consultation process if possible
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PSE argued that WT’s petition was moot because "consultation" was now occurring, that we lacked standing to seek a reopening of the license, and that the license could not be reopened without PSE’s consent. They repeated their plea of low rainfall and claimed they were not responsible for the dewatering over Thanksgiving, that they actually shut down the Baker in order to conserve water. They went as far as to argue that the shutdown turned out to be beneficial for the fish!

In WT’s "Reply" to FERC we pointed out that PSE’s mere request to be appointed FERC’s non-federal representative did not constitute an on-going consultation, and PSE’s request involved only relicensing, not on-going operations as we requested in our petition. We reminded FERC that they had a statutory responsibility under Section 7 to insure that its actions do not affect listed fish, and that all citizens have a right under the ESA to insist that FERC comply with its legal obligations, making the "standing" issue irrelevant. PSE’s argument that FERC lacked authority to reopen the license was simply incorrect, and not even supported by language in the license cited by PSE.

PSE was misleadingly attempting to identify the issue as minimum flows, which they claimed they had no control over, given the unusually dry fall and winter. However, the real issue, and the one addressed in our petition, is artificial and extreme fluctuations in flows caused by PSE’s operation of the Baker River Dam. Put simply, the extreme low flows over Thanksgiving were compounded by the unnaturally high flows earlier in the fall, during chinook spawning. The artificial high water encouraged salmon to spawn farther out on the edges of the channel, leaving their redds more vulnerable to stranding during the subsequent low flows. On local rivers not regulated by artificial dam flows, but that experienced the same low water over the winter from lack of rain, chinook redds were not dewatered to the extant experienced on the lower Skagit. The chinook had spawned in natural conditions, leaving their redds less vulnerable.

And ultimately, whether or not PSE acted improperly is irrelevant. Whether PSE was operating its dam legally or not, in compliance with its current license or not, does not matter. What matters is that PSE’s operations contributed to the fluctuations that caused the dewatering over Thanksgiving. There is simply no real dispute that if PSE’s Baker River Dam is not properly regulated, it is "likely to adversely affect" listed fish, absolutely requiring FERC to initiate a Section 7 consultation.

Apparently, FERC saw it our way. While FERC never officially responded to or even acknowledged our petition, or the 60-day Notice, in March WT received CCs of two letters from FERC addressed to NMFS and USFWS. The letters designated PSE as FERC's non-federal representative for a Section 7 consultation, and indicated that FERC was initiating early consultation for both the upcoming re-licensing and PSE’s on-going operations.

For the relicensing consultation, PSE will be required to develop a biological assessment, consult with both Services and keep the FERC informed of its activities. For ongoing operations, PSE will work with FERC staff to prepare a draft biological assessment that evaluates the potential effects of operating the Baker River project on listed chinook salmon, bull trout and bald eagles. FERC proposed developing joint biological assessments for both NMFS- and USFWS-listed species and requested a joint biological opinion from both Services.

The letter did not indicate whether FERC would take any action pending the completion of consultation, which could turn out to be an ESA violation. While this situation will bear continued scrutiny, and while FERC seemed to go to some pains not to acknowledge WT’s petition or Notice, it is clear that FERC’s decision was motivated by the action of Washington Trout and its partners. While nothing can bring back the chinook eggs destroyed by PSE’s dam operations last fall, the promise of increased protection and better management is a clear victory for the Skagit’s wild fish.

Meanwhile, in early March, PSE’s Shannon Reservoir essentially ran out of water. Under an agreement with NMFS, PSE had been "pulsing" water into the Baker through late January and February to keep chinook redds moist, if not completely watered. However, when the reservoir dropped below the dam outtakes, PSE shut off all flow from the Lower Baker Dam. NMFS declined to take action, citing PSE’s efforts in January and February, and low winter rainfall. Washington Trout and its partners will continue to monitor FERC’s consultation process, to make sure it leads to dam operations on the Baker that will preclude this type of crises management in the future. We can no longer make bets about future conditions; PSE must manage its dam operations in a way that will guarantee adequate river conditions for all the Skagit’s wild fish. Having filed the 60-day Notices under the ESA, Washington Trout will be ready to take legal action if it appears that PSE is going to take any actions that adversely affect listed fish.