An Interior Department administrative law judge has resolved disputed issues of material fact, moving the agency closer to establishing mandatory conditions for relicensing the 14.75-MW Post Falls hydroelectric project on the Spokane River in Idaho.
Project operator Avista Corp. said it was encouraged by a number of findings in its favor. It said Interior’s Bureau of Indian Affairs now is expected to use the findings to formulate final mandatory conditions for a Federal Energy Regulatory Commission hydropower license.
Avista said the Jan. 10 ruling supports, to a significant degree, facts as described by the utility concerning Post Falls’ effects on Coeur d’Alene Lake and the Coeur d’Alene Indian Reservation. While the ruling includes findings favoring both the utility and BIA, Avista said ï¿½several major areas are very encouraging for continued operation of the project under reasonable conditions.ï¿½
ï¿½We believe the order, overall, demonstrates a careful consideration of the factual issues and reflects the record developed during our collaborative relicensing process,ï¿½ Spokane River Relicensing Manager Bruce Howard said. ï¿½We expect this will lead to significant changes in the mandatory conditions and, we hope, a constructive resolution of the related concerns with the BIA and tribe.ï¿½
Avista noted Administrative Law Judge Andrew Pearlstein rejected BIA’s claims that maintaining the summer level of Coeur d’Alene Lake is harming native fish and increasing the levels of metal in the lake. The judge also rejected BIA’s claim Avista is responsible for all erosion on the reservation, finding the project is responsible for about 50 percent of the erosion on the lower tributaries to the lake, and 30 percent of the erosion on the lake itself.
The judge also ruled a cultural resources survey conducted by Avista was adequate, undermining BIA’s claims the survey was lacking and should be redone, the utility said. However, the judge agreed with BIA’s position that the project has an effect on cultural resources because of an increase in illegal collecting of artifacts.
Pearlstein found the project caused a net loss of wetlands on the reservation and impaired functioning of those wetlands. Additionally, he said the growth of an aquatic weed, Eurasian water milfoil, in Coeur d’Alene Lake has increased due to the project. The judge said Avista is responsible for helping to control it in limited areas.
Energy Policy Act of 2005 created trial-type process
The judge issued the ruling in response to Avista’s request for a trial-type hearing challenging Interior’s proposed mandatory conditions. (HNN 8/21/06) In requesting the hearing, Avista invoked provisions of the Energy Policy Act of 2005, which allows parties to request hearings to resolve disputed issues of fact related to agencies’ proposed mandatory conditions.
As part of the relicensing process, Interior filed preliminary mandatory conditions with FERC in July 2006. Once a resource agency prescribes final mandatory conditions, FERC is required to add them to the license without modification. The utility had estimated proposed mandatory and recommended conditions, and its own mitigation and enhancement proposals, would cost up to $500 million over a 50-year license.
The broader relicensing process continues under the jurisdiction of FERC, which is considering Avista’s application to relicense Post Falls (No. 12606), in Post Falls, Idaho. FERC staff issued a draft environmental impact statement for Post Falls on Dec. 28, analyzing the potential environmental effects of the project. Comments on that document are due March 6.
Avista spun off Post Falls as a separate project from the Spokane River project (No. 2545), also being relicensed. The utility split off Post Falls from other Spokane River developments, saying it presents issues that might take longer to resolve than the rest of the Spokane River project.