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Legal Expenses Mounting

Counties file FERC motion in bid to keep Condit Dam.

In an effort to preserve Condit Dam, Northwestern Lake, and the hydroelectric power the dam provides, Klickitat County and Skamania County have filed a joint legal motion to the Federal Energy Regulatory Commission.

The motion, filed on April 9, requests that FERC reject PacifiCorp's application to amend its license for the Condit Dam hydroelectric facility.

John A. Whittaker IV, attorney for the Washington, D.C., law firm of Winston & Strawn, prepared the legal brief filed with FERC on behalf of the two counties.

In essence, the 20-page legal document calls for FERC to deny Portland-based PacifiCorp the right to remove Condit Dam.

"There are a myriad of issues we didn't feel were adequately addressed in the Environmental Impact Statement," said Klickitat County Commissioner Don Struck. "Silt concerns, contaminated materials behind the dam, who's going to deal with the situation if the mouth of the White Salmon River fills in, stabilizing the banks of the lake, wells possibly going dry in the area, and how the bridge across Northwestern Lake will be impacted."

PacifiCorp owns the dam, and has operated it for hydroelectric power production for many years. The dam, which straddles the two counties where it crosses the White Salmon River, was built in 1913. It provides a maximum of 14.7 megawatts of hydroelectric energy.

Skamania County Prosecuting Attorney Bradley Andersen, who has taken a lead role in Skamania County's intervention before FERC regarding Condit Dam, said the counties wanted to ensure that important issues about Condit Dam are properly addressed.

"If the dam is removed, we want to make sure that it is done in a manner that is environmentally sound. We also want to make sure that all options are fully explored before we lose this important community asset," Andersen said in an April 11 statement.

In an excerpt from the opening page of the filing, the counties set out several reasons for taking action: "PacifiCorp's extraordinary proposals in the Amendment/Settlement to limits its liability for project decommissioning expenses, to conduct decommissioning without Commission (FERC) supervision or regulation, and to allow it to abandon the decommissioning process if expenses exceed its arbitrarily-established cap are contrary to the public interest, Commission policy and regulations, the terms of PacifiCorp's existing license, and the Commission's previous order in this proceeding," it read. "Alternatively, if the Commission does not grant the counties' request to reject the Amendment/Settlement but instead approves the Amendment/Settlement, the counties hereby move the Commission to indicate that it will solicit competing applications for new license for the project should PacifiCorp elect not to decommission the project pursuant to the provisions of the Amendment/Settlement."

Andersen pointed out that PacifiCorp's limits on its dam removal liability are contrary to FERC policy.

"It is clear that FERC should not approve the proposal as submitted by PacifiCorp," said Andersen.

Although both counties hired the Washington, D.C., attorney who prepared the documents for FERC, apparently only Klickitat County will pay the bill.

"Skamania County is not paying a dime," said Andersen. "The attorney was jointly engaged, but we're not paying for it. Klickitat County arranged for Whittaker."

Klickitat County Prosecuting Attorney Tim O'Neill said Skamania County is not paying the legal fees for the current legal moves because Andersen has jointly represented the interests of both counties during the process over the last couple years.

"A decision was made by the county commissioners for both counties that Klickitat County, at this point, would take the lead to see what could be done with Condit Dam to make sure all appropriate environmental concerns were met," O'Neill said.

O'Neill, who reviews all attorney fee statements for Klickitat County, said Winston & Strawn was retained by the county because the law firm specializes in FERC proceedings.

According to O'Neill, the billing from Winston & Strawn from Jan. 1, 2002, through March 31 totaled $9,236.

The primary law firm that represents Klickitat County is Foster, Pepper & Shefelman of Seattle. According to public records available at the Klickitat County Auditor's Office, the firm of Foster, Pepper & Shefelman has submitted invoices for $42,570 from January 1, 2002, through April 12, 2002, specifically on the county's Condit Dam concerns.

O'Neill said specialists were necessary in cases such as this.

"First, the Federal Energy Regulatory Commission is a specialized area of practice. A regular attorney would have an extreme amount of difficulty understanding it, let alone practicing it," he explained.

He added that there was no way to predict how much the county might need to invest in the battle.

"We think of this as an ongoing process," O'Neill said.

Commissioner Struck added that whether more legal fees will be required depends on the content of the final EIS (FEIS), which is due within a few weeks.

"It depends on what happens from here," Struck said. "Hopefully the FEIS takes into account the concerns we have. If it doesn't, the battle is not over. Everybody is on hold until the FEIS is published."

According to O'Neill, there was no way to know if the legal move taken on April 9 would have the desired impact on FERC's decision-making process.

"I would not even predict what FERC would do," O'Neill commented.

Officials at PacifiCorp, first reached on Friday, said they had not been advised of the filing and were not prepared to comment.

On Monday, however, representatives of the utility offered some general comments.

"We read the documents with interest," said Gail Miller, PacifiCorp's project manger for Condit Dam relicensing. "I think there is probably some misunderstanding, or the interpretation of the Settlement Agreement is not quite accurate. We'll assess what the comments mean, and if a response will help to clarify, then we'll make that response to FERC."

According to Miller, FERC will issue its Final Environmental Impact Statement in late April or early May, with a definitive decision on the fate of Condit Dam coming later this year.

"Fortunately they are on track to move these projects along and make decisions and reach conclusion on the outcome," Miller said. "I would suspect we'll know this year. It's been going on a long time."

Added Dave Kvamme, communications business partner for PacifiCorp: "We're hoping we can move beyond this so we can focus on things that bring value to our customers. But we have to work through the process, so that's what we're doing. We need to continue with our plan to follow through with the Settlement Agreement."

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