The Federal Energy Regulatory Commission (FERC) has issued a "Declaratory Order" regarding PacifiCorp's Condit Dam relicensing and decommissioning project, and PacifiCorp lawyers are reviewing exactly what the decision means.
In the order, released in late December, FERC granted two requests made by PacifiCorp, but the language is vague: A) "The petition for exemption from the filing fee prescribed in Section 381.302 of the Commission's regulations is granted"; and B) "The petition for issuance of a declaratory order is granted, consistent with the discussion in the text of this order."
However, the legal ramifications of the FERC decision are still not clear, and PacifiCorp officials said they are reviewing the 17-page document that accompanied the decision.
"I can tell you, the declaratory order is long and convoluted," said Terry Flores, PacifiCorp's hydro-licensing director in Portland.
The FERC document breaks a long silence in the process related to the future of the 14.7-megawatt Condit Hydroelectric Project. PacifiCorp submitted its "Settlement Agreement" to FERC in October 1999, and there had been no response in the months since -- until now.
"We were acutely aware the Settlement Agreement has been pending for some period of time," explained Flores. "So in May (2001) we submitted a request for a declaratory order from FERC."
Flores said getting the FERC order was an important milestone in the process.
"We needed to know how FERC would address the Settlement Agreement. It's a big step," Flores said. "We asked FERC, do you or do you not have jurisdiction to approve the Settlement Agreement. FERC found that they did."
PacifiCorp is seeking an amendment from FERC that would extend the term of PacifiCorp's existing original license until Oct. 1, 2006, and would incorporate into that license the Settlement Agreement.
Terms of the Settlement Agreement are related to the proposed project decommissioning and removal of dam facilities in 2006, at the expiration of the extended license term.
PacifiCorp requested that FERC find that it "has jurisdiction to entertain the amendment/Settlement Agreement, to approve the settlement, and to issue the amendment as submitted."
"What was at stake leading up to that order: FERC was perplexed as to whether it had jurisdiction. They're in the business of licensing dams. We came to them with this (dam removal) agreement, and said, `here's what we want to do.' But we still have to get all the necessary permits to go ahead with this," said Dave Kvamme, PacifiCorp spokesperson.
However, FERC is asking PacifiCorp to surrender its license application, then FERC in turn would issue annual licenses for PacifiCorp to operate Condit Dam until 2006.
"They did find they had the authority to OK the Settlement Agreement. It's still on track," Kvamme added. "But we don't know what the ramifications are. We are not sure how to respond. We need to look through the implications of surrendering the license."
"There is room for people on either side to say this works in their favor, but in the long run it's more positive for us than negative," said Mark King, a member of the White Salmon Conservation League, which was formed in response to the dam removal proposal and became one of the initial intervenors in opposition to the removal proposal. "It's technically a minor victory for PacifiCorp -- it says FERC has jurisdiction to approve the Settlement Agreement, if they find the Settlement Agreement has reasonable grounds to support the approval. The FERC commissioners did not make the decision themselves, they left that for the FERC staff to consider. But it did raise serious doubts about whether the settlement agreement should be accepted."
"It's a good news, bad new type of decision," added Wayne Lease, a Northwestern Lake resident who opposes removal of the dam. "FERC has the authority to make the decision, but it's also good news in that it talks about abandonment. If PacifiCorp wants to abandon the dam, another operator could come forward and take it over."
Kvamme said PacifiCorp is aware of the reaction of many residents in the county regarding the proposed Settlement Agreement, which calls for the removal of Condit Dam in 2006 and the draining of Northwestern Lake.
"We're aware of what's been happening. It's understandable," he said. "There's no one in the county who hasn't used the lake up there, and we understand that."
Flores said the Environmental Impact Study FERC is currently pursuing is based on removal of the dam.
"FERC issued an original EIS that focused on installation of fish ladders and screens and other measures that were on the table at the time. Now FERC is going back in light of the Settlement Agreement and revising and updating the EIS. They will probably issue a supplement to the original EIS," she explained.
FERC's draft EIS is expected by the end of January, with the final document coming by April.
King pointed out that a key step in the process will be release of the Environmental Impact Study now under way by FERC.
"That EIS will give an indication of where the FERC staff is leaning," King said. "But I feel firmly that the removal plan violates several federal and state environmental laws in a major fashion."
The Washington Department of Ecology is expected to conduct its own environmental review of the proposal after the FERC study is made public.