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Pud Using `Eminent Domain' In Bid For Dam

Latest twist in ongoing legal process

In the latest twist in an ongoing legal process that will ultimately decide the future of Condit Dam, the Klickitat Public Utility District has stated that it intends to pursue acquiring the dam via the power of "eminent domain."

Eminent domain is a controversial legal process that allows the taking of private property for public use after providing "just compensation" for the property.

In a June 28 letter from PUD General Manager Tom Svendsen to PacifiCorp, the utility company that owns the dam, Svendsen explained the reasoning behind the move.

"KPUD has examined the fair market value of the project in light of PacifiCorp's obligations should PacifiCorp continue with its decommissioning efforts," wrote Svendsen. "There appear to be substantial costs and expenses facing PacifiCorp should decommissioning be approved. As a result, KPUD sees a benefit to it in acquiring the project, and to PacifiCorp in being relieved of the substantial financial burdens caused by project decommissioning."

Svendsen pointed out that if PacifiCorp did not take advantage of this "opportunity," the PUD might force the issue in court.

"KPUD is prepared to negotiate a resolution to this matter. However, should PacifiCorp reject this opportunity, KPUD, acting in the public interest, will use its power of eminent domain to acquire the project for public use," Svendsen explained. "In conformity with the Washington state constitution and laws, KPUD attorneys will file a condemnation suit and a trial will be arranged to determine the just compensation to be paid for the project."

The dam was built on the White Salmon River in 1913, about 3.3 miles north of the Columbia River. The hydroelectric facility produces a maximum of just over 15 megawatts at peak capacity, but typically averages about half of that.

PacifiCorp signed a "settlement agreement" in 1999 that called for Condit Dam, which has been the subject of a relicensing process since 1989, to be decommissioned and removed. The agreement was signed by a number of "stakeholder" parties and government agencies, including the Yakama Nation, American Rivers, and the Washington Department of Ecology.

The removal date was originally set for October 2006, but the date was recently pushed back to October 2008 to allow more time for the permitting process.

Svendsen said the dam was an important power-generating resource in the region.

"Basically, we were asked by Klickitat County to look at this one more time," Svendsen explained. "PacifiCorp wouldn't talk to us unless we were condemning the dam, so I said, `OK, we'll condemn it.' We're looking at it extremely seriously, and in order to do so, we needed to take this step."

Dave Kvamme, spokesman for the Portland-based utility, said PacifiCorp officials had read the PUD's letter.

"We received the letter last week. It was dated June 28, but we just received it last week, and have not yet developed a response," Kvamme explained. "We signed a settlement with the licensing parties, and are engaged in a multi-year process to implement that agreement. We shared the letter with the settlement parties and plan to meet with them."

On Friday, Kvamme said he was unsure why the PUD is considering condemnation moves against PacifiCorp.

"I don't know what they're trying to do," Kvamme said.

Svendsen said the PUD would be remiss if it did not explore power-generating options for its customers.

"It's an in-county resource, and we're always looking for in-county resources," he said.

Svendsen charged PacifiCorp with using the settlement agreement as a way to avoid complying with Federal Energy Regulatory Commission (FERC) requirements regarding fish passage and other legal obligations.

"I don't think PacifiCorp is trying to do anything other than stall the process," he explained. "They are just trying to string this along. It doesn't cost them anything to operate the dam the way it is. They will keep it going this way for as long as possible."

Brett Swift, deputy director of the Northwest Regional Office of the environmental organization American Rivers, rejected that charge.

"PacifiCorp is committed to dam removal," Swift said. "They are going through the process, and doing additional analysis as they continue to work toward implementation. We're incredibly disappointed in the recent action by the PUD, because this is a unique restoration opportunity for salmon and steelhead. This is an eleventh-hour effort to derail removal of Condit Dam and use public monies to invest in an uneconomical project."

However, a group of residents with cabins on Northwestern Lake, the reservoir formed by the dam, see it differently and want the dam to remain.

"I think it would be a great idea for the PUD to take over the dam," said John Graham, president of the White Salmon Conservation League. "Anyone who thinks destroying a 100-year old ecosystem is a good idea is crazy. So many ducklings and goslings hatched there this year; it's a great place for wildlife. You can't destroy 35 acres of wetlands and not replace it in any way."

FERC has yet to issue a ruling on PacifiCorp's bid to remove the dam. That decision has been pending since 1999.

In November 2002, the Klickitat Public Utility District hired CH2M Hill, a Portland engineering firm, to evaluate Condit Dam as a potential power resource for the PUD. At that time, the engineering report concluded that acquiring Condit Dam would not be fiscally prudent for the PUD. The 2002 study estimated that it would cost the PUD roughly $64 million to purchase the dam.

Brian Skeahan, the general manager of the PUD in 2002, warned after getting the CH2M Hill report that if the PUD were to purchase Condit Dam, it would lead to rate increases for PUD customers.

"When you take a look at the report, what it says is, the process of making the project economically beneficial to the PUD would be long, arduous, expensive, and uncertain," Skeahan said at the time.

Svendsen pointed out, however, that WESCORP, a Seattle-area consultant, came up with a different opinion on whether the dam could be a viable option.

"A second consultant came up with some options that could make it cost-effective," Svendsen said.

According to Svendsen, the key difference in the proposals is a plan to use a "trap and haul" method of moving fish as opposed to maintaining an expensive fish ladder.

"A fish ladder is not necessarily cost effective, and there is a question about its survivability," Svendsen explained. "Trap and haul is a tried and true method."

WESCORP's report was issued in December 2005.

According to Kvamme, the letter from the PUD does not change anything as far as PacifiCorp is concerned, and PacifiCorp will continue its efforts to decommission and remove the dam.

Kvamme added that no meetings with the PUD are in the offing.

"I don't think we have anything scheduled at this point," he said.

Svendsen said that as of July 17, the PUD has not received a response from PacifiCorp.

"We haven't seen a thing," Svendsen said. "I hope the letter will facilitate discussions."

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