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Cabin Owners Say Ferc Has Authority To Address Damages

PacifiCorp liable for damages?

PacifiCorp and the Cabin Owners of Northwestern Lake Association are giving the Federal Energy Regulatory Commission a lot to consider in the matter of liability for property damages attributable to the breaching of PacifiCorp's Condit Dam last October.

The cabin owners association (CONLA) filed an answer to PacifiCorp's response to the association's complaint filed on Jan. 23. In that initial filing the cabin owners alleged PacifiCorp was liable for their property damages -- including the loss of or impacts to water supplies -- that they say are directly related to PacifiCorp's draining of Northwestern Lake. They renewed that argument with additional information in their latest filing on Feb. 14.

Association board chairman David E. Johnson of Washougal stated in the cabin owners' answer that -- contrary to PacifiCorp's "primary contention" that FERC "has no authority to issue mitigation requirements to PacifiCorp" -- "FERC does have continuing jurisdiction to issue appropriate orders to PacifiCorp addressing direct impacts of the decommissioning of Condit Dam throughout the entire project."

Johnson wrote, "the immediate damage to some wells and other water sources, the subsidence of soil under/near some property owners' properties and other impacts" are the "unquestionable direct result" of dam decommissioning. He suggested FERC should not limit itself to PacifiCorp's argument that it isn't liable for wells losing water under Washington state water law or that the Federal Power Act "doesn't give affected property owners a separate cause of action for damages."

"We submit that does not mean that FERC lacks authority to require PacifiCorp to take steps to mitigate the now-obvious direct causal relationship between the dam decommissioning and the effects on surrounding property owners' assets," the cabin owners stated. "In short, FERC still has the authority to require PacifiCorp to address direct consequences of the dam decommissioning. It is important to note that PacifiCorp does not deny that the impact to the wells is a direct result of decommissioning. It simply asserts that FERC should do nothing about it; that it is simply a matter of state water rights; and that it does not have to do anything."

In summary, the cabin owners' answer asserted that "FERC does have the authority to and jurisdiction to require PacifiCorp to mitigate 100 percent of the property damages incurred until the decommissioning project is completed. Therefore, we respectfully request that FERC require immediate remediation by PacifiCorp for the homeowners that have been or will be severely damaged as a result of the removal of Condit Dam."

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