Ninth Circuit Probes Erosion at Idaho Dam

PORTLAND, Ore. (CN) - The Bonneville Power Administration should have studied the erosion caused by winter activities at an Idaho dam, an attorney for a conservation group told a 9th Circuit panel Monday.

The Idaho Conservation League says the Bonneville Power Administration should have prepared a full environmental impact statement before adopting flexible winter power operations at the Albeni Falls Dam.

The 90-foot high dam is on the Pend Oreille River in the Idaho Panhandle near the Washington border. It produces more than 200 million kilowatt hours of electricity for the BPA annually.

The disputed activities involve fluctuating winter water levels at the dam, which the Conservation League claims in a legal brief could cause erosion that "would harm fish and wildlife habitat, promote the spread of invasive species, degrade water quality, and damage lakeside properties."

BPA claimed that its operations would be "incremental" and "insignificant," and that most soil erosion happens in the summer.

"But BPA fails to recognize that these studies evaluated erosion under steady winter lake levels, and thus do not support BPA's assertion that winter fluctuations will not significantly increase erosion," the conservation group wrote in its brief.

Idaho Conservation League attorney Bryan Hurlbutt told the three-judge panel that shoreline erosion is a serious problem around the reservoir, and that the BPA abandoned its plan to study it in detail.

Chief Judge Alex Kozinski asked Hurlbutt why water fluctuation in winter is different from the rest of the year.

Hurlbutt said the erosion process is different in winter, when the water level in the lake is lowest.

"It's pretty well documented in the record that fluctuating lake levels and re-saturating soils, and then drawing the water back down, that can trigger a number of different erosion processes," Hurlbutt said.

A programmatic environmental impact statement for the dam, issued in 1995, "doesn't really shed much light on what to expect under different operations," Hurlbutt said.

Circuit Judge Andre Davis asked Hurlbutt if the BPA could fix its environmental assessment without issuing a complete environmental impact statement, assuming the panel agreed with him.

Hurlbutt said the court could reverse and set aside the assessment, or could remand it to the lower court, and that it would depend on what flaws the panel found in the assessment.

"It's important to note that the dam was built in 1955, which was a long time ago," Hurlbutt said.

"Well, it seems like a long time ago," said Kozinski, who was born in 1950, eliciting laughter in the courtroom.

"Some of us remember 1955 fondly."

Arguing for the BPA, attorney Hub Adams said the environmental assessment took the "hard look" required by the National Environmental Protection Act and that the dam's winter operations are "extremely minor activity with only negligible impacts."

"In short, the environmental process in this case worked exactly as it should," Adams told the panel.

Adams noted that Albeni Lake is one of two dams in the federal Columbia River Power System at which water can be stored in the winter for power production.

"The primary problem with erosion is in the summertime, rather than the wintertime," Adams said. He said the level of analysis done was appropriate for operations that were "very minor in the grand scheme of things."

"How do we know it's minor?" Kozinski asked. "Opposing counsel paints a different picture."

Adams pointed to the programmatic environmental impact statement issued in 1995 that described the erosion process at Albeni Lake.

"Now, 1995 isn't as far back as 1955, but it's still a long time ago," Kozinski said.

Adams responded that the erosion hasn't changed since then.

"How do we know that?" Kozinski asked. "You now have invasive species you didn't have back then, right? Things change in the environment over 20 years."

Kozinski asked Adams how invasive species, for example, could have been discussed in 1995 if they were not a problem then.

"There are changed circumstances," Kozinski said. "I don't know much about these invasive species, but I assume calling them 'invasive species' is not a compliment. Why should I not worry about the effect of these species?"

Adams said studies have shown that the spread of invasive species at the dam was mainly due to ice transport, and that the BPA has taken mitigation measures to help prevent the spread, such as putting limits on overall lake changes.

On rebuttal, Hurlbutt said the key problem was that the BPA hadn't studied erosion related to its fluctuation activities.

"The studies in the record on erosion say absolutely nothing about what to expect with these new winter fluctuations," Hurlbutt said, and that the studies didn't evaluate what would happen if operations changed.

"Are they equating 'incremental' with 'insignificant'?" Judge Davis asked, referring to the BPA's argument that its fluctuations would have minor impacts. "Any change is going to be incremental, correct?"

Hurlbutt said the BPA didn't explain how increased erosion would be incremental, and that the administration should look at that.

Also sitting on the panel was Circuit Judge Ferdinand Fernandez, who spent much of the arguments taking notes.

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