Our River Project leader and all around intrepid lawyer Rick Eichstaedt got up earlier than I did this morning and zipped me a copy of an article that ran over the weekend in the Coeur d’Alene Press. It’s actually a well-reported story on the woe being visited upon north Idaho sewage treatment plants because of U.S. EPA’s decision, revealed late last week, to actually count the pollution being put into the river by Idaho dischargers.
I’m being just slightly facetious. The decision EPA reversed was the one it made three years ago when it deemed that phosphorus from Idaho discharges to the Spokane River would be counted as part of the “background” level of nutrient pollution in the river when the river flows from Idaho into Washington. In our view, EPA just finally came to its senses last week, and that’s good for us and, more to the point, it should be good for the river.
But what’s missing from Brian Walker’s otherwise well-written article is a single word about Avista Utilities.
Avista operates several dams on the Spokane. It can be hard to get one’s head around the fact that dams have significant effects on water quality because we don’t think of dams as polluters. But here’s the thing. We wouldn’t have the problems that we have with dissolved oxygen in the Spokane River and Lake Spokane (Long Lake) were it not for the Avista dams in general, and Long Lake Dam in particular. Long Lake Dam, in particular, is what disrupts the natural flow of the river and sets the stage for the chronic low dissolved oxygen problems in Lake Spokane.
There’s lots of irony here, and that’s some of what invites me to sit here and write this on what looks to be a beautiful day out my window.
As some of you know, there’s an interesting history between Avista’s predecessor Washington Water Power, and the owners of the Spokesman-Review. If you don’t know it, go read from this classic work of reporting by my old colleague Larry Shook, when Larry was state editor for the Seattle Weekly. Let’s just say that in the Brahminical brotherhood of Spokane movers and promoters, there has been a special cordial relationship between Cowles Publishing Company and the company that used to be Washington Water Power, and is now Avista. They are the two primary institutional pillars of the Spokane establishment.
So, that history is what makes this document so very interesting. It is the July 15, 2008 appeal by Inland Empire Paper Company–the Cowles family-owned subsidiary that provides newsprint for the Spokesman-Review–of the Washington Department of Ecology’s recent decision to certify that the Avista dams on the Spokane River operate in compliance with state water quality requirements.
As we’ve noted, before, the 401 certification process is a very big deal. It’s a state’s rarest but best opportunity to systematically recover the public and environmental benefits that have been removed or damaged because of dams on state waterways. That’s if the state chooses to use the opportunity. As we reported in early June, Ecology chose not to. The Center for Justice and Sierra Club were very frank in our protests of Ecology’s decision on the 401 certification and we filed an appeal to the state’s Pollution Control Hearings Board.
It is a testament to how bad Ecology’s work on the 401 has been that Inland Empire Paper agrees with us, and not just quietly, nor by just a little. Here, word for word, is the summary statement of the company’s appeal to Ecology’s certification:
“The 401 Certification issued to Avista is not reasonable and violates applicable federal and state law by (1) failing to provide reasonable assurance that the operation of the Spokane River Hydroelectric Project will meet state water quality standards as required under Section 401 of the federal Clean Water Act, 33 U.S.C. ยง1341; (2) by granting Avista a compliance schedule to address dissolved oxygen in Lake Spokane that is contrary to the requirements for compliance schedules for dams under the state water quality standards, WAC 173-201-510; and by acting in breach of the March 2007 Memorandum of Understanding entered into between Ecology, Inland Empire Paper Company and other entities on the Spokane River.”
The March 2007 MOU committed Ecology to deal with Avista’s responsibilities for the dissolved oxygen problem through the 401 certification process.
Logically, Inland Empire Paper’s protest makes sense. Without Avista being required to do its fair share to address the dissolved oxygen problems caused by its dams, the burden gets shifted to public entities like the municipal waste water treatment plants, and to private dischargers like IEP.
Given the historically cozy relationship between Cowles enterprises and Avista, the fact that IEP would actually join Sierra Club in filing separate appeals to the state Pollution Control Hearing Board is a real eye-opener. By itself, IEP’s appeal is vivid evidence for just how badly Ecology has botched the cleanup of the Spokane River in general, and the dissolved oxygen problem in particular.
Not that we needed more evidence for how badly Ecology has performed on this important project, but the EPA reversal, last week, comes just three months after Ecology’s 401 certification of the Avista dams. At least up until that point, Ecology held pretty much all of the cards in terms of what it could have extracted in the form of “reasonable assurance” that Avista would own up to its share of the problem. Now, having handed Avista a 401 certification removed of any teeth, it’s not at all clear as to what leverage, if any, Ecology has to force Avista’s hands.
Sierra Club’s Rachael Paschal Osborn has already underlined the deepest irony in this debacle. Believe it or not, the Washington agency really did achieve national prominence in the 1980′s and 1990′s for path-breaking work on nuclear and hazardous waste issues and on protecting waterways. The most important legal decision in defining state powers under Section 401 of the Clean Water Act was prepared for the U.S. Supreme Court by current Ecology Director Jay Manning and personally argued by then-Attorney General Chris Gregoire.
I’m having a very hard time understanding how we got from a nationally-respected environmental agency to the almost unbelievable bungling by Ecology on the Spokane River. It’s been sort of like watching a major league baseball game when a slowly hit ground ball passes through the legs of the pitcher, then the second baseman, and then the shortstop, and then the center fielder. In all this confusion, it was Avista that circled the bases untouched. It was a great play for Avista stockholders, but not such a thrilling sight for tax payers and for those who pay sewer utility bills.
–Tim Connor
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