Background

Tacoma entered into a 99 year lease with a private company in 1966 for development of individual tracts of land on or near Lake Cushman and Lake Kokanee. Save the Lakes Coalition (“STLC”) is a group of approximately 2,500 residential and small business leaseholders currently situated on those tracts. Individually members have built dwellings, docks and businesses, investing substantial amount in the properties. Their common interests are aesthetic and financial, each of which is directly correlated to minimum lake surface elevations.

Tacoma’s previous and pending licenses specify that Lake Cushman shall be maintained at a minimum surface elevation of 738 feet from memorial Day weekend through Labor Day weekend, and at a minimum surface elevation of 719 feet from November 1 through March 31. The licenses also require Tacoma to maintain Lake Kokanee at a minimum surface elevation between 475 and 478 feet at all times. The purposes of maintaining these elevations include land use protection/enhancement, recreation, aesthetics and the shoreline’s socio-economic value.

In the October 2003 recommendation by Administrative law Judge Young he stated,

The record in this limited proceeding lacks sufficient factual evidence to estimate the aesthetic or economic impact of substantial deviation from specified minimum surface elevations, but it is reasonable to assume that aesthetic and economic interests would be negatively impacted by significantly lowered surface levels. In light of the existing record and proposed remediation implementation mechanisms, however, this concern seems minimal.

Each of Resource Parties’ proposed 240 cfs implementation mechanisms purports to maintain license-mandated minimum surface levels in Lake Cushman and Lake Kokanee. Resource Parties therefore should be willing to warrant adequate performance in this regard- including assuming responsibility for any cost to cure or damages to leaseholders arising out of inadequate performance. And since any remedial scheme would be implemented only on an interim basis, the potential for permanent harm to STLC interests should be negligible. Any implemented interim scheme could simply be discontinued.”

SAVE THE LAKES UPDATE

February 14, 2005

On February 14, 2005 the Federal Energy Regulatory Commission (FERC) issued an order on rehearing of license terms and denying the Tribe’s motion to add terms on Tacoma Power’s water rights.

In this order, FERC addressed a number of motions by various parties regarding the Cushman Hydroelectric Project, many of which could have a potential impact on Lake Cushman and Lake Kokanee.

FERC agreed with STLC that the terms of the release of water from the project to be 240 cubic feet per second (cfs) or the inflow of water, whichever is less, and that a recreational lake level of 738 feet still be maintained between Memorial Day and Labor Day. The Tribe and NOAA had requested a minimum flow of 240 cfs and wanted the terms “or inflow, whichever is less” deleted. STLC will be a consulted party with regard to the release of water.

The order contains the flushing flow requirements of 2500 cfs for five consecutive days. However, those releases could not violate the lake level requirement of 738 feet during the summer months.

FERC denied STLC’s request to be a consulted party in regard to habitat issues, concluding that, unlike the maintenance of summer lake levels, its interests in habitat issues were less direct and more aligned with local, state and federal agencies.

FERC also denied STLC’s request to have FERC concretely and specifically study the impacts a lowered lake level from decommissioning the project would have on our community. FERC will consider that only after they have a decommissioning proposal before them. Tacoma Power also petitioned FERC to more concretely study the impact of project decommissioning. FERC denied Tacoma’s request as well.

Tacoma Power has deferred its decision on whether to accept the new license until after judicial review is completed. If Tacoma ultimately makes a business decision to reject the new license, Tacoma will be required to file a surrender application. Tacoma will have an opportunity to develop and present a proposal for project decommissioning and then FERC will study that proposal. The impact that would have on our lakes at this point is uncertain.

All of the intervener parties have thirty days to respond to this order.

The Cushman Project was not on FERC's docket in December or January. We will keep you posted.

On September 30, 2004, the Skokomish Tribe and NOAA Fisheries filed a motion for clarification of Tacoma Power's plan for the minimum flow release of 240 cubic feet per second (cfs) or inflow once a new valve is installed to accommodate that amount of water flow. (The current release amount is 60 cfs.) FERC accepted Tacoma Power's plan. FERC is requiring flows of up to 2,500 cfs on five consecutive days and in the future, would increase minimum flows above the lesser of 240cfs or inflow upon certain findings. STLC is concerned about the timing of this five day planned release which may not allow sufficient time for the lake to refill to an adequate summer level.

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

CITY OF TACOMA[], WASHINGTON

CUSHMAN HYDROELECTRIC PROJECT

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Project No. 460

SAVE THE LAKES COALITION’S answer in Opposition to Skokomish Indian Tribe's and NOAA Fisheries' Motion for clarification of commission’s september 14, 2004, letter re tacoma’s draft procurement specifications for minimum flow valve

1. INTRODUCTION

Save The Lakes Coalition opposes the Skokomish Indian Tribe’s (“Tribe’s”) and NOAA Fisheries’ Motion, which, in essence, seeks to require the City of Tacoma (“Tacoma”) to design, purchase and install a larger and more expensive valve to pass the restorative flows which the Tribe and NOAA Fisheries seek to impose in this relicensing proceeding. Tacoma has informed the Commission that it will not accept an uneconomic license. The Tribe’s and NOAA Fisheries’ Motion, if granted, would increase the likelihood that Tacoma would reject the license and decommission the project. The unknown consequences of decommissioning the project are what most alarms Save The Lakes Coalition and for that reason the Coalition opposes the Motion. Save The Lakes Coalition files this motion in accordance with 18 C.F.R. § 385.213.

2. BACKGROUND

On June 21, 2004, the Commission issued an order amending its license for the Cushman Hydroelectric Project.[1] The Commission also lifted its stay of license terms setting minimum flows for the Project, and required Tacoma to prepare a schedule for the installation of a new valve at Dam 2 to discharge the license’s minimum flows.[2] On July 21, 2004, the Tribe filed a motion requesting rehearing of the Commission’s amended license, and focused a significant part its motion on arguing (as it does in this motion) that fully 95% of the flow of the North Fork of the Skokomish River should be returned to the River—rather than being used to generate power or maintain lake levels.[3] NOAA Fisheries adopted and incorporated in its request for rehearing the Tribe’s arguments.[4]

The City of Tacoma also filed a request for rehearing of the Commission’s amended license. The City informed the Commission that the “license, as a whole,…is…laden with open-ended, experimental, and expensive conditions disproportionate to the Project’s importance” and that in no uncertain terms Tacoma could not prudently accept the license.[5]

Save The Lakes Coalition also petitioned the Commission for rehearing of its amended license.[6] The Coalition requested that the Commission include it as a party to be consulted with respect to the modification of any license condition affecting the level of Lake Cushman or Lake Kokanee, and also requested that the Commission take a hard look at the consequences of Tacoma rejecting the license and decommissioning the Project.[7] The Commission’s FEIS had not adequately evaluated the consequences of decommissioning the Project, particularly the effects of decommissioning the Project on the homeowners and business owners living and working around the Lakes. Because of the almost near certainty that Tacoma would reject the license and decommission the Project, if the terms of the license were not significantly changed, The Coalition requested that the Commission carefully evaluate the consequences of decommissioning the Project before that became this proceeding’s outcome by default rather than by informed choice.

3. ARGUMENT

The relief the Tribe and NOAA Fisheries request in their motion would make the Project even less economical. There is also no certainty that the larger valve the Tribe and NOAA Fisheries want Tacoma to install will be needed at the conclusion of this proceeding. Other than stating a “goal” which they intend to achieve in this proceeding, neither the Tribe nor NOAA Fisheries have provided any substantial evidence that the “restorative” flows they seek to impose in the license are needed to enhance fish production or habitat in the North Fork of the Skokomish River. There is, therefore, no certainty that the Tribe and NOAA Fisheries will be successful in imposing their flow conditions, and no certainty that the larger valve they request will ever be needed. In this cloud of uncertainty, the Tribe and NOAA Fisheries request that Tacoma return to the drawing board and spend even more money to redesign, purchase and install a valve to satisfy the Tribe’s and NOAA Fisheries’ restorative flow conditions. Such a result would make it even more difficult for Tacoma to justify to its ratepayers the continued expense of proceeding with the relicensing of the Project, and increase the likelihood of decommissioning. Save The Lakes Coalition opposes any additional license terms that would increase (even marginally) the likelihood that Tacoma will reject the license and decommission the Project.

4. CONCLUSION

For the reasons stated above, Save The Lakes Coalition opposes the Tribe’s and NOAA Fisheries’ Motion and the relief they request which would require Tacoma to redesign the valve to pass the restorative flows which the Tribe and NOAA Fisheries seek in their rehearing petitions.

Project No. 460

DATED this 15^th day of November, 2004.

Respectfully submitted,

SAVE THE LAKES COALITION

By
     Stephen H. Goodman
     Graham & Dunn PC
     Pier 70
     2801 Alaskan Way – Suite 300

Seattle, WA 98121-1128

(206) 624-8300

I, Christina Steele, hereby certify that I have this day served the Save the Lakes Coalition’s Answer in Opposition to Skokomish Indian Tribe’s and NOAA Fisheries Motion for Clarification of Commission’s September 14, 2004, Letter Re Tacoma’s Draft Procurement Specifications for Minimum Flow Valve upon each person designated on the official service list compiled by the Secretary in this proceeding, by U.S. Mail postage prepaid.

I declare under penalty of perjury under the laws of the State of Washington that this declaration is true and correct, to the best of my knowledge, information and belief.

[1] Order on Remand Amending New License, Partially Lifting Stay Pending Judicial Review, and Denying Motion for Reconsideration, 107 FERC ¶61,288 (2004).

[3] Skokomish Tribe’s Motion for Rehearing of Commission’s (1) June 21, 2004, Order on Remand Amending New License and Partially Lifting Stay; (2) Other License Articles; and (3) Past Orders (filed July 21, 2004).

[4] National Marine Fisheries Service’s Request for Rehearing of (1) June 21, 2004, Order on Remand Amending New License and Partially Lifting Stay, and (2) 1998 License Articles, and (3) Past Interlocutory Orders (filed July 21, 2004).

[5] Request for Rehearing of the City of Tacoma, Washington (filed July 21, 2004).

[6] Save The Lakes Coalition’s Petition for Rehearing (filed July 21, 2004).

Chairman Patrick Wood
Federal Energy Regulatory Commission
888 First Street NE
Washington, D.C. 20246

We are writing on behalf of Save The Lakes Coalition. On September 20, 2004, the Skokomish Indian Tribe (Tribe) wrote to you regarding Washington State Senator Tim Sheldon’s July 16, 2004 letter. Senator Sheldon requested that the Commission include Save The Lakes Coalition (Coalition) in the consultation process, which the Commission has established in some of the license’s articles. Because of the Coalition’s specific (and unrepresented) economic, property and recreational interests in maintaining the summer levels of Lake Cushman and Lake Kokanee, the Commission should give the Coalition a role in a process that could lead to changes in lake levels. This letter responds to each of the Tribe’s objections to including Save The Lakes Coalition as a consulted party.

First, the Tribe argues that the federal, state and tribal governments are the appropriate parties to be consulted with respect to restoring fisheries, reducing aggradation and generally protecting the environment. The Coalition does not dispute this and has not requested that it be consulted with respect to these aspects of the license. The Coalition has only requested that it be consulted concerning articles of the license that could affect lake levels. While articles of the license involving the restoration of fisheries, aggradation and the environment could affect lake levels, the role the Coalition seeks in this process is only to ensure that the interests of homeowners and business owners are considered and effects on lake levels are minimized.

Second, the Tribe argues that the Coalition’s interests are adequately represented by the federal, state and tribal governmental entities involved in this proceeding. The Tribe’s and the state and federal agencies’ positions in this proceeding belie this argument. Their primary, if not sole, concern throughout the proceeding has been the restoration of flows to the Lower North Fork of the Skokomish River to the exclusion of the interests of the City of Tacoma and to a large extent the interests of the homeowners and business owners who live around Lake Cushman and Lake Kokanee. The Tribe and state and federal agencies have been aptly named the “resource parties” as that is where their interests lie. They do not (and cannot) adequately represent the interests of the Coalition’s homeowners and business owners, who, among other things, are concerned about: (a) summer tourism and the affect on businesses if summer lake levels are drawn down; (b) access to and the use of private docks if the lakes are lowered; (c) the adverse affect on property values if the lakes are lowered; and (d) the affect on views and the scenic quality of the area should the lakes be drawn down. These are interests that only the Coalition’s members share and cannot be adequately represented by the Tribe or state or federal agencies. The Commission has required licensees to consult with private parties, like the Coalition, concerning the affect of license conditions and the mitigation of such affects on the interests of private parties.

For instance, in Halecrest Company, 63 FERC ¶61,307, 63,120 (1993), the licensee was ordered to consult with a homeowners’ association concerning compensation for impacts from the construction of a new transmission line near the association members’ homes. This is essentially no different than including the Coalition as a consulted party with respect to license conditions which could result in lower lake levels and reduced property and business values. In West Penn Power Company, 83 FERC ¶61,225, 62,003 (1998), the Commission ordered the licensee to consult with property owners concerning a trail management plan that affected the property owners’ privacy and security interests. Similar interests are involved here. Like the homeowners’ in West Penn Power, the Coalition’s members are concerned about the impact of the license’s conditions on the scenic qualities of the lakes and surrounding area, and should be consulted concerning the impacts. In City of Summersville, 86 FERC ¶61,149, 61,150 (1999), the licensee was ordered to consult with property owners who would be affected by the “visual impacts” of the construction of a new transmission line near their homes. Id. Finally, in Consumers Energy Company and The Detroit Edison Company,84 FERC ¶61,147, 61,809 (1998), the Commission ordered the licensees to consult with homeowners concerning impacts to their property from improvements to the project. The Coalition requests similar treatment in its rehearing statement.

Third, the Tribe argues that the City of Tacoma has consistently and vigorously represented Save The Lakes Coalition’s interests. The Coalition has existed since 1991, and has consistently and vigorously represented the interests of the Lakes’ homeowners and business owners. The City of Tacoma has not represented and does not represent the interests of the homeowners and business owners. Indeed, if that were the case it would conflict with Tacoma’s statutory obligations to its ratepayers. The Tribe offers no evidence to support this argument.

Fourth, the Tribe argues that there is no reason to include the Coalition as a consulted party since the Commission has repeatedly found that the license will not adversely affect the Coalition’s interests. This argument like many of the Tribe’s arguments is disingenuous. As the Tribe is well aware, the Coalition’s request does not relate to the license’s current flow terms, which do protect summer lake levels. The Coalition’s request to be given a consultation role relates to the 40-year term of the license and the license’s conditions which allow for a change in minimum project flows and the affect such a change would have on lake levels.

It is important to note that the City of Tacoma, which is the party that would be most affected by the Coalition’s request, has not objected to the request. If the Tribe is serious and truly values the interests of the Lakes’ homeowners and business owners then it should have no objection to also consulting with the Coalition concerning license conditions affecting lake levels.

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