Plan to Lower Hydroelectric Dam and Mitigate Flooding Vetted Fairly, Court Says

The U.S. Army Corps of Engineers properly followed permitting procedures when it verified that Puget Sound Energy (PSE) could lower a dam in the single narrow channel above Washington State’s landmark Snoqualmie Falls to mitigate flooding issues upstream, the U.S. Court of Appeals for the Ninth Circuit ruled on Tuesday.

The case was filed by the Snoqualmie Valley Preservation Alliance (SVPA), a coalition of citizens that own property downstream of the 268-foot-high waterfall on the Snoqualmie River. The alliance contended that the decision to approve renovations to lower the hydroelectric dam on the falls would exacerbate flooding problems below the falls.

PSE, which maintains and operates the 1898-built hydroelectric plant located in the channel above the falls, had sought to upgrade the plant in 1991, and it obtained a license to proceed from the Federal Energy Regulatory Commission (FERC) in 2004 after a lengthy study. FERC’s Environmental Impact Statement evaluated both upstream and downstream flooding.

But because the upgrade involved discharging fill material into U.S. waters—as is prohibited by the Clean Water Act without a permit—PSE sought and received verification from the U.S. Army Corps of Engineers that it could proceed under a series of general nationwide permits authorizing certain discharges, rather than applying for individual permits.

In authorizing the PSE project, however, the Corps "did not take into account the cumulative impact of the project downstream from the Snoqualmie Falls," SVPA argued. Historically, major upstream projects, such as 2005-completed $4.6 million flood reduction project for the City of Snoqualmie, had a "downstream flood impact." Three of the four largest floods on record in the lower valley had been seen in the last four years, the alliance said.

"The Corps utilized a short-cut permitting procedure that avoided doing any new environmental review, the SVPA alleged. "Specifically, the Corps utilized the Nationwide Permit program and classified the PSE project as maintenance and institutional development. The lawsuit challenges this procedure because the Snoqualmie Falls hydropower project is too large to qualify under the Nationwide Permit program."

In March 2011, U.S. District Judge John Coughenour in Seattle ruled for the Corps, the Ninth Circuit affirmed Tuesday.

"It is not the case, as the alliance implies, that the corps is using a shortcut to authorize a large hydropower project that will involve large amounts of discharge into wetlands or rivers," the three-judge panel wrote in a per curiam opinion. "All nationwide permits must comply with general terms and conditions, and many nationwide permits have their own limiting principles."

“Although the Corps’ analysis in this case is brief, it is sufficient to pass judicial review. The Corps’ interpretation of its own regulations is entitled to deference, and we affirm the district court’s decision,” the court ruled.

Sources: POWERnews, U.S. Court of Appeals for the Ninth Circuit, SVPA

—Sonal Patel, Senior Writer (@POWERmagazine)

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