by Dick Clever, Washington State Standard
August 22, 2024
This article was first published by the Salish Current.
After three years of negotiations, there remains some distance between Seattle City Light and state and federal regulators over what the utility must do to improve operations at its upper Skagit River hydropower dams to enhance conditions for salmon — including the threatened chinook species.
Empowered by law to enforce the U.S. Endangered Species Act (ESA), the National Marine Fisheries Service (NMFS) wants City Light to do more to improve conditions on the Skagit River for fish. So far, City Light has held to its preference for the status quo, with dam operations continuing they were under the current license from 1995, which expires in 2025. Salmon runs in 1995 were already far below the averages before the three dams were built.
Meanwhile, it is possible that a lawsuit filed Aug. 2 by the National Hydropower Association against NMFS might offer City Light a bigger bargaining chip. The lawsuit, joined by the Northwest Hydropower Association, accuses the federal agency of creating a standard for ESA compliance that goes beyond congressional intent.
Downstream from the Chevron decision
The hydropower associations say they are filing the lawsuit on behalf of their members. City Light is a member of both groups. A key point City Light noted in its March 15 response to a NMFS letter is that the federal agency has shifted the definition of what it considers “reasonable and prudent measures” to protect threatened fish species. City Light says the new standard is tougher to meet and that it exceeds what Congress intended in passing the ESA.
The hydropower associations’ lawsuit echoes the U.S. Supreme Court’s recent decision declaring the so-called “Chevron deference” to be unconstitutional. The “deference” rule, upheld by the Supreme Court 40 years ago, held that when the meaning of a federal statute was unclear, the rule set by a federal agency would be the prevailing interpretation.
Jenn Strang, spokesperson for City Light, said that the outcome of that lawsuit will not have any bearing on the outcome of the Federal Regulatory Commission (FERC) relicensing for the Skagit River Project.
“These are fragile ecosystems, and we will continue this ongoing work with our many partners and environmental experts to support fish populations for restoration and harvest,” she said.
All parties to these settlement negotiations are bound by a pledge of confidentiality, to prevent public posturing by any participants. Those at the table, besides NMFS, have been state and federal fish and wildlife agencies, Department of Ecology, North Cascades National Park Service and the Swinomish, Upper Skagit and Sauk-Suiattle tribes. As a federal agency, NMFS also has a trust responsibility to treaty tribes to protect their fishing rights.
A peek behind the door of secrecy
Thus far it appears that all parties have kept details of the negotiations under wraps. But the door to the secret room has been left ajar, if only indirectly. NMFS has written letters to the FERC complaining about what it says is City Light’s slow-footed response to diminishing salmon populations in the Skagit River watershed. FERC will have final approval authority over City Light’s relicensing application.
City Light, in its March 15 letter to FERC, had negative comments about NMFS’ scientific and factual basis for calling on the utility to significantly alter its dam operations to improve river flow patterns and temperatures of waters downstream from Gorge Dam. The letters of both entities ended up in FERC’s public access file.
Not present in that same City Light letter was any mention of a way to move spawning adult salmonids around the utility’s three dams, or of downriver passage for juvenile salmon.
Scott Schuyler is the lead negotiator for the Upper Skagit Tribe for fish and wildlife issues since 1994 and for hydro power relicensing in the Skagit since 2002. He has said in the past that a City Light operating license without fish passage is a “nonstarter” for the tribe.
Beginning with a letter dated Feb. 24, 2023, NMFS outlined the sharp differences between the benign view by City Light of its own impact on the Skagit watershed and the way NMFS sees it. Commenting on the utility’s Draft License Application (DLA), NMFS wrote, “Throughout the DLA, the Licensee provides discussions and arguments suggesting that the current license has been successful as justification for maintaining the status quo.”
Exporting hydropower benefits
All the electricity produced by City Light’s three hydropower dams in the upper Skagit watershed, about 711 megawatts per year, goes to Seattle. The negative impacts of the dams on fish and wildlife, and on the communities along the river from the western slopes of the Cascades to Puget Sound, remain mostly in the Skagit River watershed.
NMFS, in its Feb. 24, 2023, letter to FERC, stated flatly that City Light operations at the Skagit dams “have produced significant hydrological and temperature deviations from the unregulated condition, and that these changes have predictable, deleterious effects on downstream salmonid species …”
In that same letter, NMFS said it wants City Light to install a “temperature conditioning” system that would draw cooler water from the depths of Ross Lake and mix it with the regular outfall from the Gorge Dam and powerhouse, when needed. City Light responded to the NMFS proposal in its March 15 letter this year.
The utility offered only to continue monitoring water temperatures at various points along the Skagit River. City Light challenged NMFS’s scientific basis for the temperature conditioning proposal. Besides, it said that building the system would cost hundreds of millions of dollars.
A Snohomish County comparison
NMFS pointed out that temperature conditioning systems have been effective in dams in Oregon, California and Washington. In fact, Snohomish PUD installed one in 2018 at Culmback Dam on the Sultan River, which provides both hydropower and drinking water for customers in Snohomish County. Six years after its opening, the PUD reported increases in the growth patterns of rainbow trout at various stages in their life cycle. Keith Binkley, the PUD’s manager of natural resources, says that the chinook and coho salmon populations also appear to have grown in the main stem of the Sultan River below the dam.
A water conditioning system relies on the temperature differences at various levels in a dam’s reservoir. It is built as a tower against the inside wall of a dam. The tower usually has three doors set at varying depths and can draw water from any of those doors to condition the dam’s outfall to temperatures suited to salmon at stages from migration, to spawning, to egg hatching.
NMFS says that the way City Light operates Gorge, Diablo and Ross dams changes the peak water flows during spawning and hatching of salmonid eggs from what the pre-dam river provided. It also leads to changes in water temperatures that can cause either premature or delayed hatching, which could limit the growth and health of fish. The dams sacrificed the natural spawning and hatching cycles that the fish had adapted to through thousands of years.
City Light disputed NMFS’s claim in its March 15 letter to FERC.
“Site-specific empirical information summarized in this memo clearly indicates that under existing conditions … project operations are not only within applicable temperature criterion but protect and provide benefits to fish and aquatic resources in the upper Skagit River,” the utility said.
However, NMFS says the state parameters of the acceptable ranges of water temperatures may be too broad for specific times in the breeding cycle.
Elizabeth Babcock, supervisor of the North Puget Sound branch of NMFS, has been sitting across the table from City Light and its lawyers for more than three years. She signed the letters representing NMFS’s proposals that go beyond the mostly “status quo” plan the utility has in mind, water temperature conditioning systems chief among them.
Babcock’s relations with City Light appear to have been contentious throughout the negotiations. City Light stirred her ire early on as she complained to FERC in her Sept. 5, 2023, letter that the utility had failed to complete a number of studies that might inform the final discussions toward dam licensing. Instead, she wrote, City Light has applied the findings of incomplete studies in their final license application.
More seats at one table
Recently, the relationship became frayed to the point of a complaint to FERC on July 15. City Light had responded to questions from a Canadian tribe about the structure of negotiations among the several parties by saying that all the stakeholders had requested the two-tiered system — regulators and tribes in one group and lesser parties in another.
“That statement is inaccurate,” Babcock wrote. “NMFS’s firm understanding as an active member of the relicensing process is that Seattle City Light insisted that two separate tables be formed to enable the City to negotiate regulatory matters …” She wrote that NMFS preferred having all parties at the table, including Skagit County government and the diking and draining districts that make farming in the Skagit delta feasible.
Skagit County interests were cut out of the main negotiating table until June of this year, a source of considerable annoyance to county officials. Also sent to the lesser table was the Skagit County Drainage and Irrigation Districts Consortium, which the county’s agricultural community depends on to keep seawater from penetrating farm fields in the delta.
Suddenly, in June, the situation changed. All parties are now at one table, including Skagit County government and the Consortium, which represents the 12 diking districts. In a joint statement, all three commissioners agreed that progress is finally being made toward their goals, especially having City Light create storage capacity at Ross Dam as protection against winter and spring flooding on the Skagit River.
Asked for comment on Babcock’s “correction,” City Light would only issue a general statement of its intention to continue engaging with “federal, state and local government agencies, Tribes, nonprofits and many other experts.”
“Settlement negotiation protocols have been agreed to by the settlement negotiation parties, and we are all working on getting to a settlement agreement that comprehensively addresses all the parties’ interests,” the statement said.
The City Light license to operate the dams expires April 30, 2025. Meanwhile, the clock is relentlessly eating up time, with much yet to resolve.
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