Judge says dam caused some of lake’s woes

The Post Falls dam is partially to blame for the milfoil, the washed-away wetlands and the unearthing of prehistoric tribal artifacts in Lake Coeur d’Alene, according to a recent ruling by a federal administrative law judge in Salt Lake City.

Contrary to the claims of the Coeur d’Alene Tribe, however, the judge ruled the hydroelectric dam has not been a significant factor in the lake’s plummeting native fish populations or the release of toxic heavy metals from sediments resting at the bottom of the massive water body.

Federal Administrative Judge Andrew Pearlstein issued his ruling late last week, but ramifications from the 112-page document were only beginning to become clear Wednesday. The decision is expected to have a major impact in a contentious dispute between the tribe and Avista as the Spokane-based utility seeks to renew its federal license to operate dams on the Spokane River.

In the eyes of Avista, the ruling was a “positive step” and is expected to significantly reduce the utility’s burden of fixing the lake’s myriad problems, said Avista spokesman Hugh Imhof. “This constructs the stage for a constructive resolution of the issues that are left.”

Howard Funke, an attorney for the tribe, expressed disappointment in the ruling, which he said was the result of a “significantly unbalanced process” instituted by Congress in 2005 to give power companies the ability to challenge claims made by tribes during dam relicensing. This is only the second time the administrative law process has been used.

“Power companies have a lot of money and a lot of resources to rely on. Tribes have very little,” Funke said.

Last year the Department of Interior, on behalf of the tribe, included a list of conditions on the proposed federal hydropower license being sought by Avista. Included in the demands were requests the utility hire police to stop looting of tribal artifacts, repair wetlands damaged by unnaturally high lake levels, fund fish and water quality studies and repair shoreline damaged by boat wakes.

“They’re storing water on over 6,000 acres of tribal land. When you cover that much territory with 8 feet of water supply, it has effects,” Funke explained. “They’ve been storing water there for 100 years and … generating some of the lowest cost power in the United States. The tribe has been subsidizing extremely low cost power to everybody.”

Avista contends the cost of the tribe’s demands would range between $400 million and $500 million over the next 50 years – a figure the tribe claims is massively exaggerated – and would eventually be passed on to ratepayers. The utility also claimed that it was being blamed for too many of the lake’s ailments.

“We’ve never argued there aren’t effects of Post Falls (dam),” said Bruce Howard, the utility’s relicensing manager. “We’ve acknowledged that we’re willing to undertake significant new costs to try to address the concerns that were expressed.”

Judge Pearlstein’s ruling is expected to guide the Department of Interior as it revises the conditions it places on the utility’s hydropower license. These conditions aren’t expected to be released until spring. The license itself is expected to be ready in summer.

According to the ruling, the Post Falls dam has caused wetlands to wash away and has boosted the growth of exotic weeds, but the dam has had “only minor impacts on the decline of native salmonid fish in the lake.” Bigger problems for the fish have come from the introduction of non-native species and the loss of spawning habitat, Pearlstein ruled.

Avista is responsible for 50 percent of the erosion of the lower lake’s tributaries and 30 percent of the erosion on the lake itself, according to the ruling. The decision does not specify how Avista will be expected to fix these problems. The utility is also responsible for helping to protect cultural artifacts and curb weeds in the lake.

Funke, the tribe’s attorney, said the ruling was inconsistent. “They’re all kind of linked,” he said. “The storage of water creates erosion, impairs wetlands, spreads weeds and impairs water quality.”

Avista is looking for ways to fix the problems outlined by the judge, Howard said, adding that despite the environmental changes brought on by the dam, the structure is also responsible for keeping lake levels high in summer for boaters and ensuring a steady flow of water in the Spokane River during dry months through downtown Spokane.

“The operation that is causing the concerns is also an operation that brings huge benefits to people both in Washington and Idaho,” Howard said.