On Jan. 8, 2007, a Department of Interior Administrative Law Judge ruled that many of the costly license conditions that Interior’s Bureau of Indian Affairs (BIA) seeks to impose on Avista’s Post Falls Hydroelectric Project are factually unfounded. Avista is only the second hydroelectric licensee to complete the new trial-type hearing process created by the Energy Policy Act of 2005. Prior to the new law, hydroelectric licensees had almost no opportunity to challenge the factual bases of a federal agency’s mandatory conditions.
The Post Falls Project ("the Project") maintains the summer level of Coeur d’Alene Lake about 7.5 feet higher than it would be naturally, largely for the benefit of homeowners and recreational interests. BIA contends that doing so causes catastrophic consequences to the Reservation of the Coeur d’Alene Tribe, located on the southern third of the lake. In response, BIA and the tribe seek to impose burdensome license conditions regarding alleged impacts on fish, erosion, water quality, cultural resources, and wetlands.
In sweeping language, Judge Andrew Pearlstein rejected BIA and the tribe’s claim that maintaining the summer lake level has a significant adverse impact on native fish, ruling instead that the Project “has had only minor impacts on the decline of native salmonid fish in the lake, that are dwarfed by the devastating impacts of non-Project factors, primarily the introduction of non-native species, and the degradation of tributary spawning habitat.”
Similarly, the judge rejected BIA and the tribe’s claim that maintaining the summer lake level significantly affects the lake’s water quality. Specifically, BIA and the tribe had argued that maintaining the summer lake level increases the solubility of the metals contained in approximately 100 million tons of mining waste on the bottom of the lake. They argued that, in turn, the increased levels of metals in the water are harming fish and other aquatic life. The judge instead found that the Project “has no effect, or only a negligible effect, on the amount of metals that dissolve in the lake.”
The judge also rejected BIA and the tribe’s claim that Avista should be responsible for repairing all erosion on Reservation shorelines. Instead, the judge ruled that Avista was responsible for only 50 percent of the erosion on the lower tributaries to the lake, and only 30 percent of the erosion on the lake itself. These percentages are very close to the levels previously acknowledged by Avista, both during the alternative licensing process and at trial.
The judge also rejected BIA and the tribe’s claim that Avista’s cultural resource survey was inadequate. Finally, the judge concurred with Avista that it is not feasible to eradicate Eurasian watermilfoil from the lake, another requirement proposed by BIA and the tribe.
On the other hand, the judge agreed with BIA and the tribe that maintaining the summer lake level has impaired the functioning of wetlands on the Reservation, has potential impacts on some tribal cultural sites, and facilitates illegal artifact gathering.
BIA is now required to revise its final conditions to be consistent with the judge’s factual findings. Those facts require major revisions to BIA’s proposed conditions regarding fish, water quality, erosion, cultural resources, and Eurasian watermilfoil.