401 Water Quality Certification: Negotiating A ‘Common Sense’ Result

During relicensing of its 48-MW Lake Chelan project, Chelan County Public Utility District worked with the state of Washington to craft a 401 water quality certificate that balances competing requirements to protect endangered fish and to ensure high water quality.

By Gregg E. Carrington, Steven G. Hays, and Steven C. Lachowicz

In the Chelan River in Washington, meeting the existing numerical criteria in the Washington Water Quality Standards for water temperature and providing flows with the greatest value for fish habitat were conflicting objectives. During Federal Energy Regulatory Commission (FERC) relicensing of its 48-MW Lake Chelan Hydro Project on this river, Chelan County Public Utility District (PUD) faced this dilemma.

Instead of adhering to the numerical criteria, the goal of the relicensing became to determine how to balance the competing requirements of the Endangered Species Act (to protect salmon and steelhead) and the Clean Water Act (to protect water quality). River flows could be higher (bad for fish) and colder (good for fish), or lower (good for fish) and warmer (bad for fish).

In the end, the Washington State Department of Ecology and Chelan County PUD crafted a 401 water quality certificate that balanced these requirements. In fact, the certificate withstood a legal challenge from critics who wanted to adhere strictly to existing numerical criteria. In our opinion, a ruling by the state Pollution Control Hearings Board supporting the certificate was a legal victory for the fish and water resources in the Chelan River – and a victory for a common-sense approach to handling water quality certificates in areas where unusual conditions exist.

Background on the Chelan River

Lake Chelan stretches 50 miles north and west into the Cascade Mountains from the town of Chelan in north central Washington. The head of the lake is surrounded by glaciers and steep mountains and is accessible only by boat, float plane, hiking, or horseback. The lower half of the lake is populated by an expanding community that relies primarily on producing apples, pears, and cherries for its economic vitality. Many people come to enjoy the lake (the third deepest in the U.S.) and the associated fishing and water recreation. In addition, a rapidly developing wine industry is bringing a new influence to the region’s economy. Real estate values are doubling and tripling as retirees and other investors discover the area’s attractions.

Lake Chelan would exist naturally, but in the late 19th and early 20th centuries, local residents built a series of low dams near the lower end of the lake. These dams were designed to raise the water level in the lake about 21 feet, to allow better boating navigation at the shallower lower end. In 1927, Washington Water Power completed construction of a 40-foot-high, 490-foot-long concrete gravity dam. (Chelan County PUD purchased the dam in 1955.)

The Chelan River empties from the lower end of the lake near the dam and meanders about 4 miles to join the Columbia River, dropping 400 feet in elevation. The upper river reaches are flat and consist of braided, shallow channels. A one-third-mile-long stretch near the lower end of the river plunges through a series of rocky pools and 10- to 20-foot waterfalls in a cliff-lined gorge. The river emerges into a quarter-mile stretch of flatter ground before joining the Columbia River.

To produce electricity, a 14-foot-diameter penstock at the dam takes water 2.2 miles to a powerhouse near the lower end of the Chelan River. The powerhouse contains two 24-MW Francis turbines. Water from the powerhouse discharges into a tailrace that merges with the lower end of the Chelan River just before it joins the Columbia River.

A new 30-year FERC operating license for the project was issued in 1981 but was retroactive to 1974 when the first license expired. As a result of conditions approved in the original and second licenses, the Chelan River is a bypassed reach that is dry most of the year. The only time water is released from Chelan Dam is when there is too much inflow from the Cascade Mountains to keep the surface elevation of the lake below a FERC-mandated 1,100-foot maximum above sea level. When inflows decrease enough to allow lake level to be controlled by running water only through the turbines, Chelan County PUD closes the spill gates.

Although it is a bypassed reach, temperature and water quality standards exist for the Chelan River. Under Washington’s water quality standards, all rivers have standards and numerical criteria to protect trout and salmon, unless otherwise stated in criteria specific to the river. As resource and regulatory agencies identified priorities at the onset of the relicensing process in 1998, it became clear that a new operating license would have to restore water flow in the river year-round. This was necessary to restore a natural river system and a viable aquatic ecosystem matched to the Chelan River’s natural capabilities. Many parties to the relicensing process – including the Department of Ecology, Department of Fish and Wildlife, U.S. Fish and Wildlife Service, and Chelan County PUD – posed questions. They were concerned about the appropriate amount of flow, as well as whether the numerical criteria for temperature in the Clean Water Act could be met while keeping flows low enough to provide good habitat for resident and anadromous fish.

As part of its work toward obtaining a 401 water quality certificate for the 48-MW Lake Chelan project, Chelan County Public Utility District performed a kayaking study in the Chelan River. Recreation in the river is covered under the water quality certificate.
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For example, flows below 200 cubic feet per second (cfs) were determined, using standard modeling techniques, to be best for fish habitat in the flat upper reaches of the river and in the flat lower reach where anadromous salmon and steelhead occasionally move into the Chelan River and the powerhouse tailrace to spawn. However, during spring runoff discharge through the river gorge, flows have been higher than 12,000 cfs.

Planning for relicensing

Chelan County PUD staff recognized that the existing numerical temperature criteria likely were not attainable, nor necessarily best for the fish that would use the restored Chelan River. Higher flows and habitat loss would be necessary to lower temperatures in the river. Thus began a process, in 1998, of developing an approach that would provide the best overall outcomes for the water and fish resources, regardless of whether the results adhered to existing numerical criteria. Every step of the process had to be biologically defendable and protect the resources.

Chelan County PUD personnel set out to develop study plans and collect information to support their decisions. They understood that anything regarding recommended flows and temperature regimes could be challenged. The relicensing team determined where it had enough information to support its plan and where it needed to gather more data. Then Chelan County PUD hired consultants with expertise in the field to gather the information.

For example, R2 Resource Consultants performed a comprehensive study of barriers to fish passage in the Chelan River to establish that anadromous fish never could have made it past a series of five cascades and falls in the gorge to get into Lake Chelan. This situation eliminated the need to study potential passage schemes for anadromous fish.

Another study, performed in 2001 and 2002 by R2 Resource Consultants and Icthyological Associates, looked at instream flows to establish how much fish habitat would be created under various flow conditions in the flatter, upper reaches of the Chelan River for game species, such as cutthroat trout or bass. The results indicated that increasing flows did not correlate directly to a proportionate increase in habitat and that sufficient habitat could be created with flows less than 200 cfs.

Ultimately, the studies led to license conditions that called for ten years of study and evaluation after a new license was issued. The goal was to determine how the fish are doing in the river and what changes, if any, might be beneficial to improve conditions. The adaptive process became an acceptable approach for developing a 401 water quality certificate in collaboration with the Department of Ecology. Department of Ecology staff recognized how unlikely it would be to achieve specific numerical water temperatures in the sun-baked flat sections of the Chelan River. This is particularly true because the water flowing out of Lake Chelan also is naturally quite warm as it moves from the deeper sections up lake down to the shallower end.

Other aspects of water quality also were scrutinized. An aesthetics study performed in 1999 and 2000 by Chelan County PUD involved filming and evaluating the visual effect of various flows through the river gorge. Results showed that constant year-round water flow improved aesthetics.

Another study performed in 2000 by Chelan County PUD and Confluence Research and Consulting explored whether kayaking would be feasible through the steep sections of the Chelan River Gorge. Six expert kayakers spent two days boating the river under a range of flow conditions and concluded that kayaking would be possible under precisely controlled conditions. Because recreation in the river is covered under the water quality certificate, provisions for a kayaking study lasting several years were included in license terms. Recreational kayakers may begin using the gorge in the summer of 2009.

Negotiating the 401 certification

Chelan County PUD and the Department of Ecology agreed that the licensee can be responsible for achieving a successful outcome for the 401 certificate. It took more than 40 meetings with resource agencies to achieve that result. The two agreed to hire an additional independent consultant who would facilitate the process.

Although people sometimes got frustrated and became positional, facilitator Tom Sullivan with Gomez and Sullivan Engineers had the knowledge to determine when some positions could not be supported by the facts. Everyone had to reach consensus. Sullivan visited various caucus meetings held by resource agencies and local residents and tried to help guide everyone to acceptable compromises by focusing on what was best for the resource.

Snorkeling studies of the Chelan River helped Chelan County Public Utility District determine what types of fish were present. Identifying the species helped the PUD better define flow and temperature needs in the river during the 401 water quality certification process.
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In the end, the 401 certificate relied on a process that called for ten years of study with the new measures in place, then establishment of water quality criteria specific to the Chelan River, if appropriate. One adaptive measure was to provide year-round flows of 80 cfs through the formerly bypassed reach, with augmentation flows during spring spawning seasons up to 320 cfs. Those heightened flows will come from pumps installed just upstream of the final stretch of the river – and below the steep gorge – to take water from the tailrace and put it into the final stretch of the river. That is the only spawning area reachable by salmon and steelhead, so flows were not required through the entire river. Construction of the spawning habitat and pump station is scheduled to begin in 2008.

Overcoming a legal challenge

When the Department of Ecology issued its 401 water quality certificate in 2003, the Columbia River Intertribal Fish Commission and the Umatilla Tribes filed a legal challenge. These groups had chosen not to be actively involved in the working groups and information gathering during the licensing process. The tribal groups said they disagreed with the adaptive management approach to the certificate and feared the precedent-setting nature of the plan.

The challenge went to the Pollution Control Hearings Board, a three-member state panel established to hear such appeals involving actions by the Department of Ecology.

Chelan County PUD and the Department of Ecology spent about a year working with six lawyers to prepare to defend the 401 certificate. The hearing took place over a full week in March 2004. Most of the experts who had gathered background data and performed technical studies for Chelan County PUD’s relicensing effort were called to testify. The challengers were unable to refute the data, and the outcome was a ruling supporting the 401 water quality certificate as issued by the Department of Ecology.

The hearings board ruled that “Appellants’ contentions that the Clean Water Act requires strict adherence with the numeric water quality criteria is an incorrect reading of the requirements of Section 401 of the CWA.” Further language added, “…The primary aim of the Section 401 is to meet state water quality standards by complying with the intent and substance of the standard rather than its numeric form.”

In its decision, the hearings board concluded that the certificate provides reasonable assurance that state water quality standards will be met. The tribes did not appeal the ruling.

Results to date

Chelan County PUD spent about $1 million defending the 401 legal challenge and about $15 million on the seven-year relicensing effort for Lake Chelan. The new 50-year license was issued in November 2006. The licensing package now calls for implementation of measures that will cost an estimated $65 million to $70 million over 50 years.

The final management plans for the ten years of studies were submitted to FERC in the fall of 2007. The studies will begin after the final plans are approved, construction of the new fish spawning habitat is complete, and minimum flows are initiated in the Chelan River.

The process also set an important precedent for using outcome-based standards in the relicensing settlement and 401 certificate for Chelan County PUD’s 1,287-MW Rocky Reach Hydro Project on the Columbia River. That process was two years behind the Lake Chelan work. A settlement agreement was reached with all parties and submitted to FERC in December 2005. Chelan County PUD is operating the Rocky Reach project on an annual license pending final FERC approval of a new license, which it hopes will be issued by the end of 2008.

Lessons learned

Throughout the process of obtaining the 401 certificate and FERC license, Chelan County PUD learned valuable lessons.

First, having solid technical data and information to support the relicensing work meant that challengers of the 401 certificate could not dent any of the testimony offered during the legal hearing.

Second, the relicensing process must be collaborative. Chelan County PUD staff worked with representatives of all the other resource agencies to get their ideas about what studies ought to be performed for relicensing. Working groups that included representatives of all resource agencies and the public made the decisions, building consensus and collaboration in the outcomes and solidifying the settlement agreement. Having the Department of Ecology involved from the beginning led to its support of the final outcome, and the settlement agreement formed the basis for an ongoing collaborative relationship with the resource agencies. The collaborative approach is expected to provide continued benefits and cost savings by preventing disputes during the ten-year, outcome-based study period.

Messrs. Carrington, Hays, and Lachowicz may be reached at Chelan County Public Utility District, 327 North Wenatchee Avenue, Wenatchee, WA 98801; (1) 509-663-8121 (Carrington), (1) 509-663-8121 (Hays), or (1) 509-661-4639 (Lachowicz); E-mail: gregg. carrington@chelanpud.org, steve.hays@ chelanpud.org, or steve.lachowicz@ chelanpud.org.

Gregg Carrington is director of external affairs, Steve Hays is fish and wildlife senior advisor, and Steve Lachowicz is director of communications with Chelan County Public Utility District.


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