Suit seeks delta monitoring plan, more analysis

SANDPOINT — The Idaho Conservation League is pressing ahead in federal court to protect Lake Pend Oreille from a Bonneville Power Administration plan to fluctuate the winter pool on the state’s largest lake.

The conservation group contends the BPA plan, which is already in effect, will hasten shoreline erosion, destroy ecologically-rich wetlands and pollute the lake with silt.

The group filed suit in 2012, but was unable to negotiate a settlement with BPA, prompting the filing of a 64-page opening brief in the 9th U.S. Circuit Court of Appeals. The suit calls on BPA to do a more rigorous analysis of the Flexible Winter Power Operations plan and make good on a welshed pledge to monitor the effects of the fluctuation proposal.

The filing comes after months of failed negotiations between the ICL and BPA.

The flexible operations plan enables the pool of the lake to be fluctuated within a 5-foot range up to three times per winter to maximize power production at the Albeni Falls Dam on the Pend Oreille River.

The plan is entering its third year of implementation this winter.

Counsel for the conservation group argues BPA violated the National Environmental Policy Act by doing an Environmental Analysis instead of a more thorough Environmental Impact Statement and failing to take a required “hard look” at the proposal using up-to-date analyses.

The dam inundated and destroyed 6,000 acres of high-value wetlands when it was completed in 1957 and made the Clark Fork, Pack and Priest river deltas vulnerable to erosion.

BPA is still grappling with compensating for impacts caused by construction of the dam and the resulting inundation. The agency has yet to take up mitigating the operational impacts of the dam.

Meanwhile, erosion is chewing into the Clark Fork Delta by as much as 15 acres a year. It’s feared that flexible winter operations will exacerbate the problem.

“Water is a powerful force of erosion and manipulating Lake Pend Oreille like a yo-yo will erode shorelines, threaten wetlands and add more silt into this treasured lake,” Brad Smith of ICL said in a statement announcing the litigation. “At the very least, we need to look before we leap, when it comes to this precious natural resource.”

The U.S. Army Corps of Engineers, which operates the dam, withdrew BPA’s proposal in 2010 to allow for more time to compile background data and develop a monitoring plan.

Although Gov. C.L. “Butch” Otter, the Bonner County Soil & Water Conservation District and former Idaho Congressman Walt Minnick called for a full-blown EIS, the corps opted for a less-rigorous EA. Moreover, the monitoring component was stripped from the flexible operations plan.

“Notably, the monitoring plan is nowhere to be found in the EA, and the winter fluctuations would be implemented for the life of the Dam, not temporarily until impacts could be better understood,” Bryan Hurlbutt, attorney for Advocates for the West, said in ICL’s opening brief.

A BPA spokesman said the agency was aware of the ICL suit, but had no comment.

“We’re currently reviewing the brief and we’ll be preparing our own response for the court,” said Kevin Wingert of BPA.

Wingert said he was not immediately able to answer questions about the absence of a monitoring plan, when operational impacts of the dam would be addressed or if BPA has done a cost-benefit analysis of flexible operations on the lake.

Despite the high rate of erosion, the Clark Fork Delta is still considered among the top 10 most important wetland habitats in the state, according to the Idaho Conservation Data Center.

Addressing the impacts of ongoing operations of the dam is overdue, said Susan Drumheller of ICL.

“We’re hopeful that this legal action can result in BPA paying more attention to how to protect and restore our precious waterfowl, water quality and wetland habitats,” Drumheller said in ICL’s news release.

Smith said the extent of the problem is obscured from public view because the delta typically draws visitors when the water is up.

“They go out into the delta when all these problems are under water,” he said. “If people saw what the delta looks like at low water, I think people would be very surprised to learn what’s happening.”