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FERC RELICENSING: Clark Fork Settlement Agreement: Nine Years Later

Collaboration was an earmark of the relicensing of Avista Utilities’ 742-MW Clark Fork Project. Nine years later, there’s much to learn from this approach. By bringing together stakeholders and using a collaborative, consensus-based approach, Avista developed a settlement agreement that continues to benefit the area’s natural resources and the people affected by the project.

By Timothy J. Swant and Kathryn L. Wilson

In the 1990s, Avista Utilities needed to begin working toward a new Federal Energy Regulatory Commission (FERC) operating license for its Noxon Rapids and Cabinet Gorge hydro projects in Montana and Idaho. At the time, Noxon Rapids had a capacity of 466 MW and Cabinet Gorge had a capacity of 231 MW. Avista Utilities chose what is now known as the alternative licensing process (ALP). However, Avista wanted to ensure that the process was truly a collaborative effort between the utility and all stakeholders. To accomplish this goal, the utility formed a plenary group tasked with molding the mission and language of the settlement agreement for relicensing of this project.

Dubbed the “living license” by participants, this settlement agreement is the result of collaborative work performed to reach consensus on all issues related to the Clark Fork operating license. The settlement was signed on January 28, 1999. The collaborative spirit of this agreement laid the foundation for team work now taking place on the Lower Clark Fork River, for the good of the people and to the benefit of the area’s natural resources.

Once the relicensing application for this project was filed with FERC, the plenary group became a management committee (MC). The job of this MC is to decide how to spend Avista’s protection, mitigation and enhancement (PM&E) money to offset ongoing effects to the land and waters of the Clark Fork-Pend Oreille watershed from the operation of the Noxon Rapids and Cabinet Gorge hydro facilities that make up the Clark Fork Project. Capacity of these projects is now 478.8 MW and 263.2 MW, respectively. Over the intervening nine years, the MC has implemented several projects and experienced many successes that illustrate the importance of true collaboration in hydro project relicensing.

Choosing a relicensing process

In the early 1990s, Avista (then known as Washington Water Power) began considering options for relicensing the Cabinet Gorge and Noxon Rapids projects. With the two licenses set to expire in February 2001 and April 2005, respectively, the overall sentiment at Avista was that the traditional relicensing methods were not functional. Traditional approaches often seemed to end in lengthy and expensive litigation or long-drawn processes that polarized the participating parties. Although collaboration was not a new idea at the time, few utilities were employing the “true collaborative,” a consensus-based approach.

Avista sought FERC’s permission and involved the stakeholders themselves in defining the process. Avista also sought to accelerate relicensing of Noxon Rapids and combine the project with Cabinet Gorge under a single FERC operating license.

Inviting participants

As part of its consideration of a collaborative approach, Avista issued an open invitation, through public notices, to solicit participation in the relicensing process for the Clark Fork Project. The utility also sent specific requests for participation to prominent agencies, non-governmental groups, and tribes. From that effort, the utility formed a plenary group in the mid-1990s. This group, comprised of about 40 interested parties, was tasked with molding the mission and language of the settlement agreement to be filed as part of the application for FERC relicensing.

Because of the time involved in this relicensing process and the distance many stakeholders had to travel, neither Avista nor the stakeholders took the commitment lightly. In fact, the relationships built among the various stakeholders over several years of hard work are possibly one of the most important factors in the success of this collaborative process.

The plenary group covered all issues related to relicensing the project, such as environmental assessment, and fisheries, water quality, recreation, wetlands management, land use management, and protection of cultural resources. The goal was to reach consensus on all issues. While this mandate may have made the relicensing process more tedious, Avista wanted to leave no stone unturned to ensure all interests were represented in the settlement agreement.

Signing the settlement agreement

On January 28, 1999, Avista and 26 stakeholders signed the Clark Fork Settlement Agreement. The stakeholder signatories included 11 non-governmental entities, eight state agencies, four tribal groups, two federal agencies, and one county government representative. The settlement agreement was filed as part of the application for the new FERC operating license for the Clark Fork Project. It was a significant feat to concur on a plan for the future, with so many divergent positions on priorities. The agreement established the consensus of diverse perspectives with regard to environmental, cultural, public recreation, fishery, wildlife, and operational matters related to the project.

Implementing measures in the settlement agreement

The 26 stakeholders who signed the settlement agreement became the MC for the Clark Fork Project. The MC’s goal is to ensure that the collaborative spirit that drove the relicensing process continues into future implementation efforts. The MC meets at least twice a year, reviewing detailed project proposals in order to make decisions about how to spend Avista’s protection, mitigation, and enhancement (PM&E) money to offset ongoing effects from operation of the two hydro projects on the land and waters of the Clark Fork-Pend Oreille watershed. In addition to approving or rejecting all proposed plans and projects, the MC must establish as many specialty subcommittees as needed to implement the settlement agreement and PM&E measures and determine, as appropriate, the size, membership, and procedures of such subcommittees. The MC also must attempt to resolve all disputes among participants regarding implementation of approved PM&E measures.


The 263.2-MW Cabinet Gorge hydroelectric facility is one of two developments that make up Avista Utilities’ 742-MW Clark Fork project.
Click here to enlarge image

Anxious to get started and fulfill Avista’s promise of early implementation after the settlement, the MC had its first meeting in March 1999, a full two years before the March 1, 2001, effective date of the new 45-year FERC operating license. At its first meeting, the MC approved all proposed PM&E measures in only 45 minutes. The MC also reviewed the proposed activities of its three newly established subcommittees: the Water Resources Technical Advisory Committee (WRTAC), Terrestrial Resources Technical Advisory Committee (TRTAC), and Cultural Resources Management Group (CRMG). Any interested member of the MC may have representation on a subcommittee.

The WRTAC addresses all issues related to fishery resources, water quality, and water quantity. Members review and rank all proposals to be passed on to the MC. To implement the fisheries programs – which include fish passage/ native salmonid restoration and tributary habitat acquisition and enhancement – Avista formed an aquatic implementation team. This team is composed of four aquatic program leaders, one representing Avista and the other three representing key fisheries agencies, including Montana Fish, Wildlife & Parks; Idaho Department of Fish and Game; and the U.S. Fish and Wildlife Service (FWS). The aquatic program leaders are responsible for developing annual budgets, work plans, and technical reports, as well as managing field staff and activities. Avista created and funded the aquatic implementation team and aquatic program leader positions in consultation with the agencies. Avista’s goal was to streamline efforts by bringing individuals from various jurisdictions together at the program development level. The positions are not a requirement of the settlement agreement or FERC license.

The TRTAC oversees all terrestrial issues, notably wildlife, botanical resources, wetlands, land use, recreation, and aesthetics. The TRTAC not only provides technical input and review of all the terrestrial annual implementation plans, but also ensures an appropriate balance between human use and the preservation of aesthetic and other natural resources associated with the project lands and water. There are a number of subgroups of the TRTAC that work on specific issues, such as land use management, recreational development, and habitat acquisition.

A third group, the CRMG, oversees issues relating to historic and cultural resources. This subcommittee also provides input for all property discussions and plans for ground-disturbing activities, including the dam sites, homesteading era properties, prehistoric properties, and sites with cultural significance. A Clark Fork Heritage Resource Management Plan developed by the CRMG provides public education goals, objectives, and action strategies associated with preservation and protection of cultural and historic resources.

Implementation of the settlement agreement is based on appendices to the agreement. These appendices are an agreed-upon listing of all the issues and opportunities that exist or could potentially exist due to continued operation of the hydro projects, as well as annual funding to be used for each item. The 20 appendices cover aquatic, terrestrial, and cultural resource management across the project area.

Aquatic work related to the Clark Fork project includes fisheries improvement, native salmonid restoration, total dissolved gas (TDG) abatement, water quality monitoring, and habitat restoration. The aquatic resource PM&E measures in the settlement agreement provide for acquisition, restoration, and enhancement of tributary habitat; research on dissolved gas supersaturation below the dams; support of fisheries monitoring; and management, evaluation, enforcement, education, and implementation of recreational fishery enhancement projects.

The native salmonid restoration work being performed for the Clark Fork project takes a holistic approach to a complicated issue. Through cutting edge research and adaptive management, the MC is attempting to define and address the role of habitat, pathogens, exotic species, genetics, and fish passage in the recovery of native bull trout and cutthroat trout.

Control of dissolved gas supersaturation includes mitigation and monitoring, particularly below Cabinet Gorge Dam. Avista has not been able to meet Idaho state water quality standards for TDG below this dam. The state mandates that TDG below this dam not exceed 110 percent supersaturation. As part of the settlement agreement, Avista agreed to set aside supplemental funds to mitigate for downstream effects until the company, in close consultation with the MC, can produce structural concepts for the dam that will reduce TDG.

The water quality monitoring appendix to the settlement agreement supports the Tri-State Water Quality Council in its annual monitoring program. This council is a non-profit organization dedicated to improving water quality. This annual monitoring program provides for the systematic, long-term water quality monitoring of nutrients and metals in the project area. Excessive nutrient loading and metals represent high-priority water quality concerns in the Lower Clark Fork watershed because of rapid population growth, increased development, and historical industry concerns, such as mining and timber harvest.


This 1,164-acre parcel of land was purchased using money set aside as part of the settlement agreement for Avista Utilities’ 742-MW Clark Fork project. The land contains important habitat for grizzly bear, as well as winter range for elk, moose, and deer.
Click here to enlarge image

In addition, the aquatic resources category of the settlement agreement includes funding for local watershed councils and the acquisition, protection, and restoration of tributary stream habitat in the watershed. To date, administrative funding has been provided to the Elk Creek and Prospect Creek watershed councils. In addition, since 1999 the Whitepine Creek, Rock Creek, Trout Creek, Pack River, and Bull River watershed councils were formed, with support from this program. Jean Dunn of Green Mountain Conservation District in Sanders County, Montana, says that the watershed council program has raised so much interest within each tributary, it can be likened to a neighborhood watch for the watershed. Even if there has not yet been restoration work in each tributary, the knowledge people gain about their drainages is remarkable, she says.

Other appendices to the settlement agreement tackle land use issues or terrestrial resources. This includes: developing management plans; providing recreational opportunities; protecting aesthetic, wetland, and riparian resources; acquiring habitat and enhancing native trees. The purpose of these appendices is to provide for the long-term protection and maintenance of sensitive and important resources on Avista-owned project lands, including the rural and semi-remote character of the shoreline. Project lands are managed to protect these qualities while still allowing for reasonable public access and other compatible, or beneficial, uses.

Each April, Avista provides FERC with detailed implementation plans for each PM&E, as approved by the MC. At the same time, Avista files PM&E project results with FERC in an annual report reviewed by the MC. This report provides a detailed description of the activities of the MC and its various committees during the previous year. The first report was filed in 1999, even though one was not required until 2002.

Successes of the past nine years

Over nine years of implementing projects in the Clark Fork-Pend Oreille watershed, the MC has realized many successes. The amount of high-quality projects has skyrocketed. The MC reaches consensus 95 percent of the time and has not yet needed to employ FERC’s dispute resolution process. In fact, in the nine years of implementation, the MC has only voted eight times; the rest of the decisions were reached via consensus.

All members of the MC agree that the settlement agreement has provided the foundation for many remarkable accomplishments that go above and beyond the intended scope of the original agreement.

For example, Judy Hutchins, who is active in many non-governmental organizations around the Lower Clark Fork watershed, remembers that the first land use workshop in the settlement agreement process was also the first land use planning and classification of any kind in Sanders County. Stemming partly from this land use planning, the MC developed the goal of retaining a “rural and rustic” environment for the entire lower Clark Fork corridor, a goal innately compatible with habitat preservation.

Robb McCracken is executive director for the Clark Fork-Pend Oreille Conservancy, a land trust that was in part created by the MC. McCracken believes the MC to be an outstanding example of a cooperative conservation team. The conservancy was created in 2002 to provide a safeguard for natural resources by protecting open spaces, fish and wildlife corridors, recreation areas, working farms/ranches, and timberland.1 The conservancy has been very active in securing substantial conservation easements on prime fish and wildlife habitat. It has four completed projects, 18 active projects, and five on the “waiting list,” pending time and funding to get started. The MC and the conservancy often work together on projects to protect sensitive lands.

The settlement agreement process also helped bring together the adjacent property owners to Avista, who reside along the shorelines of the reservoirs. When the invitation to join the plenary group was first issued, it brought a handful of concerned property owners forward. In 1998, Avista helped form the Noxon-Cabinet Shoreline Coalition, in the hopes such an umbrella group would help the individual property owners become a more cohesive assemblage with a single voice.


Members of the management committee tasked with overseeing the protection, mitigation, and enhancement measures in the settlement agreement for the 742-MW Clark Fork project regularly tour the sites of restoration projects to review results.
Click here to enlarge image

To protect fish and wildlife habitat in the Bull River drainage (a tributary to the lower Clark Fork), a partnership began working together in 2000 to protect large private parcels from development. The partnership consisted of representatives from Avista; The Conservation Fund; Montana Fish, Wildlife and Parks; the Bull River Watershed Council; the U.S. Forest Service; and local landowners. Using PM&E funds as leverage, partners have raised nearly $5 million to permanently protect more than 2,000 contiguous acres of river, wetland, and upland habitat to benefit fish and wildlife, including several endangered species. More than 1,800 acres of this land have been designated the Bull River Wildlife Management Area. This effort has been nationally recognized by the FWS and received a 2006 Outstanding Stewardship of America’s Rivers Award from the National Hydropower Association (NHA).

Larry Lockard, FWS biologist and aquatic program leader for the MC, believes another success story lies in the approach to bull trout, an endangered species in the Lower Clark Fork River. The aquatic implementation team uses a “trap and truck” method to catch and transport bull trout, from which has derived all of the concepts and plans for fish passage on the two dams. Since the signing of the settlement agreement, more than 150 adult bull trout have been tagged and transported over Cabinet Gorge Dam and more than 3,400 juvenile bull trout have been captured and tagged.

Challenges/lessons learned

To arrive at so many achievements, there must have been challenges.

The constant need for re-education to keep everyone on the MC engaged and informed can be a challenge. There is considerable turnover in a group such as this, with so many stakeholders and such a long time commitment required to participate. When the original parties signed the settlement agreement, they also agreed their respective organizations would be involved through the duration of that 45-year license. Understandably, the constant change of representation is a challenge.

Balancing public access with private property is difficult. When discussions regarding the development of a trail along the reservoirs were initiated, residents who owned property adjacent to Avista’s shoreline property objected. After participating in a public process facilitated by the National Park Service, residents were given an opportunity to contribute directly to development of the “Lower Clark Fork Trail System Concept Plan.” As such, residents can take ownership in the final product. A number of trail segments outlined in the conceptual plans are now being implemented by various groups.

Certain specific projects can produce conflicts. For the Clark Fork project, these issues include exotic fish suppression, non-native predator fish reduction, fish passage, and TDG. For example, some exotic species have become popular sport fish for the public. However, their proliferation can hamper restoration goals for native fish. On Lake Pend Oreille, the MC has approved an aggressive program using local anglers and nets to reduce predation on kokanee, a land-locked sockeye salmon. Although the kokanee is not native to Lake Pend Oreille, it is the primary forage fish for bull trout and westslope cutthroat trout. This program received an NHA 2007 Outstanding Stewardship of America’s Waters award as a result of its collaborative efforts and measurable successes.

The TDG issue is a challenge because it is difficult to quantify the effects of gas supersaturation, and solutions to this problem are very expensive. For instance, downstream of Cabinet Gorge Dam, the state standard of 110 percent TDG is exceeded during high runoff years, sometimes reaching 140 percent or higher. The Idaho Department of Fish and Game has demonstrated a correlation between high flow years and low kokanee fry survival. The scientific literature is replete with studies showing effects to fish populations resulting from high TDG levels. Despite these facts, consultants for Avista have not been able to document significant effects to fish resulting from high TDG levels in the Lower Clark Fork system.

Although challenges will always be present, the commitment of the stakeholders and their willingness to openly discuss issues will continue to build on the success of the past nine years.

Mr. Swant may be reached at Avista Corporation, P.O. Box 1469, Noxon, MT 59853; (1) 406-847-2729; E-mail: tim. swant@avistacorp.com. Ms. Wilson may be reached at Resource Planning Unlimited, 2910 West Ontario Street, Sandpoint, ID 83864; (1) 208-265-9057; E-mail: hunterolivemint@gmail.com.

Note

  1. Hall, Nate, “Another Benefit of Hydro: Clark Fork-Pend Oreille Land Conservancy: Protecting and Conserving Lands,” Hydro Review, Volume 26, No. 2, April 2007, pages 80-81.

Reference


Tim Swant is Clark Fork licensing manager with Avista Corporation. Kate Wilson is project journalist with Resource Planning Unlimited.


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