NHA – 2014 Annual Conference—Emerging Legal Issues: Litigating Aesthetic Flows Fred Burnside Davis Wright Tremaine LLP

Introduction  Topics of this Presentation – Why You Should Care About Aesthetic Flows; – Experiences in Litigating over Aesthetic Flows; Arguments about admissibility of Aesthetic Flow Studies Cost-benefit analysis of challenging flow studies – How to Avoid Having to Litigate Over Aesthetic Flows

The Clean Water Act & Aesthetics  Section 401 of the CWA provides Ecology with broad authority to establish minimum instream flows. PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994).  Includes ability to set minimum flows for aesthetics  WAC A-260(2)(b): “Aesthetic values must not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.”

Narrative Criterion: What it means and why you should care …  Vague? – Do not assume lack of numeric criteria renders this standard easy to ignore  Ecology Guidance Manual: – “Narrative criteria rely on the analysis of impacts to uses such … aesthetics. Narrative criteria are implemented on a case- by-case basis to protect water quality and beneficial uses from the effects of water pollution. Narrative criteria are used where numeric standards are not sufficient to protect a sensitive beneficial use. ” – “Use protection is the bottom line of the standards. Even if numeric criteria are attained, if studies show the beneficial uses in the water body are being harmed by the activities to be permitted, the narrative criteria may be invoked to further restrict the activities.”

Example: Okanogan County PUD: Enloe Dam & Similkameen Falls  Project Facts: – Enloe Dam built in 1920 by the Okanogan Valley Power Company, owned by Mr. Enloe. – Located on Similkameen River, about 3.5 miles Nw. of Oroville (pop. 1,700), 2 miles from Canadian border. – Low current visitor use (fewer than 1400 per year estimated); – 370 feet below dam is Similkameen Falls

Recreational Use Survey … Recreational use survey found there were few visitors during the peak recreational season (July 1st – October 15th) – “The survey recorded an average of six visitors to the total Project area per day, and found no difference in visitation between weekdays and weekends. However, over extended holiday weekends such as Fourth of July or Labor Day, the average number of visitors increased to approximately 14 per day.”

If water falls and nobody sees it, is it still an aesthetic resource?  BLM Suggests below 2K is “low use”

Project Facts Cont’d: Similkameen Falls  Paddling Guide for WA:

Enloe Dam Cont’d  Enloe Dam Modern Era:

Enloe Dam Cont’d:  Initially 1.6 MW facility; Project sold in 1923 to Wash. Water Power, which expanded it to 3.2 MW.  OKPUD acquired in 1945 and operated it until abandoned because equipment obsolete and modernization was not economical.  FERC rescinded the Project license in 1974, without prejudice to the future rehabilitation of the Project.  Licensing efforts in 90s proposed no minimum flow, but FERC required cfs, with then 830 ft bypass reach;  OKPUD later agreed to shorten bypass reach to 370 feet (just above falls) because no fish in that area  In exchange, no min flows in shorter bypass;

Enloe Cont’d FERC Approved Dewatered Reach

Not every project requires an Aesthetic Flow Study  Enloe looked extensively at Aesthetics, did “desktop” analysis, visitor surveys, etc.  We argued that If were required at Enloe, it becomes a requirement for every project, based on the documented limited use.

Enloe Dam Cont’d—Unique Nature of Project: Can you trade fish for flow?  Unlike most projects, increased flows in bypass reach harm fish  Narrow channel means increase in flow spills over hot rocks, increases heat load of water already at lethal levels.

Fish for flows cont’d ….  More water = dead (endangered) fish.  We argued it makes no sense to study aesthetic flows that will kill fish  Appellants’ counsel argued that because 0.3C average increase over inflows is allowed, we must increase flows up to that point to ensure meeting aesthetic flows.  We showed that flows increase up to 0.8C for short bursts even though average is below.3C.  Dead fish don’t care about averages.  Every Appellant witness at trial testified that if more flows will harm fish, don’t do it.  PCHB decided Ecology should consider further study.

Litigation Lessons Learned ….  Based on past experience with Lake Chelan Project, we decided to challenge the admissibility of expert testimony re “aesthetic flow” studies – In Chelan case, we got large portions of evidence excluded as in admissible under state evidence rules.  In other cases, Courts reject the call for ever-more study: – “The court should not force EPA to conduct a separate survey to gather evidence of recreational and aesthetic use when no evidence exists of a discrete concentration level past which recreation and aesthetic use would be violated. The plaintiff is correct that the fact that the narrative criteria for turbidity is “subjective” does not give unbounded discretion to EPA. But this does not mean that EPA’s decision-making process must yield to the whim of that unlikely aquatic enthusiast who will not tolerate anything less than [the highest possible use].”  Friends of the Earth v. EPA, 346 F. Supp. 2d 182, 202 (D. D.C. 2004) (citations omitted), rev’d other grounds, 446 F.3d 140 (D.C. Cir. 2006).

Evidence Rules ….  The Rules: – In “passing upon the admissibility of evidence, the presiding officer shall give consideration to, but shall not be bound to follow, the rules of evidence governing civil proceedings in matters not involving trial by jury in the superior courts of the state of Washington.” WAC (1). – Washington uses the test of Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923): (a) is the method or theory novel, and (b) has the method or theory achieved general acceptance in the relevant scientific community?

Is testimony about AF Studies admissible?  Drs. Shelby & Whittaker testimony revealed: – Shelby and Whittaker’s publications agree that there is no standardized methodology in the area of aesthetic flow studies – Peers expressly reject Shelby and Whittaker’s proposed approach of having focus-group participants focus on flow levels when viewing photographs because doing so leads respondents to “more heavily emphasize flow” than they otherwise would The aesthetic preferences of trained professionals may not match those of the general public – Dr. Whittaker admits that not every hydroelectric project requires an aesthetic flow study, but concedes he has never done a site visit without recommending an aesthetic flow study – He concedes academic peers expressly reject as improper their approach (trade-offs LAST)

Admissible or Not?  Ultimately, Dr. Shelby conceded their approach does not meet the Frye standard for admissibility – Q. Do you think there’s a uniform view on … which approach is generally acceptable for determining preferences for aesthetic flows? – A. There’s probably not a uniform view. – Q. Is there a generally accepted view ? – A. I don’t know that there’s a generally accepted view. – Shelby Dep. at 74:22-75:4 (emphasis added). See also id. at 14:15-18 (it is “ probably fair to say” there are “differing views on how one should conduct aesthetic flow studies ”).

Admissibility Challenge – worth it?  Slam Dunk? Not exactly ….  PCHB is guided, but not bound by, the rules of evidence  PCHB is like a bench trial – strong inclination to let the evidence in and give it whatever weight it deserves.  Useful to know for future cases – Even though the PCHB admitted the testimony, Board was very focused on issues raised by motions – Targeted motions are best.

Lessons Learned: How to Avoid (or Minimize Aesthetic Flow Litigation  Discuss and document aesthetics issues with stake holders – Groups not required to participate early on (can wait to litigate), but invite everyone; – Document input for both recreation and aesthetic flows – Document the trade-offs considered; – Consider various study options, but do your homework on experts and their approach (trade-offs are important) – Document the studies you perform

Questions?