Wind War Subplot: Challenge to Washington Gas Limits Fails, Barrier to Increased Spill Remains in Place

December 11, 2012

Washington State's Court of Appeals recently upheld the Washington Department of Ecology's decision to retain existing water quality standards limiting dissolved gases at hydroelectric dams. The decision carries significance well beyond the specific dispute resolved by the court because it limits one avenue -- increased spill -- that may have relieved some of the pressure on the Bonneville Power Administration ("BPA") to integrate increasing amounts of variable wind generation into the regional grid. As we have previously reported, BPA's decision to require curtailments of wind generation during high-wind/high-water events has produced contentious litigation, pitting the Northwest's wind generators against BPA and its public power customers. Although it does not directly address the issues involved in that litigation, the Court of Appeals decision nonetheless has significant bearing on the BPA litigation because it means that BPA's non-curtailment options will continue to be limited.

The Court of Appeals case, Northwest Sportfishing Industry Association v. Department of Ecology, arose from a petition filed by a group of fisheries and environmental advocates asking the Department of Ecology to raise its Total Dissolved Gas ("TDG") standards to accommodate greater flows over the dams. TDG standards are aimed at preventing damage to fish and other aquatic species from gas-bubble trauma. Gas-bubble trauma occurs when excessive levels of atmospheric gases in the water column are absorbed by aquatic creatures and then released in their tissues as gas bubbles, much like "the bends" in a human diver. Gas-bubble trauma can cause significant physiological damage or even death, and is therefore of concern for the Columbia Basin's salmon and steelhead runs, including several listed under the Endangered Species Act. The fisheries advocates who filed the petition believe that TDG limits can be raised by the Department of Ecology without threatening significantly greater damage to fisheries from gas-bubble trauma, and that higher TDG limits will accommodate greater spill over the Columbia Basin's dams, leading to an improvement in the survival of salmon smolts migrating downstream.

Greater latitude for spill would also give BPA some additional flexibility to manage springtime conditions, in which high run-off in the river system often coincides with high winds and high power production from the region's wind fleet. In such conditions, BPA has sometimes curtailed production from wind generators because generation during periods of high wind combined with production from federal dams in the region exceeded the demand during that period. An additional margin for spill would allow BPA to spill additional water over the Columbia Basin's dams rather than running it through turbines (which produces significantly lower concentrations of dissolved gas but also power when it is not always needed). Because less power would then be produced by hydroelectric turbines, there would be a greater margin for allowing wind generators to produce without curtailments.

The fish advocates' petitions for higher TDG standards, however, have not succeeded. The petitions were rejected by the Department of Ecology, which concluded that its current TDG standards should be retained. The advocates then challenged Ecology's findings in the Thurston County Superior Court, which rejected the advocate's challenge. The advocates then appealed to Division 2 of the Washington Court of Appeals, which again rejected their challenge, concluding that Ecology did not act arbitrarily or capriciously in rejecting the petitioners' petition to modify the TDG standards. The Court found that Ecology had adequately considered the entire body of scientific literature submitted by the advocates, as well as a substantial body of literature addressing gas-bubble trauma and total dissolved gases, and that it reasonably acted on the basis of this complex, and sometimes contradictory, body of evidence. The court's decision is a textbook example of how appellate courts review agency decisions where a complex scientific record is involved.

From the perspective of the regional energy industry, however, the case has added significance because the TDG standards applicable to federal dams on the Columbia and Snake Rivers have not changed. BPA has treated the TDG standards as a hard limit on its ability to spill water over the dams rather than run it through turbines, and this means BPA's ability to accommodate high levels of wind generation when it is also facing high river flows will continue to be limited. It therefore remains likely that BPA will be forced to curtail wind generation, or carry out other forms of emergency action, to reliable operate the regional electricity system during future high-water high-wind events.

It is possible that the fish advocates may seek rehearing of the Court of Appeals' decision or review in the Washington Supreme Court. Any such action will need to occur by the end of December.

If you have any questions about the Court of Appeals case discussed in this post, the Bonneville Power Administration, matters related to water quality or water rights, or regulation of dams, or other matters related to the utility industry, natural resources, water, or environmental law, please contact a member of GTH's Energy, Telecommunications and Utilities practice group or Environment & Natural Resources practice group. In addition, GTH's Appellate Advocacy practice group has years of experience in successfully pursuing complex appeals through state and federal appellate courts.