Please join us for Law Seminar International's Columbia River Treaty Conference, which will be held here in Seattle on September 22 & 23, 2014. The conference is particularly timely because, as we've discussed at length here, September marks a critical turning point for the Treaty, which is one of the cornerstones of our regional economy, and a major factor in issues ranging from salmon restoration to water quality and flood control. We're pleased to announce that GTH partner Jim Waldo will co-chair the conference and GTH partner Eric Christensen will be speaking. We hope to see you there!
Recently in federal lands Category
"September 16: Pivot Point for the Columbia River Treaty and the Future of the Columbia River Basin": Eric Christensen Publishes Article in "The Water Report"
We're proud to announce that GTH partner Eric Christensen has published an article in the July 2014 issue of The Water Report, one of the most respected trade journals among water resource professionals. We've inserted the text below:
AND THE FUTURE OF THE COLUMBIA RIVER BASIN
The Columbia River is the flowing heart of the Pacific Northwest's economy and environment. Major industries including hydroelectric power, irrigation, fisheries, recreation and navigation all depend upon the River. The River supports iconic salmon and steelhead runs that are central to native cultures throughout the Columbia River Basin. While the River is the lifeblood of dozens of communities lining its shores, it can be a grave danger to these same communities, as destructive floods in, for example, 1896 and 1948, demonstrate.
Managing the river to support multiple, often-competing uses, while managing floods and protecting water quality, presents mammoth challenges. Adding to these challenges is the fact that the Columbia Basin occupies two countries, flowing for several hundred miles through Canada before entering the United States. For the last fifty years, the Columbia River Treaty ("CRT") has governed water storage, flood control, and power operations on the Columbia, with profound effects on both sides of the border.
A key treaty milestone is fast approaching: September 16, 2014, marks the first time since 1964 that the parties can provide notice of their intent to terminate the CRT. Anticipating this milestone, extensive consultation processes have been carried out on both sides of the border to develop recommendations on whether the CRT should be terminated or continued and, if continued, under what terms. Within the last few months, the consultations have been completed and recommendations submitted to the federal governments on both sides of the border. Comparing these recommendations reveals that a broad consensus that the CRT should be modernized, but little agreement on what modernization means. How and whether these competing views are resolved will have profound effects throughout the Columbia Basin for decades to come.
THE TREATY AND DEVELOPMENT OF THE COLUMBIA BASIN
The CRT is a product of an era when rivers were viewed in utilitarian terms, and primacy was placed on development to maximize their hydroelectric capacity and navigation potential. On the U.S. side of the border, the idea of comprehensive river development dates to 1925, when Congress amended the Rivers and Harbors Act to require the U.S. Army Corps of Engineers ("COE") to conduct "multiple-use studies on the nation's rivers." The COE completed its study of the Columbia in 1932 and, facing the specter of Depression-era poverty, President Franklin Roosevelt seized upon construction of the Grand Coulee and Bonneville Dams as a means to spur economic development by creating abundant, inexpensive electricity and irrigating the vast Columbia Plateau.
With the completion of Grand Coulee in 1942, attention turned to the next logical site for construction of a major dam, at Libby, Montana. But the Libby dam would flood over forty miles of the Kootenay Valley in British Columbia, making construction an international issue. Then, in 1948, a major Columbia River flood destroyed Vanport, then the second-largest city in Oregon, killing fifteen people. Flood control had not been a major consideration in early planning efforts, but the Vanport flood dramatically highlighted the need for flood storage. But potential dam sites on the U.S. side of the border offered relatively limited opportunities for storage, creating another international issue.
On the Canadian side of the border, similar pressures for river development were unfolding, culminating in the election of WAC Bennett as Premier of British Columbia in 1952. Bennett would serve for two decades, easily the longest tenure of any B.C. Premier. Bennett advocated for broad-scale development of British Columbia's natural resources, including its vast water resources. He advanced a "Two Rivers Policy," with major hydroelectric and water storage reservoirs to be constructed on the Columbia and Peace Rivers, and created the British Columbia Hydro and Power Authority ("BC Hydro") to carry out this work. Further, quirks of hydrology and topography mean that 50% of the Basin's flood storage capacity lies in Canada even though only 15% of the Basin's area lies north of the border. It thus became clear to both sides that agreement on a framework for River development between the two countries was necessary.
For much of this period, beginning in 1943, the two countries cooperatively studied Columbia River development through the International Joint Commission. The Commission's plan, finally delivered in 1959, laid the groundwork for comprehensive development of the River and for the CRT, which was finalized in 1961.
THE FUNDAMENTAL BARGAIN OF THE COLUMBIA RIVER TREATY
The CRT addresses a basic fact of Columbia River geography: Storage on the River is concentrated in Canada, while hydropower production is concentrated in the United States. For this reason, flood control in the United States depends heavily on storage operations in Canada. Further, there is a strong interdependence between Canadian and U.S. hydroelectric dams operating on the same river. Hence, the CRT can best be understood as encapsulating two basic principles. First, Canada provides flood control benefits to the United States and the United States pays Canada for these benefits. Second, coordinated operation of Canada's storage reservoirs, carried out by the bi-national Permanent Engineering Board, allows power output from dams in the United States to be optimized, and the countries split the benefits of this additional downstream power. Canada's share of these downstream power benefits is known as the "Canadian Entitlement."
With these principles established, the CRT paved the way for four major dams, three in Canada and one in the United States. The three Canadian dams (Mica, Arrow/Keenleyside, and Duncan) would create 15.5 million acre-feet ("MAF") of storage. The United States was authorized to construct Libby Dam on the Kootenai River in Montana, with nearly 5 MAF of storage.
The CRT did not provide financing for the Canadian dams, which created a stumbling block for treaty ratification in Canada. Recognizing that power from the Canadian dams would not be needed in British Columbia for decades, WAC Bennett suggested that the power could be sold to utilities in the United States. A large group of Pacific Northwest utilities took up this offer, agreeing in the Columbia Power Storage Exchange Agreement ("CPSE") to pay approximately $254 million for the first thirty years of the Canadian Entitlement. The CSPE thus financed construction of the Canadian dams, removing the final barrier to ratification of the CRT. On September 16, 1964, in a ceremony at the Peace Arch International Park attended by a crowd of 10,000, U.S. President Lyndon Johnson and Canadian Prime Minister Lester Pearson signed the CRT, the culmination of a two-decade effort to create a bi-national plan for development of the River.
The parties agreed that the CRT should remain in place for no less than sixty years and, after that, would continue unless terminated, with ten years' notice required for termination. Thus, September 16, 2014, is a critical date for the CRT. This is the first date upon which either side can provide the required ten-year notice of termination upon expiration of the CRT's 60-year minimum term, which runs through September 16, 2024.
In preparation for September 16, the the COE and the Bonneville Power Administration ("BPA")(referred to jointly as the "U.S. Entity" in CRT parlance) have conducted extensive technical studies and, as noted above, broad outreach programs to determine whether to seek termination, modification, or other changes to the CRT. The Government of British Columbia had carried out a similar undertaking north of the border.
UPDATING THE CRT
The CRT is a product of its times, focusing almost exclusively on acre-feet of storage and megawatt-hours of power. To Twenty-First Century readers, the most striking feature of the CRT is its failure to even mention fisheries, wildlife, water quality, and the other environmental issues, whether in the context of national environmental policy or Native American rights. As those involved in Pacific Northwest water and power issues are well aware, since the passage of landmark legislation such as the Endangered Species Act and Clean Water Act in the 1970s, the region has struggled mightily to maintain the enormous economic benefits provided by the Columbia Basin dams while recovering endangered salmon and steelhead runs, improving water quality, and meeting other mandates arising from modern environmental legislation. And, as discussed below, landmark court rulings on both sides of the border have greatly expanded the role Native American tribes play in natural resources and environmental policy.
Hence, it is not surprising that the consultation processes on both sides of the border resulted in recommendations that ecosystem values be recognized and integrated into the CRT. On the U.S. side, the U.S. Entity Regional Recommendation for the Future of the Columbia River Treaty After 2024 ("U.S. Recommendation"), adopted in December 2013, concludes that "ecosystem-based functions" should be a recognized, shared value of the CRT. On the Canadian side, the Columbia River Treaty Review B.C. Decision ("B.C. Recommendation"), adopted in March 2014, also espouses the principle that ecosystem benefits should be recognized, accounted for, and equitably shared between the two countries. But exactly what is included in "ecosystem functions" and how those functions should be treated in the CRT is largely left to the imagination.
On other issues, the Recommendations diverge. Each side claims that the CRT in its current form provides inadequate compensation to that side and that the other side receives excessive benefits. The Recommendations reflect a similar gulf between the two countries on an array critical issues. These include:
Upon ratification of the CRT in 1964, the United States made a one-time payment to Canada of $64.4 million for defined flood control benefits for the sixty-year period ending in 2024 using the 15.5 MAF of storage constructed under the CRT. After 2024, the CRT's flood control regime changes substantially, even if the Treaty is not modified. Rather than providing defined flood control benefits, flood control will be based upon ill-defined treaty provisions requiring Canada to provide flood control when "called upon" by the United States, but only after the United States makes "effective use" of its own storage reservoirs for flood management. If the U.S. calls upon Canada for flood control, the U.S. must pay both the direct costs and opportunity costs, in the form of forgone power production, incurred by Canada for flood control operations. The CRT does not, however, provide specifics as to how any of these terms are defined, and it has become clear that the two sides interpret the terms differently.
An examination of the Recommendations reveals fundamentally different views about how flood management should be handled after 2024. Perhaps the most obvious difference lies in basic flood management objectives. The B.C. Recommendation advocates a 600,000 cubic feet per second ("cfs") flood control target, while the U.S. Recommendation argues the existing flood control target, 450,000 cfs, should be retained. The lower target, 450,000 cfs, is considered the threshold at which flood damage begins to occur on the U.S. portion of the River. By contrast, 600,000 cfs is the threshold at which major flood damage starts to occur. Adoption of the 600,000 cfs target, then, implies that the United States would have to make substantial investments in flood management or bear increased costs from flood damage if the Canadian Recommendations on this issue are adopted.
The flood control regime adopted after 2024 could also substantially limit the use of U.S. reservoir storage capacity to support irrigation and other current river uses. Studies conducted by the U.S. Entity suggest that "effective use" of U.S. storage capacity will require reservoirs to be drawn down more often and to lower levels than they are now, which could impair the ability of those reservoirs to meet irrigation demands, as well as demands for navigation, fisheries, and other in-river uses. The magnitude of these impacts depends heavily upon how "effective use" is defined. In addition, these impacts are substantially greater if the U.S. maintains a 450,000 cfs flood management target for flood management, rather than shifting to a 600,000 cfs target. On the other hand, reducing reliance on Canadian storage reservoirs will require less fluctuation of reservoir levels and fewer drawdowns, reducing associated impacts on navigation, recreation, and dust levels (from exposed reservoir sediments) in the Canadian portion of the Basin.
The Canadian Entitlement and Power Production
While flood control under the CRT may change drastically in 2024, the same is not true of river coordination. Unless the CRT is terminated or renegotiated, coordinated river operations will continue much as they have under the Treaty to date. From the U.S. perspective, this is problematic because the CRT includes at least two outdated assumptions. First, treaty negotiators assumed that regional base-load generation would increasingly be supplied by coal- and nuclear-fired plants, with hydro shifting to meet peak demands, but construction of thermal plants fell far short of those expectations. Second, the CRT does not recognize constraints arising from U.S. environmental laws such as the Endangered Species Act. As a result, the Canadian Entitlement is now out of line with the actual benefits of coordinated river operation, creating substantial costs for the United States. The U.S. Entity estimates that, for the period from August 2010 to July 2011, the "Canadian Entitlement" provided 535.7 megawatts ("MW") of annual average energy to Canada, delivered at rates up to 1,316 MW, valued at between $250 million and $350 million annually.
But, according to a U.S. Entity study, fisheries conservation requirements have reduced the output of the U.S. hydro system by 1520 to 1655 MW on an annual average, and the benefits of coordinated river operation have fallen accordingly. If the Treaty were terminated, with the resulting loss of coordinated river operations, the study concluded that output of the U.S. hydro system would drop by about 90-94 MW on an annual average, when environmental constraints are accounted for. This represents less than one percent of the output of the U.S. system. By contrast, the study estimated the Canadian Entitlement in 2024 would be about 470 average MW using the current CRT calculation. Accordingly, the U.S. Recommendation concludes that "Canada is deriving substantially greater value from coordinated power operations than the United States," and "rebalancing" the Canadian Entitlement is necessary.
The B.C. Recommendation, by contrast, argues that the Canadian Entitlement is the sole form of compensation currently operating under the CRT, and that the level of benefits provided does not reflect the "full range" of "impacts in British Columbia." In particular, British Columbia has argued that the U.S. receives huge flood control benefits, with avoided damages in the billions of dollars. On the other hand, the burdens created by the CRT have fallen disproportionately on Southeast British Columbia, where 231 square miles of valley bottom land were flooded, communities displaced, and economies disrupted by construction of the three Canadian CRT dams. With expiration of the CSPE in the mid-1990s, the Canadian Entitlement began flowing back to Canada and B.C.'s Parliament directed that funds from the Canadian Entitlement be used to fund the Columbia Basin Trust, which funds mitigation of impacts of dam construction and operation in southeast British Columbia.
Reducing the Canadian Entitlement, as the U.S. Entity recommends, would thus reduce funding for mitigation efforts in the most heavily affected regions of British Columbia, creating a potentially serious political conflict. One solution may be to direct U.S. payments for flood control to the Columbia Basin Trust. The U.S. Entity estimates that compensation for lost hydropower production would be in the range of $4 million to $34 million for each time Canada is requested to assist with flood management under the "called upon" regime.
A similar disconnect between costs and beneficiaries also exists on the U.S. side of the border. The costs of the Canadian Entitlement are borne by BPA, and therefore ultimately fall upon BPA's power customers, primarily public power entities such as Public Utility Districts, municipal power agencies, and rural electric cooperatives. But flood control primarily benefits communities along the River, and BPA power customers are, for the most part, located far from areas affected by Columbia River flooding. This divergence between beneficiaries and those who bear the costs could create strong opposition to the CRT among U.S. power interests. The U.S. Recommendation therefore suggests that "U.S. interests should ensure that costs associated with any Treaty operation are aligned with the appropriate party."
The U.S. Recommendation urges the modernized CRT to provide for "stream-flows from Canada with appropriate timing, quantity, and water quality to promote productive populations of anadromous fish," and also to provide reservoir conditions that support healthy fish and wildlife populations. The U.S. Recommendation also states that stream-flows should be part of the "long-term assurance of eco-system based function" provided by the CRT, rather than being negotiated on a yearly basis as part of annual operating plans developed by the U.S. and Canadian Entities, as currently occurs. The U.S. Recommendation also advocates a joint program to study and possibly implement fish passage at the Chief Joseph and Grand Coulee dams in order to restore anadromous fish runs in the Canadian portion of the Columbia River Basin.
The B.C. Recommendations concerning ecosystem functions are considerably less detailed, suggesting only that the CRT recognize and account for ecosystem functions, and that such functions are "an important consideration" in planning and implementing the CRT. On the issue of Grand Coulee fish passage, the B.C. Recommendation concludes that this is "not a Treaty issue" because salmon migration into Canada was eliminated at Grand Coulee in 1938, well before the CRT was ratified. Fish passage is therefore "the responsibility of each country regarding their respective infrastructure."
Both the U.S. and B.C. Recommendations urge broader recognition of benefits, including navigation, recreation, agricultural, and municipal uses. True to form, the U.S. Recommendation includes greater detail, noting that studies conducted by the U.S. Entity identified the potential for additional fall and winter storage in Canada, which could be used to support downstream irrigation, navigation, industrial, and in-stream uses in spring and summer. The B.C. Recommendation merely sets forth the principle that these are among the downstream uses that should be recognized, accounted for, and "shared equitably" between the two countries.
The difficult for CRT negotiators is, of course, that these different river uses often compete. For example, water retained in the river for navigation or devoted to municipal uses cannot be used by irrigators. Indeed, a great deal of controversy has arisen in recent decades over the use of increased flows to encourage in-stream migration of juvenile salmon because the water devoted to fish flows is generally unavailable to generate power or to support other economic uses of the River.
THE FUTURE OF THE TREATY
In both countries, the respective Recommendations have now been submitted to the each country's federal governments, and primary responsibility now lies with the U.S. Department of State and the Canadian Foreign Ministry to determine next steps. And, despite differences on specific issues, it is unlikely that either country will immediately seek to terminate the CRT. In fact, both countries recognize that the CRT has been, on the whole, a resounding success, and both Recommendations therefore argue that the CRT should be reformed, but should not be terminated. The U.S. Recommendation, however, places an important limit on this principle, suggesting, somewhat ominously, that if agreement on "key aspects of a modernized Treaty" is not attained by 2015, "other options" to modernize the CRT "should be evaluated."
The outcome of the negotiations will be strongly influenced by several factors that were not present when the CRT was originally negotiated in the 1950s and '60s. These include:
Native American Rights
Because they have been accorded improved legal and political status in the last half-century, Native Americans on both sides of the border will have much greater influence on modernization of the CRT than on the original negotiations. In the United States, court decisions such as the landmark "Boldt decision" (United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 526 F.2d 676 (9th Cir. 1975)) read treaty rights broadly, giving tribes in the United States considerable leverage over decisions involving traditional fisheries and other natural resources. In Canada, similar legal developments, culminating in the 1997 Delgamuukw decision (Delgamuukw v. British Columbia, 3 S.C.R. 1010 (1997)), accorded First Nations substantial legal rights related to land and natural resources, requiring Canadian federal and provincial governments to consult with First Nations on a nation-to-nation basis.
Both Canadian First Nations and Native American tribes in the United States view the CRT as an avenue to improve and protect salmon runs and other natural resources, as well as cultural resources on both sides of the border. It is therefore unsurprising that the Recommendations from both sides of the border contain numerous references to the need for improving protection of cultural and natural resources important to First Nations and Native American tribes.
Climate Change and Adaptive Management
Absent when the CRT was first negotiated, climate change is now the subject of ubiquitous study and political controversy. Current climate models suggest that, while overall precipitation levels in the Columbia River Basin area likely to remain relatively constant as the region's climate warms, a substantial shift in river flows will likely occur, with increasing winter flows and a smaller spring freshet as increasing amounts of winter precipitation fall as rain rather than mountain snow, especially in the U.S. portion of the Basin. If stream-flows change as predicted, significant changes in flood control, storage, and hydroelectric operations will be required. Hence, the Recommendations from both sides of the border counsel in favor of flexibility to adapt to climate-induced stream-flow changes.
The history of the CRT also suggests the need for adaptability. Much of the dissatisfaction with the CRT today arises from predictions made in the 1960s about, for example, the value of the Canadian Entitlement, that have turned out to be incorrect by a wide margin. As the Recommendations make clear, if the formulas used to calculate benefits under the CRT diverge from the actual, on-the-ground benefits provided by the CRT, political opposition will arise from interests that perceive they are being over-charged for the benefits they receive. To make the CRT politically viable over the long term, then, negotiators should concentrate on developing benefits formulas that incorporate the changing values of Treaty benefits. For example, downstream power benefits should be calculated using the regional market price indices that have developed in the power industry in the last three decades. These indices were unavailable when the CRT was originally negotiated, but now can be incorporated into the Treaty as a means to ensure that power benefits reflect the changing value of power over time, and therefore keep power-related benefit payments in line with actual value of the power generated or transferred.
Future Duration of the Treaty
Another issue raised by the Recommendations is the duration the CRT after 2024. Neither Recommendation endorses a specific period, but both suggest that the post-2024 CRT should remain in place for a considerable period. The B.C. Recommendation states that the CRT after 2024 "should be fixed for a sufficient duration to provide planning and operational certainty" while including "adaptive mechanisms" to account for changes over time. The U.S. Recommendation similarly urges that the "minimum duration" of the post-2024 CRT "should be long enough to allow each country to rely on the Treaty's planned operations and benefits for purposes of managing their long-range budgets, resource plans, and investments," but should also incorporate "adaptive management" mechanisms to allow necessary course corrections over time.
Because investments in major water and power infrastructure generally involve assets with an extremely long life and long-term amortization, these statements imply that the duration of the post-2024 CRT should be in the range of 30-50 years to provide the assurances for such long-term investments. But neither country is likely to commit to a new multi-decade term unless negotiated-for benefits will remain in line with actual benefits over the long term. This underscores the importance of the benefits formulas and other adaptive management provisions, discussed above, that anticipate long-term changes in relevant parameters and account for those changes in a manner fair and reasonably predictable to both sides.
OPTIONS FOR TREATY MODIFICATION
The CRT could be terminated and a completely new Treaty negotiated, signed by the President, with two-thirds majority approval by the U.S. Senate under the Treaty Clause of the U.S. Constitution, with parallel political processes in Canada. Following this course would present substantial and obvious political perils. Fortunately, there are a number of options available to negotiators other than allow the CRT to continue in its current form indefinitely or terminating it and negotiating an entirely new Treaty.
The menu of options available to negotiators includes, for example, an exchange of notes, reflecting agreement between the two nations on specific issues. Such an exchange of notes occurred when the CRT was ratified in 1964, and was aimed at clarifying some portions of the 1961 text. The CRT also includes Annexes and Protocols that set forth details on flood control, downstream power benefits calculations, and other issues, which could be modified without terminating the CRT itself. Similarly, contracts along the lines of the CSPE or implementation legislation in one or both countries could be used as the vehicle for modernization, or to address specific problems, without requiring Treaty termination.
These options have important differences involving, for example, whether formal legislative approval is required, how the agreement is enforced, and how durable the agreement would be over time. Fortunately, the range of options available will allow negotiators to select one or more options that are appropriate for the particular issues being addressed, the need for permanence, and the desire for formal political approval.
NON-TREATY STORAGE AGREEMENT
When Canada actually constructed the Mica Dam, it included an additional 5 MAF of storage that was not required under the CRT. This is referred to as "Non-Treaty Storage." Use of the Non-Treaty Storage has been governed for several decades under a series of agreements between the U.S. Entity and BC Hydro. The most recent Non-Treaty Storage Agreement ("NTSA"), signed in 2012, governs operation of the Non-Treaty Storage through September 15, 2024, so will end simultaneously with the expiration of the CRT's 60-year minimum term. The 2012 NTSA is remarkable in that it generated almost no controversy, a nearly unheard-of feat for any BPA matter involving significant water and power resources. It also addresses many of the same issues that the Recommendations identify as concerns, and therefore may serve as a model for resolution of those issues in the post-2024 CRT.
The NTSA provides the BPA and BC Hydro each have continuing access to 1.5 MAF of Mica's active storage, and BC Hydro may make available to BPA an additional 1 MAF from the Mica reservoir at its discretion. Except for provisions addressing dry years, all transactions are by mutual agreement and are coordinated on a weekly basis. Canada receives an equitable share of the downstream energy created by coordinated use of Non-Treaty Storage, with value determined by referenced to published energy price indices for the Mid-Columbia energy trading hub. BPA has used the added flexibility provided by the NTSA to benefit, for example, fisheries in the U.S., and to enhance power production at U.S. hydroelectric facilities.
September 16 marks a key juncture in the history of the Columbia River and surrounding regions. That date marks the opening of a process that is likely to result in substantial changes to the bi-national framework that has successfully governed the Columbia River for the last half-century. September 16 therefore represents a literally once-in-a-lifetime opportunity to shape the future of the River and the region through modernization of the CRT. The Recommendations developed by the two sides document major differences on a range of important issues. Over the long course of CRT negotiation and implementation, however, both sides have shown a remarkable capacity for identifying creative approaches to resolving differences and creating mutual benefits. There is good reason to believe this spirit of creative problem solving can help bridge the gaps between the two sides. Whether and how these solutions are developed will have profound and long-lasting impacts on the River, its resources, and the millions of people who depend on those resources.
Bureau of Reclamation Issues Policy Prohibiting Use of Federal Water for Marijuana Cultivation, But Policy May Lack Teeth
Yesterday, the Bureau of Reclamation issued a policy prohibiting the use of water supplied by the Bureau for the cultivation of marijuana. The Bureau's policy is important for the future of legalized marijuana operations because Bureau-operated dams and canals supply water to farms across much of the arid West. Bureau projects, notably including eastern Washington's huge Columbia Basin Project, are major water suppliers in Colorado and Washington, which have recently moved toward legalization of recreational marijuana use, as well as several other Western states that have legalized marijuana for medical use. In addition, the policy is important because it answers at least some of the largely-overlooked questions that marijuana legalization raises for water and electric utilities serving marijuana operations. A closer look at the policy and accompanying pronouncements, however, suggests that the policy is likely to have limited practical effect.
For example, the Bureau did not threaten to shut off water to its customers -- local irrigation districts -- or take any other sort of enforcement action directly against the irrigation districts or end users. Further, the Bureau will not conduct investigations to determine how the water it supplies is being used. And the policy does not prohibit the use of water from reservoirs in which federal water is commingled with water from non-federal sources.
Pot, Power & Pollution: The Overlooked Impacts of Marijuana Legalization on Utilities and the Environment
Last month, Washington issued its first license for a legal marijuana grow operation under Initiative 502 ("I-502"), the marijuana legalization measure adopted by Washington voters in November 2012. A wave of additional operations will follow, as about 2,800 producers have applied for licenses to grow marijuana. While the implications of I-502 for the criminal justice system, land use, taxation and many other issues have been widely debated, the potentially significant changes in electricity and water use that are likely to follow from I-502's implementation have received almost no scrutiny. Nor have the important implications for environmental protection. Given the stakes, Washington utilities and environmental regulators should pay close attention to I-502 and the ongoing process of implementing the initiative.
At the outset, it is important to understand that the United States already produces huge amounts of cannabis. Official estimates suggest that U.S. production was somewhere in the range of 10,000 to 24,000 metric tons in 2001, making it America's largest cash crop by value. A more recent study suggests that production may actually be far higher - 69,000 metric tons. Given that marijuana production generally remains illegal, these estimates are highly uncertain. But there is little doubt that, as marijuana production comes out of the shadows and into the realm of legitimate business, power and water utilities will need to confront a number of serious and complex issues.
Implications for Electric Utilities
For electric utilities, legalization is a major concern because cannabis production, which generally relies on energy-intensive indoor growing operations, uses huge amounts of electricity. One recent study estimates that marijuana production may account for as much as 1% of the nation's entire electric consumption, accounting for a total bill of approximately $6 billion. In California, the numbers are even higher. Marijuana production in that state is estimated to use 3% of all electricity consumed there, equivalent to 9% of all residential electricity use.
The Defense Logistics Agency today issued a presolicitation notice indicating that it will seek Basic Ordering Agreements ("BOAs") for the purchase of Renewable Energy Certificates ("RECs") by the Department of Defense and associated civilian agencies. RECs will be purchased from solar, wind, geothermal, and biomass generators during the five-year period from May 2014 through May 2019. The notice indicates that a formal Request for Proposals will be issued in March.
A BOA is akin to the master agreements, such as the WSPP Agreement, familiar to many in the power industry. While the BOA does not guarantee that any particular quantity of RECs will be purchased, it sets forth the basic terms of the contract so that purchases can be made on an expedited basis.
The U.S. military is making substantial progress toward its goals of acquiring 3 GW of renewable energy by 2025, substantially reducing energy use, and improving the reliability of power delivery to military bases, according to a recent report from the Pew Charitable Trusts. The progress attained so far demonstrates the seriousness of the military's commitment to renewable energy, energy conservation, and reliability, and confirms that the Department of Defense ("DOD") energy initiatives represent a huge opportunity for private-sector energy developers.
The DOD initiatives arise from both Congressional mandates requiring increased use of renewable fuels and from recognition within the armed services that continued reliance on fossil fuels and an aging electric infrastructure creates unacceptable security vulnerabilities. For example, the Defense Science Board's influential 2008 report, "More Fight, Less Fuel," identified the military's continued reliance on fossil fuels, and the fragile supply lines associated with that dependence, as a major security problem for military operations around the world. "Unleashing the tether" that ties troops to vulnerable fuel supplies therefore became a major strategic objective. Similarly, the report concluded that serious security risks arise from the dependence of U.S. military bases on an aging electricity infrastructure that exposes bases to increasingly frequent power outages.
The U.S. Department of Energy recently requested comment on a proposed "Integrated Inter-Agency Preapplication Process" for electric transmission projects that may simplify the notoriously difficult transmission siting process. If adopted as proposed in the DOE draft, the IPP would create a new opportunity for transmission project sponsors to meet with federal regulators and interest groups prior to formally submitting a transmission proposal in order to identify and avoid issues that have the potential to slow or stop a proposal.
The draft proposal envisions a series of four meetings in which a project proponent would meet with federal regulators with the aim of identifying potential constraints on the proposed route arising from environmental considerations, cultural and historical resources, military operations, protected areas, and similar considerations. The process would also identify alternative routes that could avoid or minimize such conflicts. In additional, the process would lay the groundwork for future permits by, for example, identifying the kinds of information the project proponent will need to provide and assigning the lead agency for NEPA evaulation and consultation under the National Historical Preservation Act.
Yesterday the Washington Supreme Court rejected a challenge to former Governor Christine Gregiore's approval of a 35-MW wind farm in Skamania County proposed by Whistling Ridge Energy, LLC. Gov. Gregoire approved the project following a lengthy administrative process conducted by the state's Energy Facility Site Evaluation Council ("EFSEC") and EFSEC's favorable recommendation to the Governor. The Court's decision is important because it helps define what energy developers must do to mitigate impacts when a project is located near, but not in, a protected area and has potential spillover effects on the protected area. In addition, the decision is important to renewable energy developers in Washington because they have the option of using EFSEC to obtain project approval, which may be especially important where strong local opposition is at odds with state and national goals regarding renewable energy development. The decision is also important to many other types of energy facilities subject to EFSEC jurisdiction, including electric and natural gas transmission projects, LNG facilities, nuclear plants, and large thermal power plants.
The dispute arose because the Whistling Ridge project is near, but not in, the Columbia River Gorge National Scenic Area. The environmental petitioners object to Whistling Ridge primarily because it may be seen from some parts of the Scenic Area, and therefore may interfere with the aesthetic values that the Scenic Area was designed to preserve. In response to these concerns, EFSEC reduced the number of windmills allowed at the project from 50 to 35, and required "micro-siting" to further reduce the aesthetic impacts of the project. With these mitigation measures, EFSEC recommended that Gov. Gregiore approve the project. Gov. Gregiore followed this recommendation.
As Decision Day for the Columbia River Treaty Looms, BPA and Corps Seek Comments On Draft Recommendations
As previously discussed here, the impending decision about whether to seek termination or renegotiation of the Columbia River Treaty next year carries with it enormous long-term implications for the Pacific Northwest and the region's power industry. In preparation for this decision, the "U.S. Entity" -- Treaty-speak for the Bonneville Power Administration and the U.S. Army Corps of Engineers, which jointly administer the Treaty on behalf of the U.S. -- is seeking comments by August 16 on the its "Working Draft of a Regional Recommendation: Improving the Columbia River Treaty Post-2024", which was released late last month.
The Working Draft Recommendation is primarily the product of input from the "Sovereign Review Team," composed of representatives from the four Columbia Basin states, eleven federal agencies, and fifteen Native American tribes. Those entities have not yet reached full agreement, so the Draft remains a work in progress. The comments the U.S. Entity solicited will be part of an ongoing process of refining the recommendations that will be made by the U.S. Entity to the Department of State in December 2013. Ultimately, the Department of State will be responsible for terminating or renegotiating the Treaty.
U.S. Supreme Court Rules That Logging Roads Do Not Require NPDES Permits; Scalia Dissent Suggests Major Change Afoot in Administrative Law
On March 20, the U.S. Supreme Court ruled that the discharge of channeled stormwater runoff from logging roads is not a "point source," and logging operators therefore are not required to obtain a permit from the Environmental Protection Agency ("EPA") under the Clean Water Act ("CWA"). Although important to a key Northwest industry, the decision is not unexpected. Under its "Silviculture Rule" (40 C.F.R. Sec. 122.27(b)(1)), an administrative interpretation of the "point source" requirement, EPA has long held that stormwater runoff from logging roads is not a point source, and timber harvesters are therefore not required to obtain an NPDES permit before constructing roads. The decision, Decker v. Northwest Environmental Defense Center, also follows a pattern that has become almost routine in recent years -- the Supreme Court reversing the Ninth Circuit in an environmental case where the Ninth Circuit embraces a novel reading of the relevant statute. In fact, as previously noted here, the Supreme Court this term has already reversed a Ninth Circuit decision on the "point source" question in a case with strong implications for operators of dams, flood control facilities, canals, and other kinds of water works.
More surprising are strong suggestions in the concurring and dissenting opinions that the Court's conservative wing may be ready to re-examine one of the foundational principle of administrative law -- that an agency's interpretation of its own regulation is entitled to deference from the courts. Justice Scalia's dissent in Decker attacks this rule as an affront to "a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands." Stepping past the EPA's interpretation, Justice Scalia sides with the environmental plaintiffs (and the Ninth Circuit), concluding that runoff from logging roads that is channeled into ditches and culverts is a "point source" under the statutory definition, which includes any "pipe, ditch, channel, tunnel, [and] conduit."
Yesterday, the Federal Energy Regulatory Commission ("FERC") and the U.S. Coast Guard ("USCG") released a Memorandum of Understanding ("MOU") designed to simplify and expedite the process of licensing hydrokinetic projects. Hydrokinetic technology, described by FERC Chairman Jon Wellinghoff as an "up and coming resource," includes projects designed to capture the energy of waves, tides, currents, and the free-flow of rivers and streams. The MOU will help coordinate the FERC licensing authority for non-federal hydropower projects with the USCG's authority to over navigation safety, maritime security, and stewardship of marine environmental resources.
The MOU requires applicants for a preliminary FERC hydrokinetic permit to notify the USCG, among other agencies. The USCG will then become a participant in FERC's pre-filing process, and will provide comments to the FERC and the applicant setting forth any concerns it has with a proposed project and identifying any needed studies. If a NEPA process is undertaken, FERC will be the lead agency, with the USCG providing input on, for example, scoping, as well as identifying any USCG concerns a regarding the project that should be considered in the environmental analysis process. The MOU also provides that, by participating in the NEPA process, the USCG agrees not to become a party to the licensing process.
Yesterday's MOU, along with guidelines issued jointly by FERC and the Bureau of Ocean Energy Management, Regulation & Enforcement last year for hydrokinetic projects on the Outer Continental Shelf, demonstrate that FERC intends to encourage hydrokinetic resources by reducing regulatory barriers to new hydrokinetic technologies.
If you have any questions about the MOU, FERC licensing, hydrokinetic technology, or other matters involving the development of renewable energy projects, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. These practice groups are consistently recognized as among the best, both nationally and in the Pacific Northwest.
Interior Department Streamlines Rules for Renewable Energy Development and Business Leases on 56 Million Acres of Tribal Lands
Renewable energy developers and businesses operating on tribal lands have received a nice holiday gift from the Department of Interior's Bureau of Indian Affairs ("BIA"). Effective January 4, 2013, new regulations will govern leases for the development of renewable energy, as well as non-energy businesses and residences, on 56 million acres of tribal lands. The new regulations promise to reduce delays and uncertainty associated with the current leasing process, thereby improving the climate for investment for renewable energy and other business ventures on tribal lands. BIA's summary of the new rule is available here.
While the old rules lumped surface leases into a single process, the new rules create several different categories of leases, including two types of leases intended to encourage renewable energy development on tribal lands, leases for other kinds of businesses, and residential leases. The rules provide specific limits on the time allowed for BIA to review each type of lease, increase deference to tribal decisions on leasing, and provide greater flexibility on issues such as lease valuation and in-kind compensation for leasing.
More Military Movement: Department of Defense and Department of Interior Sign MOU Encouraging Development of Renewable Energy on Federal Lands
To support the twin goals of increasing the nation's energy security and promoting development of renewable energy resources, the Department of Defense ("DOD") and Department of the Interior ("DOI") recently signed a Memorandum of Understanding ("MOU") focusing on 13 million acres of federal land that have been "withdrawn" for military purposes, as well as lands on the Outer Continental Shelf ("OCS") suitable for offshore wind development. By clarifying jurisdictional lines and administrative responsibilities, the MOU helps ease renewable energy development, especially for wind, solar, and geothermal power.
In the West, millions of acres of federal land have been "withdrawn" from general use, and instead have been reserved for military uses, principally military bases and vast training ranges such as those in central Washington, southwest Idaho, southern Nevada, and eastern California. The MOU promises cooperation between DOD and DOI to encourage development of geothermal, solar, and wind resources on these lands. Without such cooperation, developing these lands can be a daunting prospect. For example, in may cases, withdrawn lands under DOI jurisdiction are interspersed with DOD-owned lands, resulting in different legal regimes governing immediately adjacent parcels. If these obstacles can be overcome, the potential pay-off is huge. For example, the U.S. Army Corps of Engineers has estimated that military bases in the continental U.S. have the potential to produce between 630 and 926 GW of electric power from geothermal resources.