Tacoma: Dam if we do

Morisset suggests that the ruling "sent shivers through the entire industry." Tribal attorneys have told him that it "has also resulted in numerous decisions in favor of tribes."

Tacoma's Cushman dam reduced parts of the Skokomish to a trickle years ago, and the time to repair the damage — to salmon habitat and to the Skokomish people — is now.

By Daniel Jack Chasan

On March 7, a huge, custom-made valve opened in Tacoma Power's Cushman Dam No. 2, and 240 cubic feet of water per second rushed down the bed of the North Fork Skokomish River — less than 30 percent of the river's natural flow, but more water than anyone had seen there since 1930, when the city of Tacoma completed its two-dam Cushman project to provide its citizens with cheap electric power.

American Rivers called the release "a crucial step in restoring the river's health." Organization officials said that for "approximately 50 years, Tacoma Power totally dewatered the river below the project during low-flow periods. More recently, the company has left only a trickle of water flowing in the North Fork Skokomish."

Once upon a time, the North Fork provided nearly half the flow of the mainstem Skokomish River, but it's easy to see that's no longer true: If you drive scenic Route 101 north along the west shore of Hood Canal, you cross a nondescript metal bridge across the dark, placid Skokomish and, a little farther up the road, you pass a pale, pre-World War II, Art Deco power plant with high, arched windows along the front and huge pipes slanting steeply down the mountainside behind. Only about half the natural flow of the Skokomish runs under that highway bridge. The North Fork comes down through the pipes to the power plant, generates cheap power for the City of Tacoma, and then is piped out into Hood Canal.

Upstream, Cushman Dam No. 1 backs water up in scenic Lake Cushman, at the edge of Olympic National Park, and Dam No. 2 backs it up in Lake Kokanee, from which it descends through the pipes.

"The [Cushman] Project destroyed the salmon and steelhead productivity of what the Washington Department of Fisheries called 'among the most important and valuable food salmon spawning streams in the State of Washington,'" Bruce Brown writes in Mountain in the Clouds. In 1924, Tacoma obtained a federal license to flood 8.8 acres of federal land. It then "used the license as a pretext to build unlicensed, unregulated hydroelectric facilities, including two dams, two reservoirs, diversion works, two power houses, transmission lines, and appurtenances; to flood 30-plus acres of federal land within a total project area of about 4700 acres; and to divert the entire North Fork Skokomish River from its watershed."

Tacoma completed the first dam in 1926, the second in 1930. The first was finished when the great federal dams on the Colorado and Columbia still lay years in the future — although right around the time Seattle was building its own dams on the Skagit — and a 275-foot concrete power dam was considered a big deal; President Calvin Coolidge himself pressed a button in the White House to start the generating plant.

Attitudes were very different back in the 1920s, concedes Seattle attorney Mason Morisset, who represents the Skokomish Tribal Nation, but even by the standards of the 1920s, making a whole river disappear was "unbelievable." Tacoma, he says, "got away with murder." Brown writes about the concern of state fisheries officials, but virtually no one else seemed to care.

At the time, of course, people valued electric power more than they valued free-flowing rivers. Society seemed to have plenty of water, plenty of fish, but it didn't have plenty of electricity.

However, by the time Tacoma's license came up for renewal in 1974 (the city wanted to replace its expired "minor part" license with one that would cover the entire project), laws and attitudes had changed. Over the past 30-odd years, the tribe, various state and federal agencies, and environmental groups have all gotten into the act.

In separate legal action, the tribe has sued over loss of land, loss of fishing opportunities, and flood damage. (Without water from the North Fork to flush it out, sediment — much of it from eroded clearcuts and logging roads — has built up in the mainstem Skokomish, raising the level of the riverbed and creating frequent floods.) Relicensing negotiations drag on.

The Federal Energy Regulatory Commission (FERC) issued a license ten years ago, but Tacoma asked the agency for a stay. The license called for releasing 240 cubic feet per second, and Tacoma argued that letting that much water go without running it through that Art Deco powerhouse would make the Cushman project an economic loser. Relicensing on those terms would be nothing less than "decommissioning."

Three years ago, though, the D.C. Circuit Court of Appeals told Tacoma that was just too bad. Tacoma pointed out that the Federal Power Act required relicensing on "reasonable terms." But what was "reasonable?" The court suggested that what might have been reasonable in 1924 was no longer reasonable in light of current thinking and current environmental laws. "[W]e cannot accept the implication that 'reasonable terms' means the same terms that were imposed eighty years ago, or that 'reasonable terms' means terms that ignore the present-day statutory mandate." It explained that "[n]othing in the [Federal Power Act] suggests that Congress intended to 'grandfather' existing projects so they could continue to operate indefinitely despite changes in national priorities."

The court also said that if FERC granted a license, it had to incorporate conditions that the Interior Department proposed on the tribe's behalf. Those conditions could go beyond avoiding or mitigating the direct impact of facilities — a road, a power plant — actually built on the reservation. Interior wouldn't have been able to impose conditions if no portion of the project had actually stood on the reservation. But since some minor parts of the project did stand there, the entire Cushman project was fair game.

That decision "was the key that broke the log jam," Morisset says. Before that, "they were totally intransigent," he says, while "we had very little leverage, except that we thought we were right.”After the decision, though, "it was clear that the tribe was in the driver's seat."

Morisset suggests that the ruling "sent shivers through the entire industry." Tribal attorneys have told him that it "has also resulted in numerous decisions in favor of tribes."

Before that, Tacoma had no incentive to compromise. Afterward, the handwriting was on the wall.

The first tangible results have been installation of the huge valve and this month's first release of water. But, Morisset says, the release is only an interim measure, and "there are still a zillion things churning" in negotiations. There is still no way for salmon to go either up or down the river past the dams, no schedule for releasing water, no plan for dredging out the main channel of the Skokomish and then keeping it flushed, no plan to compensate the tribe for land or fishing opportunities lost.

Be that as it may, Tacoma Power is under new management and might have grown intransigent even if the D.C. Circuit hadn't ruled against it. What happened to the argument that releasing 240 cfs would force Tacoma to shut its Cushman project down? "We're not going to shut down the Cushman project by any stretch of the imagination," says Tacoma Power spokeswoman Chris Gleason.

"I think a lot of people can look at [the release of water] and say, 'we're making progress,'" Gleason says. "We really are interested in coming to an agreement with the tribe." There's no reason to doubt her. Morisset called the release of water "really historic." At this point, he says, "Tacoma is trying . . . to step up to the plate."

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues. You can reach him in care of editor@crosscut.com.

Topics: Tacoma, Washington, Native People, Rights / Ethics, Law / Justice, History, Energy / Utilities