Can the Cushman Dam dispute really be over?January 13th, 2009 by cdunagan
It is rather mind-boggling to think that the city of Tacoma and the Skokomish Tribe have worked out their long-standing disagreements over the Cushman Dam Project. Yesterday, the parties signed a settlement agreement, as I explained in a story in today’s Kitsap Sun.
I have covered the Cushman battles for the Sun since I first arrived at the paper in 1977, nearly 32 years ago. While some stories never seem to end, I can’t think of any legal dispute that has taken half this long to be resolved — even those that I’ve followed all the way to the U.S. Supreme Court.
A story I wrote for the Sept. 27, 1999, edition started this way:
The future of Cushman Hydroelectric Project in southern Hood Canal remains tied up in court — and it’s a good bet that even King Solomon couldn’t settle this dispute.
Nobody is happy with the requirements of a new operating license issued last year by the Federal Energy Regulatory Commission (FERC).
Both the city of Tacoma, which owns the facility, and the Skokomish Tribe, which resides downstream, are suing to have the terms of the license changed.
And numerous state and federal agencies have become tangled in the controversy as they try to comply with provisions of the Endangered Species Act and the Clean Water Act.
Now salmon — particularly those protected by federal law — are moving to the center of the relicensing battle, which has gone on for more than 25 years.
So, what are the details of this settlement — which is actually
a series of documents signed by the city and tribe as well as state
and federal agencies? You may wish to download the 260-page
compiled settlement (PDF 5.6 mb), which I obtained yesterday,
or read on for my expanded “summary” of the various documents.
Settlement of damage claims
Tacoma will provide cash, annual payments and title to lands in exchange for the tribe’s dropping all damage claims with respect to past grievances caused by the dam project.
The tribe will support a new 40-year license for the two dams and associated facilities on the North Fork of the Skokomish River. The tribe will not oppose a new powerplant below the lower dam but may participate in the design.
Tacoma agrees to support congressional legislation to restore the Skokomish watershed.
Under the agreement, the Skokomish Tribe will receive $6 million for past damages and another $6 million to be used for damages and flood mitigation.
Annual payments will be made to cover 7.25 percent of the net value of the electricity produced at the lower Cushman powerhouse. The minimum shall be $300,000 and the maximum $500,000 for each of the first 20 years. After 20 years, the minimum will be $625,000 and the maximum $900,000 a year, adjusted for inflation.
Tacoma will provide a total of $1.6 million to compensate individual tribal owners who own land beneath the power lines. Tacoma will have no responsibility for the tribe’s distribution of those payments.
About 1,400 acres of land valued at $23 million will be transferred to the tribe as compensation for damages, including:
The 500-acre Nalley Ranch near Hood Canal
Camp Cushman, where the tribe will allow public access to the boat ramp and parking area from Memorial Day weekend through Labor Day weekend. Tacoma will maintain the boat ramp.
Saltwater Park, where the tribe will allow year-round public access to the boat ramps. Tacoma will add a third boat ramp and maintain the boat ramps and restrooms.
Relatively small tracts adjacent to Potlatch State Park.
Tacoma Public Utilities will pay the Skokomish Tribe $20,000
annually (adjusted for inflation) for the use of reservation lands,
including an easement for power lines.
Tacoma will pay 25 percent of the cost of studies leading up to the restoration of the Skokomish watershed. The maximum will be $400,000 a year and no more than $1.2 million total.
If Congress does not sufficiently fund the restoration of the
Skokomish watershed, then Tacoma will step up with funding.
Guidance will be provided by an upcoming Mainstem Channel
Restoration Plan, to be approved by federal agencies. The work
could cost Tacoma $600,000 every five years for the next 40
Lake Cushman levels should remain between 735 feet and 738 feet from Memorial Day weekend through Labor Day weekend and at least 690 feet from November 1 through March 31. For Lake Kokanee, the levels should remain between 474 feet and 480 feet except for dam maintenance. (Adequate lake levels are desired by full- and part-time residents of the two lakes.)
An annual water budget is planned for the release of 160,000 acre-feet into the Lower North Fork of the Skokomish River. Minimum flows would be 150 cubic feet per second in January and February; 180 cfs for March, April and May; 170 cfs for June; 100 cfs for July and August; 170 cfs for September; and 180 cfs for October, November and December.
Other provisions are designed to experiment with sediment transport, control flooding and manage changes in the water levels. A monitoring plan must be developed and approved.
Tacoma will pay up to $150,000 a year (adjusted for inflation) for carrying out the provisions to reduce flood damage.
Water quality and recreation
Tacoma must develop a plan to protect and enhance water quality, recreation and aesthetics in the North Fork of the Skokomish River. The city may need to contribute up to $750,000 as matching funds to improve Staircase Road.
Fish habitat enhancement and restoration
Tacoma must develop a plan to enhance fish habitat in the North Fork and seek public comment and approval from federal agencies. A restoration fund will start with $3.5 million from Tacoma with an additional $300,0000 a year (adjusted for inflation) starting five years later.
Enhancement projects may include addition of wood and other instream structures, development and improvement of side channels and removal of culverts and other barriers to fish passage.
Monitoring is required to measure progress in fish enhancement, changes in the stream channel and the amount of sediment and spawning gravel moving downstream in the North Fork and main stem of the Skokomish River. Other monitoring programs are focused on water quality conditions, including the level of plankton in the lakes.
Downstream fish passage
Tacoma must develop a plan to allow downstream fish passage. The settlement agreement prescribes design details, including a “floating collector” to attract migrating fry plus other equipment to capture fish and move them by truck to a downstream release site. Monitoring of fish passage is required.
Upstream fish passage
Tacoma must develop a plan to allow upstream fish passage. The settlement agreement prescribes design details, including facilities to trap, capture and haul adult fish by truck to an upstream recovery site for release. Provisions also must be made to make sure fish can get past Little Falls on the upstream side of the dams. Monitoring of fish passage is required.
A hatchery program is required to introduce, restore and maintain fish populations in the North Fork and to provide harvest opportunities for treaty and non-treaty fishers as well a recreational anglers. Five species will be included: sockeye, spring chinook, steelhead, coho and rainbow trout. The facility will be located at Saltwater Park below the dams. The agreement prescribes the general approach to supplementation, including stock selection, release strategies and monitoring.
Wildlife enhancement plan
Tacoma will develop a wildlife enhancement plan with the tribe and involved state and federal agencies. Areas Tacoma will acquire for wildlife include a 320-acre Green Diamond property adjacent to Homan Flats, and a 430-acre Green Diamond property around Lake May.
Those properties and several others will be enhanced to improve native plant and wildlife populations. Three osprey-nesting structures will be built. Perching, roosting and nesting trees suitable for bald eagles and osprey will be protected. Snags will be created. Abandoned roads will be restored to a more natural condition. At least 20 wood duck boxes will be built at Lake Kokanee, Lake May and other areas. At least seven bat boxes will be constructed at Lake Cushman, Lake Kokanee, Lake May and other suitable places. At least 200 acres will be protected for elk.
A recreational resources plan will be crafted to offer recreational opportunities. Included are improvements to an undeveloped portion of Olympic National Forest’s Big Creek Campground for organized group overnight and day-use. When power becomes available, Tacoma will install lighting at the campground. In addition, picnic facilities are to be added at the Bear Gulch Access. And “The Big Rock” site will be assessed for enforcement actions aimed at reducing forest fires and traffic nuisances. A study of recreational needs and ongoing monitoring of uses are required.
Road management plan
Tacoma will develop a plan to manage the road with an eye to protecting water quality, recreational activities and aesthetic qualities. The plan is to address drainage structures, the road surface, signs and other structures, and roadside vegetation.
Compensation to state programs
To avoid conflicts with new fish-enhancement programs, Lake Cushman won’t be stocked with rainbow trout. In its place, Tacoma will release 100,000 additional rainbow trout into Lake Kokanee and selected lakes in Mason, Kitsap, Thurston, Pierce, and Jefferson counties.
Tacoma will continue to compensate the Department of Fish and Wildlife for its George Adams hatchery, which was the subject of a 1959 settlement dealing with the lack of fish passage at the Cushman Dam Project. The rate was set at the 2008 level of $103,000 plus an annual inflation factor.
Compensation to U.S. Forest Service
Tacoma will pay the Forest Service $85,000 a year, adjusted for inflation, for maintenance of federal lands and law enforcement activities associated with recreation in the Lake Cushman area.