Fred Burnside

NHA – 2014 Annual
Conference—Emerging Legal
Issues: Litigating Aesthetic
Fred Burnside
Davis Wright Tremaine LLP
 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
 WAC 173-201A-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 caseby-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.
– 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
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
 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 1958 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 20-40 cfs, with then 830 ft bypass
 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:
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).
– “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].”
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 371-08-500(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
 Drs. Shelby & Whittaker testimony revealed:
– Shelby and Whittaker’s publications agree that there is no
standardized methodology in the area of aesthetic flow
– 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
 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
– 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

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