petition filed this fall by Idaho Power asking the Federal Energy Regulatory
Commission to declare federal law preempts Oregon’s fish passage requirements
was dismissed, leaving uncertainty over studying the feasibility of salmon and
steelhead passage at the Snake River’s Hells Canyon Complex.
river serves as a border between Idaho and Oregon. Oregon law requires fish
passage at dams and Idaho law bans the reintroduction of endangered species above
dams without approval by the state legislature.
summer Idaho Power submitted applications to both Idaho and Oregon. On Dec. 13
Oregon released a draft water quality certification kicking off a 60-day
comment period. On Dec. 14 Idaho released its draft certification and aligned
the cut-off for public comment to match Oregon’s deadline of Feb. 13.
major difference between the two drafts - Oregon asks Idaho Power to consider
fish passage, allowing for a 13-year study period to determine feasibility.
more detailed information see CBB, Dec. 16, 2016, “Oregon, Idaho Differ On
Clean Water Act Interpretations Regarding Snake River’s Hells Canyon Complex” http://www.cbbulletin.com/438093.aspx)
in an attempt to clear up the matter, Idaho Power filed a petition Nov. 23
asking the Commission to declare that the Federal Power Act supersedes Oregon’s
fish passage requirements with respect to the Hells Canyon Project, a
collection of three hydroelectric dams and three reservoirs extending along 38
miles of the river.
FERC commissioners dismissed the petition, with Idaho Power caught between two
state borders and two state laws.
after Idaho Power submitted the petition, both Oregon and Idaho released draft
water quality certifications for the Complex in compliance with the Clean Water
Act. Comment periods were initially scheduled to end Feb. 13, but this week
Oregon extended its comment period to Feb. 28, said Brad Bowlin, communications
specialist for Idaho Power.
or not Idaho will extend its deadline remains uncertain.
Commission’s order dismissing the petition argued without knowing the outcome
of the final state certifications, so it is too soon to make the call whether
the Federal Power Act preempts Oregon law or not. An order could force the
states and Idaho Power to find a solution without federal interference.
said, “Hopefully the states can get together and reconcile this. Their
positions are diametrically opposed and we are stuck in the middle.”
Department of Fish and Wildlife opposed the petition, the order said, arguing
the state’s water quality standards and other appropriate requirements related
to water quality, including potential restoration of native migratory fish
species in certain tributaries above Hells Canyon Dam, are the result of
Oregon’s water quality standards and Clean Water Act, a federal statute, which
is not subject to federal preemption.
order said the notes included Idaho Water Users comments in which they said
they have opposed upstream passage and reintroduction since 2001 based on the
impact to irrigation, agriculture, water supplies, and electric power
production in Idaho.
Idaho Public Utilities Commission filed comments taking no position on federal
preemption, the order said, but raised concerns about possible increased costs
of power to Idaho Power’s customers in Idaho. The PUC’s comments stated 95
percent of Idaho Power’s costs are recovered from Idaho customers, and wanted
the Commission to be aware of concerns about the disproportionate impacts
Oregon’s requirements would have on Idaho customers.
Hells Canyon Complex received a 50-year license from the Commission in 1955.
The license expired on July 31, 2005, and since then the project has operated
under annual licenses.
part of the licensing process Idaho Power is required to have a pending water
quality certification application in front of the states’ departments of water
quality. For 11 years Idaho Power submitted and withdrew applications to both
states, but this past July the power company submitted applications allowing
Oregon and Idaho time to draft certificates and release them for comment.
Commission’s order also argued it was too soon to make a decision on federal
versus state laws when both National Marine Fisheries Service and U.S. Fish and
Wildlife Service have both declined to begin Endangered Species Act
consultation until after the states have issued, or waived, water quality
certification. As a result the Commission has been unable to act on the
relicense application and it remains pending.
order concluded, “After considering the petition, answers and protests, motions
to dismiss, and response to the motions, we agree that Idaho Power’s petition
for a declaratory order on federal preemption is premature. In our view, there
is currently no conflict between state and federal law that would require us to
make a preemption determination. We therefore grant the motions to dismiss the