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Idaho Power Caught Between Idaho, Oregon Laws Regarding Fish Passage At Hells Canyon Complex
Posted on Friday, February 10, 2017 (PST)

A 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.


The 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.


This 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.


The major difference between the two drafts - Oregon asks Idaho Power to consider fish passage, allowing for a 13-year study period to determine feasibility.


(For more detailed information see CBB, Dec. 16, 2016, “Oregon, Idaho Differ On Clean Water Act Interpretations Regarding Snake River’s Hells Canyon Complex”


Earlier, 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.


The FERC commissioners dismissed the petition, with Idaho Power caught between two state borders and two state laws.


Shortly 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.


Whether or not Idaho will extend its deadline remains uncertain.


The 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.


Bowlin said, “Hopefully the states can get together and reconcile this. Their positions are diametrically opposed and we are stuck in the middle.”


Oregon 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.


The 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.


The 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.


The 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.


As 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.


The 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.


The 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 petition.”

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