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Hells Canyon Fish Passage: Idaho, Oregon Governors' Letter Sets Up Process To Resolve Differences
Posted on Friday, May 05, 2017 (PST)

 A long-standing dispute regarding endangered species may find resolution this summer when the governors of Idaho and Oregon attempt to work through their disagreements regarding fish passage over the Hells Canyon Complex of dams on the Snake River.

 

An April 11 letter co-signed by Oregon Governor Kate Brown and Idaho Governor Butch Otter, asked Idaho Power to withdraw and re-file its pending water quality certification applications in both states in order to provide the governors an opportunity to work through opposing laws on endangered species recovery.

 

The governors’ letter to Brett Dumas, Idaho Power director of environmental affairs, said, “We expect the states to commence discussions immediately and be concluded by September 1, 2017 so that the licensing and 401 Certification processes can proceed consistent with our discussions.”

 

Idaho Power responded to the governors’ letter three days later, addressing the heads of both states’ departments of environmental quality.

 

 “Pursuant to a request from the governors of Idaho and Oregon received on April 11, 2017, Idaho Power, with this letter, withdraws and concurrently resubmits an application for § 401 certification.”

 

The longstanding disagreement between the two states was underscored last July in a letter from Otter to Brown regarding Oregon law requiring passage, primarily for endangered steelhead, salmon and bull trout, into its Snake River tributaries upstream from the dam.

 

Otter wrote, “Such occurrence would violate long-standing Idaho law and policy opposing reintroduction of any species without consent of the Idaho State Legislature and executive branch.”

 

Sam Eaton of Otter’s office of species conservation said it’s not any secret that fish passage is the big issue hanging up the states from issuing water quality certifications necessary for Idaho Power to receive a new license from the Federal Energy Regulatory Commission.

 

Eaton said Gov. Brown didn’t respond to Otter’s July letter regarding fish passage, but the two governors met for about 20 minutes at the National Governors Association winter meeting at the end of February in Washington, D.C.

 

“That was more or less a key moment,” Eaton said.

 

In that meeting the governors agreed they needed to increase communication between their offices.

 

Eaton said procedurally, Idaho Power’s withdrawal and resubmittal of its state water quality applications restarts the clock, giving Oregon DEQ a year to complete its certification, (Idaho’s process isn’t a full year) but it may not take as long as that. He said the Sept. 1 date is ambitious, but will keep conversations between the two governors moving.

 

“We set that date as a goal so we didn’t lose momentum,” Eaton said.

 

Despite the governors’ assurance that their offices will come up with a solution by September, Eric Nigg of Oregon DEQ said the states’ departments of environmental quality will be involved.

 

“If there are any changes to the certificate conditions, those would come from us and Idaho DEQ,” Nigg said.

 

Brad Bowlin, Idaho Power communication specialist, said after 11 years of submitting, withdrawing and resubmitting their clean water applications with the border states, Idaho Power staff thought their submittal last July would be their last. He said resetting the clock provides the states an opportunity to come with a solution for fish passage, a topic on Oregon and Idaho are diametrically opposed, but he said the deadline is encouraging.

 

“We are certainly happy the states are addressing the issue,” Bowlin said. “The ball is really in the two states’ courts. We are in a ‘wait and see’ position to see what evolves out of those discussions.”

 

Idaho Power’s license expired in 2005 and the utility has been running the Hells Canyon Complex on one-year licenses granted by FERC ever since. In order to keep operating, each year the power company has submitted and withdrawn clean water certification applications to both Idaho and Oregon. Brad Bowlin, communications specialist for Idaho Power said the repeated filing and withdrawing of the 401 is part of the process Idaho Power has been going through with the states in developing a final certification and an overall license.

 

This summer Idaho Power submitted applications to both states with the intent to allow for the full-year process to play out this time. The states worked in tandem, adjusting and readjusting their deadline for public comments on their drafts.

 

However, Idaho Power anticipated the states’ disagreement on water quality and fish passage would hamper getting compliant certifications so in November the power company petitioned FERC to issue a declaratory order that the Federal Power Act preempts fish passage provisions contained in Oregon Revised Statute.

 

FERC issued an order dismissing the petition that said without knowing the outcome of the final state certifications, it was too soon to make the call whether the Federal Power Act preempts Oregon law or not.

 

Also see:

 

-- CBB, Feb. 10, 2017, “Idaho Power Caught Between Idaho, Oregon Laws Regarding Fish Passage At Hells Canyon Complex” http://www.cbbulletin.com/438308.aspx

 

-- 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

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