Nez Perce Tribe, Pacific Rivers, Idaho Rivers United File Challenge To Oregon Water Quality Certification For Hells Canyon Dams

Pacific Rivers and Idaho Rivers United filed a petition in Multnomah County circuit court Tuesday challenging the issuance of the water quality certification by the Oregon Department of Environmental Quality for the Hells Canyon Complex. The Nez Perce Tribe filed a challenge in Oregon’s Marion County circuit court.

The three dams, owned and operated by Idaho Power Company, are located on the reach of the Snake River that forms the border of Oregon and Idaho.  Located within the Tribe’s aboriginal homeland, the Hells Canyon Complex, consists of Brownlee, Oxbow, and Hells Canyon dams.

In their complaint, the conservation groups argue that Oregon DEQ failed to follow the requirements of state and federal law when they certified the dams will meet water quality standards for temperature and mercury. Additionally, the groups say the recent settlement agreement between Oregon and Idaho Power regarding fish passage fails to comply with the requirements of Oregon’s fish passage law.

The Tribe’s petition alleges that Oregon DEQ’s certification is deficient because it does not address fish passage as required under Oregon law and the certification fails to provide reasonable assurance that the Hells Canyon Complex will not violate Oregon water quality standards for methylmercury and temperature during the life of its new Federal Energy Regulatory Commission license.  

“The Hells Canyon Complex—constructed more than six decades ago on lands used by the Tribe since time immemorial—has caused extensive and irreparable injury to the culture, traditions, economy, and health of the Tribe and its citizens,” said the Tribe in a press release. “The Tribe secured its rights to resources in this area in the Nez Perce Treaty of 1855. The Tribe has co-management responsibilities at Hells Canyon Dam for juvenile Snake River spring Chinook and steelhead releases. The Tribe has worked hard to restore Columbia basin salmonids to protect and enhance the Tribe’s Treaty-reserved rights and resources.”

“The Tribe has consistently advocated for the adoption of 401 certifications for this project that are protective of the Tribe’s Treaty-reserved rights and resources due to the central role water quality plays in the protection of those resources. This in turn helps protect the health and welfare of the Tribe’s citizens who exercise their Treaty rights in waters within Oregon,” said Shannon F. Wheeler, Chairman of the Nez Perce Tribal Executive Committee.

The Hells Canyon Complex generates highly toxic methylmercury that bioaccumulates in the Snake River’s aquatic food chain rendering Treaty-reserved resources, such as white sturgeon, unsafe for consumption, says the Tribe.

In 2015, the Tribe was forced to adopt a white sturgeon consumption moratorium for tribal citizens due to health risks posed by the presence of high levels of methylmercury in the Snake River downstream of the Hells Canyon Complex.

Tests have shown that white sturgeon in the area have mercury levels up to 75 times higher than Oregon’s methylmercury standards. “The methylmercury in the Hells Canyon Complex area will affect tribal citizens and our treaty rights for generations. The Tribe expected Oregon Department of Environmental Quality to have aggressive and enforceable terms in the certification to resolve this threat to Treaty resources,” said Wheeler.

The Tribe said it is also concerned about the inadequate conditions in the certification addressing temperature and the lack of required fish passage.

“The operation of Hells Canyon Complex results in changes to the Snake River’s temperature regime delaying the cooling of the Snake River downstream of the Hells Canyon Complex in the fall during salmonid spawning. The Hells Canyon Complex also blocks fish passage and degrades water quality and habitat for culturally-significant resources such as salmon, steelhead, Pacific lamprey, bull trout, and white sturgeon.”  

“Given the Tribe’s interest in the area and expertise in fish management, the Tribe is simply asking the court to remand the certification so Oregon Department of Environmental Quality can bring it into compliance with Oregon law so that the Tribe’s work and resources are properly protected,” Wheeler said.

Idaho Power Company is seeking a new fifty-year license for the dams from the Federal Energy Regulatory Commission and water quality certification by Oregon and Idaho is a necessary component before FERC can issue the new license.

In May, Idaho Power took a significant step toward a new federal license for the three-dam largest hydroelectric project with the states of Idaho and Oregon certifying the company’s plan for meeting water quality standards in the Snake River.

Section 401 of the federal Clean Water Act requires the company to produce a plan to meet state water quality standards as part of the relicensing process. Because Hells Canyon is on the Idaho–Oregon border, both states must approve the company’s plan (commonly called a 401 certification).

The plan’s acceptance was considered a move forward in the company’s application to relicense Brownlee, Oxbow and Hells Canyon dams.

Together, those projects provide about 70% of the company’s hydroelectric generation.

The original license for the complex expired in 2005, and the company has operated the dams on a series of annual licenses since then.

Under the plan, Idaho Power commits to a number of water-quality improvement measures. Some have been developed and tested over the past several years, while others will be implemented when the company receives a new long-term license from FERC.

 “Receiving the 401s from the states is a huge milestone for the company,” said Brett Dumas, Director of Environmental Affairs for Idaho Power, said in May. “This allows us to move forward with relicensing our most valuable asset. And, it clears the way for a tremendous number of projects to improve the environment of the Snake River while Idaho Power continues to provide safe, reliable, clean energy into the future.”

Idaho Power has proposed a series of upstream river restoration measures, including the Snake River Stewardship Program, to address water temperatures in the Snake River.

One major component of the company’s plan includes projects to narrow and deepen key stretches of the Snake River between Walters Ferry and Homedale, which aims to improve natural river function and habitat.

Working with landowners, the company has begun planting thousands of native trees and shrubs along tributaries of the Snake River to provide shade. Both measures are intended to help decrease water temperatures.

Additional steps include funding for improvements, such as pressurized sprinkler irrigation to reduce runoff from agricultural land, equipment to increase the oxygen in water released from Brownlee Dam and spillway modifications to minimize dissolved gases, which can harm fish.

The company has already launched a 10-year study of mercury levels in Brownlee and Hells Canyon reservoirs in coordination with the U.S. Geological Survey.

The 401 plan also proposes lowering Brownlee Reservoir in unusually warm years to reduce water temperatures during downstream salmon spawning.

Both states accepted and reviewed public comments on the plan prior to approval. The cost of measures included in the plan is estimated to exceed $400 million over the term of the license, which the company anticipates will be 50 years.

Idaho Power began the relicensing process in the mid-1990s with discussions involving a wide range of interested groups including state and federal regulators. The next step in the process will be for the Federal Energy Regulatory Commission to update its environmental review that was completed in 2007.

Idaho Power expects to receive a new license in 2022.

Oregon DEQ’s decision to certify the projects followed a public hearing and a nearly two-month public comment period.

Under Section 401 of the federal Clean Water Act, states have the authority to issue water quality certifications to ensure projects with federal permits comply with the state’s water quality standards.

“The certification includes a number of provisions to improve water quality, fish habitat and vegetation along the Snake River and its tributaries.,” said Oregon DEQ.

Oregon DEQ “worked with Idaho Power and the Idaho Department of Environmental Quality to ensure that water quality standards for temperature, dissolved oxygen, methylmercury will be met within the reservoirs and downstream of the project,” said the agency.

The states’ agreement “is the culmination of years of work between multiple partners in Oregon and Idaho,” said Oregon DEQ Director Richard Whitman in May. “Hells Canyon shows what states can accomplish when they work together to improve water quality and fish habitat.”

Oregon and Idaho also spent two years creating a separate settlement agreement that outlines additional provisions for habitat restoration and fish placement.

Under its Snake River Stewardship Project, said Oregon DEQ, Idaho Power will provide extensive funding for improvements to habitat and water quality in the Snake River and its tributaries, including restoring habitat along 30 miles of the Snake River floodplain and restoration of shade along 150 miles or more of tributaries of the Snake River.

In addition, the company will provide $2 million to enhance native salmon habitat in Powder River tributaries, $3.2 million to enhance water quality in the Snake River and its tributaries, and $6.8 million for the Oregon Water Quality Improvement Program, which aims to address sediment and phosphorous issues in multiple rivers and tributaries in Oregon.

“These improvements will provide cooler water that is vital to fish spawning and other uses of the river. Idaho Power also will operate Brownlee Dam to reduce the temperature of water released from the dam,” said Oregon DEQ.

The settlement agreement also requires placement of fish from below Hells Canyon Dam into Pine Creek, an Oregon tributary to the Snake River.

“The Hells Canyon Complex has an enormous impact on water quality and salmon populations in the Snake River,” said Greg Haller, Executive Director of Pacific Rivers. “The actions proposed by Idaho Power, and certified by DEQ, are far too speculative to ensure compliance with important water quality standards. It’s a leap of faith that salmon can’t afford to take.”

Brownlee Reservoir is a popular fishery but anglers are warned not to consume fish they catch due to the high levels of mercury contained in their flesh, said the groups in a press release.

“Idaho’s rivers are one of the defining hallmarks of our State and the core of protecting all that they provide is water quality”, said Nic Nelson, Executive Director of Idaho Rivers United. “Idaho Power has failed to protect the rights of Idahoans in sustaining the important fisheries of the Snake through the proposed actions on the dams it operates. Compliance with water quality standards is not optional, and we must take action to preserve the integrity of this river system.”

The complaint says “portions of the Snake River are failing to meet Oregon’s water quality standards, in part, because of the operations of the” Hells Canyon dams.

The complex “causes and/contributes to violations of Oregon’s water quality standard for temperature, including the salmon spawning criterion, which was developed for the Hells Canyon reach of the Snake River, as well as the natural seasonal thermal pattern criterion.”

The dams alter “natural water temperatures by delaying the natural cooling that would occur in the fall and delays the natural warming that would occur in the spring because of the large amount of water impounded in Brownlee Reservoir,” says the complaint.

“Many aquatic plants and fisheries, such as salmon, are sensitive to water temperature. When the temperature of a river rises even a few degrees, it can impact salmon survival. For example, warmer water temperatures can allow the spread of diseases that are harmful to migrating salmon. Excessive heat prior to and during spawning can also result in decreased egg and fry survival.

The Project causes and/contributes to violations of Oregon’s water quality standard for mercury in the Snake River.

“Mercury is a highly toxic metal that bio-accumulates in living organisms, including fish. Mercury concentrations in fish in Hells Canyon have been found to be up to 5 times higher than fish further upstream. Human health advisories have been issued warning people not to eat fish caught in Hells Canyon and Brownlee Reservoir.

“The operation of dams can cause the conversion of mercury into methylmercury. Unlike mercury, methylmercury moves into the food chain. People exposed to the chemical through their diet face increased cardiovascular risks, and children with high prenatal exposure can develop attention deficit/hyperactivity disorder, neurological abnormalities, and other symptoms,” says the complaint.

Pacific Rivers and Idaho Rivers United are represented by the Environmental and Land Use Clinic of University Legal Assistance at Gonzaga University School of Law in Spokane, Washington. The Tribe is represented by the Nez Perce Tribe Office of Legal Counsel and Advocates for the West.

Also see:

— CBB, April 24, 2019, OREGON, IDAHO REACH AGREEMENT ON HELLS CANYON DAMS, WATER QUALITY; INCLUDES SALMONID RESEARCH https://www.cbbulletin.com/oregon-idaho-reach-agreement-on-hells-canyon-dams-water-quality-includes-salmonid-research/

— CBB, April 6, 2019, SHOSHONE-BANNOCK TRIBES SIDE WITH OREGON ON ISSUE OF FISH PASSAGE AT HELLS CANYON DAMS https://www.cbbulletin.com/shoshone-bannock-tribes-side-with-oregon-on-issue-of-fish-passage-at-hells-canyon-dams/

— CBB, Dec. 21, 2018, HELLS CANYON AGREEMENT: NO SALMONID REINTRODUCTION ABOVE DAMS FOR NOW, STRESSES HABITAT, RESEARCH https://www.cbbulletin.com/hells-canyon-agreement-no-salmonid-reintroduction-above-dams-for-now-stresses-habitat-research/

— CBB, Feb. 23, 2018, HELLS CANYON FISH PASSAGE: IDAHO POWER TO APPEAL FERC’S DECISION ON OREGON LAW https://www.cbbulletin.com/hells-canyon-fish-passage-idaho-power-to-appeal-fercs-decision-on-oregon-law/

— CBB, May 5, 2017, “Hells Canyon Fish Passage: Idaho, Oregon Governors’ Letter Sets Up Process To Resolve Differences” http://www.cbbulletin.com/438853.aspx

— 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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