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Fish Passage Dispute Ramps Up in Legislature by Peter Jensen Idaho Mountain Express, February 22, 2017

Bills aim to block reintroducing fish above Hells Canyon complex

Idaho and Oregon have been locked in a dispute over fish passage in the Hells Canyon complex of dams for years, and that quarrel reached the floor of the Idaho House of Representatives on Friday.

The House voted unanimously to approve a joint memorial that opposes any attempt to reintroduce salmon and steelhead in the waters of the Snake River above those dams. The memorial now moves to the Senate for approval.

Those fish have been blocked since the dams were constructed between 1955 and 1967. In Hells Canyon on the Oregon-Idaho border, Idaho Power operates three dams on the Snake River--Brownlee, Oxbow and Hells Canyon--as well as reservoirs and power plants.

The dams represent a huge portion of Idaho Power's electric portfolio. They produce about two-thirds of the utility's hydroelectricity, and more than a third of its total electric generation.

Idaho Power has been attempting to renew its license to operate those dams with the Federal Energy Regulatory Commission since 2003. The license expired in 2005, but Idaho Power has been operating on one-year renewals since then. The utility is seeking a 50-year renewal.

Fish passage has emerged as a critical impediment. Since 2001, the state of Oregon has had a law that requires passage for native fish at any dam blocking a waterway.

During the relicensing process, Oregon has attempted to impose fish passage as a legal requirement on Idaho Power. Under the Clean Water Act, the utility has to obtain certifications from Oregon as well as Idaho.

Getting those certifications has created an impasse between the states--and led to increasingly sharp words among elected officials.

On the House floor Friday, Idaho Rep. Van Burtenshaw, R-Terreton, said Oregon's actions amounted to an assault.

"I've seen few things in my lifetime that I think are a bigger assault on the sovereignty and primacy that Idaho declares over her waters," Burtenshaw said. "They start in Idaho. They are for Idaho. We cannot allow anyone to have access to that most valuable resource. It's a piracy."

Idaho's position

Last summer, Gov. Butch Otter wrote a letter to Oregon Gov. Kate Brown, saying Idaho would not agree to its neighbor's wishes.

Oregon wants to craft an agreement with Idaho and Idaho Power that would target a tributary on the Oregon side of the border for reintroduction of salmon and steelhead, according to Otter's letter. That tributary, Pine Creek, which flows into the river just below Oxbow Dam, would be assessed to see if it could host the fish, and then Oregon would press for reintroduction, Otter wrote.

"Idaho cannot agree with this approach," Otter said. "Based on state law and in part on our past experiences with reintroduced species (i.e., wolves), Idaho cannot and will not agree to the reintroduction of salmon or steelhead above Hells Canyon Dam."

The House Resources and Conservation Committee has under consideration three bills that were introduced last week and affirm the governor's position.

One, House Bill 169, would amend an existing law and require that the Idaho Legislature approve any attempt to reintroduce species in Idaho by a federal agency or by another state. As currently written, the law refers only to federal agencies.

The measures are backed by the Idaho Water Users Association, a group representing irrigators, water districts, private canal companies and other organizations.

In a resolution, the association said it opposes any attempt to reintroduce salmon or steelhead above the Hells Canyon complex because it would have "drastic impacts on irrigated agriculture, water supplies and electric power production" in Idaho.

Oregon's position

Oregon articulated its arguments in the dispute in its proposed certification, which was released in December.

Under the Endangered Species Act, many species of salmon and steelhead in the Snake River have been listed as endangered or threatened, including spring and summer runs of Chinook salmon, fall runs of Chinook salmon, Snake River sockeye salmon, steelhead and bull trout.

Idaho Power does operate a trap at Hells Canyon dam, and then spawns the captured adult fish in hatcheries.

Annually, the hatcheries produce about 1 million juvenile fall Chinook salmon, which are dropped into the Snake below Hells Canyon Dam, as well as millions more juvenile spring Chinook and steelhead.

But Oregon contends that's insufficient, and its anglers and fisheries get minimal benefit from the hatchery's operations.

One million adult salmon and steelhead historically reached spawning grounds in upstream Snake River tributaries in Oregon, like the Pine, Owyhee, Malheur, Burnt and Powder River basins, the state said.

"Idaho Power's hatchery mitigation program does not adequately mitigate for lost natural production of anadromous fish and lost harvest opportunity for Oregon anglers," the state said in its certification document. "Because the access to the Snake River below Hells Canyon Dam is limited, Oregon anglers have fewer opportunities to harvest Chinook and steelhead adults returning to the Snake River."

The Nez Perce Tribe, Shoshone-Bannock Tribes of the Fort Hill Reservation and Confederated Tribes of the Umatilla Indian Reservation have supported Oregon's position and advocate for installing fish passage.

The Confederated Tribes have a policy to restore the Columbia River Basin to a point that salmon and steelhead populations reach levels prior to an 1855 treaty with the U.S. government, according to FERC documents. In that treaty, the Umatilla, the Cayuse and the Walla Walla tribes in northeastern Oregon and southeastern Washington ceded more than 6 million acres in exchange for fishing, hunting and other rights.

"Construction of the Hells Canyon Complex cut off nearly half of the natural spawning and rearing habitat for salmon and steelhead in the Columbia River Basin," the tribe said in 2002. "Its ongoing operation continues to detrimentally affect salmon populations and the habitat that remains. Consequently, our Treaty-secured fishing rights, along with our rights to have the graves of our ancestors and other important sites maintained and protected, have been eroded."

What's next

In November, Idaho Power attempted to break through the impasse. It petitioned FERC to have Oregon's law thrown out, arguing it should be nullified under the supremacy clause of the U.S. Constitution.

In the petition, Idaho Power said it was stuck between conflicting statutes in Oregon and Idaho.

"The stakes for Idaho Power are also high," the petition stated. "Idaho Power is likely to be placed in the impossible position of having to respond to Oregon's efforts to enforce a state statute that contradicts the provisions of its FERC license, and directly conflicts with Idaho law."

In January, FERC declined the request. In a ruling, FERC said the petition was premature, and the commission lacked the authority to challenge or adjudicate a state's water rights.

"Nor would we have any authority to resolve conflicts between the states' certifications, if they exist, or conflicts between the states' certifications and any mandatory fishway prescriptions," the ruling states.

Brad Bowlin, a spokesman for Idaho Power, said the utility filed an appeal of that decision Friday as well as a request for a new hearing.

Bowlin said the utility disagrees with Oregon's using its water quality certification to impose fish passage, but hopes Oregon and Idaho can come to an agreement to resolve the dispute.

"What this does, hopefully, is encourage some discussions between the two states," he said of the legislative proposals in Idaho. "That's really where the impasse lies. Best-case scenario--the two states could resolve this."

Relicensing timeline

Idaho Power operates three dams in the Hells Canyon area along the Oregon-Idaho border: the Brownlee, Oxbow and Hells Canyon dams. Those three dams generate about two-thirds of Idaho Power's hydroelectricity each year, and account for 40 percent of its total generation.

The company's license to operate with the Federal Energy Regulatory Commission expired in 2005, and since then it's withdrawn and refiled the application on a year-by-year basis. That provides a new one-year deadline, while its applications for water quality certification are pending with the states of Idaho and Oregon, according to FERC.