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Groups Sue FERC over Hells Canyon Complex Consultations by Barry Espenson Columbia Basin Bulletin - May 2, 2003

American Rivers and Idaho Rivers United on Thursday filed a lawsuit accusing the Federal Energy Regulatory Commission of failing to consult under the Endangered Species Act -- a law the conservation groups say should protect federally listed Snake River salmon and steelhead from the effects of the Hells Canyon Hydropower Complex operations.

"A lawsuit is always the last resort. Unfortunately, this suit is necessary to improve the health of the Snake River and protect salmon," said Connie Kelleher of American Rivers. "FERC is ignoring its legal mandate to make sure that Idaho Power operates its Hells Canyon dams in a way that protects endangered species.

A FERC staff member said Thursday that the commission had not yet seen a copy of the court filing and has a policy of not commenting on pending lawsuits.

The three-dam Hells Canyon Complex, owned and operated by Idaho Power Company, is located on the Snake River between Idaho and Oregon. The complex has since 1959 blocked passage for migrating salmon and steelhead that had historically spawned in the upper Snake River basin. The blocked area represents 80 percent of the historic habitat of Snake River fall chinook salmon.

The first of the three dams and the farthest upriver, Brownlee, was completed that year. The Oxbow Dam, in the middle of the complex was completed in 1961 and the lowermost, Hells Canyon Dam, was completed in 1967. Together they can generate about 1.2 megawatts of electricity.

Hells Canyon is the deepest canyon on the North American continent, and the Hells Canyon Project is located at one of the narrowest points in the canyon

There are eight other dams, all federally owned, below the complex on the Columbia River and lower Snake but all provide fish passage for outmigrating smolts and returning adult spawners. None of the three Idaho Power dams were built with passage facilities.

The lawsuit also alleges that the dams harm fish downstream by degrading water quality, interfering with fish migration and spawning by altering natural river flows, and blocking the downstream movement of sediment -- causing beach erosion and damage to fish habitat.

Idaho Power operates the Hells Canyon Complex under a license issued by FERC. FERC has authority under this license to require Idaho Power to implement changes at the dams that would benefit salmon, such as correcting water quality problems and providing flows to help young fish migrate, the groups say.

Although Idaho Power is currently in the process of relicensing this facility, the earliest the new license would be issued is 2005, when the current license expires. But the process often take much longer. The groups -- heeding a forecast made by one group of scientists certain stocks of Snake River salmon could go extinct as soon as 2016 -- want remedial actions taken immediately.

"FERC has a very poor track record of issuing timely licenses, so by the time it issues a new license for Hells Canyon, it may be too late," said Sara Denniston Eddie of Idaho Rivers United. "Endangered salmon don't have the luxury of time."

Idaho Power is proceeding on schedule, according to company spokesman Dennis Lopez. A relicensing application will be forwarded to FERC by a July deadline. That 27,000-page application is replete with a full evaluation of expected impacts to anadromous fish and mitigation measures, he said.

The ESA requires federal agencies to carry out formal "consultation" with the National Oceanic & Atmospheric Administration (NOAA Fisheries, formerly known as the National Marine Fisheries Service) to ensure that their actions -- such as issuing a hydropower dam license -- do not jeopardize the continued existence of threatened or endangered species, according to the conservation groups.

Yet, despite the ESA listing of several species of Snake River salmon and steelhead in the 1990s, FERC has never consulted with NOAA Fisheries over the impacts of the Hells Canyon Complex on those species, according to the groups. In 1997, conservation groups petitioned FERC to consult with NOAA Fisheries. To date the groups say FERC has not responded to the conservation groups' 1997 petition or consulted with NOAA Fisheries.

"For over five years FERC has allowed our petition to languish, while Snake River salmon continue to be harmed by the Hells Canyon dams," said Kelleher. "FERC's delay is inexcusable and irresponsible given its duties under the ESA."

Improving operations at the Hells Canyon Complex is also a key piece of the federal salmon recovery plan for the Snake and Columbia rivers, the groups say.

The complex, they say, interferes with the timely delivery of salmon-friendly flows from upstream dams, thus undermining a primary element of the Salmon Plan. Idaho Power refuses to release this water to help the salmon and steelhead migration without compensation from the federal government, while FERC has allowed this practice to continue, according to the conservation groups.

"Improving operations at the Hells Canyon Complex must be part of any plan to recover Snake River salmon," said Pat Ford of the Save Our Wild Salmon. "FERC cannot continue to ignore its responsibilities under the law and to the people of the Northwest. These dams are part of the problem-they need to be part of the solution."

"It's really an old issue in a way. We addressed all these issues in 1997" in a communication with FERC, Lopez said.

"There is no real-time harm to fish" from the Hells Canyon Complex operation, Lopez said. Requests to Idaho Power to shape downstream flows mask the real problem -- the operations of four federal dams on the lower Snake River.

"The reality is there are bigger problems. The projects themselves are an impediment and a problem", Lopez said. "The federal government needs to examine its own projects and decide what's good for migrating smolts" and spawners.

Meyer & Glitzenstein, a public interest law firm based in Washington, D.C., is representing the conservation groups in their lawsuit. The groups are seeking a Writ of Mandamus from the federal Washington, D.C. Circuit Court of Appeals compelling FERC to answer the conservation groups' 1997 petition by either denying the petition or by consulting with NOAA Fisheries. If FERC denies the 1997 petition to consult, the groups then have the option to appeal that denial in court.