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NW Fishletter #369, May 1, 2017

[2] Hells Canyon Relicensing Delayed at Governors' Request

Idaho Power has agreed to a request from the governors of Oregon and Idaho that will give the states more time to resolve a dispute over reintroducing salmon in the middle and upper Snake River basins as a condition of a new FERC license for the 1,167-MW Hells Canyon Complex.

Because Hells Canyon's three dams lie on the Oregon/Idaho border, each state's water-quality agency, both housed in their respective Departments of Environmental Quality (the "DEQs"), prepared draft water-quality certifications that FERC must incorporate into the license.

In December, both state DEQs prepared drafts with similar conditions for temperature, dissolved oxygen and other criteria. Oregon's draft requires fish-passage facilities at the dams and reintroduction of fish to the river above them, while Idaho's draft expressly forbids reintroduction.

Oregon Gov. Kate Brown and Idaho Gov. C. L. "Butch" Otter met recently in Washington, D.C., to discuss the relicensing, their respective state authorities under the Clean Water Act, and the issues "that preclude the states from issuing complementary" certifications on reintroduction, according to a letter the governors sent to Idaho Power on April 11.

The governors asked the utility to withdraw and resubmit its certification applications at both agencies, thereby restarting the one-year clock, and giving the states time to discuss a solution.

Absent the action, the states would have been required to adopt final certifications by July 29, 2017. The governors' plan allows the agencies to withdraw their drafts to allow time for the discussions, which the governors said would commence "immediately." They said they expect the talks to conclude by Sept. 1, 2017. Idaho filed the requisite documents with the Oregon and Idaho DEQs April 14.

Brownlee Dam, one of three in Hells Canyon, at 60 percent completion in 1957. Credit: WaterArchives

Jon Hanian, press secretary to Otter, told NW Fishletter via email that the governors met Feb. 26 during the National Governors Association meeting in Washington, D.C., where the focus was the water-quality certifications.

Hanian said the discussions with "our counterparts" from Oregon are ongoing and that besides the governor, Idaho's delegation includes chief of staff David Hensley, legal counsel Cally Younger and Idaho Office of Species Conservation legal counsel Sam Easton. He declined to give any details about the substance of the talks.

A spokesperson for the Oregon governor's office did not reply by deadline to a similar inquiry.

Idaho Power, which has already spent $250 million on the relicensing, estimates it will spend an average of $30 million annually pending FERC's decision on the license, which is not expected before 2021. Idaho Power first applied for a new Hells Canyon license in 2003.

Asked if the utility was involved in orchestrating the governors' letter, Idaho Power spokesman Brad Bowlin said "we were involved in encouraging the states to address this issue and try to come up with a [certification] that we can all work with. At this point it is up to the states."

As to the utility's position on reintroduction, he said only that "there are a lot of potential additional costs associated with reintroduction as proposed." But in its February 10-K filing with the U.S. Securities and Exchange Commission, the utility did not stress any concerns over the costs of prospective passage and reintroduction measures in the license, but rather costs associated with prospective temperature-control provisions.

It is not unusual for water-quality certification applications to be withdrawn and resubmitted. Licensees frequently do so in deference to states that have only a year to complete often complex studies and consultations.

The Hells Canyon case is an outlier, however, as the certification applications have been withdrawn and resubmitted over a dozen times due to a series of controversies, most over water temperature and upstream watershed-improvement measures. This is one of the main reasons the relicense proceeding for Hells Canyon, the nation's fourth-largest privately-owned hydroelectric project, has been pending at FERC for nearly 14 years, during which time interim settlement operations have been in place.

The governors' letter came shortly after the DEQs received over a dozen comments on their December 2016 draft certifications.

It also came as Idaho Power is seeking rehearing of FERC's order that it is premature to consider a declaratory ruling that the Federal Power Act preempts an Oregon law giving that state authority to require fish passage, and especially FERC's assertion that states can do so under the Clean Water Act. -Ben Tansey

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