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NW Fishletter #383, July 2, 2018

[6] Lawsuit Seeks To Force EPA Approval Of New Temperature Standard On Snake River

Idaho Power is asking a federal judge to issue an injunction that would force the U.S. Environmental Protection Agency to approve a new water temperature standard in a stretch of the Snake River below Hells Canyon Dam for two weeks each fall.

The suit claims the agency lacks discretion to deny the request, since the new standard--already adopted by Idaho--is within Clean Water Act standards and fully protects Snake River fall Chinook.

Filed June 6 in U.S. District Court in Idaho, the lawsuit claims a decision by the agency was mandatory within 60 to 90 days, yet EPA has failed to act ever since the State of Idaho requested approval on June 8, 2012. The change would allow a 2.7-degree increase in maximum water temperature from Oct. 23 to Nov. 7 along a stretch of the Snake River below the dam.

"The EPA has intentionally delayed action on Idaho's site-specific standard as a means of delaying and effectively disapproving the standard for reasons that Congress did not intend EPA to consider when acting on state water quality standards," the lawsuit alleges.

The suit also names EPA Administrator Scott Pruitt and Region 10 Administrator Chris Hladick as defendants. The EPA has not yet filed a response, and spokesman Mark MacIntyre said it is the agency's policy to not comment on lawsuits.

Although the new site-specific standard is already approved by Idaho's Department of Environmental Quality and its state Legislature, both EPA and the State of Oregon must also approve it before it can go into effect.

Brett Dumas, Idaho Power's director of environmental affairs, said the company had not filed suit over EPA's failure to act on the request while it continued to negotiate with both Idaho and Oregon for a Clean Water Act Section 401 water-quality certification--a necessary step to win a new 50-year license on the Hells Canyon Complex.

"Now, we are coming up against the statute of limitations to challenge EPA's inaction," he said, and by filing a lawsuit, the company preserves its right to pursue the issue. Meanwhile, it continues to seek agreement on a new certification, required under the Clean Water Act.

Water temperature isn't the only issue between Oregon and Idaho, as the two states work to agree on a new water-quality certification.

Dumas said if the new water temperature standard is approved, it could save Idaho Power and its 547,000-plus customers between $50 million and $100 million over a 50-year period. The estimated savings would come from mitigation fees the company would otherwise have to pay to a stewardship program when temperatures exceed state standards.

He said Idaho and Oregon have current standards requiring maximum water temperature in all rivers to be reduced from 66.2 degrees to 55.4 degrees on Oct. 23, and to remain at or below the lower temperature through April 15. The new site-specific standard would step down the maximum temperature to 58.1 degrees for two weeks beginning Oct. 23, and then drop again to 55.4 degrees on Nov. 7.

Dumas said the change would have no effect on fall Chinook spawning, according to a NOAA Fisheries fall Chinook recovery plan that says temperatures below 60.8 degrees have no detrimental impact. Listed as threatened in the 1990s, naturally spawning fall Chinook have made a comeback, and in recent years, scientists have counted a record number of redds, or nesting beds, in the river between Lower Granite and Hells Canyon dams.

"We have an obligation to protect these fish, and we have demonstrated our commitment to the fish for more than a quarter century. We also have an obligation to protect our customers and our shareholders from unnecessary costs related to relicensing," Dumas said in a news release.

The temperature of water flowing below Hells Canyon Dam is just one issue holding up a new 50-year Federal Energy Regulatory Commission license for three dams in the 1,167-MW complex--Brownlee, Oxbow and Hells Canyon dams--which provide 70 percent of the company's hydropower, or about one-third of their overall generation. Oregon has raised fish passage as an issue, and cited a state statute requiring passage at any dam project seeking a fundamental change in its permit status. Idaho says reintroduction above Hells Canyon Dam will not happen without consent from its governor and Legislature. Idaho Power tried to get FERC to break the deadlock, but the agency declined and the states are back at the negotiating table, Dumas said.

He noted Idaho Power applied to renew its license in 2003, but ongoing delays make the relicensing effort--now at 15 years--one of FERC's lengthiest, and likely one of the costliest. Idaho PUC recently confirmed the utility has spent $216.5 million between 1991 and 2015 to relicense the three dams, and costs continue to mount.

Dumas said a draft agreement between Idaho and Oregon has been close several times, but because the water-quality certification process is on a one-year cycle, the process starts over each time agreement isn't reached. He said the company has submitted its application every year for the past 17 years, only to withdraw it when final agreement hasn't been reached.

He said Idaho Power is now preparing to send another letter withdrawing this year's application, and at the same time submitting a new application for next year. Still, Dumas said, "We're close. Just, some of the details haven't been fully worked out."

He added, "Our hope is, it won't take the year cycle. If we can get this fish-passage issue resolved, the process of getting certification out for public review will move forward." -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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