The Upper Snake River Tribes Foundation, the Columbia River Inter-Tribal Fish Commission, individual tribes and nonprofit groups are objecting to Idaho Power's settlement offer, which would use some of the measures from its settlement agreement for a water quality certification as articles for a new license for the Hells Canyon Complex [P-1971].
Some of those objecting have asked FERC to postpone any relicensing decisions until everyone's fish passage and water quality concerns are addressed.
The Upper Snake River Tribes Foundation is also asking FERC to include a stakeholder-developed plan for restoring salmon and steelhead above the Hells Canyon Complex projects as part of Idaho Power's relicensing requirements.
CRITFC asked FERC to delay issuing a new license or making any other commitments on the project until significant issues are resolved. Its letter notes that the Oregon Department of Environmental Quality is being legally challenged over the water quality certification, and said that Idaho Power's filing is premature given the unresolved legal issues and the potential need for FERC to conduct a supplemental review of its final EIS for the project before moving forward with a new license.
The Nez Perce Tribe—which is seeking judicial review of Oregon DEQ's issuance of the water quality certification in Oregon's Marion County Circuit Court—noted that conditions of the certification could change as a result of the tribe's lawsuit.
"The Tribe's petition includes claims challenging Oregon's failure to require fish passage and failure to provide reasonable assurance that the HCC will not violate the state of Oregon's water quality standards for mercury/methylmercury and temperature," the letter stated.
The letters, filed with FERC between Jan. 31 and Feb. 6, are in response to Idaho Power's Offer of Settlement of a Stipulation and Implementation Agreement filed Dec. 30.
The filing asks FERC to use portions of its water quality certification settlement agreement as "proposed license articles," and to have other provisions remain as "off-license measures."
"This Offer of Settlement is not a comprehensive settlement of disputed issues between the Parties," Idaho Power's request stated. The proposal would resolve only "disputed issues related to spring Chinook salmon and summer steelhead fish passage and reintroduction" related to the issuance of a water quality certification, it said.
Idaho Power spokesman Brad Bowlin said the company plans to file a formal response to the comments with FERC by Feb. 26.
According to the foundation's letter filed with FERC on Jan. 31, state, federal and tribal agencies were working on a plan under FERC's recommendation with goals, objectives and measures to restore salmon and steelhead to the Snake River and tributaries upstream of the complex of dams for ceremonial, subsistence and recreational purposes, using hatchery surplus and non-ESA listed stocks.
Although some of the stakeholders withdrew from the process, two of the foundation's member tribes filed a final version of a plan with FERC in May 2018. That alternative plan would address salmon and steelhead passage and reintroduction through a comprehensive approach, the foundation's letter stated.
Its goals include near-term restoration of tribal ceremonial and public recreational salmon and steelhead fishing in priority tributaries upstream of the project; medium-term restoration of self-sustaining runs through transport and release of nonlisted fish upstream of the project; and long-term restoration of fall Chinook salmon in the mainstem Snake River upstream of the project.
Instead of using that plan, the letter said, Idaho Power is seeking to settle salmon and steelhead passage and reintroduction issues through the agreement made for its water quality certification, which was developed without collaboration with tribal fishery managers. That settlement, the letter said, eliminates all provisions for tribal ceremonial and subsistence fisheries, and its proposal to increase hatchery production by 800,000 smolts does not provide for tribal needs.
The tribes' plan would increase hatchery production up to 4 million smolts to meet both state and tribal needs, with allocation decisions to be made by a new committee comprised of all fishery co-managers, the foundation comment stated.
The foundation also said the settlement—if incorporated as license articles as proposed—will impede federal tribal trust responsibilities.
The foundation comprises four Indian tribes. Three of them—the Burns Paiute Tribe, the Bannock Tribes of the Fort Hall Reservation, and the Shoshone-Paiute Tribes of the Duck Valley Reservation—also filed separate comment letters to FERC objecting to Idaho Power's settlement offer.
The Idaho Conservation League supports the tribes' position. "We are concerned about the lack of adequate engagement with these key stakeholders in developing the SIA—most notably Idaho's tribal governments," its comment letter said. "Just as IPC must satisfy the requirements of both Idaho and Oregon, so too must they consult with, and meet the requirements of, sovereign nations within Idaho."
Pacific Rivers and Idaho Rivers United filed a joint comment urging FERC to defer any action due to the litigation against the state of Oregon over terms of fish passage in the water quality certification agreement, and noted essential parties were not involved in the settlement agreement, including sovereign tribal nations with treaty rights and co-management authority.
The U.S. Fish and Wildlife Service also commented on Idaho Power's proposal. It noted, "The settlement is not a comprehensive settlement of disputed issues between the Parties or other stakeholders involved in the [Hells Canyon Complex] relicense proceedings."
The comment said that BiOps issued by NOAA Fisheries and the FWS are needed to issue a license. "Since the off-license measures related to the project may affect ESA listed species, including bull trout and its designated critical habitat that are reasonably certain to occur, they should be considered part of the proposed action for the HCC ESA Section 7 consultation and incorporated into the FERC Biological Assessment for the HCC," it said.
FWS also commented that, as a federal agency, it has trust responsibilities to the tribes, and tribal input must be considered by FERC. The agency suggested that a larger stakeholder discussion regarding tribal issues occur as the relicensing process proceeds.