Two conservation groups are asking a Multnomah County judge to send a water quality certification for the Hells Canyon Complex back to the Oregon Department of Environmental Quality with directions to act within the law.
Separately, the Nez Perce Tribe filed a suit in Marion County Circuit Court, also contesting the DEQ's failure to include fish-passage requirements and lack of assurances that water quality standards will be met.
Pacific Rivers and Idaho Rivers United filed a petition for review of Oregon's certification on July 22, saying that by issuing the certification, DEQ violated state requirements for fish passage and did not follow state and federal laws which require a "reasonable assurance" that water quality standards will be met.
Idaho Power has been working for years with both Oregon and Idaho to reach an agreement for a water quality certification needed to relicense the three hydroelectric projects in its Hells Canyon Complex. Required under the Clean Water Act, the certifications from both Idaho and Oregon committed the company to spend more than $400 million over 50 years on a wide range of measures including a mercury study and various measures to reduce Snake River water temperatures.
After approval in May, the company called the certification a "huge milestone" in its quest for a new 50-year license for Brownlee, Oxbow and Hells Canyon dams, which generate roughly 70 percent of its hydroelectric power and 30 percent of its total energy. It began work to relicense the three dams with the Federal Energy Regulatory Commission in the mid-1990s, and said that with the certification, the company was on track to receive a new license in 2022.
Idaho Power is not named in the complaint, but spokesman Brad Bowlin said the company does not comment on pending litigation.
The groups claim the settlement agreement doesn't do enough to ensure that Idaho Power will improve and protect Snake River water quality for the next 50 years--especially when it comes to mercury contamination and water temperature.
"This project is being relicensed, and big issues like climate change demand that we think about how dams and fish can coexist," said Greg Haller, executive director for Pacific Rivers, based in Portland.
Haller told NW Fishletter that Idaho Power has seen substantial benefits from the three hydroelectric projects, and it's time for the company to come up with a plan to resolve mercury contamination within the project and provide cool water downstream. "We need to make sure the water coming out of Hells Canyon is as clean and cold as we possibly can," he said.
Haller said the issue is one of equity. "Is this a reasonable tradeoff? What we got out of the [water quality certification] was a lot more study and analysis and not really a hard, concrete commitment to hit the standards in a timely fashion. It's too speculative, and it's going to take too long to determine which of those speculative actions will produce results." He added that all the projects to reduce temperature are upriver, not in the lower Snake where temperature is a problem.
Haller said with no fish passage, the complex cuts off 80 percent of the Snake River's historic spawning habitat for Snake River fall Chinook. Oregon state law requires passage in all state waters where native migratory fish have historically been present, he said.
Kevin Lewis, conservation director for Idaho Rivers United, told NW Fishletter that his group also takes issue with Oregon DEQ's decision to work out a settlement agreement with Idaho Power without input from tribes or interest groups that are directly affected. He said his group has long had serious concerns about Snake River water quality.
According to the complaint, people are warned not to eat fish caught in Hells Canyon or Brownlee reservoirs, where mercury concentrations in fish are found to be five times higher than fish farther upstream. The complex of dams also causes and contributes to violations in Oregon's water quality standard for temperature, according to the petition. The certification does not provide a reasonable assurance that the water quality standards will not be violated, the lawsuit says.
"This will be a 50-year settlement," Lewis said, and added, "We're unwilling to kick that can down the road for 50 years."
Under the agreement, Idaho Power plans to improve water temperatures by planting native vegetation along riverbanks and deepen a stretch of the river to improve natural river functions.
The company also planned to adjust the timing of water releases from Brownlee Reservoir in years when extremely high temperatures are forecast to cool the water below Hells Canyon Dam. It also plans to conduct a 10-year study with the U.S. Geological Survey to look at mercury levels in reservoirs to determine where it is coming from, and where it is going.
In addition to the water quality certification, a few other requirements are still unmet in Idaho Power's relicensing effort. The company is working on a proposal to increase the water temperature standard in a stretch of the Snake River below Hells Canyon Dam from Oct. 23 to Nov. 7.
The Federal Energy Regulatory Commission must also update its environmental review of the relicensing proposal.