The Washington Department of Fish and Wildlife, Cowlitz Indian Tribe and three environmental groups filed requests to intervene in a FERC decision that will determine if PacifiCorp and Cowlitz County PUD are entitled to a "trial-type" hearing over the actions of federal agencies likely to result in fish passage mandates at three Lewis River hydroelectric projects.

In July, the National Marine Fisheries Service and U.S. Fish and Wildlife Service withdrew a preliminary decision that would have allowed the electric utilities to make improvements in the upper watershed instead of completing fish passage at the three projects.

PacifiCorp and Cowlitz PUD say that, as required under a settlement agreement, they implemented fish passage that transports adult and juvenile salmon and steelhead between the lower-most and upper-most projects. Based on success of the initial fish passage, the license holders developed an alternative to remaining fish passage into and out of Merwin and Yale reservoirs, as allowed under the settlement agreement.

According to PacifiCorp's Aug. 26 request for a hearing, federal agencies made a preliminary determination to implement their plan to restore upriver habitat, which was expected to produce comparable results to requiring the remaining fish passage at a greatly reduced cost, but deferred a decision over passage at Yale Dam for 10 years. WDFW and the Cowlitz tribe objected to the determination. Prior to a hearing on those objections, the federal agencies filed a motion to stay the hearings to conduct settlement discussions. In July, they withdrew the determination.

PacifiCorp disputes more than a dozen material facts that the agencies used in their decision to withdraw the preliminary determination.

On Oct. 12, the U.S. Department of Interior stated in a letter to PacifiCorp that it has no right to a trial-type hearing under the Federal Power Act, as "the U.S. Fish and Wildlife Service has not filed preliminary fishway prescriptions that could be the basis for the Utilities' request."

Interior says withdrawing a preliminary determination communicates to FERC that no action is necessary to amend the license because the existing prescriptions from the settlement agreement at the time of relicensing remain in effect.

On Oct. 27, the two agencies notified FERC they had determined fish passage into Yale Lake on the Lewis River—as called for in a settlement agreement—remains appropriate. In July, the agencies withdrew a preliminary decision that would have allowed PacifiCorp and Cowlitz County PUD to make improvements in the upper Lewis River watershed instead of completing fish passage. The notice states they have not completed a determination about the appropriateness of passage into Lake Merwin.

WDFW, the Cowlitz tribe, American Rivers, Columbia Riverkeeper and Trout Unlimited filed requests to intervene in case a hearing is granted.

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K.C. Mehaffey covers fish issues for Clearing Up, and is editor of the NW Fishletter. She joined the NewsData writing team in February 2018. From lawsuits to scientific studies, she is enjoying the deep dive into the Columbia Basin's many fish topics.