FERC denies Idaho Power petition to override state supremacy over water


Source: Idaho Rivers United

The Federal Energy Regulatory Commission dismissed a petition today that would have overridden state ability to enforce water quality standards—a right that has been codified by the Supreme Court. The ruling was a win for IRU and other conservation groups that are seeking better water quality standards at three Idaho Power Co. dams on the Snake River in Hells Canyon.

The petition, filed by Idaho Power Co. on Nov. 23, 2016, asked FERC to preempt state authority over clean water management because Idaho and Oregon have different positions on introduction of anadromous salmon and steelhead. Both states have jurisdiction because the Snake River in Hells Canyon constitutes the state line.

Idaho Power says “the two states do not agree on how to resolve issues regarding fish passage and reintroduction of anadromous fish in tributaries above Hells Canyon Dam; Oregon supports fish passage and reintroduction, and Idaho opposes these measures,” according to FERC’s dismissal order.

IRU Executive Director Kevin Lewis called the filing by Idaho Power “an attempt to bully the state of Oregon.”

“If this had been granted it would have squashed Oregon’s ability to regulate its own water quality—to Idaho Power’s benefit,” Lewis said. “For nearly 20 years Hells Canyon relicensing has been unnecessarily dragged out because of Idaho Power’s inability to achieve Clean Water Act certification. That’s not Oregon’s fault.”

Moreover, FERC found Oregon’s fish passage requirements, though still in draft form, are likely legal. 

“In addition, we find no basis to presume that a state could not include provisions requiring fish passage and reintroduction as conditions of its water quality certification,” the agency wrote.

The Hells Canyon Project consists of three dams and three reservoirs—Brownlee, Oxbow and Hells—on a 38-mile section of the Snake River. FERC issued a 50-year license for the project in 1955. The license expired on July 31, 2005.

Idaho Power filed its application for a new license in July 2003. Also at that time it filed for Clean Water Act certifications from Idaho and Oregon. 

“Currently, Oregon’s draft water quality certification includes conditions that would require fish passage and reintroduction of anadromous fish above Hells Canyon Dam, whereas Idaho’s draft certification includes conditions that would preclude Idaho Power from introducing or reintroducing fish species to Idaho waters without Idaho’s consent,” FERC wrote.

Both Idaho and Oregon have released their draft water quality certifications for public review and comment. The comment periods close Feb. 13 and, presumably, state water quality certification will occur later in 2017.