Environmental groups and an Indian tribe are using last year’s hydropower licensing reform law, in the Energy Policy Act of 2005, to attempt to force a U.S. fisheries agency to mandate more than $100 million in fish passage construction at Idaho Power Co.’s 1,166.5-MW Hells Canyon hydroelectric complex on the Snake River.
In considering Idaho Power’s relicense application for Hells Canyon, NOAA Fisheries issued a preliminary fishway prescription in January that declined to mandate anadromous fish passage. Instead, NOAA reserved authority to reopen the proposed Federal Energy Regulatory Commission relicense (No. 1971) to consider fish passage at some point during the expected 30- to 50-year term of the relicense.
NOAA said fish passage is premature because poor water quality and degraded habitat limits the potential to reintroduce salmon upstream.
Energy Policy Act hydro language proves to be two-edged sword
However, by invoking hydro licensing reform provisions from the Energy Policy Act of 2005, American Rivers, Idaho Rivers United, and the Shoshone-Bannock Tribes filed an alternative fishway prescription Feb. 24 that would mandate procedures to develop fish passage facilities at the Snake River hydro facilities.
“This decision to reserve authority and postpone fish passage until some unspecified date in the future will have irrevocable and harmful impacts on the fate of anadromous fish, including fall chinook salmon, spring chinook salmon and steelhead, and related recreational use, tourism, and local economies,” petitioners said.
Petitioners: Alternative offers greater protection, less cost
Proposing an alternative fishway prescription under the Energy Policy Act, the groups argued that fish passage would provide greater protection of fishery resources than postponing action.
They also argued that their alternative would cost significantly less than NOAA’s proposal. However, instead of considering the costs to Idaho Power of actually building fish passage, they cited “significant economic costs” for other parties if fish passage is delayed.
“Thus, in regard to tourism dollars, recreation, jobs, and other factors, our alternative costs significantly less to implement,” the petitioners said.
Idaho Power has estimated that fully functioning fish passage facilities at Hells Canyon’s three dams could cost the utility between $300 million and $600 million.
As finally passed by Congress, the Energy Policy Act allows a hydro license applicant, or any other party, to offer less costly alternatives to the mandatory conditions that resource agencies impose on hydro licenses. The law requires a resource agency to adopt an alternative condition, or fishway prescription: if the alternative would provide adequate protection of the resource; and the resource agency finds the alternative would cost less to implement or would result in improved power operations.
Congressional compromises paved way for environmentalist filing
Original language: As originally passed by the House in April 2005, the Energy Policy Act’s hydro language would have required resource agencies to adopt only the alternative mandatory conditions proposed by hydro license applicants — if the conditions were equally protective of the resource and less costly. Other parties, such as American Rivers, would have been allowed to propose conditions, but resource agencies would not have been required to adopt them.
Senate change: As amended by the Senate in June 2005, the bill would have let any party propose an alternative mandatory condition, but the resource agency and the license applicant would have had to agree that the alternative would cost less to implement or would result in improved power operations before the agency was required to adopt it.
Conference committee change: However, a joint House-Senate conference committee changed that language one more time, eliminating the safeguard that would have given the license applicant some say over the acceptance of a third party’s alternative condition. The final bill, passed in July 2005, said the resource agency alone would determine if an alternative condition would cost less or would result in improved power operations.
FERC, the licensing authority, is prevented by the Federal Power Act from modifying or rejecting a resource agency mandatory condition or fishway prescription. FERC may submit a questionable condition to its Dispute Resolution Service, but a resource agency is not bound to comply with the DRS finding. A license applicant’s only recourse to change a mandatory condition is a court suit.
Environmentalist lawsuit pending against hydro language
Late last year, American Rivers and Idaho Rivers United were among environmentalist groups that filed suit against resource agency rules that implemented the hydro licensing reform law. American Rivers also issued a statement vehemently condemning the new rules, saying they “hand electric utility lobbyists a big victory at the expense of states, tribes, communities, and the environment”.
Idaho Power withdrew Hells Canyon settlement proposal
Also late last year, Idaho Power withdrew a settlement proposal for relicensing Hells Canyon, saying it was unlikely a settlement would be reached among parties in the near term. The project has been operating under an annual license since its original license expired July 31, 2005.
The Snake River has been a long-time target of environmental groups, who seek removal of four Corps of Engineers hydroelectric projects downstream, in an attempt to improve salmon passage as far upstream as Hells Canyon, the next major development above the Corps dams.