Federal energy commission evades endangered species conservation




HELLS CANYON, Idaho - Like Cerberus, the mythological three-headed dog who guards the gates of Hell, the Brownlee, Oxbow and Hells Canyon dams act as absolute and impenetrable barriers for fish migrating up the Snake River. So it has been for almost half a century, since the Federal Energy Regulatory Commission gave the original license for the three dams to Idaho Power back in 1955.


While the four federal dams downstream in eastern Washington have grabbed media attention (HCN, 12/20/99: Unleashing the Snake), no one has sought to breach the dams at Hells Canyon. Now, a coalition of activists has set out to rattle the proverbial gates.


"The dams have basically destroyed salmon runs in seven huge river systems," says Ric Bailey of the Hells Canyon Preservation Council. "These dams aren't for irrigation or transportation - only for power, but they are operated only to maximize Idaho Power's profits."


Four years ago, in an attempt to get the power company to install fish passage facilities and to release water over the dams to mimic the river's natural flows, the Pacific Environmental Advocacy Center, based in Portland, Ore., filed a petition with the regulatory commission on behalf of several environmental groups. It asked the five-member panel to consult with the National Marine Fisheries Service on how the three dams affect endangered Snake River salmon and steelhead.


Now, a draft of the study is finished, but the environmental groups that fought for the study may never know the agency's findings, at least officially. Last June, the Federal Energy Regulatory Commission announced it wasn't "formally" consulting with the National Marine Fisheries Service, and that it never had been. As a result, NMFS cannot share the study's findings.


Though there are conservation organizations chomping at the bit to sue the federal commission, they can't. The reasons are jurisdictional, and as complicated as a giant federal bureaucracy, but the result is a standstill. If the blockade breaks, it could change how dams operate across the West. For now, though, environmentalists are "left with this sort of bizarre conundrum where you can't bring a claim against FERC until FERC says you can," says Dan Rohlf of the Pacific Environmental Advocacy Center.

A power struggle

It's a chokehold that seems to madden some wildlife agency staffers as much as it does environmentalists.


From the outset, the National Marine Fisheries Service agreed with the environmental groups that the Federal Energy Regulatory Commission had a duty to determine if the Hells Canyon dams put endangered fish in jeopardy. So a few years back, when the regulatory commission said it wanted to consult with the service, the fisheries scientists began work on a biological opinion. In June 2000, the fisheries service handed it over to the federal commission and to Idaho Power, which owns the dams.


"Needless to say, they didn't like it," said Ritchie Graves, a NMFS biologist who worked on the draft.


The following spring, his agency got a surprise when the commission announced it wasn't consulting - formally - with the fisheries service. Rather than releasing a final opinion, NMFS had no choice but to pull it.


"Two years of effort down the drain," Graves says.


Graves speculates that the Federal Energy Regulatory Commission yielded to pressure from Idaho Power and local officials who are "very interested in protecting the status quo."


It wouldn't be the first time. Last July, the National Marine Fisheries Service asked Idaho Power to release additional water to help migrating endangered fall chinook salmon combat the drought. Idaho Power refused, saying that NMFS wanted it to mitigate for the problems created by the four federal dams downstream. The entire Idaho congressional delegation wrote letters to the commission in support of Idaho Power. The commission failed to address the fisheries service's request.


"In a state like Oregon or Washington, you might see one or two politicians write letters," says Graves. "In Idaho, there's a knee-jerk reaction that the power company's needs come first. That's a lot of pressure."


He also thinks the Federal Energy Regulatory Commission fears a precedent requiring consultation with other federal agencies on existing licenses. With more than 400 FERC-licensed dams on public lands - most of them in the West - reopening each license would constitute a huge job for both FERC and NMFS.


"They are probably looking at the potential workload out there, and it scares them," Graves says. "It should probably scare us, too."


It's not fear that's making the Federal Energy Regulatory Commission loath to consult with the National Marine Fisheries Service, but a general trend within the commission to be more efficient, says FERC spokesperson Celeste Miller.


"The commission has had ongoing discussions with other agencies to try and streamline the licensing process," says Miller. "You want to proceed as expeditiously as you can."


Dennis Lopez of the Idaho Power Co. agrees. The power company has already spent $35 million to study how its three dams affect wildlife, fish, recreation and roads, and so, he says, the NMFS studies are not critical.


"At this point the process is costly and cumbersome," says Lopez. "We'd rather not see another layer of bureaucracy."


Revving up FERC

In the current political climate, Idaho Power and the regulatory commission may get their way. Last May, the five-member commission asked Congress to grant the agency sole authority for hydroelectric relicensing. If that happens, other agencies such as NMFS would have no ability to demand that power companies take new steps to accommodate fish, says Andrew Fahlund of the Hydropower Reform Coalition, a nonprofit composed of more than 70 groups that watchdog FERC.


While Congress hasn't tackled that request yet, environmentalists report that the Bush administration has lobbied lawmakers to give the Federal Energy Regulatory Commission more power.


Even if the commission gets its wish, environmentalists say they still have a chance to restore fish runs in Hells Canyon. While citizens are unable to sue the commission over the specifics of the relicensing, they can sue any federal agency for failure to comply with federal environmental laws, like the Clean Water Act. According to Bailey, after the relicensing process is wrapped up in 2003, the groups will have the proof they need to show a court that the Federal Energy Regulatory Commission isn't paying attention to endangered fish.


"No question, FERC will reach a day of reckoning," says Fahlund, "(and be) subject to the same rules and laws that other agencies and people have to comply with. Case law and facts are on our side."

Karen Mockler is a freelance writer who currently lives in Tucson, Ariz. She researched this story last summer while visiting Idaho.


HCN associate editor Rebecca Clarren contributed to this report.




YOU CAN CONTACT ...
  • FERC, Celeste Miller, 202/208-0680;


  • Idaho Power Co., Dennis Lopez, 208/388-2464;


  • Andrew Fahlund, Hydropower Reform Coalition, 202/347-7550.

Copyright © 2001 HCN and Karen Mockler