Hells Canyon Complex Relicensing: State and Federal Issues? Richard M. Glick Davis Wright Tremaine LLP OSB‐Environmental and Natural Resources Section October 13, 2017
Hells Canyon Complex HCC consists of Brownlee, Oxbow and Hells Canyon Dams on Snake River, bordering Oregon and Idaho 1,200 MW, or 2/3 of IPC’s generation dwt.com
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Hells Canyon Complex IPC water quality initiatives and link to ODEQ/IDEQ § 401 applications are available at: https://www.idahopower.com/ourenvironment/waterqual ity/default.cfm dwt.com
Clean Water Act § 401 Relicensing process before FERC under Federal Power Act CWA § 401 (33 USC § 1341) requires certification by states 401(a)(1) – certification to FERC that discharge will comply with water quality standards • Since discharge from both Oregon and Idaho, both DEQs must certify • 1‐year to certify or deny, or deemed waived • Clock starts running when application received, not deemed complete – Millennium Pipeline , FERC Docket No. CP16‐17‐000 (9.15.17) • Common to withdraw and refile to avoid waiver dwt.com
Clean Water Act § 401 401(d ) – Any certification provided under this section shall set forth any effluent limitations and other limitations , and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 301 or 302 of this title, standard of performance under section 306 of this title, or prohibition, effluent standard, or pretreatment standard under section 307 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. dwt.com
401 Legal Issues What is a discharge? – S. D. Warren v. Maine BEP, 547 U.S. 370 (2006) • Issue: Since dams do not add pollutants, just passes them through, is there a discharge triggering 401? • Held : Yes, unlike CWA 402, any discharge, not just discharge of pollutants, triggers jurisdiction dwt.com
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401 Legal Issues Scope of state authority over hydropower—FPA preemption – First Iowa Hydro‐Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946) • Issue: May state impose state law requirements prohibiting inter‐river transfers contrary to federal license? • Held : No, FPA preempts the field, no contrary or duplicative state requirements allowed – California v. FERC, 495 U.S. 490 (1990) • Issue: May state impose minimum streamflow requirements in excess of those set by FERC? • Held : No, FPA preempts dwt.com
401 Legal Issues Scope of state authority under 401—a whole different world! – PUD No. 1 of Jefferson County v. Washington Dept. of Ecology , 511 U.S. 700 (1994) • Issue: May state impose minimum flow requirements as a 401 condition? • Held : Yes, flow requirement based on W/Q standards – S. D. Warren • Issue: Does dam pass‐through constitute discharge? • Held : Yes, but dicta provides sweeping view of state authority under 401, “other requirements of state law” • What happens if conflict between FPA and CWA? dwt.com
401 Legal Issues Enforcement – 401(d) says certification “shall become a condition” to federal license – FERC must add state 401 conditions without modification, no authority to question validity • American Rivers v. FERC , 129 F.3d 99 (1997) – How are 401 conditions enforced? • Deschutes River Alliance v. PGE , Case No.: 16‐cv‐01644‐SI (2017)—PGE argues 401 cert not a permit, just appendage to FERC license, so no citizen suit or independent state enforcement • ODEQ intervened on side of DRA dwt.com
Fall Chinook Salmon dwt.com
HCC Legal Issues--Temperature Fall Chinook salmon spawning standard—13° maximum weekly maximum, beginning Oct. 23 – IDEQ adopted 14.5 degree site specific criteria, pending at EPA for approval for 5 years – OEQC declined to initiate rulemaking, will consider as part of triennial review – Data show temperature regime not limiting factor on spawning HCC doesn’t add heat, but causes temporal shift, delays in fall cooling, spring warming and summer heating dwt.com
HCC Legal Issues--Temperature dwt.com
HCC Legal Issues--Temperature Snake River‐Hells Canyon TMDL (ODEQ/IDEQ, 2004: http://www.oregon.gov/deq/FilterDocs/tmdlrev.pdf. – Modeling shows that the “Hells Canyon Complex is not the source of the heat load in the reservoirs and that if upstream conditions were cooler, the water exiting the Hells Canyon Complex would also be cooler . Therefore, it is concluded that the Hells Canyon Complex is not contributing to temperature exceedances specific to the cold water aquatic life/salmonid rearing designated use. However, the IPCo water temperature modeling also shows that even if the inflowing water temperature were less than or equal to 17.8 oC, the water exiting the Hells Canyon Complex would not meet the salmonid spawning criteria (although by only a small margin ) because of the temporal shift created by the Hells Canyon Complex. dwt.com
HCC Legal Issues--Temperature Natural Seasonal Thermal Pattern Compliance alternatives – Temperature control structure or pump – Upstream watershed restoration to cool inflows TCS/pump – Could probably achieve standards – Methylmercury risk – Marginal ecological benefits dwt.com
Snake River Stewardship Program Multi‐faceted, industrial scale restoration program above HCC – In‐river work to narrow and deepen channel, increase velocities – Riparian replanting – Reducing agricultural runoff and constructing wetlands Thermal benefits target derived from many specific projects Addresses numeric and narrative standards – 13° fall Chinook spawning standrd – Natural Seasonal Thermal Pattern dwt.com
The River Needs Help Upstream Habitat Conditions • Excessively excessive macrophytes • Very stable channel • Decreased benthic diversity • Wide-shallow channel • Highly imbedded substrate • Uniform low water • Disconnected hyporheic environmen velocity
Snake River Stewardship Program Addresses water quality and habitat issues by restoring both in- river processes and function, and pollutant inputs Tributary Riparian Component (reduce temperature loads and improve habitat) In-river Component (reduce temperature loads and improve in- river processes and habitat) Stewardship Component (reduce sediment and nutrient inputs)
It Won’t Fix Itself
In-River Component: Restore function and native species habitat through physical alteration of the river channel: 50 potential projects over 30 miles of river
Three Types of In-River Projects Island Enhancement Inset Floodplain Emergent Wetlands
Bayha Island Research Project Underway—survived 40,000 cfs flows this winter!
Snake River Stewardship Program Both DEQs approved in draft 401 certifications – ODEQ—program qualifies as water quality trade – IDEQ—program qualifies as an offset Program favored by NOAA Fisheries and USFWS Comments on draft certifications – Should do both pump and SRSP – DEQs see pump as Plan B, to be required only if thermal benefit targets are not met or unlikely to be met dwt.com
Thanks! Rick Glick Davis Wright Tremaine LLP 503.778.5210 rickglick@dwt.com dwt.com
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