Hells Canyon Complex Relicensing: State and Federal Issues? - - PowerPoint PPT Presentation
Hells Canyon Complex Relicensing: State and Federal Issues? Richard M. Glick Davis Wright Tremaine LLP OSBEnvironmental and Natural Resources Section October 13, 2017 Hells Canyon Complex HCC consists of Brownlee, Oxbow and Hells
Richard M. Glick
Davis Wright Tremaine LLP OSB‐Environmental and Natural Resources Section October 13, 2017
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Hells Canyon Complex
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https://www.idahopower.com/ourenvironment/waterqual ity/default.cfm
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certify
complete – Millennium Pipeline, FERC Docket No. CP16‐17‐000 (9.15.17)
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– 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.
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– S. D. Warren v. Maine BEP, 547 U.S. 370 (2006)
them through, is there a discharge triggering 401?
discharge of pollutants, triggers jurisdiction
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– First Iowa Hydro‐Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946)
transfers contrary to federal license?
requirements allowed
– California v. FERC, 495 U.S. 490 (1990)
those set by FERC?
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– PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994)
– S. D. Warren
“other requirements of state law”
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– 401(d) says certification “shall become a condition” to federal license – FERC must add state 401 conditions without modification, no authority to question validity
– How are 401 conditions enforced?
argues 401 cert not a permit, just appendage to FERC license, so no citizen suit or independent state enforcement
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– 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
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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.
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– Temperature control structure or pump – Upstream watershed restoration to cool inflows
– Could probably achieve standards – Methylmercury risk – Marginal ecological benefits
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– In‐river work to narrow and deepen channel, increase velocities – Riparian replanting – Reducing agricultural runoff and constructing wetlands
– 13° fall Chinook spawning standrd – Natural Seasonal Thermal Pattern
The River Needs Help
velocity
Addresses water quality and habitat issues by restoring both in- river processes and function, and pollutant inputs
Snake River Stewardship Program
In-river Component
(reduce temperature loads and improve in- river processes and habitat)
Tributary Riparian Component
(reduce temperature loads and improve 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
Island Enhancement Inset Floodplain Emergent Wetlands
Three Types of In-River Projects
Bayha Island Research Project Underway—survived 40,000 cfs flows this winter!
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– ODEQ—program qualifies as water quality trade – IDEQ—program qualifies as an offset
– 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
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