One hell of a grand idea: applying the lessons of the Grand Canyon experiment to FERC's relicensing of the Hells Canyon complex.

• Author: Sterne, Jack K.
• Position: Federal Energy Regulatory Commission

1. INTRODUCTION

   When Secretary of the Interior Bruce Babbitt opened the flood gates of the Glen Canyon Dam on March 26, 1996, and released an eight-day controlled flood through the Grand Canyon, the occasion was hailed as "the hydrological event of the century" because it represented the first time that such a major dam was operated for the benefit of fish and wildlife instead of power production.(1) This event marked a watershed moment in the history of federal dams in the West. The "Grand Canyon experiment" demonstrated that the goals of inexpensive power production and fish and wildlife protection may not be mutually exclusive.(2) Most statutes governing dams and their operation mandate more balanced results,(3) but federal regulatory agencies have frequently maximized power production at the expense of fish and wildlife.(4) However, in the Grand Canyon experiment, federal agencies attempted to balance both values by using an ecosystem management approach(5) to achieve more normative river conditions.(6) The event therefore offers federal regulatory agencies an opportunity to reconsider and revise dam operations throughout the West, and the Pacific Northwest in particular.

   The Federal Power Act (FPA) relicensing of the three Hells Canyon Complex dams(7) (HCC or Complex) on the Snake River in Oregon and Idaho presents the Federal Energy Regulatory Commission (FERC) with just such an opportunity. The construction and operation of the Hells Canyon Complex by Idaho Power Company has had a devastating effect on Snake River salmon runs and is a major factor in the Endangered Species Act (ESA) listing of Snake River chinook and sockeye salmon.(8) FERC is scheduled to issue new licenses for these dams by 2005, and the initial stage of FPA consultation between Idaho Power, federal and state natural resource agencies, and Indian tribes has already begun.(9) This relicensing likely will be FERC's, and the public's, last opportunity for perhaps the next fifty years to change dam operations to benefit salmon and other water-dependent species in Hells Canyon.(10)

   This Article analyzes the legal and policy issues involved in the relicensing of the Hells Canyon Complex and argues that the Grand Canyon experiment contains lessons that FERC should apply both in this relicensing and its relicensing of similar dams throughout the Northwest.(11) Part II recounts the history and impact of the Hells Canyon Complex and explains dam relicensing under the FPA. Part III examines the recent experiment in the Grand Canyon, focusing on the scientific, policy, and legal considerations which combined to force changes in the operation of the Glen Canyon Dam. Part IV discusses the relevance of the Grand Canyon experiment to Hells Canyon, explaining why a similar ecosystem management approach is critical in the Hells Canyon Complex relicensing. Part V compares the legal authorities governing Bureau of Reclamation (Bureau)(12) and FERC projects and describes the legal mechanisms that state and federal fish and wildlife agencies, Indian tribes, and environmental groups may use to ensure that FERC gives fish and wildlife "equal consideration" with power production, as required by the FPA.(13) Part VI concludes that FERC has ample authority under existing statutes and regulations to follow the example set at the Glen Canyon Dam, and that it ought to do so in order to fulfill its statutory duty to protect the public interest.(14)

2. A COMPLEX RELICENSING: HELLS CANYON, OXBOW, AND BROWNLEE DAMS

   1. The History of the Hells Canyon Complex

      When the Hells Canyon Dam was completed in 1967, it inundated more than twenty-five miles of critical chinook salmon habitat, in the mainstem of the Snake River.(15) The Hells Canyon Dam was the farthest downstream of a series of three dams known as the Hells Canyon Complex (HCC or Complex), which also includes Brownlee Dam, built in 1958, and Oxbow Dam, completed in 1961.(16) These three dams, built by Idaho Power and licensed by the former Federal Power Commission under the FPA,(17) together flooded more than ninety-five miles(18) of fish and wildlife habitat and blocked all upstream passage of salmon, steelhead, and Pacific lamprey, the three primary anadromous fish species that migrated into the middle Snake River.(19)

      Although the license for the Hells Canyon Complex requires all three projects to have fish passage facilities,(20) Idaho Power never constructed any fish ladders.(21) Instead, the utility attempted to pass adult fish by trapping them and transporting them above the dams.(22) Fishery agencies soon realized that, although adult salmon were spawning above Brownlee, the uppermost of the three dams and the project with the largest storage capacity, the young smolts could not successfully navigate the large Brownlee Reservoir on their downstream journey and returns were dropping each year.(23) Recognizing this fact, Idaho Power abandoned passage efforts in 1964 in favor of a hatchery program below the dams.(24) Ironically, these hatcheries actually caused further losses of wild fish populations.(25)

      The consequences for fish of the construction and operation of the HCC have been disastrous.(26) Before widespread development began at the turn of the century, about one million salmon and steelhead migrated annually above what is now the Hells Canyon Complex.(27) By the time all three dams were completed in 1967, runs had declined precipitously, a process that the existence and continued operation of the Hells Canyon Complex only accelerated.(28) Those fish that survive the gauntlet of four mainstem Columbia River dams,(29) and yet another four on the lower Snake,(30) now run headlong into an impassable block of concrete at Hells Canyon Dam that denies them access to their native spawning grounds. The Hells Canyon Complex dams block approximately eighty percent of the historic habitat of Snake River fall chinook.(31) The Northwest Power Planning Council estimates that production of approximately four million salmon and steelhead is prevented annually due to habitat blockage from the Hells Canyon Dam on the Snake and the Chief Joseph Dam on the Columbia.(32) The National Marine Fisheries Service (NMFS) listed Snake River spring/summer and fall chinook salmon as threatened under the ESA in 1992, in part because of impacts from the Hells Canyon Complex.(33) Snake River steelhead were added to the list in 1997.(34) Prior to the construction of the Hells Canyon Complex and other dams farther upstream, water flows in the Snake were highly variable. Spring snow melt produced flows averaging between 50,000 and 70,000 cubic feet per second (cfs) during the months of April, May, and June, with historic high flows of nearly 100,000 cfs.(35) Flows then tapered to an average of about 15,000 cfs for the rest of the summer, fall, and winter.(36) The high springflows helped speed the migration of young salmon to the sea and also moved sediment through the Snake and Columbia River systems, creating complex habitats (such as pools, runs, riffles, and gravel bars) that are very important to salmon.(37)

      Dam construction has changed the natural hydrograph considerably. Flows below Hells Canyon Dam between mid-May to mid-June (the period when the reservoirs are being refilled) now average between 5000 and 15,000 cfs(38) During the fall chinook spawning period (October through December), flows range between approximately 10,000 cfs and 23,000 cfs.(39) NMFS states that these "[h]igh flows in the fall encourage fall chinook salmon spawning at high river surface elevations which can result in the dewatering of eggs and stranding of juveniles when flows are reduced in the spring."(40) Moreover, daily "ramping" (the practice of releasing more water during the day to produce power when electricity demand is highest, then decreasing water releases at night when demand is low) also reduces fish productivity because it creates "a large zone along each side of the river where aquatic biota cannot live."(41) This varial zone would otherwise be some of the most critical salmon and steellhead habitat because it provides an important source of food and a resting area for fish migrating downstream.(42)

      Further, the decreased sediment deposition caused by the dams, which capture and retain sediment in the reservoirs, has significantly altered the physical aquatic habitat and riparian areas below Hells Canyon Dam, although the extent of that alteration is not yet known.(43) Beaches might be an indicator of that alteration; a 1991 study estimated that the surface area of beaches in Hells Canyon shrunk seventy-five percent between 1955 and 1982.(44) Finally, low flows have also increased water temperatures (a major cause of fish mortality) causing the state of Oregon to designate the Snake River below Hells Canyon Dam as water quality limited for summer temperature under section 303(d) of the Clean Water Act.(45)

      Endangered salmon will benefit if more water is released from these dams during migration and spawning periods.(46) They will also benefit from stable daily flows.(47) Although in recent years Idaho Power has modified its operating plan to release additional water from the Hells Canyon Complex to assist with downstream migration,(48) fisheries experts and conservationists believe considerably more is required in order to meet the needs of migrating salmon and other aquatic species.(49)

      Despite the adverse effects on fish migration and spawning, the minimum required flow for the Hells Canyon Complex today remains at the 5000 cfs flowrate set in 1955.(50) FERC has refused to modify the operating requirements despite NMFS's conclusion that existing flows are insufficient to provide for the migration of threatened fall chinook salmon.(51) Although the original license contains a "reopener" provision allowing FERC to order modifications of the projects and their operation to protect "fish life,"(52) the agency has never...