LAPWAI, ID - The Nez Perce Tribe this week filed a challenge to the Oregon Department of Environmental Quality’s May 24, 2019, Clean Water Act certification for Idaho Power Company’s Hells Canyon Complex Hydroelectric Project. The petition was filed in Oregon’s Marion County’s Circuit Court. The project, consisting of Brownlee, Oxbow, and Hells Canyon dams, is situated on the Snake River on the southern end of Hells Canyon between Oregon and Idaho.
The original 50-year license, issued to the Hells Canyon Complex by the Federal Energy Regulatory Commission expired in 2005. Before the commission can issue a new license to Idaho Power Company, the ODEQ must certify, under the Clean Water Act and Oregon state law, that the Hells Canyon Complex’s activities will not violate Oregon’s water quality standards. The Tribe’s petition alleges that ODEQ’s certification is deficient because it does not address fish passage as required under Oregon law and the certification fails to provide reasonable assurance that the Hells Canyon Complex will not violate Oregon water quality standards for methylmercury and temperature during the life of its new license.
According to the Nez Perce Tribe, the Hells Canyon Complex — constructed more than six decades ago — has caused extensive and irreparable injury to the culture, traditions, economy, and health of the Tribe and its citizens. The Tribe points out that the Nez Perce Treaty of 1855 secured its rights to resources in this area.
“The Tribe has consistently advocated for the adoption of 401 certifications for this project that are protective of the Tribe’s Treaty-reserved rights and resources due to the central role water quality plays in the protection of those resources. This in turn helps protect the health and welfare of the Tribe’s citizens who exercise their Treaty rights in waters within Oregon,” stated Shannon F. Wheeler, Chairman of the Nez Perce Tribal Executive Committee.
The Tribe said in a press release Wednesday that the Hells Canyon Complex generates highly toxic methylmercury that bioaccumulates in the Snake River’s aquatic food chain rendering Treaty-reserved resources, such as white sturgeon, unsafe for consumption. In 2015, the Tribe was forced to adopt a white sturgeon consumption moratorium for tribal citizens due to health risks posed by the presence of high levels of methylmercury in the Snake River downstream of the Hells Canyon Complex. The release also says ODEQ’s current 401 certification does not require Idaho Power Company to address these high levels of methylmercury in the next license term.
The Tribe also claims that conditions are inadequate in the certification addressing temperature and the lack of required fish passage. The operation of Hells Canyon Complex results in changes to the Snake River’s temperature regime delaying the cooling of the Snake River downstream of the Hells Canyon Complex in the fall during salmonid spawning. The Hells Canyon Complex also blocks fish passage and degrades water quality and habitat for culturally-significant resources such as salmon, steelhead, Pacific lamprey, bull trout, and white sturgeon.
“Given the Tribe’s interest in the area and expertise in fish management, the Tribe is simply asking the court to remand the certification so ODEQ can bring it into compliance with Oregon law so that the Tribe’s work and resources are properly protected,” concluded Wheeler.