FERC grants petition to consult on endangered fish

Region: 

On August 6th, FERC granted a petition requesting consultation with federal fish agencies over the impacts of Hells Canyon dams on endangered fish species.

The order is significant for FERC-regulated hydropower projects. It infers that endangered species consultation is appropriate not just when a project requires a new license -- as has been previous practice -- but at any time. Until now, hydropower projects have been grandfathered under their license from mitigating detrimental effects on endangered species. For example, with Hells Canyon, a 1995 license allowed the hydropower project to operate without regard for endangered fish species listed from 1991-1994.

Background:

In 1997, Coalition members American Rivers, Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Associations, Trout Unlimited, Institute for Fisheries Resources, the Federation of Fly Fishers, and others petitioned the Commission to initiate Endangered Species Act (ESA) consultation on Idaho Power's Hells Canyon Complex with the National Marine Fisheries Service pursuant to section 7(a)(2) of the Act.

The organizations argued that the ESA requires such action by FERC because FERC's license for the project, which includes a reopener provision, provides FERC with continuing authority over the project's configuration and operations. Such continuing authority constitutes an ongoing agency action which may affect ESA listed fish.

For years, FERC failed to respond to the petition. Last year, American Rivers and Idaho Rivers United sued FERC in the United States Court of Appeals for the D.C. Circuit for unreasonable delay in responding. In June 2004, the Court handed down a strong decision, ruling in the petitioners' favor and directing FERC to respond to the petition within 45 days.

On August 6, 2004, FERC issued an order granting our petition, citing a misunderstanding.