Federal Court Rules Against FERC on Hells Canyon Case


Court finds agency' s delay on ESA consultation petition “nothing less than egregious” SEATTLE – Today, calling the agency' s delay “egregious,” a federal court ordered the Federal Energy Regulatory Commission (FERC) to respond to a 1997 petition from conservation groups requesting that the agency consult with NOAA Fisheries on the adverse impacts the Hells Canyon Complex has on endangered salmon and steelhead.“We applaud the court' s decision,” said Connie Kelleher of American Rivers. “The court has told FERC in very strong terms that it can' t avoid its responsibilities to protect endangered species by sticking its head in the sand.” “This decision is great news in terms of making real progress in salmon recovery in the Snake River basin," added Kelleher.In 1997 a coalition of conservation groups petitioned FERC to meet its obligations in consulting under the ESA with NOAA Fisheries regarding the impacts of the 3 Hells Canyon dams on threatened and endangered Snake River salmon and steelhead. FERC refused to answer the petition, which has now languished for more than six years.Last year American Rivers and Idaho Rivers United sought a “writ of mandamus” from the D.C. Circuit Court of Appeals compelling FERC to respond to the 1997 petition.In a strongly worded opinion (attached - see below), the court found that FERC' s 6-year delay in responding to the petition “is nothing less than egregious.” Accordingly, the court concluded that “petitioners are entitled to an end to FERC' s marathon round of administrative keep-away and soon,” and ordered FERC to take action on the petition within 45 days.The court acknowledged that a writ of mandamus is “an extraordinary remedy reserved for extraordinary circumstances,” but found that FERC's “unreasonable delay presents such a circumstance because it signals the ‘breakdown of regulatory processes.' " The massive 3-dam Hells Canyon Complex, owned and operated by Idaho Power Company, has severe impacts on salmon and steelhead. Located on the Snake River on the Idaho/Oregon border, the Complex is the ultimate barrier for migrating salmon and steelhead in the upper Snake River basin. The Complex blocks fish from hundreds of miles of their historic habitat, including over 80 percent of the habitat for Snake River fall chinook salmon. The dams also harm fish downstream by degrading water quality, interfering with fish migration and spawning by altering natural river flows, and blocking the downstream movement of sediment -- causing beach erosion and damage to fish habitat. Although Idaho Power is currently in the process of relicensing this facility, the earliest the new license would be issued is 2006 -- and it could take much longer – up to a decade or more. Some scientists have forecast that certain stocks of Snake River salmon could go extinct as soon as 2016.While FERC concedes that it must engage in ESA consultation over issuance of the new license, today' s court decision goes to the controversy over whether FERC must also engage in ESA consultation over the current license, issued in 1955. Snake River salmon and steelhead were added to the endangered species list in the early 1990s and since that time, FERC has never consulted over the impacts of the Hells Canyon project.“The ESA requires agencies to take quick action to protect endangered species, yet FERC's avoidance and delay means endangered salmon have gone six more years without critical recovery measures” said Sara Eddie, attorney for Idaho Rivers United. “We can only hope that now FERC will take that responsibility seriously and order Idaho Power to protect these fish.” Improving operations at the Hells Canyon Complex is also a key piece of the federal Salmon Plan for the Snake and Columbia Rivers. The Complex interferes with the timely delivery of salmon-friendly flows from upstream dams, thus undermining a primary element of the Salmon Plan. Idaho Power refuses to release this water to help the salmon and steelhead migration without compensation from the federal government, while FERC has allowed this practice to continue.“Today' s ruling is a huge victory for salmon in a period of repeated failures by this administration and its agencies,” said Pat Ford, Executive Director of Save Our Wild Salmon. “This decision paves the way for ensuring that Idaho Power does its fair share for salmon and salmon dependent communities in the west.” Meyer & Glitzenstein, a public interest law firm based in Washington, D.C., represented the conservation groups in their lawsuit.American Rivers is a national non-profit conservation organization dedicated to protecting and restoring healthy natural rivers and the variety of life they sustain for people, fish, and wildlife. Its Northwest Regional Office, based in Seattle, works on river conservation efforts in Washington, Oregon and Idaho.Idaho Rivers United is a statewide non-profit conservation organization based in Boise, Idaho. Its mission is to protect and restore the biological integrity of Idaho' s rivers.Save Our Wild Salmon is a nationwide coalition of more than 50 conservation organizations, sport and commercial fishing associations, businesses, river groups and taxpayer advocates collaborating to protect and restore sustainable wild runs of America's Pacific Northwest salmon and steelhead, and the habitats upon which they depend.Contacts:Connie Kelleher, American Rivers -- (206) 213-0330 ext 14Sara Eddie, Attorney for Idaho Rivers United -- (208) 342-7024 ext 6Nicole Cordan, Save Our Wild Salmon -- (503) 703-3733Jonathan Lovvorn, Meyer & Glitzenstein -- (202) 588-5206 ext 12

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