Judge: FERC Must Respondby Barry Espenson
Saying that "a reasonable time for agency action is typically counted in weeks or months, not years," a federal court on Tuesday ordered the Federal Energy Regulatory Commission to respond with 45 days to a 1997 petition from conservation groups requesting that the agency consult with NOAA Fisheries on the adverse impacts the Hells Canyon Complex might have on endangered salmon and steelhead.
The opinion filed for the three-member panel by D.C. Circuit Judge Karen Lecraft Henderson called the six-year delay in responding to the petition "nothing less than egregious." The court concluded that "petitioners are entitled to an end to FERC's marathon round of administrative keep-away and soon."
"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."
A string of Endangered Species Act listings in the 1990s, followed by the designation of critical habitat for those species, prompted a coalition of environmental organizations (including petitioner American Rivers) to ask FERC in November 1997 to initiate formal consultation with the NMFS regarding FERC's ongoing regulation of Idaho Power's operation of the Hells Canyon Complex. The Snake River sockeye stock was listed as endangered in 1991, followed by threatened listings for Snake River fall and spring/summer stocks in 1992 and for Snake River steelhead in 1997.
FERC has thus far failed to respond.
FERC spokeswoman Celeste Miller said Thursday acknowledged that there is no formal consultation under way between NOAA and FERC regarding the Hells Canyon Complex. She did say FERC was not yet ready to respond to the appeals court ruling.
"I assure you it's under review with the commission," Miller said of this week's court ruling.
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.
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 Hells Canyon Complex, owned and operated by Idaho Power Company, is located on the Snake River on the Idaho/Oregon border. Idaho Power's Brownlee, Oxbow and Hells Canyon hydroelectric projects segment the 40-mile-long Hells Canyon. The projects, operated under the same FERC license, represent two-thirds of the company's hydro generating capacity.
A relicensing application for the complex was submitted to FERC in July 2003. The current license expires in July 2005.
The complex is the ultimate barrier for salmon and steelhead migrating toward in the upper Snake River basin. The dams blocks fish from hundreds of miles of their historic habitat, including over 80 percent of the historic habitat for Snake River fall chinook salmon, according to the conservation groups that filed the petition. They groups also say the dam operations 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.
While FERC concedes that it must engage in ESA consultation over issuance of the new license, the conservation groups say the appeals court decision goes to the controversy over whether FERC must also engage in ESA consultation over the current license, which was issued in 1955. FERC has not consulted over the impacts of the Hells Canyon projects since the 1990s listings.
"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."
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