Nez Perce Tribe
On July 23, 2019, the Nez Perce Tribe (Tribe) filed a challenge to the Oregon Department of Environmental Quality’s (ODEQ) May 24, 2019, Clean Water Act § 401 certification for Idaho Power Company’s Hells Canyon Complex Hydroelectric Project (Hells Canyon Complex). The petition was filed in Oregon’s Marion County’s Circuit Court. Located within the Tribe’s aboriginal homeland, the Hells Canyon Complex, 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 (FERC), expired in 2005. Before the Federal Energy Regulatory Commission can issue what may be a new 30 to 50-year license to Idaho Power Company, Oregon Department of Environmental Quality 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 Oregon Department of Environmental Quality’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 Federal Energy Regulatory Commission license.
The Hells Canyon Complex—constructed more than six decades ago on lands used by the Tribe since time immemorial—has caused extensive and irreparable injury to the culture, traditions, economy, and health of the Tribe and its citizens. The Tribe secured its rights to resources in this area in the Nez Perce Treaty of 1855. The Tribe has co-management responsibilities at Hells Canyon Dam for juvenile Snake River spring Chinook and steelhead releases. The Tribe has worked hard to restore Columbia basin salmonids to protect and enhance the Tribe’s Treaty-reserved rights and resources.
“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 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 Oregon Department of Environmental Quality’s current 401 certification does not require Idaho Power Company to address these high levels of methylmercury in the next license term. Tests have shown, for example, that white sturgeon in the area have mercury levels up to 75 times higher than Oregon’s methylmercury standards. “The methylmercury in the Hells Canyon Complex area will affect tribal citizens and our treaty rights for generations. The Tribe expected Oregon Department of Environmental Quality to have aggressive and enforceable terms in the certification to resolve this threat to Treaty resources,” continued Wheeler.
The Tribe is also very concerned about the inadequate conditions 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.
The Tribe has worked for the protection and restoration of all its homeland’s native fish populations, including those upstream, within, and downstream of the Hells Canyon Complex. “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 Oregon Department of Environmental Quality can bring it into compliance with Oregon law so that the Tribe’s work and resources are properly protected,” concluded Wheeler.
The Tribe is represented in this matter by the Nez Perce Tribe Office of Legal Counsel and Advocates for the West.