One Hell of a Grand Idea: Applying the Lessons of the Grand Canyon Experiment to FERC's Relicensing of the Hells Canyon Complex
Sterne, Jack K., Environmental Law
When Secretary of the Interior Bruce Babbitt opened the flood gates of the Glen Canyon Dam on March 26, 1996, and released an eight-day controlled flood through the Grand Canyon, the occasion was hailed as "the hydrological event of the century" because it represented the first time that such a major dam was operated for the benefit of fish and wildlife instead of power production.(1) This event marked a watershed moment in the history of federal dams in the West. The "Grand Canyon experiment" demonstrated that the goals of inexpensive power production and fish and wildlife protection may not be mutually exclusive.(2) Most statutes governing dams and their operation mandate more balanced results,(3) but federal regulatory agencies have frequently maximized power production at the expense of fish and wildlife.(4) However, in the Grand Canyon experiment, federal agencies attempted to balance both values by using an ecosystem management approach(5) to achieve more normative river conditions.(6) The event therefore offers federal regulatory agencies an opportunity to reconsider and revise dam operations throughout the West, and the Pacific Northwest in particular.
The Federal Power Act (FPA) relicensing of the three Hells Canyon Complex dams(7) (HCC or Complex) on the Snake River in Oregon and Idaho presents the Federal Energy Regulatory Commission (FERC) with just such an opportunity. The construction and operation of the Hells Canyon Complex by Idaho Power Company has had a devastating effect on Snake River salmon runs and is a major factor in the Endangered Species Act (ESA) listing of Snake River chinook and sockeye salmon.(8) FERC is scheduled to issue new licenses for these dams by 2005, and the initial stage of FPA consultation between Idaho Power, federal and state natural resource agencies, and Indian tribes has already begun.(9) This relicensing likely will be FERC's, and the public's, last opportunity for perhaps the next fifty years to change dam operations to benefit salmon and other water-dependent species in Hells Canyon.(10)
This Article analyzes the legal and policy issues involved in the relicensing of the Hells Canyon Complex and argues that the Grand Canyon experiment contains lessons that FERC should apply both in this relicensing and its relicensing of similar dams throughout the Northwest.(11) Part II recounts the history and impact of the Hells Canyon Complex and explains dam relicensing under the FPA. Part III examines the recent experiment in the Grand Canyon, focusing on the scientific, policy, and legal considerations which combined to force changes in the operation of the Glen Canyon Dam. Part IV discusses the relevance of the Grand Canyon experiment to Hells Canyon, explaining why a similar ecosystem management approach is critical in the Hells Canyon Complex relicensing. Part V compares the legal authorities governing Bureau of Reclamation (Bureau)(12) and FERC projects and describes the legal mechanisms that state and federal fish and wildlife agencies, Indian tribes, and environmental groups may use to ensure that FERC gives fish and wildlife "equal consideration" with power production, as required by the FPA.(13) Part VI concludes that FERC has ample authority under existing statutes and regulations to follow the example set at the Glen Canyon Dam, and that it ought to do so in order to fulfill its statutory duty to protect the public interest.(14)
II. A COMPLEX RELICENSING: HELLS CANYON, OXBOW, AND BROWNLEE DAMS
A. The History of the Hells Canyon Complex
When the Hells Canyon Dam was completed in 1967, it inundated more than twenty-five miles of critical chinook salmon habitat, in the mainstem of the Snake River.(15) The Hells Canyon Dam was the farthest downstream of a series of three dams known as the Hells Canyon Complex (HCC or Complex), which also includes Brownlee Dam, built in 1958, and Oxbow Dam, completed in 1961. …