One hell of a grand idea: applying the lessons of the Grand Canyon experiment to FERC's relicensing of the Hells Canyon complex.

I. INTRODUCTION

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.(16) These three dams, built by Idaho Power and licensed by the former Federal Power Commission under the FPA,(17) together flooded more than ninety-five miles(18) of fish and wildlife habitat and blocked all upstream passage of salmon, steelhead, and Pacific lamprey, the three primary anadromous fish species that migrated into the middle Snake River.(19)

Although the license for the Hells Canyon Complex requires all three projects to have fish passage facilities,(20) Idaho Power never constructed any fish ladders.(21) Instead, the utility attempted to pass adult fish by trapping them and transporting them above the dams.(22) Fishery agencies soon realized that, although adult salmon were spawning above Brownlee, the uppermost of the three dams and the project with the largest storage capacity, the young smolts could not successfully navigate the large Brownlee Reservoir on their downstream journey and returns were dropping each year.(23) Recognizing this fact, Idaho Power abandoned passage efforts in 1964 in favor of a hatchery program below the dams.(24) Ironically, these hatcheries actually caused further losses of wild fish populations.(25)

The consequences for fish of the construction and operation of the HCC have been disastrous.(26) Before widespread development began at the turn of the century, about one million salmon and steelhead migrated annually above what is now the Hells Canyon Complex.(27) By the time all three dams were completed in 1967, runs had declined precipitously, a process that the existence and continued operation of the Hells Canyon Complex only accelerated.(28) Those fish that survive the gauntlet of four mainstem Columbia River dams,(29) and yet another four on the lower Snake,(30) now run headlong into an impassable block of concrete at Hells Canyon Dam that denies them access to their native spawning grounds. The Hells Canyon Complex dams block approximately eighty percent of the historic habitat of Snake River fall chinook.(31) The Northwest Power Planning Council estimates that production of approximately four million salmon and steelhead is prevented annually due to habitat blockage from the Hells Canyon Dam on the Snake and the Chief Joseph Dam on the Columbia.(32) The National Marine Fisheries Service (NMFS) listed Snake River spring/summer and fall chinook salmon as threatened under the ESA in 1992, in part because of impacts from the Hells Canyon Complex.(33) Snake River steelhead were added to the list in 1997.(34) Prior to the construction of the Hells Canyon Complex and other dams farther upstream, water flows in the Snake were highly variable. Spring snow melt produced flows averaging between 50,000 and 70,000 cubic feet per second (cfs) during the months of April, May, and June, with historic high flows of nearly 100,000 cfs.(35) Flows then tapered to an average of about 15,000 cfs for the rest of the summer, fall, and winter.(36) The high springflows helped speed the migration of young salmon to the sea and also moved sediment through the Snake and Columbia River systems, creating complex habitats (such as pools, runs, riffles, and gravel bars) that are very important to salmon.(37)

Dam construction has changed the natural hydrograph considerably. Flows below Hells Canyon Dam between mid-May to mid-June (the period when the reservoirs are being refilled) now average between 5000 and 15,000 cfs(38) During the fall chinook spawning period (October through December), flows range between approximately 10,000 cfs and 23,000 cfs.(39) NMFS states that these "[h]igh flows in the fall encourage fall chinook salmon spawning at high river surface elevations which can result in the dewatering of eggs and stranding of juveniles when flows are reduced in the spring."(40) Moreover, daily "ramping" (the practice of releasing more water during the day to produce power when electricity demand is highest, then decreasing water releases at night when demand is low) also reduces fish productivity because it creates "a large zone along each side of the river where aquatic biota cannot live."(41) This varial zone would otherwise be some of the most critical salmon and steellhead habitat because it provides an important source of food and a resting area for fish migrating downstream.(42)

Further, the decreased sediment deposition caused by the dams, which capture and retain sediment in the reservoirs, has significantly altered the physical aquatic habitat and riparian areas below Hells Canyon Dam, although the extent of that alteration is not yet known.(43) Beaches might be an indicator of that alteration; a 1991 study estimated that the surface area of beaches in Hells Canyon shrunk seventy-five percent between 1955 and 1982.(44) Finally, low flows have also increased water temperatures (a major cause of fish mortality) causing the state of Oregon to designate the Snake River below Hells Canyon Dam as water quality limited for summer temperature under section 303(d) of the Clean Water Act.(45)

Endangered salmon will benefit if more water is released from these dams during migration and spawning periods.(46) They will also benefit from stable daily flows.(47) Although in recent years Idaho Power has modified its operating plan to release additional water from the Hells Canyon Complex to assist with downstream migration,(48) fisheries experts and conservationists believe considerably more is required in order to meet the needs of migrating salmon and other aquatic species.(49)

Despite the adverse effects on fish migration and spawning, the minimum required flow for the Hells Canyon Complex today remains at the 5000 cfs flowrate set in 1955.(50) FERC has refused to modify the operating requirements despite NMFS's conclusion that existing flows are insufficient to provide for the migration of threatened fall chinook salmon.(51) Although the original license contains a "reopener" provision allowing FERC to order modifications of the projects and their operation to protect "fish life,"(52) the agency has never exercised this authority.

B. Relicensing the Hells Canyon Complex Under the Federal Power Act

The licenses for the Hells Canyon Complex will expire on July 31, 2005. FERC's regulations require that Idaho Power submit a new license application to the agency, as well as to federal and state natural resource agencies and Indian tribes, two years prior to that date.(53) Because these dams have contributed to the decline of Snake River salmon runs, their relicensing is already controversial, and the licensing process could take many years.(54) Recognizing this fact, Idaho Power initiated the first stage of the formal three-phase process of consultation with those agencies and tribes in 1996, more than four years before it was required to file relicensing documents with FERC.(55)

In the first stage of the required process, Idaho Power must prepare a detailed document identifying the environment affected by the project as well as the utility's existing and proposed environmental protection, mitigation, and enhancement plans.(56) This document must provide streamflow data and describe proposed studies on the environmental impacts of the project.(57) The tribes, resource agencies, and the public then may comment on the contents of this document.(58) The regulations also provide an opportunity for the tribes and resource agencies to propose additional studies or study methodologies.(59) If there is a dispute over a study, any of the parties to the dispute can refer the matter to the Office of Hydropower Relicensing at FERC for a nonbinding resolution.(60)

The second stage of consultation begins after the parties agree on study proposals. In this phase, FERC regulations require that, prior to filing a relicense application, Idaho Power complete studies "needed to determine ... suitable mitigation or enhancement measures, or to minimize impact on significant resources (e.g., wild and scenic river, anadromous fish, endangered species, and caribou migration routes)."(61) Idaho Power must then submit those studies to the consulting agencies and tribes for further comment.(62) The third stage of consultation begins when Idaho Power files its relicense application.(63) At this stage, the regulations require only that Idaho Power serve a copy of the application on all agencies or tribes that have participated in the consultation process.(64)

Idaho Power initiated the first stage of consultation by forming a "collaborative team" of affected interests to identify the issues involved in this relicensing process.(65) Significantly, Idaho Power included all potentially affected interests (including environmental groups and other nongovernmental organizations) in the collaborative team, instead of limiting its composition to the resource agencies and tribes that FERC's regulations require be included in consultation.(66) The collaborative team's four workgroups (on aquatics, terrestrial resources, recreation and aesthetics, and economics) identify study needs during the first stage of consultation.(67)

On January 30, 1997, Idaho Power released its "Formal Consultation Package for Relicensing" of the Hells Canyon Project (formal consultation package), containing descriptions of all the scientific and economic studies identified by the four workgroups.(68) This three-volume document, written by Idaho Power, provides a broad overview of the aquatics and fisheries, wildlife, botanical, archeological, recreation, and economic issues that FERC must consider.(69) The document also offers insights into some of the key legal and policy issues that will influence the relicensing.(70)

Examples of aquatic studies that Idaho Power has agreed to conduct include a sediment transport study; an analysis of the future direction of Idaho Power's anadromous fish hatchery program; status reports on sturgeon, redband trout, and bull trout; a survey and study of macroinvertebrates in the HCC; and an evaluation of anadromous fish potential within the mainstem Snake River and tributaries within the Hells Canyon Complex.(71) Objectives for this last study include the following: 1) attempting to identify the size of salmon populations immediately prior to construction of the Complex; 2) determining limiting factors to restoration such as water quality and supply, habitat availability, natural barriers, and biological factors; and 3) evaluating various restoration alternatives in light of the limiting factors.(72) Curiously, the study does not propose any evaluation of the feasibility of fish passage, nor does it propose to examine the effects of ramping rates and daily river fluctuations on endangered fish.(73) By contrast, numerous wildlife studies will examine the effects of water level fluctuations on species like bald eagles and amphibians and reptiles.(74) American Rivers and other conservation groups have criticized the large number of wildlife studies because they believe the information generated by those studies "will not yield useful information and will consume limited resources that could be directed to protection, mitigation, and enhancement measures."(75)

After Idaho Power completes these studies--during or before the second stage of consultation(76)--the resource agencies and tribes will have a chance to comment on the study contents and conclusions.(77) If those written comments reveal "a substantive disagreement with a potential applicant's conclusions regarding resource impacts or its proposed protection, mitigation, or enhancement measures," FERC regulations require Idaho Power to conduct at least one formal meeting with the disagreeing party or parties for the purpose of trying to resolve the conflict.(78) After this meeting, if the parties still disagree Idaho Power must include a full description of the disagreement in its license application.(79)

Idaho Power may then file its application, and a new series of consultations will begin subject to the Fish and Wildlife Coordination Act (Coordination Act)(80) and section 10 of the FPA.(81) The Coordination Act and the FPA require FERC to consult with state and federal fish and wildlife agencies, but not tribes, when it receives a license application and to give those recommendations "equal consideration" with power production.(82) Section 10(j) of the FPA requires FERC to include in all licenses conditions needed to "adequately and equitably protect, mitigate damages to, and enhance" populations of fish and wildlife and their habitat that are impacted by FERC projects,(83) Those conditions must be based on the recommendations submitted under the Coordination Act.(84)

FERC regulations require the fish and wildlife agencies to submit their recommendations sixty days after FERC determines that the application is ready for environmental review.(85) The agency then determines whether the 10(j) recommendations are consistent with section 10(a) of the FPA, which requires FERC to balance various competing interests before granting a license.(86) If FERC finds that the recommendations are inconsistent or inconclusive, a lengthy negotiation process begins, culminating in FERC's issuance of an order either accepting or rejecting the recommendations and explaining the basis of its decision.(87)

During this same time period, NMFS and the Fish and Wildlife Service can submit "fishway" conditions for the license under section 18 of the FPA.(88) FERC must include such conditions in the license.(89) Similarly, section (4)(e) of the FPA allows federal land managers to submit mandatory conditions necessary to protect the purposes of the federal reservation on which the project lies.(90) Because the Hells Canyon Complex lies between the Hells Canyon National Recreation Area (HCNRA) and the Wallowa-Whitman and Payette National Forests, all of which are federal reservations managed by the Forest Service, the Secretary of Agriculture has the discretion to impose binding conditions necessary to protect those reservations.(91)

In addition, as the application process moves forward, FERC must comply with the National Environmental Policy Act (NEPA) by preparing and distributing to the public for comment an environmental impact statement (EIS) on the anticipated effects of the dams.(92) Concurrently, the states of Oregon and Idaho must certify that the project will comply with state water quality standards before they will issue a new license(93) Finally, FERC will make a decision whether to relicense the Hells Canyon Complex and, if so, under what conditions.(94) In making its decision, FERC must determine both that the project is "best adapted" to a comprehensive waterways plan(95) and that there exists a public need for the power the project will produce.(96)

At the present, the relicensing is still in the first stage of consultation. Idaho Power continues to analyze comments on the formal consultation package and to work with the collaborative team on the contents of the final study plan.(97) Once those comments are analyzed, Idaho Power will release a complete study plan. In addition, Idaho Power has retained outside counsel to attempt to facilitate the creation of a restoration trust fund that would "serve as the vehicle for implementing whatever general or specific mitigation strategies ultimately are agreed to by the stakeholders and regulatory agencies."(98) Creation and maintenance of the trust might either be a new license or part of a settlement agreement.(99) According to a 1997 draft proposal, "[t]he basic objective of the Trust is to remove decision making authority for mitigation implementation from the licensee ... and place that authority for mitigation implementation into the hands of a more detached and representative decision making body."(100) This body would be composed of various stakeholders, including fish and wildlife agencies and Indian tribes, but those interests have yet to agree on the terms of such an agreement.

III. A GRAND EXPERIMENT: CHANGING THE OPERATION OF THE GLEN CANYON DAM TO BENEFIT THE GRAND CANYON

The process that resulted in the Grand Canyon experiment differed considerably from the detailed process the FPA requires of Idaho Power and the resource agencies and tribes in the relicensing of the Hells Canyon Complex. Although both processes either produced, or will produce, EISs detailing the effects of the dams, the Glen Canyon Dam EIS was triggered largely by public and congressional pressure, rather than a specific statutory and regulatory scheme like the FPA.(101) However, there are significant similarities in the issues that the Glen Canyon Dam EIS explored and those that FERC must analyze in the relicensing of the Hells Canyon Complex EIS. This section examines the Glen Canyon Dam EIS and the resulting Grand Canyon experiment.

Just as the Hells Canyon Complex has greatly affected the fish species in the Snake River, the Glen Canyon Dam has caused precipitous declines in the native fish species of the Colorado River.(102) In the Grand Canyon, the most significant effects of the Glen Canyon Dam are the alteration of normal flow patterns and temperature and the removal of sediment from the Colorado River system.(103) Prior to creation of the dam, Colorado River flows were seasonally variable, with spring and early summer flows averaging about 80,000 cfs and running as high as 100,000 cfs.(104) In the fall and winter, flows could fall as low as 3000 cfs.(105) The large spring and summer flows flushed nearly 86 million tons of sediment through the Grand Canyon in an average year.(106)

But since construction of the Glen Canyon Dam, daily peak flows normally do not exceed 31,500 cfs.(107) Flows can drop as low as 1000 cfs in the winter and 3000 cfs in the summer,(108) Daily fluctuations can range anywhere between the two extremes, often in just a few hours, depending on electric power demands.(109) The overall amount of water released from the dam each month tends to remain relatively constant throughout the year, although it increases somewhat during the summer and winter and particularly so in high-water years.(110) The dam traps so much sediment that delivery through the Grand Canyon has dropped to an average of eleven million tons per year, only about thirteen percent of the predam levels, most of which comes from the Paria and Lower Colorado Rivers below the dam.(111)

The rapid fluctuations in daily flows driven by power demands have caused many of the Grand Canyon's sandbars and side channels to disappear because of erosion.(112) Historically, heavily sediment-laden high springflows have rebuilt sediment deposits depleted by erosion.(113) The comparatively low flows that now occur, combined with the drastic decrease in sediment in the system resulting from the dam, are insufficient to sustain those sediment deposits.(114) These changes in normal or historical river function have in turn harmed fish and other aquatic species that depend on the sandbars and warm backwater channels for spawning and rearing habitat,(115) Sandbars are important because they create recirculation zones, or eddies, in the river.(116) As the eddies fill in with sediment, backwater channels form.(117) The channels provide protected spawning and rearing areas that are separated from the high water velocities in the main channel.(118) The higher water temperatures in these channels are necessary for rearing larval fish.(119) Without periodic floods, the backwaters tend to fill in with silt.(120)

The Glen Canyon Dam has turned a seasonally warm and muddy river into a cold and clear system because the dam's intakes draw water from the bottom of Lake Powell, where water temperatures consistently average approximately forty-six degrees Fahrenheit.(121) Cold water releases have completely eliminated reproduction by warm-water fish in the mainstem because water temperatures in that part of the river are too low to allow development of eggs.(122) In addition, daily fluctuations in flows cause fish mortality by draining the backwater channels of warm water and refilling them with cold mainstem water, resulting in thermal shock and reduced growth.(123)

The result is that three of the warm-water fish species native to the Grand Canyon (the humpback chub, razorback sucker, and flannelmouth sucker) are either listed under the Endangered Species Act or considered candidates for listing.(124) Three other warm-water natives (the Colorado squawfish, bonytail chub, and roundtail chub) have been extirpated from the Grand Canyon.(125) As critical habitats like channels and sandbars have disappeared, so have the fish species that depend on them. Impacts have been so severe that in 1978 the Fish and Wildlife Service issued a biological opinion under the ESA which concluded that dam operations were jeopardizing the continued existence of the humpback chub.(126) Nonnative cold-water species, such as rainbow trout, now flourish and compete for habitat with endangered native fish.(127)

Despite the 1978 Fish and Wildlife opinion, the Bureau of Land Management (BLM) made no changes in dam operations until 1991. The tide began to shift for the Grand Canyon in 1989. In response to pressure from environmental groups, Secretary of the Interior Manuel Lujan, Congressman George Miller of California (then Chairman of the House Committee on Natural Resources and the Environment), and Senator John McCain of Arizona ordered BLM to prepare an Environmental Impact Statement to analyze the impact of the dam on the resources of the Grand Canyon.(128) This EIS assumed an even higher priority in 1992 when Congress passed the Grand Canyon Protection Act (1992 Act), which required BLM to complete the EIS by October 30, 1994.(129) More significantly, the Act required the Secretary of the Interior to operate the Glen Canyon Dam "to project, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established, including, but not limited to natural and cultural resources and visitor use."(130)

BLM, in cooperation with an inter-agency task force, the Glen Canyon Environmental Studies,(131) published the final EIS on Glen Canyon operations on March 21, 1995.(132) At that time, then BLM Commissioner Dan Beard said: "You can go around the world and no place will you find such a detailed study of the downstream impacts of a dam."(133) The alternatives evaluated in detail ranged from operating the dam for maximum power generation to providing steady flows on a monthly basis.(134) The EIS's preferred alternative, which fell roughly in the middle of the nine analyzed alternatives, sought to remedy erosion-related problems through the following three mechanisms: 1) daily flow constraints mandating reduced high flows and increased minimum flows, and restricting daily fluctuations between low flow and high flow to 8000 cfs; 2) providing annual "habitat maintenance flows" of up to 33,200 cfs for one to two weeks each March; and 3) providing periodic "beach/habitat building flows" of up to 45,000 cfs approximately every five years.(135)

Significantly, the EIS team eliminated from detailed study the two alternatives that would have attempted to mimic predam flows most faithfully, allowing for high spring floods and sediment augmentation.(136) These alternatives were eliminated largely because of their high cost and the technical difficulty of transporting sediment below the dam.(137) Without such sediment augmentation, the historic high flows would flush all of the sediment out of the Grand Canyon, leaving fish even worse off than they are now.(138)

The EIS noted a conundrum that faces any dam manager seeking to restore more natural river function:

   Some people consider sediment augmentation the ultimate solution for Grand
   Canyon because a portion of the natural sediment supply could be restored
   and the life of Lake Powell could be extended.... However, others doubt the
   wisdom of using a major construction project to solve the environmental
   problems of a previous construction project.(139)

The EIS also expressed concern for the adverse effects that an alternative providing for warmer water and more sediment might have on the Grand Canyon's famed rainbow trout, an introduced species that now flourishes in the cold water released from Lake Powell.(140) Options that might help the native, warm-water species could have a detrimental impact on the blue-ribbon trout fishery and vice versa.(141) Easy answers were obviously hard to come by.

The Record of Decision on the EIS explained the process used to determine the environmentally preferable alternative:

   The decision process for selecting the preferred alternative for the EIS
   followed a repetitive sequence of comparisons of effects on downstream
   resources resulting from each alternative. Alternatives resulting in
   unacceptable adverse effects on resources (such as long-term loss of
   sandbars leading to the destruction of cultural resource sites and wildlife
   habitat) were eliminated from further comparisons. Comparisons continued
   until existing data were no longer available to support assumed
   benefits.(142)

Using this process, the EIS team was able to eliminate the year-round steady flow alternative that

   would result in the greatest storage of sand within the river channel, the
   lowest elevation sandbars, the largest potential expansion of riparian
   vegetation, and the highest white-water boating safety benefits. However,
   it would not provide the variability on which the natural processes of the
   Grand Canyon are dependent (e.g., beach building, unvegetated sandbars, and
   backwater habitats).(143)

The team determined that the preferred alternative, with the implementation of an adaptive management approach,(144) would "provide the most benefits" because it "would create conditions that promote the protection and improvement of downstream resources while maintaining some flexibility in hydropower production."(145)

The preferred alternative called for periodic "habitat-building test flows" of 45,000 cfs. The EIS team determined that such periodic flows would provide a sufficient velocity of water to recycle sediment from the main channel and into eddies, where it could form sandbars when the flow levels receded.(146) However, this volume of water would not be so great as to flush all the sediment downstream.(147) Flows of 45,000 cfs would result in a loss of power-generating capacity because only 33,200 cfs can go through Glen Canyon Dam's turbines.(148) The additional 12,000 cfs required for the habitat-building flow would have to pass over the dam's diversion tubes and would therefore be lost to power production.(149)

The first experimental flood and application of the adaptive management concept took place in late March 1996, and early results were encouraging.(150) The flood temporarily restored many of the sandbars and created numerous backwater channels that provide habitat for endangered fish species.(151) Despite initial protests from electric power companies, the experiment only cost about $2.5 million in lost power revenues and other expenses, an amount that would produce only a 0.1%, one-time increase in power rates.(152) Based on the 1996 experiment;, the Secretary of the Interior has presented an operating plan for Glen Canyon Dam, which pledges to continue the floods in high water years under certain conditions.(153)

Unfortunately, BLM's management since 1996 has eroded many of the initial gains.(154) According to Dave Wegner, the former head of the Glen Canyon Environmental Studies, over eighty percent of the beaches created by the 1996 flood have disappeared because of high water releases due to a record snowpack in 1997.(155) Although BLM could have begun releases in December once it became aware of the high snowpack, the agency adhered to traditional revenue-maximizing patterns and did not begin releases until February 1997.(156) These high flow releases occurred despite restrictions on high flows in the Glen Canyon Dam EIS because BLM declared a flow "emergency," which allows the dam to be operated at full capacity.(157)

One important, but underreported, aspect of the chosen alternative is the "habitat maintenance flows" that will occur in years when the experimental flood flows do not take place.(158) According to the EIS, "[h]abitat maintenance flows are high, steady releases within powerplant capacity (33,200 cfs) for 1 to 2 weeks in March."(159) These habitat maintenance flows are intended to "re-form backwaters and maintain sandbars," without causing the excessive erosion that annual flood-flows would create.(160) There is not enough sediment in the system to allow habitat "building" flows every year, and so the agencies use "maintenance" flows to sustain sediment that is available.(161) In the Record of Decision implementing the "modified low fluctuation flow alternative" (the "preferred" alternative), Secretary of the Interior Babbitt concluded that the habitat, maintenance flows are significant because they "provide for some pre-dam variability," that is, more natural river conditions, compared to previous dam operations.(162) The decision to choose an alternative with habitat maintenance flows demonstrates a commitment by the Department of the Interior to attempt to restore ecosystem dynamics in the Grand Canyon. That decision has implications for dam operations in Hells Canyon as well.

IV. A CHANGING OF THE GUARD: THE RELEVANCE OF THE GRAND CANYON EXPERIMENT TO HELLS CANYON

The Grand Canyon and Hells Canyon are two of North America's "crown jewels" and favorite destinations for whitewater rafters the world over. The Grand Canyon has been a national park since 1919(163) and clearly occupies a unique place in the American mind because of its breathtaking grandeur. Hells Canyon, designated a national recreation area in 1975,(164) is the deepest gorge in North America and home to a stunning diversity of wildlife and plant species.(165) Hells Canyon has also been proposed as a national park.(166)

On the surface, though, there are some significant differences between the situations in the Grand Canyon and Hells Canyon. For instance, the Colorado River through the Grand Canyon historically was seasonally warm, the Snake River is naturally cold; the Colorado was seasonally muddy, the Snake is normally clear; the threatened fish in the Grand Canyon are nonmigratory, the endangered species in Hells Canyon are mostly migratory.(167) Beyond these superficial differences, however, is a critical and much more significant commonality: the rivers and related resources of both of these national treasures suffer considerably from the dams upstream of their boundaries.(168) Many of the dam-related effects on these rivers can be traced to a single problem caused by all dams: the alteration of the natural hydrograph, and resulting disruption of the physical and biological processes that sustain the rivers.

A major component of restoring ecosystem health through ecosystem management is restoring dammed rivers to a more normative hydrograph.(169) The Grand Canyon experiment is, on some level, an expression of this principle of ecosystem management, and the Glen Canyon Dam EIS was in many ways driven by a desire to partially implement this concept.(170) One of the challenges for the agencies drafting the EIS was to manage for the entire ecosystem, not just individual endangered species.(171) The agencies believed that restoring ecosystem integrity would ultimately lead to a greater likelihood of recovery for all endangered and threatened species, while managing only for specific species might lead to loss of others.(172)

The alternative chosen by Secretary Babbitt therefore attempted to more closely approximate a natural hydrograph and allow for greater flexibility in adaptively managing the natural resources of the Grand Canyon.(173) Because many of the ecological problems in the Grand Canyon are related to the erosion of sediment and resulting loss of habitats, the EIS looked for ways to keep sediment in the system and to move accumulated sediments from the floor of the main river channel back up to the eddies, beaches, and backwater channels. Although true "run-of-the-river" alternatives were rejected because of high costs and negative environmental effects related to excessive erosion,(174) the chosen alternative does attempt to restore some natural processes through the use of periodic flood flows and reduction of "peak power" operations by minimizing daily flow fluctuations.(175) Reduced daily flow fluctuations potentially increase riparian vegetation and the aquatic food base by decreasing the amount of shoreline that is consistently inundated and then dewatered every day.(176) Numerous species, not just fish, benefit from such changes.(177) The long-term result is a healthier, more resilient ecosystem.(178)

These changes in dam operations have produced significant short-term beneficial impacts to Native American cultural resources as well. The erosion caused by previous operations had exposed many archeological sites that have cultural importance to eight different tribes along the Colorado River.(179) The tribes desire that the remains and possessions of their ancestors remain in place, but pot-hunters and other would-be archeologists frequently impact exposed sites.(180) The habitat-building flood flow provided sediment to cover many of those sites, and future floods should have similar benefits.(181)

The thinking that drove the Glen Canyon Dam EIS is equally applicable to the relicensing of the Hells Canyon Complex. Attempting to mimic a more natural hydrograph will benefit all species in the Hells Canyon ecosystem, not just endangered salmon. Native American cultural resources, including salmon, will also be protected. The key is to replicate as much of the natural hydrograph as possible, without causing additional negative impacts. In addition, sediments, nutrients, and seasonal variability must also be restored. As an indicator species, what is good for the salmon is good for most organisms throughout the food chain. But looking at salmon alone will not in itself solve the problem. As should be apparent from the Glen Canyon Dam EIS, dams cause complex problems for complex systems, and dam managers must adopt an ecosystem perspective if they wish to make dams more compatible with fish and wildlife.

Idaho Power acknowledges the potential connection between Hells Canyon and the Grand Canyon. In describing a proposed "Sediment Transport Study," Idaho Power recognized the Grand Canyon experiment as "an example of how reservoir management has been used to affect downstream sediment deposition."(182) Consequently, Idaho Power will fund a study to determine "how or if" the Grand Canyon situation is relevant to the Hells Canyon relicensing, and examining, in particular, whether fluctuating water levels erode beaches below Hells Canyon Dam.(183) The study will also attempt to determine the amount and quality of the sediment deposited in Brownlee Reservoir since impoundment and relate that to the lack of sediment deposited downstream from Hells Canyon Dam.(184) Idaho Power and FERC should be encouraged to explore such similarities throughout the relicensing process.

Another important lesson of the Grand Canyon experiment is that dams can be operated to provide benefits for fish and wildlife if dam regulators have the will and public support to make necessary changes in operations. The reduction of peaking power operations called for in the Glen Canyon Dam EIS has not caused the financial calamity that many feared.(185) In the Snake River, there are options that FERC and Idaho Power can explore to reduce the fluctuations caused by peaking power operations. At least one scientific review panel has suggested that "revenue lost by base loading some dams could be offset by peaking other dams that do not have riverine segments downstream."(186) For Idaho Power, that could mean peaking operations would be shifted to its projects upstream, such as Bliss and Shoshone Falls that do not have such a direct effect on Hells Canyon. However, shifting operations in this way cannot be allowed to affect water deliveries to speed migration of endangered fish, lest one cancel out the benefits of the other. Achieving such flexibility will require FERC to take a comprehensive look at all of the Idaho Power projects, as well as other federal dams throughout the Snake and Columbia Basins. The Grand Canyon experiment bears witness to the fact that such changes are possible.

At least one commentator has suggested that perhaps the greatest significance of the Grand Canyon experiment lies in its implications for general federal policies concerning dams and their effects, noting that "what it might have been, in the larger historical picture, was a changing of the guard, at least on that part of the river: science replacing the old time religion [of power production] as the management imperative."(187) The EIS's emphasis on restoring ecosystem dynamics(188) certainly supports this statement.

Recent pronouncements by Secretary Babbitt indicate that the Grand Canyon experiment is perhaps the more moderate leading edge of a new policy under which "the Federal Government encourages the selective destruction of certain dams, public and private, that cause exceptional environmental damage."(189) As the Secretary said:

   [W]e should challenge dam owners everywhere--including the U.S. Bureau of
   Reclamation, the Army Corps of Engineers and other federal agencies--to
   defend themselves, to demonstrate by hard facts, not sentiment and myth,
   that continued operation of a dam is in the public interest. Often, this
   will mean adopting more environmentally-friendly operating regimes, such as
   we have done at Glen Canyon Dam in Arizona to begin to restore the Colorado
   River through Grand Canyon National Park. In some cases, it will mean
   actual removal of dams themselves.(190)

Thus, from at least the perspective of the Department of Interior, the guard apparently is changing.

Further, the Grand Canyon experiment focused national public attention on the importance of changing dam operations in order to benefit native fish populations and the environment as a whole.(191) The success of the Grand Canyon experiment offers fish and wildlife agencies, Indian tribes, and the public the factual basis and political momentum to demand that federal agencies change the way they manage and operate dams. Equally as important, the perceived success of the experiment has the potential to supply dam management agencies with the political cover necessary to undertake changes in dam operations on their own when permitted by law. By the time FERC issues its decision on the relicensing of the Hells Canyon Complex, operating dams for normative river conditions may well be the rule instead of the exception.

V. APPLYING THE LESSONS: USING EXISTING LAWS TO CHANGE THE OPERATION OF THE HELLS CANYON COMPLEX

Arguably, fish protection agencies, Indian tribes, and the public have a significantly greater opportunity to force changes in dam operations for the benefit of native fish in the relicensing of the Hells Canyon Complex than did their counterparts who participated in drafting the Glen Canyon Dam EIS. This is because the Federal Power Act contains explicit statutory mandates intended to protect fish and wildlife that do not apply to the Glen Canyon Dam. This section begins by examining the authorities governing the Bureau of Reclamation (Bureau) and its operation of the Glen Canyon Dam. It then considers the Federal Power Act and how its authorities might be used to compel FERC to adopt more ecologically sound dam operations at the Hells Canyon Complex. Finally, this section examines four additional legal mechanisms (section 401 of the Clean Water Act, the Endangered Species Act, tribal treaty rights, and NEPA) that also will come into play in the relicensing, and how those authorities might affect dam operations.

A. Authorities Governing the Bureau of Reclamation

The primary statute governing the operation of Bureau of Reclamation dams is the Reclamation Act of 1902.(192) This act directs the Secretary of the Interior to supervise the "construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands" in the western United States.(193) Most Bureau projects provide water for irrigation, but authorized purposes also may include hydropower,(194) municipal and industrial uses,(195) flood control and navigation,(196) recreation,(197) and fish and wildlife preservation.(198)

In addition, each Bureau project has its own authorizing legislation that establishes the primary objectives of that particular project.(199) For example, the Glen Canyon Dam was authorized by the Colorado River Storage Project Act of 1956 (1956 Act).(200) The primary purposes identified in the 1956 statute are: 1) "the storing of water for beneficial consumptive use" in order to insure deliveries from upper basin states to lower basin states required by the Colorado River Compact; 2) "the reclamation of arid and semiarid land;" 3) flood control; and 4) the production of hydroelectricity as an incident to the other three purposes.(201) Another section of the 1956 Act allows the Secretary of the Interior to construct public recreational facilities and fish and wildlife mitigation facilities "to conserve the scenery, the natural, historic, and archeologic objects and the wildlife" on project lands using "such means as are consistent with the primary purposes of said projects."(202) The 1956 Act thus established a clear hierarchy of uses for the Glen Canyon Dam: consumptive use of water and flood control are first; hydropower is second; and recreation, fish and wildlife, and scenery are third.(203) Under the 1956 Act, the dam can be operated for the benefit of fish and wildlife only so long as such operations are not inconsistent with water deliveries, consumptive uses, and hydropower.(204)

The 1992 Grand Canyon Protection Act (1992 Act) placed more emphasis on the protection of fish and wildlife in the Grand Canyon,(205) but did not really alter the traditional hierarchy of uses established in the Colorado River Storage Project Act. The 1992 Act directed the Secretary of the Interior to operate the Glen Canyon Dam "in such a manner as to protect [sic], mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established, including, but not limited to natural and cultural resources and visitor use."(206) However, the 1992 Act also ordered the Secretary to implement the Act "in a manner fully consistent with and subject to the Colorado River Compact," the 1956 Colorado River Storage Project Act, and other pre-existing acts and treaties that provide for consumptive or hydroelectric uses of the water from the Colorado River.(207) The 1992 Act is therefore in many ways a classic morass of congressional contradictions (giving on one hand and taking away on the other). In order to operate the dam consistently with the Colorado River Compact and the Colorado River Storage Project Act, the Bureau must first guarantee annual water deliveries to downstream states before taking any other action.(208) Thus, although the Grand Canyon Protection Act focuses more attention on the status of fish and wildlife, the basic hierarchy established by the Colorado River Storage Project Act remains intact, and consumptive uses of water still predominate.(209)

In addition to the 1992 Act, fish and wildlife are protected through the Fish and Wildlife Coordination Act (Coordination Act), enacted in 1958 and applicable to all federal agencies proposing to impound, divert, or otherwise control navigable waters.(210) Under the Coordination Act, fish and wildlife must receive "equal consideration" with the other authorized uses of water development projects.(211) The Coordination Act requires the Bureau to consult with the Fish and Wildlife Service (FWS) "whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever."(212) The Bureau must include FWS recommendations in any report on the project, giving those recommendations "full consideration."(213) The project plan must then "include such justifiable means and measures for wildlife purposes as [the Bureau] finds should be adopted to obtain maximum overall project benefits."(214) The Bureau, however, has no obligation to follow the recommendations of the FWS, it must only consult with FWS and consider its views.(215) The Act does authorize the Bureau to modify its projects for the benefit of fish and wildlife(216) and calls for new impoundments to make "adequate provision ... for the conservation, maintenance, and management of wildlife resources."(217)

Although the Glen Canyon Dam was constructed before passage of the Coordination Act, the Coordination Act applied to the 1995 Glen Canyon Dam EIS because the Bureau proposed to modify dam operations.(218) The Fish and Wildlife Service submitted formal recommendations that called for, among other measures, replication of a natural hydrograph and maintenance or enhancement of sediment resources.(219) The Bureau accepted some of these recommendations and rejected others, such as steady flows, which the Bureau found "are not necessary to maintain the integrity of the postdam ecosystem in Grand Canyon."(220) Although the Bureau did make specific findings regarding its disagreement with FWS,(221) this example illustrates that, under the Coordination Act, the Bureau has considerable discretion and may ultimately disregard the view of an "expert agency" like FWS regarding fish and wildlife protection.

B. FERC Authority Under the Federal Power Act

1. State and Federal Fish and Wildlife Agency Recommendations Under Section 10(j) of the FPA.

FERC is also subject to the Coordination Act,(222) but the Federal Power Act arguably adds a level of requirements that are potentially more protective of fish and wildlife resources than the Coordination Act alone. In any licensing or relicensing, FERC must solicit the recommendations of federal and state fish and wildlife agencies under the Coordination Act.(223) Under section 10(j) of the FPA, FERC must include those recommendations in its licenses to "adequately and equitably protect, mitigate damages to, and enhance" fish, wildlife, and their habitat, which are affected by FERC projects, unless such recommendations are inconsistent with the purposes of the FPA or are not supported by substantial evidence.(224) Under section 10(j)(2), if FERC believes that a recommendation is "inconsistent" with any other provision of the FPA, FERC must "attempt to resolve such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities of [the fish and wildlife] agencies."(225) If, after attempting to resolve the dispute, FERC still believes that the recommendation is inconsistent, the agency must publish a finding to that effect.(226)

Despite the intent of Congress that section 10(j) impose a nondegradation standard,(227) FERC seems to have undermined this intent by attempting to place a high burden of proof on the other agencies to show why their recommendations are consistent with the FPA, instead of requiring licensees or FERC to show why the fish and wildlife agency recommendations are inconsistent with the statute, as the language of the FPA apparently requires.(228) The D.C. Circuit has agreed with FERC, concluding that the agency

   retains ultimate authority ... to decide whether any recommended conditions
   are inconsistent with the purposes of the FPA or other laws. When it acts
   contrary to a recommendation received from a wildlife agency, FERC must
   make an appropriate finding on the record to justify its decision.(229)

Although the FPA requires FERC to engage in a more detailed process to reject a fish and wildlife agency recommendation than does the Coordination Act alone,(230) in many ways the end result is the same for both FERC and the Bureau; discretion remains vested in the action agency.(231) The difference, however, is that the FPA places a substantive burden on FERC because FERC must make a record justifying any finding that a recommendation is inconsistent with the purposes of the FPA.(232)

In the past, FERC has used the burden of proof to reject conditions such as minimum streamflows or fish screens.(233) FERC has also delayed resolving conflicts by granting licenses allowing for postlicensing studies and reopeners pending further studies, rather than up-front mitigation.(234) FERC's interpretation of section 10(j) has been upheld by the courts.(235) which have held that FERC is not required to delay relicensing by ordering the applicant to conduct additional studies requested by fish and wildlife agencies in order for them to submit section 10(j) recommendations.(236)

In the Hells Canyon relicensing, the section 10(j) recommendations will be significant because they will allow fisheries agencies to addressissues like minimum streamflows and temperature controls that Congress has indicated are excluded from consideration as section 18 fishway conditions unless the measures are necessary to the operation of a fishway.(237) FERC may have little opportunity to delay or reject fish and wildlife conditions in the Hells Canyon relicensing because of the extensive collaborative consultation process already under way. By the time the fish and wildlife agencies submit their recommendations, most of the studies necessary to resolve fish and wildlife mitigation issues will have been completed and so FERC will not be able to issue a license subject to future studies.(238) The agency will have little choice but to make tough decisions on protection, mitigation, and enhancement measures.

2. Protection, Mitigation, and Enhancement and the Environmental Baseline

An important related factor determining the level of protection, mitigation, and enhancement required in the Snake River Basin under section 10(j) is the environmental baseline for relicensing. Section 10(j) requires that protection, mitigation, and enhancement be "adequate and equitable."(239) Under section 15 of the FPA, a relicensing is subject to the same standards as an initial license.(240) Congress has said that FERC must judge a relicensing by the values of modern-day society, not the values that existed at the original time of licensing, meaning that FERC must take more seriously its obligation to protect, mitigate, and enhance populations of fish and wildlife.(241)

One of the most controversial issues facing FERC is whether the baseline for judging the adequacy of mitigation should be conditions existing at the time of relicensing or conditions that existed prior to the construction of the original project.(242) This issue is of considerable importance in the Hells Canyon relicensing because the mitigation calling for fish passage in the original license proved to be a complete failure and fish runs have plummeted since construction of the dams. Under FERC's current interpretation of the FPA, the "environmental baseline" is the environment existing at the time of relicensing.(243) FERC asserts that attempting to determine preproject environmental conditions is too difficult and costly a task for the licensees, so the licensee should not be required to ascertain and recreate those conditions.(244)

Under FERC's interpretation of the baseline, Idaho Power would be required only to protect, mitigate, and enhance the existing diminished fish and wildlife populations and would not be required to attempt to recover populations to predam levels.(245) FERC's interpretation potentially rewards Idaho Power for failing to adequately protect, mitigate, and enhance fish and wildlife during the course of the original license. Obviously, Idaho Power cannot be held responsible for habitat degradation unrelated to the development and operation of its projects, but it seems reasonable to require a licensee to continue to mitigate for the damage that the dam originally caused and that continues in the present. Although some at FERC dismiss this idea as being a "reparations" theory,(246) it is an important means of insuring that a licensee complies with the protection, mitigation, and enhancement provisions of its license. In fact, section 15 of the FPA mandates that FERC consider "[t]he existing licensee's record of compliance with the terms and conditions of the existing license" before issuing a new license.(247)

Controversy over the appropriate environmental baseline already exists in the formal consultation package for relicensing prepared by Idaho Power.(248) Of the studies recommended by the collaborative team, Idaho Power has refused to fund only one: the Joint Proposal for Study of Wildlife Habitat Inundated by the Hells Canyon Complex, which was proposed by FWS, the Idaho Department of Fish and Game, and the Oregon Department of Fish and Wildlife.(249) The agencies state:

   [T]he study is based on the premise that an understanding of the natural
   habitat that once supported the area's wildlife species is an important
   building block for any future-looking program to protect and enhance those
   species. In other words, knowing what was lost in the past is a key to
   determining what might be needed in the future.(250)

      Idaho Power objected to this study request, claiming that

   any study which attempts to reconstruct an environmental baseline developed
   from available data, speculation, and anecdotal information dating back
   fifty years, to a time when neither science, history, nor media were
   focused upon or sufficiently developed to reliably and comprehensively
   record such information in the Hells Canyon area, is inconsistent with
   common standards of objectivity and fairness.(251)

Idaho Power also asserted that, "[i]n a relicensing proceeding, neither the Federal Power Act, the federal regulations implementing that Act, nor the federal Commission administering them require assessment of pre-project, pre-construction, or pre-impoundment conditions."(252)

Idaho Power's position incorrectly seems to assume that the past is irrelevant to a relicensing decision made today. Congress clearly stated that relicensings must be judged by today's values.(253) Judged by today's values, it is conceivable that the Hells Canyon Complex would not be licensed at all. It is therefore entirely appropriate that an effort be made to determine what was lost when the original licensing decision was made. It is true that such studies would need to be carefully designed in order to be meaningful, because they are essentially reconstructive rather than based on current observable data. But without such information, it is impossible for today's decision makers to determine whether the licensee has complied with the original license, and whether granting a new license is in the public interest.(254)

Although it might seem incongruent to argue both that the appropriate baseline is the environment at the time of original licensing and that the relicensing should be judged by modern values, the positions are not inconsistent. To the extent that the original license conditions did not adequately mitigate for losses to fish and wildlife, or the licensee did not adequately abide by those conditions, it is appropriate that FERC exercise its authority to restore losses of fish and wildlife caused by its licensing decisions.(255) Furthermore, section 10(j)'s mandate that protection, mitigation, and enhancement be "adequate and equitable" implies that those measures be effective.(256) In order for those measures to be effective, they must be based on a clear understanding of normative river conditions.

Clearly, the quantity and quality of information about rivers is now superior to that which existed forty or fifty years ago.(257) But the post-World War II era was not a scientific dark age, as Idaho Power's position seems to suggest. Scientists can use existing objective information from this time period to attempt to approximate preproject conditions by using computer models and reference systems, such as the section of the Snake River below Hells Canyon Dam that has never been inundated(258) Finally, it is worth noting that Idaho Power did not raise this objection concerning salmon, and the utility will attempt to determine the status of fish runs immediately prior to the construction of Brownlee.(259)

The main point is that knowing what has been lost and how the river functions in its natural state will make for better decision making about protecting, mitigating, and enhancing the Snake River Basin in the future. In the case of the Grand Canyon, the EIS team recognized that knowing what has been lost is a key to restoring function to a damaged ecosystem.(260) The EIS therefore described predam conditions on the Colorado in detail.(261) Such an effort must take place in Hells Canyon because, to restore the health of that ecosystem, scientists and policy makers must have a clear idea of what they are trying to restore. Because section 15 of the FPA requires FERC to consider the performance of the current licensee in granting a relicense,(262) and section 10(j) requires protection, mitigation, and enhancement to be "adequate and equitable,"(263) FERC has the authority to adopt a historical approach to the baseline, and it should do so if any semblance of normative river conditions are to be achieved.

3. U.S. Forest Service Conditioning Authority Under Section 4(e) of the FPA

An unlikely agency that may have the power to push FERC towards achieving normative river conditions is the U.S. Forest Service. FERC's broad discretion under the FPA is limited to license proceedings for which the dam lies on a federal reservation of land because the federal agency managing the reservation can require conditions in the license necessary to protect the reservation under section 4(e) of the FPA.(264) Because the Hells Canyon Complex, and Hells Canyon Dam in particular, straddles lands managed primarily by the U.S. Forest Service, including the Hells Canyon National Recreation Area (HCNRA), the Secretary of Agriculture has authority to condition the Idaho Power license to protect reserved federal lands under his jurisdiction.(265) The Secretary's section 4(e) conditioning authority should be informed by section 7 of the HCNRA Act, which directs the Forest Service to manage the HCNRA for the "maintenance and protection of the free-flowing nature of the rivers" and the "protection and maintenance of fish and wildlife habitat" within the recreation area.(266)

Congress originally established the national recreation area in part to prevent the development of a FERC project that would have flooded the remaining free-flowing section of the Snake River in Hells Canyon.(267) Accordingly, section 5 of the HCNRA Act prohibits FERC from licensing any new projects within the recreation area.(268) Congress also expressly provided that the Federal Power Act would continue to apply to existing projects within the recreation area, such as the Hells Canyon Complex.(269) At first glance, Congress appears to have hamstrung the Forest Service with respect to its ability to use its section 4(e) conditioning authority to prescribe flows in the Snake. In section 6 of the HCNRA Act, Congress declared that "[n]o flow requirements of any kind may be imposed on the waters of the Snake River below Hells Canyon Dam under the provisions of the Wild and Scenic Rivers Act, ... [the HCNRA Act], or any guidelines, rules, or regulations adopted pursuant thereto."(270) The section also states that "[n]o provision of the Wild and Scenic Rivers Act, ... nor of this Subchapter, ... shall in any way limit, restrict, or conflict with present and future use of the waters of the Snake River ... for ... beneficial uses, ... including ... power."(271) Arguably, in exercising its FPA section 4(e) conditioning authority, the Forest Service would be acting pursuant to the HCNRA Act in attempting to protect those resources, such as fish and wildlife habitat, for which Congress directed the Secretary to manage the recreation area under section 7 of the HCNRA Act.

However, the Forest Service's 4(e) conditioning authority derives from the FPA itself, not the HCNRA Act.(272) Section 6 of the HCNRA Act does not mention the FPA and does not preclude regulation pursuant to it.(273) In fact, the HCNRA Act specifically states that "provision of the [FPA] shall continue to apply" within the recreation area.(274) Section 4(e) of the FPA grants the Forest Service the authority to impose conditions on Idaho Power's operating license to insure "the adequate protection and utilization" of the HCNRA.(275) Thus, if the Secretary of Agriculture were to find that flow requirements were necessary to safeguard the fish and wildlife or other protected values of Hells Canyon, the Secretary's decision would be informed by section 7 of the HCNRA Act, but would be made pursuant to section 4(e) of the FPA.(276) Section 4(e) therefore grants the Forest Service significant authority to protect the fish and wildlife of Hells Canyon by conditioning operations of Hells Canyon Dam.(277)

4. National Marine Fisheries Service Fishway Authority Under Section 18 of the FPA

Section 18 of the FPA grants conditioning authority to federal fisheries agencies similar to section 4(e)'s authority to federal land management agencies.(278) Section 18 of the FPA authorizes federal fisheries agencies to prescribe "such fishways" as they deem necessary to protect a fisheries resource and directs that FERC "shall require the construction, maintenance, and operation" of those facilities.(279) Although the current FERC license for the Hells Canyon Complex required Idaho Power to "construct, maintain and operate . such fish ladders, fish traps or other fish handling facilities or fish protective devices and provide fish hatchery facilities for the purpose of conserving the fishery resources,"(280) Idaho Power did not include fish ladders in the projects, and other methods of providing fish passage proved inadequate. Thus, hatcheries appeared to be the only way to maintain any level of salmon production in the Snake River.

In 1980, Idaho Power reached a settlement with NMFS and the fish and wildlife agencies of the states of Oregon, Idaho, and Washington to "mitigat[e] for all numerical losses of salmon and steelhead caused by or in any way associated with the construction of, and operation within the existing license for," the complex, by constructing a number of hatcheries.(281) This settlement agreement expires at the end of the existing license.(282) Given what fisheries managers have learned about the inability of hatcheries to sustain fish runs,(283) it seems unlikely that these fisheries agencies will agree to hatchery mitigation again. Rather, it is likely that the agencies will require Idaho Power and FERC seriously to analyze options for fish passage at the three projects because of the importance of reclaiming the habitat above the projects.

Because NMFS clearly has the power to include fishway conditions in the license,(284) the agency has enormous legal clout in the relicensing process. The language of section 18 is mandatory and does not give FERC the discretion to decide that fishways are not appropriate.(285) In this way, section 18 of the FPA is much like section 401 of the Clean Water Act(286) and section 4(e) of the FPA.(287) NMFS therefore could effectively preclude FERC from relicensing the Hells Canyon Complex without the construction of fish passage facilities. However, from an engineering and financial standpoint, it may be practically impossible to retrofit the dams with fishways.(288) If Idaho Power or FERC decided that the conditions imposed by NMFS would be too costly, FERC would have little choice but to issue the license with prohibitive conditions, deny the license altogether, or issue a nonpower license to a fish agency or tribe.(289)

C. Other Statutory Authorities that Can Compel Ecologically Sound Dam Operations

1. Section 401 of the Clean Water Act

Perhaps the most promising authority for producing changes in water flows is section 401 of the Clean Water Act, which requires all applicants for a federal permit or license to obtain certification from the state in which a licensed or permitted project or activity is located that the project or activity will not violate state water quality standards.(290) Section 401 did not come into play in the Grand Canyon because there was no federal permit or license that triggered its application.(291) In Hells Canyon, however, the license issued by FERC clearly brings the relicensing within the ambit of section 401.(292)

The Supreme Court recently upheld a decision by the Washington Department of Ecology to condition 401 certification for a FERC-licensed dam on the Dosewallips River on minimum streamflow requirements.(293) The opinion gave a broad interpretation to state authority under section 401, concluding that states may use section 401 authority to condition a federal license or permit to meet the designated beneficial uses of a water body (a separately enforceable component of water quality standards) as well as the numeric water quality criteria.(294) Accordingly, the court held that Washington's designation of "[s]almonid migration, rearing, spawning, and harvesting" as designated beneficial uses of the river allowed the state to impose any conditions on the project necessary to protect those uses, including required minimum flows.(295)

For the Hells Canyon Complex, this decision has enormous implications. Not only does it authorize the states of Oregon and Idaho to impose minimum flow conditions on the complex, but the states could conceivably also require such measures as reservoir drawdowns and fishways, if those measures are necessary to protect a designated beneficial use such as salmon habitat.(296) The states could also prevent daily fluctuations, if such water releases interfered with boating or salmonid spawning, rearing, and migration, all of which have been listed by Oregon as beneficial uses of the Snake River.(297) At least one commentator believes that the states can use section 401 to recover beneficial uses that existed prior to construction of the dams.(298)

Under the Clean Water Act, FERC has no authority to refuse such conditions, even if it believes that the conditions are not related to water quality.(299) The Second Circuit recently held that in such a circumstance the only options for FERC are to issue the license with the conditions or deny the license altogether.(300) If followed in the Ninth Circuit, this decision would give Oregon and Idaho near-absolute authority over the fate of Idaho Power's license.(301)

2. Consultation and Take Restrictions Under the Endangered Species Act

FERC's discretion to reject FPA section 10(j) measures may be significantly constrained if measures like increased flows are deemed necessary to meet Endangered Species Act requirements. Section 7 of the ESA requires FERC to consult with NMFS before taking any action that might harm a listed species or its habitat.(302) The Hells Canyon Complex relicensing is clearly such an action requiring consultation because of the listing of salmon as threatened under the ESA.(303) Formal consultation results in a biological opinion by NMFS, which determines whether the project will jeopardize the existence of the species.(304) Consultation under the ESA will probably proceed concurrently with consultation under the Coordination Act. However, NMFS could conceivably issue a biological opinion that conditions a "no jeopardy" finding on FERC's inclusion in the license of FPA section 10(j) recommendations as "reasonable and prudent measures."(305) If FERC refused to accept these recommendations, the "no jeopardy" opinion could become a "jeopardy" opinion, and the relicensing probably could not go forward under the ESA.(306) The Ninth Circuit has made it clear that the action agency takes a risk if it proceeds in the face of a jeopardy opinion.(307) However, it bears noting that, despite the 1978 FWS jeopardy opinion on Glen Canyon Dam, operations did not change until the early 1990s.(308)

NMFS could also conclude that relicensing and operating the project would produce a "take" of a listed species under section 9 of the ESA, by harming salmon through altering and blocking critical habitat.(309) NMFS could then impose civil and even criminal penalties on Idaho Power if the utility refused to modify project operations.(310) In such a circumstance, Idaho Power would also be subject to the citizen suit provision of the ESA.(311) However, NMFS could also choose to issue Idaho Power an "incidental take statement" that would allow the utility to harm a limited number of fish as an incident of dam operations provided that it met certain conditions designed by the agency to protect salmon.(312)

3. Tribal Rights

The wild card in the Hells Canyon relicensing is tribal treaty rights. Under an 1859 treaty with the United States, the Nez Perce Tribe reserved the right to take fish at all "usual and accustomed" places.(313) Court decisions have interpreted this treaty as giving the tribe a property right in, and significant management powers over, the Columbia and Snake River fisheries.(314) In Phase II of the U.S. v. Washington litigation over these treaty rights, Judge Orrick found that the treaties impose an environmental servitude that prohibits state governments and the United States from "act[ing] in a manner which destroys the fishery," but the Court declined to delineate the scope of such servitude.(315) The Ninth Circuit, in a per curiam opinion, eventually vacated the environmental servitude portion of Orrick's opinion, holding that the case did not present sufficiently "concrete facts" to make such a decision.(316) However, the court, did not rule that such a servitude does not exist. Rather, the tribes may again seek to enforce their rights in a case that presents the type of "concrete facts" the Ninth Circuit held necessary.(317) The relicensing of the Hells Canyon Complex, with its obvious impacts on salmon, could be that case.

A recent federal case in Idaho held that the tribe could not collect money damages from Idaho Power for past losses of fish.(318) However, that case may not bar injunctive relief for new or ongoing damage to fish habitat. Despite the fact that some commentators questioned the decision,(319) the Nez Perce reached a monetary settlement with Idaho Power to resolve the case rather than appeal to the Ninth Circuit.(320)

Because the treaty fishing right is a tribal property right, the federal government also has a trust responsibility to protect the resources protected by the treaties.(321) FERC, like all federal agencies, is bound by this obligation.(322) Because the Nez Perce culture and economy have been greatly affected by the Hells Canyon dams,(323) the tribe could argue that FERC has the responsibility to protect tribal property interests, perhaps to the point of refusing to issue a license, or requiring significant mitigation, including minimum flows and drawdowns. However, a section of the settlement reached in the tribe's case against Idaho Power commits the tribe to support Idaho Power's relicensing application in exchange for a five million dollar payment from the utility.(324) The tribe can opt out of this clause, though, if it notifies Idaho Power before the utility submits the relicense application.(325) At present, the tribe has yet to take a position as to how, or whether, it will assert its treaty right in the relicensing, although the settlement agreement seems to make this possibility less likely.

4. Cumulative Impacts Under NEPA

The National Environmental Policy Act requires all federal agencies to prepare a "detailed statement" describing the "environmental impact" of any "major Federal action[] significantly affecting the quality of the human environment."(326) This document is known as an environmental impact statement, or EIS.(327) Arguably, FERC must prepare an EIS for all relicensings,(328) although the agency has resisted this interpretation and has prepared a less detailed environmental assessment (EA) and "finding of no significant impact" (FONSI) in many relicensings.(329)

Whether FERC prepares an EIS or an EA, the agency must consider the "cumulative impact . on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or nonfederal) or person undertakes such other actions."(330) Because Idaho Power is seeking renewal of licenses for eight different projects on the Snake River over the next eleven years,(331) FERC has recognized that it must consider the cumulative impacts of all the eight relicensings in at least one environmental impact statement.(332) In December 1996 FERC released a document detailing two possible approaches to evaluating the cumulative impacts analysis of the operation of the eight FERC projects on the Snake River and requesting public comment on the proposals.(333)

In "Approach A," FERC would prepare an EIS for the projects for which Idaho Power has already filed license applications, then issue separate NEPA documents as Idaho Power files licenses for the other projects, including Hells Canyon.(334) The first EIS would attempt to identify issues that will occur in later licenses, like anadromous fish issues, and then update that information as those licenses are actually filed.(335) In "Approach B," FERC would prepare one basin-wide cumulative impacts analysis for all the Idaho Power relicenses on the Snake River and delay preparation of project-specific NEPA documents for at least two years.(336)

The collaborative team convened by Idaho Power to assist in the relicensing process found both proposals to be inadequate because of concerns over the appropriate scope of analysis and delays in initiating that analysis.(337) An ad hoc workgroup of the collaborative team(338) issued a draft paper which argued that the cumulative impacts analysis needs to be basin-wide and coordinated with other ongoing analyses in the basin.(339) The group pointed to several other processes that FERC must incorporate into the cumulative impacts analysis: the Bureau's Snake River Resource Review, the Interior Columbia Basin Ecosystem Management Plan being developed by the Forest Service and BLM, the Snake River Basin water rights adjudication, NMFS and FWS recovery plans for endangered species, and the Northwest Power Planning Council's Fish and Wildlife Program.(340) This is a critical point. Any adequate analysis of cumulative impacts has to look at effects of upstream and downstream water use and land management. The Corps of Engineers's dams on the lower Snake, the FERC-licensed dams on the mid-Snake like the Hells Canyon Complex, the Bureau dams on the upper Snake, and loss of riparian and instream habitat due to land management activities all contribute to the decline of the salmon; attempting to determine the effects that any of them have in isolation is practically impossible and contradicts the prescriptions of the major scientific review panels that have analyzed these issues.(341)

Although such an enormous cumulative impacts analysis will be tremendously time-consuming, anything less may fail to satisfy NEPA, or to provide an integrated and ecosystem-based approach to river restoration. Without such a broad look, actions taken on one project could easily cancel out actions taken on another. Furthermore, in order to evaluate the prospects for increasing flexibility in operations for ecosystem benefits (for example, shifting the timing of water releases from Brownlee Reservoir to improve salmon and steelhead migration), such a complex basin-wide analysis is essential. FERC must recognize these basic facts because its cumulative impacts analysis will form the basis for all protection, mitigation, and enhancement of fish and wildlife populations at its licensed projects in the Snake Basin.

In part due to the comments of the collaborative team and others, FERC appears to have settled on a synthesis of Approaches A and B, choosing to begin simultaneously the initial scoping process for both a basin-wide cumulative impacts EIS on anadromous fish issues, and a project-specific look at the four relicensing applications that Idaho Power has already filed.(342) FERC's analysis will focus on the part of the mainstem of the Snake River containing the eight Idaho Power projects.(343) The analysis "will also ... look[] at upstream and downstream activities, but in less detail."(344) However, "[f]or anadromous fish, the downstream scope will be extended to the mouth of the Snake River, to include efforts to improve salmon passage at the Corps of Engineers's lower Snake River projects."(345) FERC should also look at the impacts of the upstream Bureau dams and the need for and the possibility of obtaining additional noncontracted water for flows to facilitate salmon migration. FERC does acknowledge the potential effects of the other management plans identified by the collaborative team and is seeking input from the agencies conducting those studies.(346)

This appears to be a step in the right direction. The more FERC is able to integrate the findings and recommendations of other planning processes, and to coordinate its activities with those of other agencies, the better the agency will be able adequately to protect, mitigate, and enhance populations of fish and wildlife in the Snake River Basin. However, FERC must remember that cumulative impacts include past actions, and it must consider predam conditions in its analysis.(347)

VI. CONCLUSION

One of the most important lessons to be learned from the Grand Canyon experiment is that it is politically possible to begin making changes in dam operations for the benefit of ecosystems and dependent fish and wildlife. Numerous nonuse and power market area surveys conducted by the Grand Canyon EIS team revealed that the public was willing to pay higher taxes and electric bills in order to restore function to the Colorado River system.(348) The team was able to convince Secretary of the Interior Babbitt to approve an alternative that significantly changed project operations and did so in ways that have allowed continued operation of the dam.(349) For years, Northwest policy makers have been debating the feasibility of implementing measures that improve river function, particularly reservoir drawdowns. What the Grand Canyon experiment demonstrates is that such measures can have immediate benefits to the resource, such as the rebuilding of channel complexity through the movement of sediment and the restoration of some predam variability in terms of flows.(350) However, the apparent negation of the benefits of the experiment through subsequent management emphasizes the fact that ecosystem management cannot be just a one-time event. It must be a long-term commitment involving thoughtful planning and the will to follow through.(351)

Another major lesson of the Grand Canyon experiment is the importance of studying predam conditions as a precedent to changing dam operations. Without determining the conditions that prevailed on the Colorado River prior to construction of the Glen Canyon Dam, the EIS team could not have made informed decisions about how to restore more normative river conditions and thereby improve habitat for native fish. Studying and learning from the past is obviously a key component of ecosystem management.

The Grand Canyon experiment, and the changes it represents in the federal policy towards dams, provide FERC with an opportunity to practice ecosystem management on a grand scale. There are few relicensings that are likely to receive greater attention in the Northwest than the Hells Canyon Complex, and few places more badly in need of improved conditions for fish and other aquatic organisms.(352) FERC has ample authority under the current statutory scheme to issue licenses that more closely approximate natural river conditions.(353) However, its current approach to the environmental baseline and the protection, mitigation, and enhancement of fish and wildlife under section 10(j) of the FPA present obstacles to managing river resources from an ecosystem perspective.(354) Unless this approach changes, the lessons of the Grand Canyon experiment may be lost on Hells Canyon.

The FPA requires FERC to manage dams in the "public interest."(355) The public is rapidly realizing that dams need to be operated, and rivers managed, for a great deal more than cheap, subsidized hydropower.(356) The public, and even the federal government, now believe that the public interest requires dams to be operated, and rivers managed, not just to produce cheap, subsidized hydropower, but also to produce functioning ecosystems capable of sustaining native fish populations like salmon.(357) This is the greatest lesson of the Grand Canyon experiment. To manage the Hells Canyon Complex in the public interest, FERC must restore function to the Snake River by changing the operations of the dams more closely to approximate predam conditions.

FERC cannot achieve such changes without preparing a comprehensive EIS, or series of EISs, that thoroughly analyze the cumulative impacts of all the dams on the Snake River system and exhaustively explore historical conditions. Neither can FERC attain this goal without fully considering the views of the expert fish and wildlife and land management agencies and adopting their recommendations in the final license. These agencies must remember that they have great power in the relicensing process, and should exercise that power for the benefit of Hells Canyon and the Snake River. Failure by FERC or the other agencies to aggressively protect this public interest could turn one hell of a grand idea into one hell of a lost opportunity.

A functioning river--it's not just one hell of a grand idea, it's the law.

(1) George Sibley, Glen Canyon: Using a Dam to Heal a River, HIGH COUNTRY NEWS, Jul. 22, 1996.

(2) Id.

(3) See, e.g., Northwest Power Planning Act, 16 U.S.C. [sections] 839(b) (1994) (requiring Bonneville Power Administration to protect, mitigate, and enhance fish and wildlife to the extent affected by the development and operation of the federal Columbia River hydropower system); Federal Power Act, 16 U.S.C. [sections] 803 (1994) (requiring project to be best adapted to a comprehensive waterways plan, which must provide for adequate protection, mitigation, and enhancement of fish and wildlife); Fish and Wildlife Coordination Act, 16 U.S.C. [sections] 663 (1994) (requiring federal agencies to make adequate provisions for the conservation and maintenance of fish and wildlife affected by any federal impoundment of water).

(4) See Lydia T. Grimm, Fishery Protection and FERC Hydropower Licensing Under ECPA: Maintaining a Deadly Status Quo, 20 ENVTL. L. 929 (1990); Michael C. Blumm et al., Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the Mid-1990s, 27 ENVTL. L. 21, 23 (1997); F. Lorraine Bodi & Eric Erdheim, Swimming Upstream: FERC's Failure to Protect Anadromous Fish, 13 ECOLOGY L.Q. 7, 8 (1986).

(5) A growing body of scientific work points to the importance of managing ecosystems as integrated and complex units, instead of managing their component parts (i.e., trees, grass, water, soil, fish) in isolation. This concept is generally referred to as "ecosystem management." See, e.g., Michael C. Blumm, The Amphibious Salmon: Evolution of Ecosystem Management in the Columbia Basin, 24 ECOLOGY L.Q. 653, 658-60 (1997).

(6) This Article adopts the Independent Scientific Group's definition of the word normative: "[T]he functional norm which ensures that we provide the essential ecological conditions and processes necessary to maintain diverse and productive salmonid populations." INDEPENDENT SCIENTIFIC GROUP, RETURN TO THE RIVER 19 (1996) (Prepublication Copy available from Northwest Power Planning Council, Portland, OR) [hereinafter RETURN TO THE RIVER].

(7) The three dams are Brownlee-built in 1958, Oxbow-completed in 1961, and Hells Canyon-finished in 1967.

(8) See NATIONAL MARINE FISHERIES SERV. (NMFS), FACTORS FOR DECLINE: A SUPPLEMENT TO THE NOTICE OF DETERMINATION FOR SNAKE RIVER SPRING/SUMMER CHINOOK SALMON UNDER THE ENDANGERED SPECIES ACT 4, 7, 15-16 (June 1991) [hereinafter SPRING FACTORS FOR DECLINE].

(9) OFFICE OF HYDROPOWER LICENSING, FEDERAL ENERGY REGULATORY COMMISSION (FERC), RELICENSE FORECAST 1993-2010 (1994) [hereinafter FERC FORECAST].

(10) FERC licenses may be issued for "a period not exceeding fifty years." 16 U.S.C. 799 (1994). The current FERC license for the Hells Canyon Complex was issued on August 4, 1955 and will not expire until the year 2005.

(11) These lessons take on even greater importance in light of the fact that FERC will be relicensing approximately 41 dams in the four Columbia River Basin states (Washington, Oregon, Idaho, and Montana) between 1996 and 2010. See FERC FORECAST, supra note 9, at 6.

(12) The Bureau of Reclamation manages the Glen Canyon Dam.

(13) The FPA requires that licenses must include conditions to "adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project." 16 U.S.C. [sections] 8030)(1) (1994). Such conditions are to "be based on recommendations received pursuant to the Fish and Wildlife Coordination Act." Id. The purpose of the Fish and Wildlife Coordination Act is that "wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development programs through the effectual and harmonious planning, development, maintenance, and coordination of wildlife conservation and rehabilitation." 16 U.S.C. [sections] 661 (1994).

(14) 16 U.S.C. [sections] 797(e) (1994).

(15) See IDAHO POWER, FORMAL CONSULTATION PACKAGE FOR RELICENSING, HELLS CANYON PROJECT, FERC No. 1971 III-16, V-19 (Jan. 1997) [hereinafter FORMAL CONSULTATION PACKAGE].

(16) Oxbow is 25.2 miles upstream from the Hells Canyon Dam at river mile (RM) 272.2. Brownlee is 12.4 miles upstream from Oxbow at RM 284.6.

(17) See FEDERAL POWER COMMISSION, ORDER ISSUING LICENSE FOR PROJECTS NOS. 1971, 2132 & 2133 (Aug. 4, 1955) [hereinafter ORDER ISSUING LICENSE].

(18) Brownlee Reservoir is 58 miles long, Oxbow Reservoir is approximately 12 miles long, and Hells Canyon Reservoir is approximately 25 miles long. FORMAL CONSULTATION PACKAGE, supra note 15, at III-5, III-12, III-19.

(19) Id. at V-23.

(20) ORDER ISSUING LICENSE, supra note 17, at Art. 35.

(21) FORMAL CONSULTATION PACKAGE, supra note 15, at VII-2.

(22) Id.

(23) Id. at VII-3.

(24) Id. at VII-3. This decision was ratified by a 1980 settlement agreement between Idaho Power, the National Marine Fisheries Service, and the States of Oregon, Idaho, and Washington. See Michael C. Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest's Anadromous Fish Resources for a Peaceful Coexistence with the Federal Columbia River Power System, 11 ENVTL. L. 211, 278 (1981).

(25) SPRING FACTORS FOR DECLINE, supra note 8, at 53-60. The negative effects of hatcheries on wild fish populations have been well documented. See, e.g., Jack K. Sterne, Supplementation of Wild Salmon Stocks: A Cure for the Hatchery Problem or More Problem Hatcheries?, 23 COASTAL MGMT. 123, 126-27 (1995), and sources cited therein; See also Michael L. Goodman, Preserving the Genetic Diversity of Salmonid Stocks: A Call for Federal Regulation of Hatchery Programs, 20 ENVTL. L. 111, 123-41 (1990); James A Lichatowich & John D. McIntyre, Use of Hatcheries in the Management of Pacific Anadromous Stocks, 1 AM. FISHERIES SOC. SYMP. 131-36 (1987); Robin S. Waples, Genetic Interactions Between Hatchery and Wild Salmonids: Lessons from the Pacific Northwest, 48 CAN. J. FISH AQUATIC Sci. 124 (Supp. 1), 124-29 (1991).

(26) SPRING FACTORS FOR DECLINE, supra note 8, at 7.

(27) FORMAL CONSULTATION PACKAGE, supra note 15, at VIII-40. (28) One author estimates that only 10,000 steelhead, 24,000 fall chinook, and 4100 spring chinook continued to return to the Snake River following construction of the Hells Canyon Complex. C.L. ARMOUR, U.S. FISH & WILDLIFE SERV., OPTIONS FOR REINTRODUCING SALMON AND STEELHEAD ABOVE MID-SNAKE RIVER DAMS 3 (1990). NMFS states that "[a]pproximately half of the 8 million fish loss [from historical totals of 10 million] resulted from curtailment of the fishes [sic] range caused by Chief Joseph and Hells Canyon Dams in the upper Columbia and Snake Rivers, respectively." SPRING FACTORS FOR DECLINE, supra note 8, at 7.

(29) Those four dams are Bonneville, The Dalles, John Day, and McNary.

(30) The four lower Snake dams are Ice Harbor, Little Goose, Lower Granite, and Lower Monumental. NMFS estimates that salmon migrating from below Hells Canyon Dam sustain approximately 26% mortality at each dam, with a cumulative mortality of 91% for all eight projects. SPRING FACTORS FOR DECLINE, supra note 8, at 8.

(31) NATIONAL MARINE FISHERIES SERV., FACTORS FOR DECLINE: A SUPPLEMENT TO THE NOTICE OF DETERMINATION FOR SNAKE RIVER FALL CHINOOK SALMON UNDER THE ENDANGERED SPECIES ACT 24-25 (June 1991) [hereinafter FALL FACTORS FOR DECLINE].

(32) SPRING FACTORS FOR DECLINE., supra note 8, at 7.

(33) 57 Fed. Reg. 14,653 (Apr. 22, 1992). In 1995, NMFS upgraded the status of chinook to endangered pursuant to an emergency rule. 59 Fed. Reg. 42,529 (Aug. 18, 1994). However, a Congressional moratorium on new listings prevented NMFS from making the status change permanent through a final rule and the official status of chinook remains threatened.

(34) 62 Fed. Reg. 43,937 (Aug. 18, 1997).

(35) BUREAU OF RECLAMATION, U.S. DEP'T OF INTERIOR, CUMULATIVE EFFECTS OF WATER USE; AN ESTIMATE OF THE HYDROLOGIC IMPACTS or WATER RESOURCE DEVELOPMENT IN THE COLUMBIA RIVER BASIN E-21 (Oct. 1997) (Draft Report available from the Bureau Pacific Northwest Region).

(36) Id.

(37) RETURN TO THE RIVER, supra note 6, at 21.

(38) FALL FACTORS FOR DECLINE, supra note 31, at 11. However, peak flows still may reach near-historic highs. See MICHAEL COLLIER ET AL., DAMS AND RIVERS: PRIMER ON THE DOWNSTREAM EFFECTS OF DAMS 24 (1996) [hereinafter DAMs AND RIVERS].

(39) FALL FACTORS FOR DECLINE, supra note 31, at 11.

(40) Id. at 11-12. Although Idaho Power instituted an interim recovery plan for fall chinook that is intended to stabilize flow levels during the period from spawning to emergence, the effectiveness of that plan has not yet been evaluated. FORMAL CONSULTATION PACKAGE, supra note 15, at V-26.

(41) RETURN TO THE RIVER, supra note 6, at 148.

(42) Id. These impacts are not limited to fish. Dam related low flows and daily fluctuations can deprive sensitive amphibian species, such as the spotted frog, of breeding pools during the reproductive season. Fossil CONSULTATION PACKAGE, supra note 15, at VIII-367 to 369.

(43) FORMAL CONSULTATION PACKAGE., supra note 15, VIII-30 to 31.

(44) See DAMS AND RIVERS, supra note 38, at 25.

(45) OREGON DEP'T OF ENVTL QUALITY, DEQ's 1994/1996 303(D) LIST OF WATER QUALITY LIMITED WATERBODIES 38 (July 1996).

(46) RETURN TO THE RIVER, supra note 6, at 148-49.

(47) Id.

(48) FORMAL CONSULTATION PACKAGE, supra note 15, at V-24.

(49) See ARMOUR, supra note 28, at 11; Telephone Interview with Rob Masonis, American Rivers (Apr. 24, 1997).

(50) ORDER ISSUING LICENSE, supra note 17, at Art. 43.

(51) See FALL FACTORS FOR DECLINE, supra note 31, at 32.

(52) ORDES ISSUING LICENSE, supra note 17, at 80. A licensee is mandated to comply with such reasonable modifications of the project structures and operation in the interest of fish life as may be prescribed hereafter by the Commission upon its own motion or upon the recommendations of the Secretary of the Interior and the conservation agencies of the States of Idaho and Oregon.

(53) 18 C.F.R. [sections] 16.9(b)(1) (1998).

(54) FORMAL CONSULTATION PACKAGE, supra note 15, at 1-4 (describing creation of the Collaborative Team in order to streamline relicensing and increase likelihood of consensus).

(55) An applicant for relicensing must notify FERC that it intends to file a new application at least five years, but no more than five and one-half years, before the existing license will expire. 18 C.F.R. [sections] 16.6(c)(1) (1998). The regulations do not set any specific time for when the first stage of consultation should begin, but it typically begins after the formal notification of intent to file for a new license.

(56) Id. [sections] 16.8(b).

(57) Id.

(58) Id.

(59) Id. [sections] 16.8(b)(4).

(60) Id. [sections] 16.8(b)(5).

(61) Id. [sections] 16.8(c)(1)(i)(B).

(62) Id. [sections] 16.8(c)(1)(i). However, if Idaho Power completes the first stage of consultation at least four years before the expiration of the license, as it appears it will, the studies need only be completed before FERC issues the license. 18 C.F.R. [sections] 16.8(c)(I)(ii) (1998).

(63) Id. [sections] 16.8(d)(1).

(64) Id. [sections] 16.9(d)(1).

(65) FORMAL CONSULTATION PACKAGE, supra note 15, at app. B-3.

(66) The Collaborative Team is comprised of representatives from federal agencies like NMFS, U.S. Fish and Wildlife Service, the Northwest Power Planning Council, the Bureau of Reclamation, the Bureau of Land Management, and the U.S. Forest Service; state agencies like the Oregon Department of Fish and Wildlife, and the Idaho Department of Fish and Game; Indian tribes like the Nez Perce and Shoshone-Bannock Tribes; interest groups like American Rivers, Idaho Rivers United, Hells Canyon Preservation Council; the Idaho Farm Bureau; corporations like Micron, J.R. Simplot Co., and Amalgamated Sugar, and, of course, Idaho POWER. FORMAL CONSULTATION PACKAGE, supra note 15, at app. B-3.

(67) Id.

(68) Id. at Ch. VIII. The Formal Consultation Package does not contain the final study plan; rather, it describes the status of study identification and development to that point in time. Idaho Power plans to release a complete study plan in the spring of 1998. Interview with Rob Masonis, American Rivers, in Seattle, Wash. (Jan. 30, 1998).

(69) FORMAL CONSULTATION PACKAGE, supra note 15.

(70) Id.

(71) Id. at VIII-29 to 109.

(72) Id. at VIII-39 to 40.

(73) Id.

(74) Id. at VIII-336, VIII-363.

(75) Comments of American Rivers on the Formal Consultation Package for Relicensing of the Hells Canyon Project (May 15, 1998) (on file with author).

(76) See supra notes 62-63 and accompanying text.

(77) 18 C.F.R. [sections] 16.8(c)(5) (1998).

(78) Id. [sections] 16.8(c)(6).

(79) Id. [sections] 16.8(c)(8).

(80) 16 U.S.C. [subsections] 661-666c (1994).

(81) Id. [sections] 803.

(82) Id. [subsections] 661, 803(j)(1).

(83) Id. [sections] 8030).

(84) Id.

(85) 18 C.F.R. [sections] 4.34(b) (1998).

(86) 16 U.S.C. [sections] 803(a) (1994).

(87) 18 C.F.R. [sections] 4.34(e) (1998).

(88) 16 U.S.C. [sections] 811 (1994).

(89) Id. FERC has interpreted the term "fishway" narrowly to include only structural mechanisms that aid in fish migration; other conditions are considered recommendations under section 10(j) and are therefore subject to FERC approval. See, Grimm, supra note 4, at 942 and accompanying text.

(90) 16 U.S.C. [sections] 797(e) (1994).

(91) Id.

(92) 42 U.S.C. [sections] 4332(2)(C) (1994); 18 C.F.R. [sections] 380.6(a)(4) (1998).

(93) Section 401 of the Clean Water Act requires any applicant for a federal permit or license to apply for certification that its actions will not violate state water quality standards. 33 U.S.C. [sections] 1341(a)(1) (1994).

(94) 16 U.S.C. [sections] 803(a) (1994).

(95) A comprehensive plan for developing a waterway must provide for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes.

16 U.S.C. [sections] 803(a) (1994).

(96) See Udall v. FPC, 387 U.S. 428, 450 (1967) (holding that issues relevant to whether a license is in the "public interest" include "future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife").

(97) FORMAL CONSULTATION PACKAGE, supra note 15, at I-5.

(98) Christopher H. Meyer, Draft Language for Snake River Trust (Jan. 21, 1997) (on file with Givens, Pursley & Huntley, Boise, Idaho). The trust would be funded by Idaho Power as a means of fulfilling its obligation to protect, maintain, and enhance fish and wildlife populations. Id. at 5.

(99) William S. Whelan & Christopher H. Meyer, Snake River Trust Discussion Paper (Apr. 15, 1997) (on file with Givens, Pursley & Huntley, Boise, Idaho).

(100) Id.

(101) See infra notes 128-130 and accompanying text. The Glen Canyon Dam predated the passage of NEPA and its EIS requirement. Federal dams like the Glen Canyon Dam are not subject to relicensing like private dams subject to the FPA, and so there is no "trigger," like relicensing, that would initiate the NEPA process.

(102) BUREAU OF RECLAMATION, OPERATION OF GLEN CANYON DAM FINAL ENVIRONMENTAL IMPACT STATEMENT 110 (1995) [hereinafter FEIS].

(103) Id. at 6-7.

(104) Id. at 77.

(105) Id.

(106) Id. at 90.

(107) Id. at 23.

(108) Id. at 22.

(109) Id. at 23. For instance, power needs are much greater during summer days because of air conditioning, so releases generally increase during the day and decrease at night.

(110) Id. at 19-20. Volumes of monthly flow are defined by the Colorado Compact and other agreements that provide for downstream water deliveries and electricity needs. See id. at 1-2, 8-9.

(111) Id. at 90.

(112) Id. at 97.

(113) Id.

(114) Id. at 89.

(115) Id. at 117-18.

(116) Id. at 98-100.

(117) The channels form as the sand which the river deposits in the eddy forms a kind of "jetty" which points upstream. This "jetty" is attached to the bank only on the downstream side, forming a protected area of water behind it

that is still accessible from the river. Id.

(118) Id. at 118.

(119) Id.

(120) Id.

(121) Id. at 87-88.

(122) Id. at 116.

(123) Id. at 118.

(124) The humpback chub and razorback sucker are both listed as endangered, while the flannelmouth sucker is a candidate species. Id. at 114.

(125) Id.

(126) See id. at 136.

(127) Id.

(128) See Sibley, supra note 1, at 11. Because Glen Canyon Dam was built prior to the passage of NEPA in 1969, it had never been subjected to that act, which requires environmental studies only when Congress and federal agencies propose "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. [sections] 4332(2)(C) (1994). The ordering of this EIS therefore was significant because there was no statutory trigger that would have mandated such a study.

(129) Grand Canyon Protection Act of 1992, Pub. L. No. 102-575, [sections] 1804(a), 106 Stat. 4669 (1992) (no sections currently in effect).

(130) Id. [sections] 1802(a).

(131) Participating parties include BLM, the National Park Service, the Department of Energy's Western Area Power Administration, the U.S. Geological Survey, the U.S. Fish and Wildlife Service, the Hopi Tribe, the Hualapai Tribe, and the Navajo Nation.

(132) FEIS, supra note 102, at 6-7.

(133) Sibley, supra note 1, at 11.

(134) FEIS, supra note 102, at 16-44.

(135) Id. at 27-29, 40-41. Habitat maintenance flows and beach/habitat building flows would not occur in the same years.

(136) Id. at 44-48.

(137) Id.

(138) Id. at 45.

(139) Id. at 47.

(140) Id. at 46-47.

(141) Id. at 46.

(142) BUREAU OF LAND MANAGEMENT RECORD OF DECISION, OPERATION OF GLEN CANYON DAM FINAL ENVIRONMENTAL IMPACT STATEMENT 10 (Oct. 8, 1996) [hereinafter ROD].

(143) Id.

(144) Adaptive management treats all management actions as a set of experiments intended to further develop scientific knowledge about the effects of those actions. See Kai N. Lee & Jody Lawrence, Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Program, 16 ENVTL. L. 431, 435 (1986).

(145) ROD, supra note 142, at 12.

(146) FEIS, supra note 102, at 40-41.

(147) Id.

(148) Id.

(149) Id.

(150) See Brent Israelsen, Grand Canyon May Get More Floods, OREGONIAN, Apr. 20, 1997, at A25.

(151) Statement of the Office of the Secretary of the Interior, Apr. 11, 1996, at 2 (on file with author).

(152) DAVID A. HARPMAN, BUREAU OF RECLAMATION, GLEN CANYON DAM BEACH/HABITAT-BUILDING TEST FLOW: AN EX POST ANALYSIS OF HYDROPOWER COST 24, 30 (April 1997).

(153) SECRETARY OF THE INTERIOR, DRAFT FISCAL YEAR 1997-1998 REPORT TO CONGRESS: OPERATIONS OF THE GLEN CANYON DAM PURSUANT TO THE 1992 GRAND CANYON PROTECTION ACT 13-14 (Jan. 1998). See also Israelsen, supra note 150, at A25.

(154) Telephone Interview with Dave Wegner, Ecosystem Management International, Flagstaff, Ariz. (May 19, 1997).

(155) Id.

(156) Id.

(157) Id.

(158) FEIS, supra note 102, at 28-29.

(159) Id. at 29.

(160) Id. at 28.

(161) Id. at 29.

(162) ROD, supra note 142, at 11.

(163) 16 U.S.C. [sections] 221 (1994).

(164) Id. [sections] 460gg.

(165) U.S. FOREST SERV., DRAFT ENVIRONMENTAL IMPACT STATEMENT: COMPREHENSIVE MANAGEMENT PLAN FOR THE HELLS CANYON NATIONAL RECREATION AREA I-2 (Feb. 1996) [hereinafter HELLS CANYON DEIS].

(166) See Tell the Park Service to Go to Hells Canyon, LEWISTON MORNING TRIB., Feb. 6, 1992, at 22. The movement to make Hells Canyon a national park has been spurred by dissatisfaction with the Forest Service's management of the national recreation area, which many conservationists and others believe is too friendly to motorized recreation and resource extractive uses.

(167) FEIS, supra note 102, at 67-76.

(168) Id.

(169) RETURN TO THE RIVER, supra note 6, at 513-16.

(170) David L. Wegner (Ecosystem Management International, Flagstaff, Arizona, and former head of the Glen Canyon Environmental Studies), Remarks at the Third Annual Northwest Water Law and Policy Conference (Portland, Or., May 1, 1997) (ropes available from Northwest Water Law and Policy Project, 10015 S.W. Terwilliger Blvd., Portland, Or. 97219).

(171) Id.

(172) Id.

(173) ROD, supra note 142, at 10.

(174) FEIS, supra note 102, at 44 47.

(175) Id. at 186. This latter recommendation is also endorsed by Independent Scientific Group with respect to Columbia and Snake River salmon. RETURN TO THE RIVER, supra note 6, at 514.

(176) FEIS, supra note 102, at 223, 241.

(177) Id. at 258-59.

(178) Id. at 259.

(179) FEIS, supra note 102, at 262-64.

(180) Id.

(181) Statement of the Office of the Secretary of the Interior, supra note 151, at 5.

(182) FORMAL CONSULTATION PACKAGE, supra note 15, at VIII-32.

(183) Id.

(184) Id. at VIII-30, 33. The formal consultation package does not say whether there will be an attempt to explore the feasibility of sediment transport around the dams. A U.S. Geological Survey report opined that such transport may be prohibitively expensive. DAMS AND RIVERS, supra note 38, at 26. However, fears about expense should not preclude Idaho Power from studying the issue, because study may reveal that those fears are not well founded.

(185) GENERAL ACCOUNTING OFFICE, AN ASSESSMENT OF THE ENVIRONMENTAL IMPACT STATEMENT OF THE OPERATIONS OF THE GLEN CANYON DAM 56-57 (1996); HARPMAN, supra note 152, at 24, 30.

(186) RETURN TO THE RIVER, supra note 6, at 148-49.

(187) Sibley, supra note 1, at 12.

(188) FEIS, supra note 102, at 10-11.

(189) Bruce Babbitt, That Ringing Sound: Sledgehammers on Concrete, PEOPLE, LAND & WATER, Nov./Dec. 1998.

(190) Id. The dam removal option, although it may not be adopted, should certainly be considered in the NEPA process for the Hells Canyon Complex, because it provides valuable information for assessing the trade-offs involved in relicensing the dams.

(191) Id. at 114.

(192) 43 U.S.C. [sections] 391 (1994).

(193) Id. [subsections] 391, 411.

(194) Id. [subsections] 617, 620.

(195) Id. [sections] 600b.

(196) Id. [subsections] 617, 620.

(197) See, e.g., id. [sections] 600d.

(198) See, e.g., id. [sections] 600b.

(199) Further, the 1992 Omnibus Reclamation Act significantly altered many projects' purposes and operations. See generally Todd G. Glass, Comment, The 1992 Omnibus Water Act: Three Rubrics of Reclamation Reform, 22 ECOLOGY L.Q. 143 (19951).

(200) 43 U.S.C. [subsections] 620-620o (1994).

(201) Id. [sections] 620.

(202) Id. [sections] 620g.

(203) Id. [sections] 620-620g.

(204) Id.

(205) Id. [sections] 620g.

(206) Grand Canyon Protection Act of 1992, Pub. L. No. 102-575, [sections] 1802(a), 106 Stat. 4600 (1992) (no sections currently in effect). The biggest achievement of the 1992 Act was to establish a congressional mandate for the preparation of a Glen Canyon Dam EIS and to set a deadline for its completion. Id. [sections] 1804(a).

(207) Id. [sections] 1802(b).

(208) See ROD, supra note 142, at 10 ("Once it was determined that all alternatives would deliver at least 8.23 million acre-feet of water annually, water supply played a minor role in subsequent resource evaluations.").

(209) 43 U.S.C. [subsections] 620-620b (1994).

(210) 16 U.S.C. [subsections] 661-666c (1994).

(211) Id. [sections] 661.

(212) Id. [sections] 662(a).

(213) Id. [sections] 662(b).

(214) Id.

(215) See Lake Erie Alliance for Protection of Coastal Corridor v. United States Army Corps of Eng'rs, 526 F. Supp. 1063 (W.D. Pa 1981), aff'd, 707 F. 2d 1392 (3d Cir.), cert. denied, 464 U.S. 915 (1983); Sierra Club v. Alexander, 484 F. Supp. 455 (N.D.N.Y.), aff'd, 633 F.2d 206 (2d Cir. 1980).

(216) 16 U.S.C. [sections] 662(c) (1994).

(217) Id. [sections] 663(a).

(218) Id. [sections] 662(b); Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 853 (9th Cir. 1979) ("[T]he clear language of the statute shows that the Act applies to `modification or supplementation of plans for previously authorized projects.'").

(219) FEIS, supra note 102, at Att-11 to Att-12.

(220) Id. at Att-12.

(221) Id. at Att-11 to Att-15.

(222) 16 U.S.C. [sections] 662(a) (1994).

(223) Id. [sections] 662(b).

(224) Id. [sections] 803(j). See also, Memorandum of the General Counsel to FERC (June 20, 1995) (on file with author).

(225) 16 U.S.C. [sections] 803(j)(2) (1994).

(226) Id. [sections] 803(j)(2)(A).

(227) H.R. REt. No. 99-507, at 30 (1986).

(228) Michael C. Blumm, Hydroelectric Regulation Under the Federal Power Act, in 4 WATERS AND WATER RIGHTS [sections] 40.09(C)(2) (Robert E. Beck ed., 1991) [hereinafter Blumm, Hydroelectric Regulation].

(229) United States Dep't of Interior v. FERC, 952 F.2d 538, 544 (D.C. Cir. 1992).

(230) Compare The Federal Power Act, 16 U.S.C. [sections] 803(j)(2) (1994), (the act contains a detailed process for resolving disputes over recommendations) with The Coordination Act, 16 U.S.C. [sections] 662(b) (1994), (stating that the project plan shall include justifiable means and measures for wildlife purposes that agency recommends to be adopted in order to obtain maximum project benefits).

(231) See National Wildlife Fed'n v. FERC, 912 F.2d 1471, 1480 (D.C. Cir. 1990) (leaving ultimate discretion up to the Commission as to how each recommendation will be incorporated).

(232) FERC, 952 F.2d at 544.

(233) See generally Blumm, Hydroelectric Regulation, supra note 228, 40.09(c)(2). See also Eugene Water & Electric Board, 62 Fed. Energy Reg. Comm'n Rep. 62,207, at 64,703 (Mar. 26, 1997) (rejecting higher minimum streamflow recommended by Oregon Department of Fish and Wildlife because "[n]othing submitted by the agencies in support of their M[inimum] I[nstream] F[low] recommendations demonstrates benefits of higher flows commensurate with the costs of lost power generation"). In the Glen Canyon EIS, the Bureau employed a similar interpretation of the Coordination Act to reject recommendations by the U.S. Fish and Wildlife Service. See FEIS, supra note 102, at Att. 4.

(234) See Blumm, Hydroelectric Regulation, supra note 228, [sections] 40.09(c)(2). But see LaFlamme v. FERC, 852 F.2d 389, 400 (9th Cir. 1988) (holding that FERC's reliance on postlicensing studies violates its duties under NEPA).

(235) See National Wildlife Fed'n v. FERC, 912 F.2d 1471 (D.C. Cir. 1990) (holding that fish and wildlife agencies do not have veto power over FERC decisions).

(236) FERC, 952 F.2d at 546. However, in American Rivers v. FERC, the Second Circuit stated that FERC could not reject state agency conditions requiring a reopener aimed at insuring that a project is complying with state water quality standards under section 401 of the Clean Water Act. 129 F.3d 99, 105, 112 (2d Cir. 1997).

(237) 16 U.S.C. [sections] 811 (1994).

   [T]he items which may constitute a `fishway' under section 18 for the safe
   and timely upstream and downstream passage of fish shall be limited to
   physical structures, facilities, or devices necessary to maintain all life
   stages of such fish, and project operations and measures related to such
   structures, facilities, or devices which are necessary to ensure the
   effectiveness of such structures, facilities, or devices for such fish.

Id. By working with their respective state water quality agencies, state fish and wildlife agencies also will have the opportunity to influence water quality related issues through Clean Water Act section 401 certification process.

(238) FERC, 952 F.2d at 546.

(239) 16 U.S.C. [sections] 803(j) (1994).

(240) Id. [sections] 808(a) ("the commission is authorized to issue a new license to the existing licensee upon such terms and conditions as may be authorized or required under the then existing laws and regulations").

(241) H.R. CONF. REP. NO. 99-934, at 22 (1986), reprinted in 1986 U.S.C.C.A.N. 2537, 2538.

   No one expects FERC to require an applicant to tear down an existing
   project. But neither does anyone expect "business as usual." Projects
   licensed years earlier must undergo the scrutiny of today's values as
   provided in this law and other environmental laws applicable to such
   projects. If nonpower values cannot be adequately protected, FERC should
   exercise its authority to restrict or, particularly in the case of original
   licenses, even deny a license on a waterway.

Id. For protection, mitigation, and enhancement obligations, see 16 U.S.C. 803(a)(1), 808(a)(2)(G).

(242) See Blumm, Hydroelectric Regulation, supra note 228, [sections] 40.10(c)(1).

(243) Hydroelectric Relicensing Regulations Under the Federal Power Act, 54 Fed. Reg. 23,756, 23,792 (June 2, 1989); City of Tacoma, 67 Fed. Energy Reg. Comm'n Rep. (CCH) [paragraphs] 61,152, 61,436, 61,444 (1994).

(244) Hydroelectric Relicensing Regulations Under the Federal Power Act, 54 Fed. Reg. at 23,775-76.

(245) To some extent, though, this depends on how seriously FERC takes its "enhancement" obligation. 16 U.S.C. [sections] 803(a)(1) (1994). For instance, if FERC required aggressive "enhancement," the agency could insist that populations of fish and wildlife be restored to predam levels.

(246) John Clements, Director, Division of Project Review, FERC, Remarks at Second Annual Water Conference sponsored by the Northwest Water Law & Policy Project, Portland, Or. (May 9, 1996) (on file with author).

(247) 16 U.S.C. [sections] 808(a)(3) (1994).

(248) See FORMAL CONSULTATION PACKAGE, supra note 15, at IX-1 to IX-2

(249) Id.

(250) Id. at VIII.D.

(251) Id. at IX-1 to IX-2.

(252) Id.

(253) See H.R. REP. No. 99-934, at 22 (1986), reprinted in 1986 U.S.C.C.A.N. 2537, 2538.

(254) Recognizing this fact, the Northwest Power Planning Council conducted a study in 1985 examining fish losses throughout the Columbia River Basin. See Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 ENVTL. L. 657, 683 (1991).

(255) H.R. REP. No. 99-934, at 22.

(256) 16 U.S.C. [sections] 803(j) (1994).

(257) WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: Am & WATER, [sections] 4.1 (2d ed. Supp. 1998) (discussing advancement of information concerning water pollution as a result of statutes).

(258) Michael C. Blumm, Saving Idaho's Salmon: A History of Failure and a Dubious Future, 28 IDAHO L. REV. 667, 675-77 (1992) (discussing history of failure to license dam project below Hells Canyon Dam).

(259) See FORMAL CONSULTATION PACKAGE, supra note 15, [sections] 8.1.7. It is worth noting, however, that the company could conceivably use this argument to take issue with levels of mitigation or enhancement that it feels are unreasonably high.

(260) Telephone Interview with Dave Wegner, Ecosystem Management International and former head of the Glen Canyon Environmental Studies, Flagstaff, Ariz., (May 19, 1997).

(261) FEIS, supra note 102, at 77-79.

(262) 16 U.S.C. [sections] 808(a)(3) (1994).

(263) Id. [sections] 8030).

(264) Id. [sections] 797(e).

(265) See, e.g., Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 775 (1984) (holding that [sections] 4(e) conditions not merely advisory and their reasonableness is up to the courts, not FERC, which must include them in a license).

(266) 16 U.S.C. [sections] 460gg-4 (1994). The whole of section 7 reads:

   Except as otherwise provided in sections 2 and 3 of this Act, and subject
   to the provisions of section 10 of this Act, the Secretary shall administer
   the recreation area in accordance with the laws, rules, and regulations
   applicable to the national forests for public outdoor recreation in a
   manner compatible with the following objectives:

   (1) the maintenance and protection of the free-flowing nature of the rivers
   within the recreation area;

   (2) conservation of scenic, wilderness, cultural, scientific, and other
   values contributing to the public benefit;

   (3) preservation, especially in the area generally known as Hells Canyon,
   of all features and peculiarities believed to be biologically unique
   including, but not limited to, rare and endemic plant species, rare
   combinations of ... outstanding and diverse ecosystems and parts of
   ecosystems associated therewith;

   (4) protection and maintenance of fish and wildlife habitat;

   (5) protection of archeological and paleontologic sites and interpretation
   of these sites for the public benefit and knowledge insofar as it is
   compatible with protection;

   (6) preservation and restoration of historic sites associated with and
   typifying the economic and social history of the region and the American
   West; and

   (7) such management, utilization, and disposal of natural resources on
   federally owned lands, including, but not limited to, timber harvesting by
   selective cutting, mining, and grazing and the continuation of such
   existing uses and developments as are compatible with the provisions of
   this Act.

Id.

(267) See H.R. REP. No. 94-607, at 6-10 (1975), reprinted in 1975 U.S.C.C.A.N. 2281, 2281-84 ("The Federal Power Commission has before it several alternate proposals for the construction of hydroelectric facilities in Hells Canyon.... Section 4 prohibits the Federal Power Commission from assisting or licensing any water resource facility or associated transmission lines or their related development within the recreation area.").

(268) 16 U.S.C. [sections] 460gg-2(a) (1994).

(269) Id.

(270) Id. [sections] 460gg-3(b).

(271) Id. [sections] 460gg-3(a).

(272) Id. [sections] 797(e).

(273) Id. [sections] 460gg-3.

(274) Id. [sections] 460gg-2(a).

(275) Id. [sections] 797(e). In Rainsong Co. v. FERC, the Ninth Circuit held that the Forest Service could impose conditions consistent with the purposes for which a reserve was established and that such purposes could include hunting, fishing, and recreation. 78 F.3d 1435, 1441 (9th Cir. 1996).

(276) Even were a court to find otherwise, these provisions of the HCNRA Act do not rule out all Forest Service regulation of the Hells Canyon Complex. The HCNRA Act does not preclude regulation under the Forest Service Organic Act, which specifically denominates "securing favorable conditions of water flows" as one of the purposes for which national forests are established. 16 U.S.C. [sections] 475 (1994); United States v. New Mexico, 438 U.S. 696 (1978). The Executive Order which created the Imnaha Forest Reserve (the predecessor of the Wallowa-Whitman National Forest), however, does not establish any specific purposes for the reservation, other than that "the public good would be promoted by setting apart the same as a public reservation." Presidential Proclamation, 34 Stat. 3284 (Mar. 1, 1907). In New Mexico, the Supreme Court held that the language "securing favorable conditions of water flows" refers only to insuring water for consumptive use, and does not extend to instream rights for fish. 438 U.S. at 718. Were the Forest Service to find that the Wallowa-Whitman National Forest was established to insure adequate water for downstream consumptive use and that such a need still existed, it could conceivably regulate the Hells Canyon Complex on that basis. Given the relative ambivalence of the original proclamation establishing the Forest, this seems an unlikely possibility.

(277) Nothing in the Glen Canyon Dam EIS indicates that the Park Service was authorized to exercise such power in protecting the Grand Canyon. Both the Park Service and Bureau of Reclamation are agencies within the Department of the Interior, and both are therefore subject to the Grand Canyon Protection Act, Pub. L. No. 102-575, 106 Stat. 4669 (1992). That Act, though, does not grant such specific conditioning authority to the Park Service over dam operations as does the FPA.

(278) 16 U.S.C. [sections] 811 (1994).

(279) Id. Section 18 differs from section 10(j) because section 10(j) recommendations involve many more aspects of fish health, such as stream temperature, flows, and fish screens, while section 18 deals only with fish passage facilities. Id. [sections] 803(j)(1).

(280) ORDER Issuing LICENSE, supra note 17, at art.35.

(281) Settlement Agreement, FERC Docket No. E-9579, at 1 (1980) (on file with author).

(282) Id. at 2, 3. In addition, the Nez Perce did not sign the agreement and its claims were settled after a later lawsuit. See infra notes 318-20 and accompanying text

(283) See generally Sterne, supra note 25, at 126-27: See also Lichatowich & McIntyre, supra note 25, at 131-36.

(284) In the case of the Hells Canyon Complex, NMFS is the federal fisheries agency that will have most of the authority to prescribe fishways because most of the fish runs at issue in the relicensing are anadromous. NMFS is the agency which regulates anadromous fish. FWS has authority over resident stocks of fish and may be able to exercise section 18 authority with respect to sturgeon and bull trout, both of which are classified as resident fish, but migrate long distances within the systems they inhabit.

(285) "The Commission shall require the construction, maintenance, and operation by a licensee at its own expense of ... such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate." 16 U.S.C. [sections] 811 (1994).

(286) See infra notes 299-301 and accompanying text.

(287) See supra notes 264-77 and accompanying text.

(288) Telephone Interview with Rob Masonis, American Rivers, Searle, Wash. (Apr. 24, 1997). DAMS AND RIVERS, supra note 38, at 26-27 (referring to the high price of technological fixes for passing sediment around the dams).

(289) See American Rivers v. FERC, 129 F.3d 99, 110-11 (2d Cir. 1997).

(290) 33 U.S.C. [sections] 1341 (1994).

(291) Id.

(292) Id.

(293) PUD No. I of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700 (1994). See generally Katherine P. Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 25 ENVTL. L. 255 (1995) (analyzing the Court's decision).

(294) PUD No. 1,511 U.S. at 715. The court noted that "under the literal terms of the statute, a project that does not comply with a designated use of the water does not comply with the applicable water quality standards." Id; see also 33 U.S.C. [sections] 1313(c)(2)(A) (1994).

(295) PUD No. 1, 511 U.S. at 714-15 ("in many cases, water quantity is closely related to water quality").

(296) American Rivers v. FERC, 129 F.3d 99, 110-11 (2d Cir. 1997) (vacating an attempt by FERC to reject State of Vermont license conditions requiring minimum flows and fishways, and reserving authority to require additional conditions in the future).

(297) OR. ADMIN. R. 340-041-0722 (1998). Idaho has designated salmonid spawning as a beneficial use of the Snake downstream of Hells Canyon Dam, but its administrative rules do not include a category for boating. IDAHO ADMIN. CODE. [sections] 16.01.02.140 (1998).

(298) Ransel, supra note 293, at 271-72.

(299) 33 U.S.C. [sections] 1341(d) (1994) ("Any certification provided under this section ... shall become a condition on any Federal license or permit subject to the provisions of this section."); American Rivers, 129 F.3d at 111 (holding that FERC has no authority under FPA or Clean Water Act to determine whether conditions of certification are unrelated to water quality; applicant may challenge those conditions in appropriate state court proceeding).

(300) American Rivers, 129 F.3d at 111.

(301) However, the Environmental Protection Agency may have the ultimate authority if either Oregon or Idaho determines that certification by the other would affect the quality of the waters in its state. See 33 U.S.C. [sections] 1341(a)(2) (1994). This provision would also apply if Washington, as a downstream state, made a similar determination. Id.

(302) 16 U.S.C. [sections] 1536(a)(2) (1994).

(303) In fact, a recent petition with FERC requests that the agency immediately initiate consultations with NMFS under section 7 of the ESA regarding the operations of the Hells Canyon projects. See American Rivers et al., Petition to Initiate Consultation Under the Endangered Species Act (Nov. 14, 1997) (on file with author). The groups had originally issued a 60-day notice of intent to sue, but changed their strategy following the questionable decision in Southwest Ctr. for Biological Diversity v. FERC, 967 F. Supp. 1166 (D. Ariz. 1997) (holding that only courts of appeals, not district courts, have jurisdiction over claims that FERC violated the ESA). (304) 16 U.S.C. [sections] 1536(b)(3)(A) (1994).

(305) 50 C.F.R. [sections] 402.14(h)(3) (1998).

(306) Id.

(307) "The agency is not required to adopt the alternatives suggested in the biological opinion; however, `[Jif [the Secretary] deviates from them, he does so subject to the risk that he has not satisfied the standard of section 7(a)(2).'" Tribal Village of Akutan v. Hodel, 859 F.2d 651, 659 (9th Cir. 1988) (quoting Village of False Pass v. Watt, 565 F. Supp. 1123, 1160-61 (D. Alaska 1983), aff'd, 733 F.2d 605 (9th Cir. 1984)).

(308) Telephone Interview with Dave Wegner, Ecosystem Management International, Flagstaff, Ariz., and former head of the Glen Canyon Environmental Studies (Feb. 10, 1998).

(309) 16 U.S.C. [subsections] 1538(a)(1)(B), 1532(19) (1994); Palila v. Hawaii Dep't of Land & Natural Resources, 852 F. 2d 1106, 1108 (9th Cir. 1988); Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687 (1995).

(310) 16 U.S.C. [sections] 1540(a)-(b) (1994).

(311) Id. [sections] 1540(g).

(312) 50 C.F.R. [sections] 402.14(i)(1)-(3) (1998).

(313) United States v. Winans, 198 U.S. 371, 378 (1905) (granting fishing rights to Native Americans based on an 1859 "Indian Treaty").

(314) See, e.g., United States v. Washington (Phase I), 384 F. Supp. 312, 33(5-39 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975); United States v. Washington (Phase II), 506 F. Supp. 187, 197-202 (W.D. Wash. 1980), aff'd in part, rev'd in part, 694 F.2d 1374 (9th Cir. 1982), aff'd in part, vacated in part, per curiam en banc, 759 F.2d 1353 (9th Cir. 1985) (en banc); United States v. Oregon, 302 F. Supp. 899, 908 (D. Or. 1969).

(315) Washington (Phase II), 506 F. Supp. at 204, 208.

(316) Washington (Phase II), 759 F. 2d at 1357. Judge Orrick acknowledged in his opinion that the motions of the parties in that case did "not reach the additional questions whether the State is violating the tribes' alleged environmental right and what relief may be warranted." Washington (Phase II), 506 F. Supp. at 202.

(317) Washington (Phase II), 759 F. 2d at 1357.

(318) Nez Perce Tribe v. Idaho Power Company, 847 F. Supp. 791, 811-12 (D. Idaho 1994).

(319) See Blumm, Hydroelectric Regulation, supra note 228, [sections] 40.14; Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 481-89 (1998).

(320) Settlement Agreement between Nez Perce Tribe and Idaho Power Co., Sept. 13, 1996 [hereinafter Settlement Agreement] (on file with author).

(321) See Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942); United States v. Mitchell, 463 U.S. 206, 224-28 (1983); Klamath Tribes v. United States Forest Serv., No. 96-381-HA, 1996 WL 924509, at *7 (D. Or. 1996): See also Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 ENVTL. L. 733, 742-49 (1995).

(322) See Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990).

(323) See generally JEFF ZUCKER ET AL., OREGON INDIANS: CULTURE, HISTORY & CURRENT AFFAIRS, AN ATLAS & INTRODUCTION 165-72 (1983).

(324) Settlement Agreement, supra note 320, at 5-6.

(325) Id.

(326) 42 U.S.C. [sections] 4332(2)(C) (1994).

(327) 43 C.F.R. [sections] 1508.11 (1997).

(328) See Confederated Tribes & Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 475 (9th Cir. 1984).

(329) FERC's NEPA regulations explicitly state that relicensings "normally" will require only an environmental assessment. 18 C.F.R. [sections] 380.5(a), (b)(10) (1998).

(330) 43 C.F.R. [sections] 1508.7 (1997).

(331) The projects are Bliss, Lower Salmon Falls, Upper Salmon Falls, Shoshone Falls, C.J. Strike, Upper and Lower Mallard, Hells Canyon, and Swan Falls. FEDERAL ENERGY REG. COMM'N, APPROACHES TO CUMULATIVE ANALYSIS FOR THE SNAKE RIVER BASIN RELICENSING (1996).

(332) Id. at 3. This does not mean that FERC could wait until the last relicensing to complete the EIS. The agency is deciding between completing a series of cumulative impacts EISs or preparing one comprehensive document at the beginning of all relicensings. Id. at 4-8.

(333) Id.

(334) Id. at 4-6. The projects for which Idaho Power has already filed applications are Bliss, Lower Salmon Fails, Upper Salmon Falls, and Shoshone Fails, all of which are upstream from the Hells Canyon Complex. Id. at 1.

(335) Id. at 6.

(336) Id. at 7.

(337) Collaborative Team, Cumulative Effects Position (Feb. 3, 1997) (on file with author).

(338) The ad hoc group was assembled from several members of the Collaborative Team to try to forge a consensus statement on FERC's approach to cumulative impacts.

(339) Collaborative Team Cumulative Effects Analysis Ad Hoc Group, Draft Position Paper 2 (1996) (on file with author).

(340) Id. The Bureau's Snake River Resource Review examines issues involving the Bureau projects on the Upper Snake. The Interior Columbia Basin Ecosystem Management Plan is a joint attempt by BLM and the Forest Service to analyze the impacts of their land management activities on more than 18 million acres of public lands between the Cascade and Rocky Mountains. The Snake River Basin water rights adjudication is an ongoing judicial attempt to quantify and prioritize rights to use Snake River water among all the claimants in the basin, including Indian tribes and federal agencies. NMFS and FWS have developed, or are developing ESA recovery plans for spring/summer and fall chinook salmon, sockeye salmon, steelhead, and bull trout, among other species. The Northwest Power Planning Council's Fish and Wildlife Program attempts to develop a program for managing all salmon stocks in the four northwest states that are impacted by the Columbia and Snake River federal power system.

(341) See, e.g., NATIONAL RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 374-78 (1996).

(342) FEDERAL ENERGY REG. COMM'N, SCORING DOCUMENT 2: I. CUMULATIVE ANALYSIS OF THE SNAKE RIVER BASIN & II. PROJECT SPECIFIC ANALYSIS, BLISS PROJECT, LOWER SALMON FALLS PROJECT, UPPER SALMON FALLS PROJECT, SHOSHONE. FALLS PROJECT 5 (1997).

(343) Id. at 33.

(344) Id.

(345) Id. at 34.

(346) Id. at 35.

(347) 43 C.F.R. [sections] 1508.7 (1997).

(348) See ROD, supra note 142, at 12.

(349) Id.

(350) See GRAND CANYON MONITORING AND RESEARCH CTR., THE STATE OF NATURAL AND CULTURAL RESOURCES IN THE COLORADO RIVER ECOSYSTEM DRAFT 7 (Nov. 1997).

(351) See supra notes 154-57 and accompanying text.

(352) See supra note 8 and accompanying text.

(353) 16 U.S.C. [sections] 797(e) (1994).

(354) See supra notes 227-36 and accompanying text.

(355) 16 U.S.C. [sections] 797(e) (1994).

(356) See Jonathan Brinckman, Salmon Tops Environmental Worries, OREGONIAN, Dec. 7, 1997, at Al.

(357) See supra note 190.

JACK K. STERNE, Staff Attorney, Trustees for Alaska. J.D. 1994, Northwestern School of Law of Lewis & Clark College; B.A. 1987, University of Virginia. The author was formerly in private practice in Camp Sherman, Oregon and represented most of the conservation groups on the east side of the Cascades, including the Hells Canyon Preservation Council. The Northwest Water Law and Policy Project at Northwestern School of Law of Lewis & Clark College provided vital funding for the preparation of this Article. The author wishes to thank Michael Blumm, Janet Neuman, Rob Masonis, and Dave Wegner for their helpful comments on earlier drafts of this Article. This Article is dedicated to Kris Balliet, who has fought valiantly for the return of Snake River salmon. May her dream some day come true. A version of this work was originally published by the Northwest Water Law and Policy Project at Northwestern School of Law of Lewis & Clark College.