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Idaho Power vs. DEQ
By JAYSON JACOBY
Of the Baker City Herald
Idaho Power Company has filed a complaint in Baker County Circuit Court contending the Oregon Department of Environmental Quality unfairly blames the company for polluting the Snake River with water that's warm enough to harm federally protected chinook salmon.
A trio of attorneys representing Idaho Power filed the complaint earlier this month.
The company has asked Judge Greg Baxter to force DEQ to reverse or reconsider its conclusion, and to require the agency to pay Idaho Power's attorney fees.
Portland lawyers Richard S. Gleason, Michael R. Campbell and Erin Lagesen represent Idaho Power.
Campbell said he could not comment on the case, other than to say that by filing the complaint Idaho Power preserved its right to appeal DEQ's decision.
The complaint stems from a Snake River pollution study that DEQ and the Idaho Department of Environmental Quality finished this summer. The agencies submitted the study, along with their findings, to the U.S. Environmental Protection Agency for final approval.
According to that study, in some years water in the Snake River below Idaho Power's Hells Canyon Dam exceeds 55.4 degrees Fahrenheit during the first few weeks of the chinook spawning season, which starts in late October.
Water warmer than 55.4 degrees can harm spawning salmon, according to DEQ.
The federal government listed the salmon as a threatened species in the early 1990s.
DEQ officals do not contend Idaho Power's trio of dams and reservoirs Hells Canyon, Oxbow and Brownlee actually heat the water, said Dick Nichols, supervisor of the water quality section at the agency's Bend office.
But Nichols said officials concluded that those three reservoirs store water warmed during the summer to above 55.4 degrees, then release that tepid water from Hells Canyon Dam during the first two weeks of the salmon spawning season.
DEQ recommends the federal EPA require Idaho Power to prevent those releases of warm water.
Nichols said that to do so, the company probably would have to modify its dams so that only the cooler water far below the reservoirs' surfaces is released during the critical spawning season.
DEQ wants to add that requirement to the new federal license Idaho Power is seeking for the three dams.
But Idaho Power officials object to DEQ's claim that the company's reservoirs are solely responsible for dumping too-warm water into the Snake River during the salmon spawning season.
They also dispute DEQ's contention about harm to salmon, pointing out that no studies have proven water in the Snake River has imperiled the anadromous fish.
According to the lawsuit, DEQ "improperly places on (Idaho Power) all the burden of achieving the target temperature downstream of Hells Canyon dam."
Idaho Power's lawyers contend that factors other than the dams affect water temperatures, including other dams, irrigation diversions, and wastewater from cities and businesses.
According to the lawsuit, Idaho Power's complex of three dams and reservoirs "neither introduces nor discharges heat, as a pollutant' under the Clean Water Act, to the waters of the Snake River."
Nichols said DEQ officials agree that Idaho Power does not introduce heat.
But the agency's study concluded that the company's reservoirs do discharge heat, by releasing water warmer than 55.4 degrees from the spillways at Hells Canyon Dam.
Nichols said he could not comment further on Idaho Power's complaint because he has not read it.
According to the lawsuit, DEQ's proposal would force Idaho Power to make "expensive physical or operational modifications" to its dams to meet the 55.4-degree standard.
The company also could "incur substantial expenses for temperature monitoring, analyses and reports," according to the lawsuit.
Idaho Power spokesman Dennis Lopez said it is possible to install devices on dams that would allow the company to choose cooler layers of water to spill through its dams.
He said such devices are quite expensive, although he could not give actual figures.