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Spokane, Washington  Est. May 19, 1883

Idaho utility continues attempt to negate Oregon fish law

In this Tuesday, Sept. 26, 2017,  photo provided by Idaho Fish and Game, Snake River sockeye salmon that returned from the Pacific Ocean to Idaho over the summer swim in a holding tank at the Eagle Fish Hatchery in southwestern Idaho. (Dan Baker / AP)
By Keith Ridler Associated Press

BOISE – An Idaho utility is challenging a decision by federal regulators rejecting its request to negate an Oregon law requiring fish passage as part of relicensing for a hydroelectric project on the Snake River.

Idaho Power on Friday petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review the Federal Energy Regulatory Commission’s decision in January.

The commission dismissed Boise-based Idaho Power’s request that it exempt the three-dam Hells Canyon Complex from an Oregon law requiring fish passage as part of relicensing.

The company says the Supremacy Clause of the U.S. Constitution that has to do with federal authority over states pre-empts the Oregon law. But the commission said it found no reason why Oregon couldn’t require fish passage and reintroduction as part of relicensing.

Mary O’Driscoll, commission spokeswoman, said the commission had no comment.

While Oregon requires fish passage, Idaho lawmakers have prohibited moving salmon and steelhead upstream of the three dams.

The company has previously said it’s stuck between the two states and their conflicting positions.

Idaho Power spokesman Brad Bowlin said he couldn’t comment on the petition before the court, which could be made unnecessary if Idaho and Oregon reach an agreement.

“The states have been working toward a solution in the last several months,” he said. “We are optimistic that a solution can be reached.”

Idaho Power’s 50-year license to operate the complex expired in 2005, and the company has since been operating on annually issued licenses.

Oregon has said it wants salmon and steelhead to be able to access four Oregon tributaries that feed into the Hells Canyon Complex. Chris Pair, spokesman for Oregon Gov. Kate Brown, didn’t return a call from the AP on Friday.

For Idaho Power to meet Oregon’s requirement, it would have to trap and transport the fish, which would require approval from Idaho.

But Idaho is against reintroducing salmon and steelhead above the dams and has passed a law opposing reintroduction of any species without the consent of the Legislature and governor.

Biologists have said the Snake River above the dams is so degraded it couldn’t support salmon and steelhead without significant rehabilitation work, which would require cooperation from landowners.

Idaho Power supplies electricity to customers in southern Idaho and eastern Oregon. The Hells Canyon Complex produces about 40 percent of the company’s total annual power generation, the company said in its filing.