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)
In this phase, FERC regulations require that, prior to filing a relicense application, Idaho Power complete studies "needed to determine ...
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)
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.
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.