The implications of salmon recovery for the Bonneville Power Administration and the region.

• Author: Spigal, Harvey
• Position: Colloquium: Who Runs the River?

I am the General Counsel of the Bonneville Power Administration (BPA), and I am here to talk about the opinions in Northwest Resource Information Center v. Northwest Power Planning Council (NRIC)(1) and Idaho Department of Fish & Game v. National Marine Fisheries Service (IDFG).(2) This sort of reminds me of the story Lincoln told about the man who was about to be ridden out of town on a rail, tarred and feathered. He said, "if it were not for the honor, he would just as soon pass."

The question is: Who runs the Columbia River? Of course, the Bureau of Reclamation owns and operates two of the major federal dams on the Columbia, and the Corps of Engineers owns and operates the rest of the federal dams. BPA does not own any dams; BPA just markets the power from the dams and has a role in planning the operation of the dams for power purposes. We have talked today at great length about how the Northwest Power Planning Council prepares the Fish and Wildlife Program which is supposed to guide the federal agencies. But the answer to "Who runs the River?"--I can cut to the end of the story right now, since it has already been given away--is none of the above. At least for the next couple of years, I think the answer to the question "Who runs the River?" is that National Marine Fisheries Service (NMFS) does because of the IDFG decision.

Today I want to discuss four items. First, I want to talk about the role of hubris. Second, I want to talk about the significance of the NRIC decision. Third, I want to talk a little bit about the IDFG decision. Last, I want to talk about the nonbiological consequences of these cases to BPA and the region.

First, about hubris. There is an element of hubris, and a potential for tragedy, in the current, more radical proposals for changing the operation of the hydrosystem. The fundamental premise of these more radical proposals, and I am speaking of the Columbia Basin Fish and Wildlife Authority proposal, among others, is that there is a relationship between flow rates, particle travel time, juvenile migration down the Columbia and Snake Rivers, and the survival of the listed species. James Buchal touched on this issue at some length.(3) I am not a biologist, but I will mention a document that BPA had prepared two years ago called, Critical Uncertainties in the Fish and Wildlife Program; Report to the Policy Review Group,(4) a satisfactorily bureaucratic title. What was happening two years ago?

The Council's 1992 amendments to its Fish and Wildlife Program (FWP) were out and were being reviewed. BPA wanted some answers to some simple questions as to whether there was a causal relationship between what was in the proposed fish and wildlife program and the survival and recovery of the listed salmon species--really straightforward questions. So, BPA got together a number of other federal agencies, federal fishery agencies, state fishery agencies, and tribes, and BPA asked them to help oversee and appoint a scientific review group to look at those critical uncertainties.

This scientific review group concluded that "critical uncertainties identify important gaps in our knowledge about the resources and fundamental relationships that determine fish and wildlife productivity."(5) In other words, cause and effect. Let me just read one of the uncertainties they identified:

1. What are the key assumptions in the FWP and are they scientifically valid?

A fundamental, albeit unstated assumption of the FWP is that...