Balancing Power Costs and Fisheries Values Under the Northwest Power Act

• Publication year: 1989
• Citation: Vol. 13 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 2WINTER 1990

Balancing Power Costs and Fisheries Values Under the Northwest Power Act

Michael B. Early Egil Krogh(fn*)

I. Introduction

In addressing the anadromous fisheries resource affected by hydroelectric facilities in the Columbia River Basin, Congress directed that the Pacific Northwest Electric Power and Conservation Planning Council (Council) balance the values of this resource with the need for an economical electric power supply.(fn1) The central thesis of this Article is that Congress, in the Northwest Power Act, required that appropriate mitigation measures for the fisheries resource shall be determined by balancing the fisheries values that would be achieved against the costs that would be incurred by electric power consumers. While some commentators have urged that an appropriate balancing does not require such weighing of values and costs, in our view, it is mandatory as a matter of law under the Northwest Power Act. This is clear from the plain language of the statute and from the only reasonable interpretation of the relevant legislative history. Moreover, the Pacific Northwest's declining energy surplus and a generally stabilized fishery in the Columbia River system dictate, as a matter of prudent public policy, a more careful and objective evaluation of the fisheries values to be achieved with the region's increasingly scarce ratepayer dollars. The historical background of the Northwest Power Act places the relevant power and fish interests in the proper context.

In the mid-1970s, Bonneville Power Administration's (BPA) power demand and supply projections indicated that federal power was running short even for its "preference customers."(fn2) Because BPA would no longer be able to guarantee preference customers that their load growth could be met beyond 1983, BPA issued a notice of insufficiency to these customers in 1976. In fact, it had become apparent even before this date that BPA would not be able to provide federal power to investor-owned utilities and direct service industries and still provide priority service to its preference customers.

Based on these power projections, BPA terminated sales of federal power to its private utility customers and notified its direct service industries that their power sales contracts would not be renewed. BPA was also faced with the difficult and politically painful task of allocating available federal power among its public utility customers.

To protect their interests BPA's customers could either engage in a protracted administrative and legal struggle with BPA over scarce power supplies, or they could pursue federal legislation. The region's utilities sought a legislative solution to the electricity shortage and associated problems through the Northwest Power Act.(fn3)

At the same time the region was pursuing a solution to the power shortage, certain species of Columbia Basin anadromous fish were being studied for listing as endangered species.(fn4) In addition, other Columbia Basin fish runs were declining. Because of these concerns and the potential impact on fish resulting from growing energy demands on the Columbia River hydropower system, the fisheries interests also sought a legislative solution.

In our view, the Northwest Power Act was passed principally to respond to the regional electricity shortage and secondarily to provide protection for the fisheries resources. Congress established the Council to prepare a plan to meet electricity demand and, collaterally, to prepare a program to protect, mitigate, and enhance fish and wildlife.(fn5) Congress directed the Council to appropriately balance the power and fisheries interests.

In this Article, Section II will examine briefly the relevant provisions of the Northwest Power Act.(fn6) Section III will discuss how the Act has been misinterpreted by some commentators and will provide the correct interpretation of the Act's balancing provisions.(fn7) Section IV will show that the legislative history confirms our interpretation of the fisheries provisions.(fn8) Section V will examine whether the Council's implementation of the program has been consistent with these balancing requirements; it will also discuss future program activities and recommend how the Council should implement this balancing.(fn9)

II. The Fisheries Provisions of the Northwest Power Act

After establishing six fundamental statutory purposes,(fn10) the Northwest Power Act provides for the eight member council. The Council is comprised of two gubernatorial appointees each from Idaho, Montana, Oregon, and Washington.(fn11) Congress assigned the Council the task of preparing and submitting to the BPA a regional conservation and electric power plan which the BPA is responsible for implementing.(fn12) Concurrently with the preparation of the power plan, the Council was directed to prepare a program "to protect, mitigate, and enhance fish and wildlife."(fn13) Section 4(h) of the Act mandates the balancing of power costs and fisheries values.(fn14)

Specifically, subsection 4(h)(5) directs the Council to prepare a fish and wildlife program based on recommendations submitted by fish and wildlife agencies, appropriate Indian tribes, and BPA customers.(fn15) The second sentence of this subsection expressly requires that fisheries interests be balanced with power interests: "The program shall consist of measures to protect, mitigate, and enhance fish and wildlife affected by the development, operation, and management of such facilities while assuring the Pacific Northwest an adequate, efficient, economical and reliable power supply."(fn16)

Subsection 4(h)(6) provides additional criteria that Council proposals must meet. The Council must determine that recommended measures: (a) complement existing and future activities of fish agencies and Indian tribes; (b) are based on and supported by the best available scientific knowledge; (c) utilize the least costly alternative for achieving the same biological objective where equally effective alternative means exist; (d) are consistent with the tribes' legal rights; (e) improve survival of anadromous fish at the Columbia system hydroelectric projects; and (f) provide flows between the projects so as to improve production, migration, and survival of anadromous fish.(fn17)

Section 4(h)(7) directs the Council to determine whether the recommendations for measures are consistent with the Act's purposes and establishes a mandatory basis for rejecting proposed measures. If a proposed measure is inconsistent with subsection 4(h)(5), which includes the key balancing standard, or fails to meet the criteria in subsection 4(h)(6), then the Council must reject, in writing, a proposed measure.(fn18)

Subsection 4(h)(8) contains four additional principles that govern the Council's development of the program:

1. Enhancement measures to achieve offsite protection and mitigation are authorized.(fn19)

2. Consumers of electric power are only obligated to bear the cost of measures designed to deal with adverse impacts caused by the development and operation of electric power facilities and programs.

3. If the program requires coordination of its measures with additional measures designed to deal with nonhydroelec-tric impacts, these additional measures are to be implemented by agreements between the funding parties.

4. The BPA Administrator is directed to allocate costs and power losses consistent with individual project impacts and system-wide objectives.(fn20)

Subsections 4(h)(10) and 4(h)(ll) relate to the authority of the federal agencies to carry out their responsibilities under the Act. Subsection 4(h) (10) delineates the funding authority of the BPA Administrator in carrying out his responsibilities.(fn21) The Administrator is to use the BPA fund, the authorities available under the Act, and any other pertinent laws to protect, mitigate, and enhance fish and wildlife to the extent affected by any hydroelectric project(fn22) in a manner consistent with the program and the Act's purposes. BPA's expenditures are to be in addition to, not in lieu of, other expenditures required of other entities.(fn23)

Subsection 4(h)(10)(B) instructs the Administrator to include expenditures for the program in his annual budgets, and subsection 4(h) (10) (C) directs an allocation of funds expended among the hydroelectric projects in accordance with project purposes and existing accounting procedures.

Subsection 4(h)(ll)(A) obligates the federal agencies which manage, operate, or regulate federal and nonfederal hydroelectric facilities to (i) exercise their responsibilities consistent with the purposes of the Act and in a manner that gives equitable treatment for fish and wildlife along with the other purposes for which the system is managed, and (ii) exercise such responsibilities, taking into account the Council's program at each relevant stage of its decision making processes to the fullest extent practicable.(fn24) Subsection 4(h) (11) (B) mandates consultation and coordination of actions among the Administrator of BPA, the Bureau of Reclamation, and the Army Corps of Engineers with the Secretary of the Interior, the National Marine Fisheries Service, state fish and wildlife agencies in the region, tribes, and project operators in carrying out the provisions of 4(h)(ll)(A).

This, in brief, is...