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NW Fishletter #311, December 13, 2012

[5] Council: Power Plan Complaint Misreads Power Act Mandates

Attorneys for the Northwest Power and Conservation Council said the thinking behind a petition in federal court filed by the Eagle, Idaho-based Northwest Resource Information Center (NRIC) is misguided, and contradicts provisions of the Northwest Power Act.

In a brief filed Nov. 19 in the 9th U.S. Circuit Court of Appeals, NPCC attorneys explained how the Council had followed the Power Act when it put together its Sixth Power Plan in 2010, one that combined "significant energy conservation targets with the least-cost renewable and other generating resources."

The brief said the resource plan "assures" the Northwest power system will be able to meet demands over the next twenty years "in a cost-effective and environmentally sound manner while also allowing Bonneville and other federal agencies to reliably implement operations of the Columbia River dams to benefit fish and wildlife as specified in the Council's fish and wildlife program.

"The NRIC is now asking the Court to fault the Council and hold the Sixth Northwest Power Plan in violation of the Northwest Power Act for not independently considering, in the power planning effort, measures for the protection of anadromous fish that are different or additional to the measures specified in the Council's 2009 Fish and Wildlife Program."

Council attorneys said the petitioner's argument "directly contradicts" parts of the Act that call for the Council to amend the F&W program before the regional power plan is developed, and to build that F&W program "in a highly structured, separate proceeding that gives significant deference to the state and federal fish and wildlife agencies and the region's Indian tribes."

The brief also said the NRIC argument runs contrary to provisions in the Power Act that call on the Council to focus on a strategy for adding new conservation and power generation "and allow for reliable implementation of the measures in the fish and wildlife program."

The NRIC also argued that the Sixth Power Plan was faulty because it did not include a methodology to quantify environmental costs and benefits of existing power system resources, but the NPCC brief says the Power Act requires that cost and benefit methodology only for new resources, not existing ones.

The NRIC also complained about the way "foregone" revenues were reported in BPA's report on F&W program costs. But Council attorneys said that information was included in the Power Plan only for informational purposes, noting, "It has no relevance to the resource analysis the Act requires of the Council, the resource strategy decided by the Council, or any of the required elements of the Sixth Power Plan."

"There is no basis in the Act for any of what the NRIC seeks," said the NPCC brief, which argued that the petitioner's view was contrary to how the Council has understood and implemented the Act's power plan provisions for more than 30 years.

The NPCC brief also argued against the petitioner's claim that the Council's fish and wildlife program, "when it simply relies on a BiOp that has been overturned by a federal court, cannot be characterized as sufficient to 'protect, mitigate and enhance' salmon and steelhead affected by the FCRPS [Federal Columbia River Power System]."

The Sept. 19 NRIC brief had asked the court to direct the Council to consider specific goals to achieve adequate fish protection, especially for Snake River salmon and steelhead stocks.

The Council brief said the NRIC argument that included the remanded BiOp is "irrelevant to the question of whether and how the Council complies with the power plan provisions of the Act because the NRIC argument is, again, really about what the NRIC believes should be appropriate flow and passage measures in the fish and wildlife program."

The brief then explained that the district court's remand was not based on flow and passage measures in the F&W program, but for failure to specify habitat actions beyond 2013, so it was not relevant to the Council's analysis and decision in the latest power plan.

The Council brief said the NRIC may differ in its opinion whether current flow and passage measures for fish are sufficient, but those concerns should have been raised during the amendment process to the Council's F&W program that was completed in 2009. The NRIC had a chance to challenge those elements with 60 days of the F&W program's adoption, but did not.

On April, 14, 2010, NRIC director Ed Chaney, a long-time supporter of breaching lower Snake dams, spoke before the Council meeting in Boise, after the body had approved the last two elements of the Sixth Power Plan.

"Thirty years after the passage of the Northwest Power Act, the region doesn't have a plan for how to restore salmon to productive levels or alleviate the impact of the dams," Chaney said, according to the Council meeting minutes. "The Sixth Power Plan was creative, but it ratifies giving economic benefits to the Columbia River Pork Alliance that is responsible for destroying, not saving the salmon."

Chaney said thirty years ago, he couldn't imagine he wouldn't live to see the salmon restored. Now, he wasn't so sure: "The Council's failure to act has enabled the destruction of the salmon. The bright spot is that there are more graybeards coming into the fray. They'll keep coming at you and won't stop until the Columbia River Pork Alliance is brought to heel and bent to the will of the people."

On July 6, 2010, the Northwest Resource Information Center filed the original lawsuit in the 9th Circuit, claiming that the latest power plan illegally inflated the cost of salmon mitigation and ignored the benefits of increased fish runs. -B. R.

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