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Northwest Envtl. Defense Ctr. v. Bonneville Power Admin.

ELR Citation: 27 ELR 21215
Nos. 90-70548, 91-70265, 117 F.3d 1520/(9th Cir., 07/01/1997)

The court holds that the Bonneville Power Administration (BPA), which entered into two agreements with Canada regarding rights to excess water stored in reservoirs on the Columbia River system in Canada, did not violate the Northwest Power Act (NPA) or the National Environmental Policy Act (NEPA). The court first holds that the environmental groups challenging the agreements have standing to sue. Although the groups' claim that the agreements would harm fish by reducing their stocks on the river was too speculative to show impending injury, the court notes that if the NPA guarantees the fish a portion of the nontreaty storage water, it is clear that a denial of this benefit would injure the fish; consequently, petitioners would be injured and they would have standing to sue.

The court then holds that the BPA was not required, at the time it entered into the agreements, to dedicate a portion of water for fish. Although one agreement provides that some of its nontreaty storage capacity will be used for power purposes, the vast majority of the BPA's share of the nontreaty storage capacity remains unallocated. The BPA may well decide that its responsibilities to provide equitable treatment require it to use a reasonable portion of this water for the benefit of fish. It is premature to hold that the BPA violated its obligations under the NPA. Further, the court holds that while each power marketing action that affects the system implicates the NPA's equitable treatment provision, the BPA may properly exercise its obligation by insuring equitable treatment for fish on a systemwide basis. The NPA does not explicitly require that each action individually provide equitable treatment. Under all the circumstances, and in light of the BPA's systemwide approach, the court then holds that it is premature to determine whether the BPA has satisfied the NPA's equitable treatment provisions. Next, the court holds that the BPA did not violate any procedural requirements or construe the NPA unreasonably in concluding that the agreement was not a major resource acquisition. Therefore, the NPA's procedural requirements for acquiring major resources do not apply.

The court then holds that the BPA did not violate NEPA by failing to prepare an environmental impact statement. The BPA was not arbitrary or capricious in concluding that a separate fish and wildlife agreement between the BPA and Canada alleviated most of the concerns regarding the Canadian agreement. And the environmental assessment (EA) provided an adequate analysis of cumulative impacts resulting from the agreement. Additionally, the BPA was not required to consider use of nontreaty storage for fish, and it was not necessary to include an analysis of the separate fish and wildlife agreement in the EA or to provide for public comment.

A dissenting judge would hold that the BPA failed to satisfy NEPA's procedural requirements.

Counsel for Petitioners
Daniel J. Rohlf, Senior Advocacy Fellow
Northwestern School of Law
Lewis and Clark College
10015 SW Terwilliger Blvd., Portland OR 97219
(503) 768-6700

Counsel for Respondent
Philip S. Key
Bonneville Power Administration
905 NE 11th Ave., Portland OR 97232
(503) 230-3000

Before Reinhardt, Brunetti, and Fernandez, JJ.