Beyond Mitigation -- Restoring Federally Damaged Salmon Runs Under the Columbia Basin Fish and Wildlife Program

Beyond Mitigation — Restoring Federally Damaged Salmon Runs Under the Columbia Basin Fish and Wildlife Program

Michael C. Blumm

Editors' Summary: Federal resource development projects often ignore and sometimes even degrade fish and wildlife resources. In the Columbia Basin, for example, federal dams have severely reduced salmon populations by destroying spawning habitats and impeding migration. A novel fish and wildlife program developed under the Pacific Northwest Electric Power and Planning Conservation Act will go far to redress the injury to fish runs. Mr. Blumm discusses the Act and the fish and wildlife program, which may serve as models for wildlife enhancement programs in other regions of the country.

Mr. Blumm, an Associate Professor at Northwestern School of Law of Lewis and Clark College in Portland, Oregon, received a B.A. from Williams College and J.D. and LL.M. degrees from George Washington University. Since 1979, his research on legal issues affecting the restoration of Columbia Basin anadromous fish runs has been supported by the Oregon State University Sea Grant College Program, under grants from the National Oceanic and Atmospheric Administration, U.S. Department of Commerce. The views expressed here are Professor Blumm's alone — they do not represent the views of NOAA or the U.S. government.

This article was adapted, with permission, from an article published in the Fall 1983 Commentary section of the WESTERN NATURAL RESOURCE LITIGATION DIGEST. Copyright 1983, WESTERN NATURAL RESOURCE LITIGATION DIGEST.

[14 ELR 10011]

Fish and wildlife mitigation for damages from federal and federally licensed projects has not been a particularly active aspect of wildlife law. In fact, mitigation measures developed under the consultation process required by the most broad-ranging federal statute, the Fish and Wildlife Coordination Act (FWCA),¹ have aptly been characterized as "too little and too late."² The result has been considerable loss of wildlife habitat, especially to dams, channelization projects, and dredge and fill activites. Great expenses of vetlands have been drained in North Dakota, Wisconsin, and the Mississippi Delta; more than half the original wetlands along the Connecticut coast and the San Francisco Bay have been filled; streamflows have been diminished in the Colorado and Platte River Basins; and interbasin water transfers have produced long-term fishery declines in northern California.³

The FWCA's quarter-century-old directive that fish and wildlife receive "equal consideration" with other purposes in water project planning⁴ has never been fully implemented.⁵ To rectify this deficiency, in 1979 the Fish and Wildlife Service initiated a rulemaking to produce uniform regulations applicable to all federal agencies.⁶ And in 1980 the Department of the Interior announced a long-term process to formulate a national policy on fish and wildlife.⁷ However, the current administration has killed both of these initiatives and has proposed sweeping revisions to the regulatory programs administered by the Army Corps of Engineers that could eliminate deference to fish and wildlife agency recommendations and would shift the burden of proof to those objecting to permit issuance.⁸ Mitigation reforms suddenly seem a long way off.

[14 ELR 10012]

There is an exception to this general retreat, however, The Columbia Basin's⁹ anadromous fish¹⁰ runs, reduced to a fraction of their former size by the largest interconnected system of dams in the world, are benefiting from what may be the most ambitious wildlife restoration program ever undertaken. Authorized by the 1980 Pacific Northwest Electric Power Planning and Conservation Act¹¹ and promulgated by a unique interstate council in November of 1982,¹² the Columbia Basin Fish and Wildlife Program is charting new grounds in fish and wildlife mitigation. The Act goes considerably beyond past attempts aimed at reducing avoidable losses ("mitigation") by mandating both preservation of fish and wildlife populations and habitat ("protection") and compensation for past and ongoing unavoidable losses ("enhancement").¹³ By moving beyond the traditional concept of mitigation, the Act and the program may serve as a model for redressing wildlife losses caused by federal programs in other regions¹⁴ of the country.

The Failure of the Fish and Wildlife Coordination Act

A half century of dam building on the Columbia River and its tributaries has left the Pacific Northwest both with the most bountiful supply of low cost hydropower in the nation and with severly depleted runs of anadromous fish. These dams reduced accessible spawning habitat by more than one-half, materially contributing to a two-thirds decline in the commercial catch of Columbia stocks, imperiling the exercise of Indian treaty fishing rights, and extinguishing some runs altogether.¹⁵

Before the enactment of the Northwest Power Act in 1980, the principal means of protecting the Columbia Basin's fish and wildlife resources from the adverse effects of dam building was through the consultation procedures required by the Fish and Wildlife Coordination Act.¹⁶ Unfortunately, the FWCA, which dictates "consideration" but no substantive results,¹⁷ proved unequal to the task for a variety of reasons.¹⁸ For example, although it required mitigation measures recommended by fish and wildlife agencies to be given "full consideration" by federal water project developers and regulators, agencies like the Corps of Engineers and the Bureau of Reclamation frequently rejected recommended measures by determining them to be "unjustifiable" in terms of maximizing "overall project benefits."¹⁹ Moreover, the FWCA's goal of internalizing fish and wildlife costs as an integral part of total project costs was regularly thwarded by placing the burden on fish and wildlife agencies to document fish and wildlife losses before undertaking mitigation measures. Thus, lead agencies often delayed mitigation until completion of time-consuming biological studies of the effect of the completed project on fish and wildlife resources.

In the Columbia Basin the mitigation ultimately undertaken usually involved producing substitute resources — most often by constructing fish hatcheries on tributary streams in the lower basin below the dams.²⁰ This not only produced inequities in fishing opportunities (favoring the ocean troll fishery to the detriment of upriver fishers like Indian tribes and Idahoans), but also raised serious concerns about the effect of hatchery stocks upon the genetic integrity of the remaining wild stocks. Other mitigation measures were feasible, including changes in project operations or installation of protective structural devices.²¹ However, emphasizing non-hatchery mitigation would have reduced power production or increased its costs. Since managers assumed that power generation took precedence over fish and wildlife production, they resisted operational changes such as providing fish flows and spills, even alleging a lack of authority to undertake such measures.

[14 ELR 10013]

The Northwest Power Act's Promise of Parity

In the Northwest Power Act, Congress sought to remedy the shortcomings of the FWCA, making clear that the long-standing debt which the power system owed the fish and wildlife resource should be repaid. The Act authorized operation of Columbia Basin dams for fish and wildlife, the protection and restoration of which is one of the basic purposes of the statute,²² and created the Pacific Northwest Power Planning Council to promulgate a comprehensive program to preserve and restore Columbia Basin fish and wildlife.²³ The Act's legislative history reveals that Congress intended fish and wildlife to be treated as a "co-equal partner" with power production, "on a par" with other authorized purposes.²⁴ In short, power production was no longer to be treated as a dominant use. The Act contains three fundamental innovations in pursuit of this goal.

Changing the Burden of Proof

Under FWCA procedures, federal water agencies effectively assigned fish and wildlife agencies the burden of proving that mitigation measures they advocated would result in minimum economic costs and minimum adverse effect on power production.²⁵ Given the pervasive uncertainties of managing migratory resources like anadromous fish, this standard delayed implementation of many measures and resulted in few changes to the power system's operational practices. However, the 1980 Act altered the burden of proof considerably, both through its express directives and its assignment of institutional responsibilities. First, responsibility for developing the comprehensive, basin-wide program mandated by the Act was not given to the federal water agencies, whose past actions (and inaction) contributed to the decline of the region's fish and wildlife resources, but instead to the new Regional Council.

Second, the Council's discretion in developing the contents of the program was not unfettered — the Council was ordered to solicit program recommendations from the region's fish and wildlife agencies and Indian tribes, to base its program on these recommendations and those submitted by other interested parties, and to include fish and wildlife agency and tribal recommendations in the program unless it found them to be inconsistent with express statutory directives.²⁶ I have argued elsewhere that collectively these directives enable the Council to reject recommended agency and tribal measures only if it determines that they would be economically or technically infeasible to implement.²⁷ Moreover, Congress expressly required the program to (1) include sufficient fish flows,²⁸ (2) provide improved fish bypass around and through dams, and (3) faver biological over economic outcomes.²⁹

Third, to overcome the problem of delays in implementing fish and wildlife measures, the Act orders expeditious decisionmaking, setting a tight time frame for approval of the program and directing that program measures need be supported only by "best available scientific knowledge," not biological certainty.³⁰ This congressional recognition of the need for prompt action was influenced by a General Accounting Office report (quoted extensively in the Act's legislative history) that warned that "for some upriver fish runs, time is a critical factor."³¹ Taken together, the altered institutional responsibilities, the deference to the expert agencies and tribes, and the tight timetables for decisionmaking reduce the amount of biological and economic information necessary to take remedial action and, in fact, shift the burden to those who would challenge the measures recommended by the fish and wildlife agencies and tribes.

Offsite Enhancement as Compensation

As pointed out above, the Act required not merely mitigation of fish and wildlife losses, but also protection and enhancement of the fish and wildlife resource. The foremer implies that some future hydroelectric projects may not be developed because of their adverse effects on fish and wildlife, a clarification of the FWCA's directive that fish and wildlife measures must be included as an integral part of the cost of water projects.³² The latter directive is more revolutionary, for it authorizes offsite protection and mitigation measures where necessary to compensate for irreversible past and ongoing losses.³³ In fact, authorizing off-site enhancement measures may prove to be the real genius of the Act because traditional efforts at producing "in kind, in place" replacement resources are simply not practicable in the Columbia Basin — where over 1,000 miles of anadromous fish habitat were lost through the construction of Grand Coulee Dam alone. Recognizing that a half century of dam building has forever altered the basin's accessible habitat, the Act enables fish and wildlife measures to be focused on areas possessing the greatest rehabilitative prospects, like the Yakima River Basin and the Umatilla Indian Reservation. The Act's goal of restoring runs to pre-dam levels can only be realized through offsite enhancement.³⁴

[14 ELR 10014]

Ratepayer Financing

Unlike traditional fish and wildlife measures funded through the congressional appropriations process, the Columbia Basin Fish and Wildlife Program will be funded largely through electric power rates. Ratepayer financing is a reflection of Congress' overriding concern with internalization of power costs: the Act stipulates that power customers are to pay the full cost of producing, transmitting, and conserving electric power, including fish and wildlife costs.³⁵ This "enterprise theory of liability"³⁶ avoids the uncertainties and delays of the congressional appropriations process and is a more equitable means of financing, since those who benefit from the power system will bear its true costs.³⁷

Some Innovations of the Columbia Basin Fish and Wildlife Program

After conducting a widespread and unprecedented public involvement program, the Regional Council promulgated its Columbia Basin Fish and Wildlife Program in November 1982.³⁸ A detailed examination of even the most significant of the more than 200 measures in the program is impossible in this space and would repeat an analysis contained elsewhere.³⁹ However, a brief summary of some of the principal innovations of the program should illustrate its path-breaking nature.

Changing Water Project Operations

Among the most controversial program measures are those requiring alterations in water project operations. These directives are designed to reduce the scope of discretion of dam operators, a group of federal bureaucrats and licenses who have been surprisingly successful in insultating themselves from a generation of reform statutes designed to make those who control public resources more accountable to the Congress, the courts, and the public.⁴⁰ The most revolutionary of these measures is the Council's "Water Budget," essentially a block of water reserved to assist juvenile anadromous fish on their downstream migration to the ocean in the spring.⁴¹ Loss of the Columbia's once prodigious spring freshet is one of the principal legacies of the mature Columbia Basin hydroelectric system and the chief cause of the precipitous downward slide of the fish runs during the past few decades. Implementation of the Budget will constitute the most significant change in Columbia Basin water project operations since the Pacific Northwest Coordination Agreement was signed 20 years ago,⁴² because it will require releases of water during the "refill" season — when water managers attempt to store water to produce hydropower later in the year.⁴³ Within the limits established by [14 ELR 10015] the Program, the Budget may be "spent" to produce fish flows at the discretion of representatives from the region's fish and wildlife agencies (federal and state) and Columbia Basin Indian tribes.⁴⁴ The Basin's federal project operations (the U.S. Army Corps of Engineers and the Bureau of Reclamation), resisted expeditious implementation of the Water budget on the grounds that the National Environmental Policy Act (NEPA)⁴⁵ requires them to consider a multitude of environmental, social, and economic factors in publicly available documents before they can implement the Budget.⁴⁶ Although this interpretation of NEPA technically prevented these agencies from implementing the Budget in 1983, an extremely good water year coupled with their "voluntary" efforts enabled the agencies to satisfy most of the flows requested by the agencies and tribes. Whether the federal water managers will feel bound by the Water Budget in a low water year remains unclear.

Other operational chamges called for in the Council's programinclude interim spills of water (pending installation of protective structural devices) to facilitate dam bypass by juvenile fish,⁴⁷ flows and spills to promote more successful upstream passage of returning adult fish,⁴⁸ and flows aimed at improving spawning habitat.⁴⁹ Where these operational changes concern dams licensed by the Federal Energy Regulatory Commission (FERC), FERC must sanction such alterations, which has complicated implementation of the program.⁵⁰

Rehabilitating Wild Stocks

Fish flows and spills from changed project operations alone cannot redress the damage to the Basin's fish runs. Consequently, a major portion of the Columbia Basin Program is devoted to habitat rehabilitation and natural and hatchery propagation, particularly in areas possessing underutilized but high-quality habitat.⁵¹ Breaking away from past enhancement efforts that concentrated almost exclusively on hatchery construction, the program expresses a clear preference for restoration of naturally spawned stocks in order to preserve the genetic integrity of the fish runs.⁵² To carry out this preference, the Council (1) established a "Fish Propagation Panel" to inventory tributaries throughout the Basin according to their potential to support increased natural propagation, (2) deemphasized construction of large-scale hatcheries in favor of improving the effectiveness of existing facilities, (3) encouraged small-scale low capital facilities, and (4) ordered a study aimed at producing a reprogramming plan to relocate lower river hatchery fish to suitable upriver streams.⁵³

Singled out for special attention because of its high-quality habitat is the Yakima River Basin, which unfortunately suffers from water shortage problems.⁵⁴ Implementation of some of the Yakima Basin measures, however, has been slowed due to uncertainties over whether ratepayer money is appropriate to fund measures at nonpower projects. These questions are at issue in the Bonneville Power Administration's (BPA's) 1983 Rate Case⁵⁵ and have engendered friction between BPA (which wants to await congressional appropriations) and the Council (which wants as expeditious an implementation as possible).⁵⁶ Since the Act directs BPA to use its funding authorities "in a manner consistent" with the program,⁵⁷ Congress seems to have resolved this issue in favor of the Council. Unfortunately, BPA considers this directive to be ambigious⁵⁸ and the matter may have to be resolved in the courts or settled by Congress.⁵⁹

[14 ELR 10016]

Protecting Habitat from Future Hydroelectric Development

Recognizing that its rehabilitation efforts could be undercut by the mushrooming interest in new hydroelectric projects (especially small-scale projects),⁶⁰ the Council established conditions for new projects⁶¹ and commissioned studies to identify the cumulative impacts of existing and proposed projects and to develop a system of critical habitat streams that would be protected from any future hydroelectric development.⁶² Since the Council's Conservation and Power Plan favors hydroelectric development where adverse effects on fish and wildlife are minimal,⁶³ the ranking of potential hydroelectric sites for compatibility with fish and wildlife restoration will provide a road map for dam developers.⁶⁴ When these studies are completed, they may produce program amendments that could establish the rough equivalent of a regional wild and scenic rivers program as well as a guide to acceptable sites for development.⁶⁵

Conclusion

The Columbia Basin Program represents an unprecedented attempt at fish and wildlife restoration⁶⁶ occasioned, it is true, by unique regional conditions in which extremely valuable anadromous fish runs have been severely damaged by an interconnected system of dams producing underpriced electric power. But many of its innovations may serve as useful precedents for other regions of the country. These include the congressionally established principles of full compensation for past and ongoing fish and wildlife losses, offsite enhancement, ratepayer funding, and changed burdens of proof, as well as the Council's innovations of operational changes, wild stock preference, and protection from adverse future developments.

In addition to the program's substantive policies, its institutional arrangements warrant attention. The foremost innovation is the Council itself, which has quickly become a very influential entity, referred to by one metropolitan daily paper as "the most resourceful and politically independent entity in the region."⁶⁷ Under the leadership of former Washington Governor (now Senator) Dan Evans, the Council earned its political legitimacy by conducting a widespread and surprisingly successful public involvement process and by supplying an impartial forum in which fish and wildlife interests and power interests could present their points of view.

But the Council has provided more than simply a mediation service; it has adopted a program of innovative provisions and has evinced an intention to see them carried out.⁶⁸ There remain unresolved questions concerning the willingness of federal water managers to carry out some program measures, the Council's legal and institutional capabilities to insist upon implementation, and the ability of some of the region's state fish and wildlife agencies to overcome their historic animosity toward Indian treaty fishing rights and develop a spirit of cooperation with the tribes.⁶⁹ However, if these uncertainties can be overcome, the Pacific Northwest may succeed in restoring some of its most precious natural resources, and the nation will have a new model of federal/state relations upon which other natural resources programs may be built.

1. 16 U.S.C. §§ 661-666c, ELR STAT. 41801.

2. Parenteau, Unfulfilled Mitigation Requirements of the Fish and Wildlife Coordination Act, 42 N. AM. WILDLIFE PROCEEDINGS 179 (1977).

3. See, e.g., Blumm, Wetlands Preservation, Fish and Wildlife Protection, and 404 Regulation, 18 LAND & WATER L. REV. 469, 471 (1983).

4. 16 U.S.C. § 661, ELR STAT. 41801.

5. See Houck, Judicial Review Under the Fish and Wildlife Coordination Act: A Plaintiff's Guide to Litigation, 11 ELR 50043 (1981); Comment, The Fish and Wildlife Coordination Act in Environmental Litigation, 9 ECOL. L.Q. 489 (1981).

6. 44 Fed. Reg. 29300 (May 18, 1979) (proposed in response to President Carter's Water Policy Message of June 6, 1978).

7. 45 Fed. Reg. 29542 (May 2, 1980).

8. 48 Fed. Reg. 21466 (May 12, 1983), discussed in Natural Resources Law Inst., 23 ANADROMOUS FISH LAW MEMO 12-13 (Aug. 1983) (available from N.L.R.I., Lewis & Clark Law School, 10015 S.W. Terwilliger Blvd., Portland, OR 97219). Earlier, in an effort to reduce permit processing, the Corps issued 27 nationwide permits, 47 Fed. Reg. 31794 (1982), six of which were challenged in National Wildlife Fed'n v. Marsh, Civ. No. 82-3632, ELR PEND. LIT. 65775, 65784 (D.D.C., complaint filed Dec. 22, 1982). In the suit the NWF and 15 other environmental groups charge, inter alia, that eliminating the existing limitation on two nationwide permits to water-bodies of 10 surface acres or less would remove vast amounts of wetland acres from effective regulation, including nearly a million acres of prairie potholes in the Upper Midwest, 73,000 acres of Pocono Mountains wetlands, thousands of acres of inland wetlands in New York and New Jersey, a half million wetland acres in both Michigan and Wisconsin, and millions of acres in Alaska. See Blumm, supra note 3, at 483 n.79. For an analysis of the Corps' proposed reforms, see Comment, Corps Recasts § 404 Permit Program, Braces for Political, Legal Skirmishes, 13 ELR 10128 (1983).

9. The Columbia Basin includes the drainage of the Columbia and its tributaries, including the Snake. In the United States, the Basin covers most of Washington, Oregon, and western Montana, all of Idaho, and small portions of Wyoming and Nevada. The Basin does not include Oregon and Washington's coastal drainages or the Puget Sound Basin.

10. i.e., fish that spawn in fresh water but spend most of their adult life in the ocean. Andaromous fish in the Pacific Northwest include five species of salmon (chinook, coho, sockeye, pink, and chum) and steelhead trout, a sea-run rainbow trout.

11. Pub. L. No. 96-501, 94 Stat. 2697, 16 U.S.C. §§ 839-839h [hereinafter referred to as the Northwest Power Act].

12. Section 4(a) of the Act, 16 U.S.C. § 839b, authorized the creation of the Pacific Northwest Electric Power Planning and Conservation Council (Regional Council), an eight-member gubernatorially appointed board representing the four states (Idaho, Montana, Oregon, and Washington) in the service district of the federal Bonneville Power Administration. See Blumm and Johnson, Promising a Process for Parity: The Pacific Northwest Electric Power Planning Act and Anadromous Fish Protection, 11 ENVTL. L. 497, 508-12 (1981).

13. National Marine Fisheries Service, et al., Recommendations for Fish and Wildlife Program Under the Pacific Northwest Electric Power Planning and Conservation Act, 112 (Nov. 1981). The Act's legislative history indicates that these terms are to be defined by those agencies with experience managing the Columbia Basin's fish and wildlife resources. H.R. REP. No. 96-976, pt. 1, 96th Cong. 2d Sess. 57.

14. See, e.g., H.R. 1438 and S. 1874, 98th Cong., 1st Sess. (1983) (bill to restore fish and wildlife in the Trinity River Basin of northern California); see also 129 CONG. REC. S12,752 (daily ed. Sept. 22, 1983) (remarks of Sen. Cranston).

15. Five years ago, the situation was so desperate that the National Marine Fisheries Service and the U.S. Fish and Wildlife Service initiated proceedings aimed at invoking the protective provision of the Endangered Species Act, 16 U.S.C. §§ 1531-1543, ELR STAT. 41825. See Bodi, Protecting Columbia River Salmon Under the Endangered Species Act, 10 ENVTL. L. 349 (1980).

16. 16 U.S.C. §§ 661-666c, ELR STAT. 41801. See generally materials cited in note 5 supra.

17. See G. COGGINS & C. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCES LAW 633 (1981).

18. See Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest's Anadromous Fish for a Peaceful Coexistence With the Federal Columbia River Power System, 11 ENVTL. L. 211, 268-76 (1981).

19. 16 U.S.C. § 662(c), ELR STAT. 41802.

20. In addition to mitigation resulting from Coordination Act requirements like the Lower Snake River Fish and Wildlife Compensation Plan (which authorized wildlife habitat acquisition in addition to hatcheries), the 1938 Mitchell Act (16 U.S.C. §§ 755-757) suppliers federal funding for about 25 hatcheries in the Columbia Basin, which support around 95 percent of the Basin's fish runs. The current administration has regularly attempted to slash Mitchell Act funding, although to date, unsuccessfully.

21. Such measures are specifically included in the definition of mitigation in the Council on Environmental Quality's National Environmental Policy Act regulations, 40 C.F.R. § 1508.20, ELR REG. 46033.

22. 16 U.S.C. § 839(6).

23. 16 U.S.C. §§ 839b(a)-839b(c) (establishment of Council); 839(h) (fish and wildlife program). The Act also charged the Council to develop a Conservation and Electric Power Plan. See infra note 38.

24. H.R. REP. No. 976, pt. 1, 96th Cong., 2d Sess. 56-67.

25. Power interests unsuccessfully sought to include this standard in the Act. See Blumm and Johnson, supra note 12, at 521.

26. 16 U.S.C. §§ 839b(h)(2), 839b(h)(5)-(7).

27. Blumm, Fulfilling the Partiy Promise: A Perspective on Scientific Proof, Economic Cost, and Indian Treaty Rights in the Approval of the Columbia Basin Fish and Wildlife Program, 11 ENVTL. L. 103 (1982).

28. Fish flows are in-stream releases of water required for passage and survival of fish. They are acutely needed in spring to flush juventile salmon and steelhead to the ocean. Unless the juvenile fish reach the ocean within approximately 30 days, they are unlikely to do so at all. See COLUMBIA BASIN PROGRAM, infra note 38, § 300; see also infra notes 41-44 and accompanying text.

29. 16 U.S.C. § 839b(h)(6)(C) & (E).

30. Id. §§ 839(h)(9) (program to be adopted within one year of receipt of recommendations), 839b(h)(6)(B) ("based on, and supported by, best available scientific knowledge").

31. U.S. Comp. Gen., Impacts and Implications of the Pacific Northwest Power Bill 24 (EMD-79-105, Sept. 4, 1979).

32. 33 U.S.C. § 662(d), ELR STAT. 41802.

33. 16 U.S.C. §§ 839b(h)(5) and (h)(8)(A).

34. Offsite enhancement measures are the key to realizing the Act's goal of restoring the region's fish and wildlife resources "to the extent affected by the development and operation" of the Columbia River power system. 16 U.S.C. § 839b(h)(10)(A); see also id. §§ 839(h)(2) & 839(h)(8)(A). While complete compensation for past and ongoing losses is anticipated, see Blumm, supra note 27, this compensation is to be provided on a system-wide basis. 6 U.S.C. § 839(h)(1)(A). Thus, compensation for past losses is not an unreasonable goal, since efforts are to be directed toward areas where restoration measures are most feasible. The Bonneville Power Administration (BPA), key federal power agency in the Pacific Northwest, see infra note 38, has been reluctant to support off-site enhancement. See infra text accompanying notes 54-59.

35. 16 U.S.C. §§ 839a(4), 839b(h)(8)(B).

36. See Blumm, Risk Management and Northwest Electric Power Planning: Some Lessons From the Rearview Mirror, 13 ENVTL. L. 739, 760 (1983).

37. Unfortunately, BPA has proved reluctant to include all fish and wildlife costs in its rates, a fact that has jeopardized expeditious program implementation. See infra notes 55-59 and accompanying text.

38. NORTHWEST POWER PLANNING COUNCIL, COLUMBIA BASIN FISH AND WILDLIFE PROGRAM (Nov. 1982) [hereinafter cited as COLUMBIA BASIN PROGRAM] (available from Northwest Power Planning Council, 700 S.W. Taylor St., Suite 200, Portland, Oregon 97205). Six months after promulgation of its Fish and Wildlife Program, the Council fulfilled its second principal duty under the Northwest Power Act when it published a 20-year plan to predict future Northwest electric demands and to chart the most "cost effective" means for the Bonneville Power Administration (BPA) to meet those demands. NORTHWEST POWER PLANNING COUNCIL, NORTHWEST CONSERVATION AND ELECTRIC POWER PLAN (Apr. 1983) (authorized by 16 U.S.C. § 839b(d)-(f)). BPA, a self-financing federal agency, was created by the 1937 Bonneville Project Act (16 U.S.C. § 832) to market hydropower produced by the Bonneville Dam. Subsequently, BPA was granted authority to market power from 27 additional federal projects and in recent years has also purchased the power from nuclear power plants. See generally Blumm, The Northwest's Hydroelectric Heritage: Prologue to the Pacific Northwest Electric Power Planning and Conservation Act, 58 WASH. L. REV. 175 (1983).

The Council's Conservation and Power Plan relies on a range of demand forecasts (including a high growth scenario of 2.5 percent) annually and a low scenario of 0.7 percent annually) and emphasizes flexible resources, particularly conservation programs and the use of resource "options," to reduce the risk of erroneous demand forecasts. In addition to conservation, the plan includes hydropower, combustion turbines, cogeneration, and coal plants (not nuclear plants) among cost-effective resources. See Blumm, Risk Management and Northwest Electric Power Planning: Some Lessons From the Rearview Mirror, 13 ENVTL. L. 739, 741-43, 767-70 (1983).

This plan assumed the completion of three planned nuclear power plants being constructed under prior agreements between BPA and the Washington Public Power Supply System (WPPSS), but specifically determined that acquisition of two other WPPSS nuclear plants (without BPA contracts) would not be cost effective. Liability for the unrecovered costs of these two (recently terminated) plants has become a major issue in the wake of a ruling from the Washington Supreme Court that the participating utilities lacked authority to purchase the expected electricity from the plants and therefore were not liable for the $2.25 billion in sunk costs ($7 billion with interest). Chemical Bank v. WPPSS, __ P.2d __, 99 Wash. 2d 772 (1983) (effectively shifting the burden of the loss from the ratepayers of the participating utilities to the holders of WPPSS bonds).

The three plants with BPA contracts have also encountered the same kind of construction delays and cost overruns that doomed the two without federal guarantees. Although one plant (WPPSS #2) may produce electricity in 1984, the other two (WPPSS #1 and #3) were "mothballed" by BPA and WPPSS for periods of up to three to five years, because of concerns about the marketability of WPPSS bonds and a lack of foreseeable need for the power. The decision to mothball WPPSS #3 is being challenged under arbitration procedures by four Northwest utilities (which own 30 percent of the plant) as being contrary to "prudent utility practice." See Portland Oregonian, Dec. 14, 1983, at C4.

39. See Natural Resources Law Inst., 22 Anadromous Fish Law Memo (July 1983); see also Blumm, Implementing the Parity Promise: An Evaluation of the Columbia Basin Fish and Wildlife Program, 14 ENVTL. L. no. 2 (forthcoming, 1984).

40. For example, dam operations are not subject to pollution control permit requirements of the Clean Water Act. National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 13 ELR 20015 (D.C. Cir. 1982).

41. COLUMBIA BASIN PROGRAM, supra note 38, §§ 300-304.

42. See Blumm, supra note 18, at 245-46.

43. Among the principal beneficiaries of this method of project operations — termed "combination service" by their most effective advocate — are the region's "direct service industries" (because they are served directly by the Bonneville Power Administration, not local utilities), mostly aluminum companies. See Redman, Nonfirm Energy and BPA's Industrial Customers, 58 WASH. L. REV. 279 (1983).

44. COLUMBIA BASIN PROGRAM, supra note 38, § 304(a). The region's fish and wildlife agencies consist to the Idaho Department of Fish and Game, the Montana Department of Fish, Wildlife, and Parks, the National Marine Fisheries Service, the Oregon Department of Fish and Wildlife, the U.S. Fish and Widlife Service, and the Washington Department of Fisheries and Game. Columbia Basin Indian tribes include the Burns-Pauite, the Colville, Coeur d'Alene, the Kalispell, the Kootenai, the Nez Perce, the Salish and Kootenai, the Shoshone-Bannock, the Spokane, the Umatilla, the Warn Springs, and the Yakima tribes. Id. § u00.

45. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

46. See, e.g., BPA, ENVIRONMENTAL ASSESSMENT ON PROPOSED POWER SYSTEM CHANGES TO IMPLEMENT THE WATER BUDGET (May 1983).

47. At dams without protective devices like screens, unless spills are provided, an estimated 17 to 25 percent of juvenile perish at each dam, mostly from mortalities associated with power turbines. COLUMBIA BASIN PROGRAM, supra note 38, §§ 401-404.

48. Id. § 601-604.

49. Id. § 704(b).

50. See Natural Resources Law Inst., 22 Anadromous Fish Law Memo at 14 (July 1983). FERC, like the Corps of Engineers and the Bureau of Reclamation, is required by § 4(h)(11)(A)(ii) of the Act (16 U.S.C. 839b(h)(11)(A)(ii) to take the Council's program into account at each relevant stage of its decision-making processes "to the fullest extent practicable," which the Council has interpreted to mean that these agencies must either implement its program measures or provide a written explanation of "why it will not be physically, legally, or otherwise practicable to implement the program measures including all possible allowances available to permit program implementation." COLUMBIA BASIN PROGRAM, supra note 38, § 1304(a)(5). FERC, however, has not supplied such explanations as yet. See infra note 68.

51. COLUMBIA BASIN PROGRAM, supra note 38, §§ 701-704, 901-904.

52. Naturally spawned fish are subject to constant selective pressures producing strong, resilient, and diverse stocks. Because each stream or drainage offers a different environment which influences the natural selection process, the stocks originating there will be genetically unique to that drainage.Id. § 701.

53. Id. § 704.

54. Id. §§ 900-904.

55. BPA, U.S. Department of Energy, Administrator's Record of Decision: 1983 Final Rate Case Proposal. Actually, BPA's proposal for fiscal year 1984 included only about five percent of the Council's highest priority projects. See id. at 85 (including $149,000 of an estimated $3 million). For fiscal 1985, BPA included less than $1.2 million of an estimated $16.2 million. Id. BPA's budget must be approved by FERC, and several interested parties (notably the National Marine Fisheries Service, the Columbia River Inter-Tribal Fish Commission, and the Northwest Environmental Defense Center) have challenged BPA's funding levels before FERC.

56. See Natural Resources Law Inst., 22 Anadromous Fish Law Memo at 21-22, 30-32 (July 1983).

57. 16 U.S.C. § 839b(h)(10)(A).

58. BPA, Comments on the Draft Columbia Basin Fish and Wildlife Program, app. I (1982).

59. Congress could speed implementation of the program by (1) clarifying that the Council is the policymaking body for the Fish and Wildlife Program and that BPA's authority is ministerial (i.e., limited to ensuring that the Council's measures have timely funding); and (2) requiring BPA to submit its draft budgets to the Council and the public for review. These matters are elaborated upon in Blumm, supra note 39.

Amendments to two water project bills now before Congress, S. 1027 and H.R. 653, would expressly authorize BPA to transfer funds to the Bureau of Reclamation for fish projects at Bureau dams. Unfortunately, the amendments only cover projects in the Yakima Basin.

60. There are, according to the Council, over 800 FERC permit and license applications pending for sites in the Northwest. COLUMBIA BASIN PROGRAM, supra note 38, § 1201. Interest in small-scale hydropower is booming largely due to the escalating cost of alternative electric power sources and the existence of federal and state subsidy programs. See Natural Resources Law Inst., 19 Anadromous Fish Law Memo at 16 (Sept. 1982).

61. COLUMBIA BASIN PROGRAM, supra note 38, §§ 1204(a)(1) (fishery conditions), 1204(a)(2) (wildlife conditions). Outside the Columbia Basin, but within the Northwest, these conditions are applicable to BPA actions, but not the actions of other water managers. NORTHWEST CONSERVATION AND ELECTRIC POWER PLAN, supra note 38, app. E. See Thatcher, The Pacific Northwest Electric Power Planning and Conservation Act: Fish and Wildlife Protection Outside the Columbia River Basin, 13 ENVTL. L. 517 (1983).

62. COLUMBIA BASIN PROGRAM, supra note 38, §§ 1204(b) (cumulative impacts), 1204(c) (critical habitat).

63. See supra note 38.

64. NORTHWEST CONSERVATION AND POWER PLAN, supra note 38, 2-Year Action Plan § 14.2.

65. A program amendment process is established by §§ 1400-1404 of the program. The first amendments to the program are scheduled for adoption by November 15, 1984.

66. Restoration of resident fish (particularly in western Montana) and wildlife are also goals of the program; see COLUMBIA BASIN PROGRAM, supra note 38, §§ 801-804, 1001-1004.

67. Portland Oregonian (July 16, 1983).

68. See, e.g., Natural Resources Law Inst., 22 Anadromous Fish Law Memo at 28 n. 232 (July 1982) (describing the Council's challenge to FERC's granting of a license for the Enloe Dam without recognizing pertinent Columbia Basin Program provisions).

69. Id. at 33-34. Not to be overlooked is the Northwest Power Act's implicit elevation of the region's tribes to a co-equal basis with the region's states (See 16 U.S.C. §§ 839b(h)(1)(A), (h)(2), (h)(3), (h)(5), (h)(7)) (tribal role in developing, reviewing, implementing and revising the program), a role the tribes have long felt was necessary to preserve their treaty fishing rights and one buttressed by recent decisions like the Supreme Court's in New Mexico v. Mescalero Apache Tribe, No. 82-331, 51 U.S.L.W. 4741 (U.S. June 13, 1983) (application of New Mexico laws to on-reservation hunting by nontribual members preempted by federally approved tribal ordinances).