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THE NORTHWECT POWER ACT AND THE COLUMBU BASIN 



The Pacific Northwest Electric Power Pluming and Conservation Act of 1980 ('Northwest Power Act') rejected 

 pro)ect-by -project evaluatioa of environinental impacts in favor of a program which must, to the greatest extent possible, 

 address the entire 258,000 square miles of the Ifairty-one watersheds in the Columbu River basin. 16 U.S.C. W 

 839-839(h). In order to achieve dus goal, (be Act created an independent regional pbaming body, ttie Northwest Power 

 Planning Council ('the Council*). In addition to energy conservation and efficiency goals, the Council was required to 

 'protect mitig*'^ and enhance' the fish and wildbfe damaged by the hydrosystem, with specific emphasis on the 

 improvement of flows and oo providing bypass systems at major dams. 



The Act's history indicates that Congress intended the Council to consider fish and wildlife resources "on a par* with 

 other river uses as a 'co-equal partner' with hydropower. The Council is also required to choose energy resources that 

 miniitiiTi^ ifae total cost of providing energy services, widi environmental costs incitided in die calculation of total cost 

 Positive biological results are given priority over economic considerations: miniiniini economic cost alternatives are 

 hivored only where biological goals are also attained, and die fish and wildlife agencies' and tribes' recommendatioas 

 must be given 'due weight' in tn.irmg programmatic decisions. 



The Council has proved ineffectual in forcing drastic changes to the hydrosystran and in changing federal land 

 management practices. It was anticipaled that the Council planning process would require federal dam operators, the 

 states, the numerous river users and affected interests to act collectively to improve the cooditioo of the Cohunbia — 

 primarily by providing the instream flows accessary to ensure passage of juvaiik fish to the ocean. To date, however, 

 die Council's Columbia Basin Fish and Wildlife Program, now in its fourdi phase of development, has failed to resolve 

 the 'fish-power' confbct m a way that significantly boiefits fish. It now appears that courts wiU ultimately be 

 responsible for doing what the Council has not, in the context of pending lawsuits under die Northwest Power Act, the 

 Endangered Species Act and other applicable law. 



This is not to say Ibe Council hasn't tried. For example, in 1988 the Council approved die creation of its 'Protected 

 Areas Program,* which designated 44,000 miles of stream reaches on which future hydroelectric development is now 

 severely restricted. These areas were designated based on the Council's determination that hydropower development 

 would cause unacceptable harm to critical fish spawning grounds or wildlife habitat Unfortunately, the legal effect of 

 the P rugiam to prohibit future hydroelectric development is limited by die Federal Power Act which requires only that 

 federal agencies such as FERC give the program 'due consideration' 'to the fiillest extent practicable.' The Program is 

 also limited to the extent that it designates stream reaches outside the Columbia Basin, where FERC, the BOR and the 

 Corps are not subject to the Northwest Power Act. 



Nimierous reasons have been ported for the Council's failure to force the necessary drastic changes in die operation of 

 die Columbia River hydrosystem. Some believe that the Council's ineffectiveness could be cured by aggressive support 

 from all four state Governors. Others believe that Congressional amoidments to the Act are required because the Act's 

 enforcement provisions are ambiguous, a circumstance which has prevented the Council from aggressively enforcing its 

 Program, particularly with regard to flows. To date, the Council's authority to enforce its own Program has not been 

 tested, and federal dam operators tend to pick and choose which provisions of the fish and wildlife program they will 

 implement These and other problems with the existing regional planning process indicate that Congressional action may 

 be required to save the anadromous fish resources of the Columbia river system. (Bhimm & Simrin, The Unraveling of 

 die Parity Promise: Hydropower, Safanon and die Endangered Species Art, 21 Envtl. L. 657 (1991». 



What should be done? AMiough die Northwest Power Art dieoretically puts fish and wildlife on a par with hydroelectric 

 and other values of the Columbia River system, even assuming that fish and wildlife habitat were actually accorded die 

 parity it was intended to receive under the Act there is no clear mandate to protect and restore river ecosystem functions 

 as a priority over other uses. Although there are changes which can be made to operation of the hydrosystem which will 

 vastly improve the odds for anadromous fish, flow alteration and improved fish passage facilities will not change the fact 

 diat die Cohimbia River system is so heavily developed with hydropower diat it is unlikely ever to be restored to any 

 semblance of its natural state. 



Perhaps more importandy, changes in hydrosystem operation wiD not stop degradation of river ecosystems on die federal 

 lands. It DOW appears that new legislation will be required which clearly recognizes diat federal lands managers have a 



