125 



and the Bureau of Reclftwition. Thus, to the extent the NPPC 

 progran includes flow measures, these aeBSures would be 

 inplenented by the operating agencies, not BPA. We do not 

 believe BPA is interpreting the Northwest. Power Act's oosts 

 allocation authority to include control by BPA over dan 

 operations, including operations taken for fish aitigation, and 

 we would resist any such interpretation. Rather, we understand 

 BPA to argue that it uses its funds, not its a\3thority,* to 

 inplement fflov seasures when it incurs power purchase costs ^ a 

 result of those flow measures. BPA relies on a particular 

 •action of the Northwest Power Act, 16 D.S.C. f 83Sb(h) (10) f A), 

 which directs BPA to use its funds aa well as its authorities to 

 "protect, mitigate and enhance fish and wildlife" as support for 

 its position. 



Second, BPA general counsel staff have stated to us that purchase 

 power costs incurred, for reasons other than flows isplexented 

 pursuant to section 4(h) of the Northwest Power Act would, under 

 current law, be allocable only by the federal hydropower 

 operating agencies (the Corps of Engineers and Bureau of 

 Reclaaation). Sisilarly, we perceive no intent by BPA to seek to 

 expand applftfation of its authority beyond the confines of 

 section 4(h}(10}(C) of the Northwest Power Act, i.e., the 

 authority to allocate only those co^ts incurred when perforaing 

 fish and wildlife aitigation efforts consistent »ith the NPPC 

 progra».* 



Third, given that BPA's authorities extend only to costs it 

 inciu-s under section 4(h) of the Northwest Power Act, the 

 statutes and regulations that govern allocation of other power 

 costs (soae of which were cited in Chaiman Miller's letter) will 

 continue to govern other allocations aade by the operating 

 agencies. The operating agencies and BPA have a long history of 

 coordinating the allocation of costs under these authorities. 

 This relationship will allow the Corps, EPA and Rscliiaatian to 

 consult and coordinate allocations where the issue of whether a 

 power purchase cost is properly deemed a fish aitigation aeasure 

 is a close one. 



Finally, Chairman Miller has correctly pointed out that federal 

 power sarketing agencies have allocated power purchase costs only 

 when expressly authorized by Congress. The recently enacted 

 Grand Canyon Protection Act, for exaople. unequivocally saJtes the 

 costs of certain purchase power costs non-reiabursable . S£B 

 Reclaaation Projects Authorization and Adjustaent Act of 1992, 

 Pub. L. No. 102-575, Title XVIII, 10« Stat. 4600, 4672. The 



* BPA does use its authority under 16 V.S.C. 

 S 838i(b)(6) (iv) to incur power purchase costs. Also, with 

 regard to operations for hydropower production, including 

 aeasures taken for spLll, the operating agencies coordinate 

 closely with BPA on decisions to release water for power 

 production. 



Recently, soae actions by the hydropower agencies to 

 assist fish aigration were taken pursuant to the Endangered 

 Species Act. Our understanding ia that, since the listing of 

 Snake River salnon under the ESA, BPA has deoied the actions it 

 takes and costs it incurs to coaply with the ESA are per se 

 consistent with the NPPC progran, thus allowing the costs of 

 these aeasures to be allocated pursuant to section 4(h) (10) (C). 

 under this interpretation, BPA would have very broad authority to 

 use its funds and authorities to iapleiaent any fish protection 

 aeasures aandated under the SSA as well as those authorised under 

 the Northwest Power Act. 



