131 



The Administrator shall use the Bonneville Power Administration 

 fM? Iri InH ^r^'H^^'l^^ '' available to the Administrator under 

 this Act and other laws administered by the Administrator to 



^if^V: K^lr*!' ^?'^ ^"''^"" ^^^^ »"'l wildlife to the extent 

 affected by the development and operation of any hydroelectric 

 project of the Columb a River and Its tributaries In a manner 

 consistent ** fg/^he Plan If m existence, the program adopted 

 by the Council ii/ under this subsection, and the purposes of 

 this chapter Expenditures of the Administrator pursuant to 

 this paragraph shall be in addition to. not In lieu of other 

 expenditures authorized or required from other entitles under 

 other agreements or provisions of law. 



16 U.S.C. § 839b(h)(10)(A). This Is the funding authority BPA uses when it 

 purchases replacement power needed as a result of providing additional spill 

 or flows for fish. S££ also 16 U.S.C. § 8381(b)(6)(1v). As Indicated 1n the 

 "Introduction" to this Opinion, those costs have Increased precipitously this 

 fiscal year. 



Hhlle this provision grants the Administrator broad authority In how BPA 

 protects, mitigates, and enhances fish and wildlife, It and accompanying 

 provisions of the Northwest Power Act set limits on that authority as well. 

 One Important limitation Is that "[cjonsumers of electric power shall bear the 

 cost of measures designed to deal with adverse Impacts caused by the 

 development and operation of electric power facilities and programs on 1 v . " 

 16 U.S.C. § 839(b)(h)(8)(B) (emphasis added). Thus, while BPA may Initially 

 finance measures that mitigate simultaneously for both power and non-power 

 impacts, ratepayers should not bear the full cost of such measures. 



In addition, the Administrator may not use the BPA fund In lieu of "other 

 expenditures authorized or required from other entitles under other . . . 

 provisions of law." 16 U.S.C. § 839(b)(h)(10)(A). Thus, where BPA. the 

 Corps, and Reclamation are spilling or otherwise releasing water to mitigate 

 for the impact of the dams' reservoirs, and those reservoirs serve all project 

 purposes, then the allocations done pursuant to statute serve as "other 

 provisions of law" that require other purposes to share such mitigation 

 costs. The ratepayers are not authorized to bear such costs alone. 



Finally, BPA has a duty to provide the Pacific Northwest with "an adequate, 

 efficient, economical and reliable power supply." 16 U.S.C. § 839(2). and to 

 do so while keeping rates to consumers as low as possible "consistent with 

 sound business principles." liL § 838g(l). Allowing BPA to absorb the full 

 cost of fish mitigation measures that benefit all project purposes Increases 

 the risk of rate Increases and missed or delayed annual Treasury payments, 

 thus threatening BPA's ability to fulfill these statutory mandates. 



^' The Council Includes two representatives from Washington. Oregon, Idaho, 

 and Montana. 16 U.S.C. § 839b(a)(2), (a)(2)(B). The Council develops the 

 Fish and Wildlife Program with advice from the Region's tribes, fish and 

 wildlife management agencies, utilities, and the public. LL. § 839b(a)(l). 

 (g)(3). The Council must develop the Program mindful of the fact that 

 "[mjonetary costs and electric power losses resulting from Implementation of 

 the program shall be allocated by the Administrator consistent with individual 

 project Impacts and system-wide objectives of this subsection." JjL 

 § 839b(h)(8)(D). BPA uses the Program as a guide In fulfilling Its statutory 

 duty to protect, mitigate and enhance fish and wildlife affected by the 

 development and operation of federal hydroelectric projects In the Columbia 

 River Basin. For Instance, the Program calls for additional spill and flow 

 augmentation to protect listed and nonllsted species. While BPA does not have 

 to Implement the specific measures found In the Program. BPA must act 

 consistently with the Program. M,. § 839b(h)(10)(A) . In addition, the Corps. 

 Reclamation and BPA must exercise their responsibilities with respect to 

 operating federal hydroelectric projects on the Columbia River system by 

 "taking Into account at each relevant stage of the decisionmaking processes to 

 the fullest extent practicable, the program adopted by the Council. . . ." 

 LL § 839b(h)(ll)(A)(11). 



