132 



III. Section 4(h)(10)(C) Provides the Mechanism for BPA to Recover 



Expenditures For Fish and Wildlife Mitigation Made on Behalf of the 

 Non-Power Purposes of the Federal Hydroelectric Projects In t he Columbia 

 Basin . 



Hhen the Administrator exercises his authority to expend funds for a measure 

 to mitigate fish or wildlife under the Northwest Power Act^ , section 

 4(h)(10)(C) of the Act directs BPA to assign those costs among the Federal 

 hydroelectric projects. 



The section states: 



The amounts expended by the Administrator for each activity 

 pursuant to this subsection shall be allocated as appropriate 

 bv the Administrator . In consultation with the Corp? of 

 Engineers and the Hater and Power Resources Service, among the 

 various hydroelectric prolects of the Federal Columbia River 

 power System. Amounts so allocated shall be allocated to the 

 various project purposes In accordance with existing accounting 

 procedures of the Feder al Columbia River Po wer System. 



16 U.S.C. § 839b(h)(10>(C) (emphasis added). This section grants BPA 

 discretion to decide which hydroelectric projects should be assigned the costs 

 of fish and wildlife measures. Central Lincoln Peoples' Util. Dist. v. 

 Johnson . 735 F.2d 1101. 1124 (9th Cir. 1984). BPA must consult with the Corps 

 and Reclamation, but the Administrator makes the final decision. 16 U.S.C. 

 § 839b(h)(10)(C). 



Hith regard to the allocation of fish and wildlife expenditures to the various 

 project purposes, the Interior Committee Report states: 



The allocation of particular costs to Individual projects and 

 among different project purposes, as Is required by existing 

 law, Is preserved In this subparagraph to avoid establishing 

 any precedent of a different allocation result. Thus, power. 

 Irrigation, navigation, recreation and other project purposes 

 will continue to bear only their established shares of the 

 total costs attributable to the protection and mitigation 

 measures . All expenditures by BPA are to be made on a 

 reimbursable basis vis-a-vis other project purposes, although 

 BPA win have the flexibility to treat expenditures In excess 

 of Its allocated share as being payments for other project 

 costs for which BPA Is responsible under existing law . 



H.R. Rep. No. 976, 96th Cong.. 2d Sess.. pt. 2 at 45 (1980) (emphasis added). 



This Is consistent with the Ad Hoc Pacific Northwest Power-Fisheries Committee 

 report. The Ad Hoc group, working with Representative Lujan. drafted section 

 4 of the Act. 126 Cong. Rec. 9845-46 (Sept. 29. 1980) (Ad Hoc group's 

 proposals adopted as amendments "with only a few modifications"); S££ aisfl 

 H.R. Rep. No. 976. 96th Cong.. 2d Sess.. pt. 2 at 43 (1980). The Ad Hoc group 

 stated that section 4(h)(10)(C) would provide BPA "the flexibility to treat 

 expenditures In excess of its allocated share as being payments for other 

 project costs for which BPA Is responsible." Report of Ad Hoc Pacific 

 Northwest Power-Fisheries Conmlttee 7 (Aug. 11. 1980). The Commerce Committee 

 Report adopted the Ad Hoc Committee language verbatim. Sag H.R. Rep. No. 976, 

 96th Cong, 2d Sess., pt. 2 at 45 (1980). Congress and fish and power 

 Interests agreed BPA had the authority to "treat expenditures In excess of Its 



i^ BPA's actions should be taken under section 4(h)(10)(A) of the Northwest 

 Power Act to assure Its ability to offset Treasury payments. If BPA were to 

 act under the authority of another statute, section 4(h)(10)(C) might not 

 apply. In the case of additional spill and flow augmentation for fish, 

 however. BPA Is using Its section 4(h)(10)(A) authority to protect and 

 mitigate listed and non-listed species. 



