133 



allocated share as being payments for other project costs for which BPA Is 

 responsible under existing law." X^L; i££ also Stephen Brown, Note, Breathing 

 Life Back Into a Drowned Resource: Mitlna tlno Wildlife Losses In the Columhia 

 P^sln Under the Northwest Power Art 18 Envt'l L. Rev. 571. 594 (1988). 



Consequently, the Administrator may choose to finance a measure that addresses 

 the Impacts from many Federal dams, and assign that system-wide measure to be 

 financed through a slggle hydroelectric project, so long as that assignment 

 has a rational basis. ^' The Administrator may also locate that system-wide 

 measure at one project, yet under section 4(h)(10)(C) authority assign the 

 measure to another project. BPA may then subtract from Its Treasury payment 

 any amounts exceeding the power purpose share of the project to which the 

 measure Is assigned. 



As discussed above, allocation of project costs to particular projects and the 

 purposes of those projects requires many technical determinations. As a legal 

 matter, however. It Is the clear object of Northwest Power Act sections 

 4(h)(8)(B). (8)(D), (10)(A), and (10)(C) to ensure that power customers 

 effectively bear only an appropriate share of fish and wildlife expenditures. 

 This can be accomplished by treating BPA's expenditures In excess of power's 

 allocated share as payments "required by or pursuant to law to be charged and 

 returned to the general fund of the Treasury for the repayment of the Federal 

 investment In the Federal Columbia River Power System from electric power 

 marketed by the Administrator." 16 U.S.C. § 8381(b)(10); i££ also H.R. Rep. 

 No. 976. 96th Cong.. 2d Sess., pt. 2. at 45 (1980). 



IV. Section 4(h) (10)(C) Is Applicable to Past. Present, and Future 



Expenditures BPA Makes to Mltloate for Nonpower Purposes of the Federal 

 Hvdroelectric Projects In the Columb ia Basin . 



Section 4(h)(10)(C) applies to both site-specific measures located at 

 particular hydroelectric projects, and to system-wide or nonslte-speclfic 

 projects that mitigate for overall Federal Columbia River Power System 

 impacts. The assignment directive exists regardless of whether the 

 expenditure has been made In the past or will be made In the present or • 

 future. However, this directive does not apply to foregone revenues. 



A. Section 4( h)<10)(C) Allocation Provision Applies to Replacement Power 

 Costs . 



Replacement power costs are considered fish mitigation costs according to two 

 provisions of the Northwest Power Act. Section 8(a) of the Act, which amends 

 section 11(b)(6) of the Transmission System Act. gives BPA the authority to 

 purchase power "on a short-term basis to meet the Administrator's [section 

 4(h) fish and wildlife] obligations." 16 U.S.C § 8381(b)(6)(1v) . Similarly, 

 section 8(b) of the Act, which amends section ll(b)(12) of the Transmission 

 System Act, allows BPA to make payments "as shall be required to carry out the 

 purposes and provisions of the [Act]." hL § 8381(b)(12^. The Interior 

 Committee Report on section 8(b) explains BPA can 



use the BPA Fund to make short-term power purchases to enable 

 BPA to meet Its obligation under the fish and wildlife 



provisions of this bill (e.g., to buy power to replace power 



generating capability that may be lost through a spill for fish 

 passage purposes at a Federal dam). This Is designed to reduce 



conflicts between fisheries agencies and BPA customers by 

 ensuring BPA can meet Its obligation to each. 



^' The Administrator may assign the measure to a hydroelectric project where 

 the power purpose allocation Is 100 percent of the project costs, such as the 

 Bonneville Dam second powerhouse. Or. the Administrator could assign the 

 measure to a project with a power purpose allocation of 50 percent, such 

 Bonneville Dam's first powerhouse. Because the project purpose allocations 

 for each dam are set by statute or by established pre-Act methods, the 

 Administrator has no discretion to change them. 



