views on the interpretation of “due consideration” dominated legal arguments,
and judicial feedback, during a June 7 federal appeals court hearing.
legal process in the U.S. Court of Appeals for the Ninth Circuit aims to judge
whether the Northwest Power and Conservation Council in its development of a
“Sixth Power Plan” followed the intent of Congress’ Northwest Power Act as
regards fish and wildlife.
Northwest Resource Information Center says the Council did not provide due
consideration. According to the center’s web page the NRIC is recognized by the
Internal Revenue Service as a nonprofit, tax-exempt, scientific, educational
organization under section 501(c)(3) of the Internal Revenue Code.
Council argues that power planning is meant to identify what new power
resources and conservation measures might be needed to assure a reliable power
supply in the Columbia River basin, not rethink the program it creates first to
protect, mitigate and enhance fish and wildlife populations affected by
operation of the region’s hydropower system.
NRIC says that the Power Act process requires consideration of energy and fish
and wildlife remedies in both planning processes. The Council power plans
advise the Bonneville Power Administration, which markets power generated in
the Federal Columbia River Power System and funds actions to mitigate for
impacts to fish and wildlife caused by the region’s hydro system.
Council, which was created at the direction of Congress’ 1980 Power Act, is
required to update the Power Plan every five years.
Act also recognized that development of the region’s hydropower dams had
detrimental effects on migratory fish and wildlife and required the Council to
develop a program aimed at mitigating those effects. The fish and wildlife
program, which is also updated about every five years, is used guide mitigation
activities funded by Bonneville and to advise the development of updated power
Council is comprised of appointees of the governors of Idaho, Montana, Oregon
NPCC and staff began updating the power plan in 2007.
need to implement the latest fish and wildlife program is taken into account in
assessing resource and conservation needs and costs for the plan.
consideration does not mean to revisit” the fish and wildlife strategy in the
power plan process, John Shurts, senior counsel for the NPCC, told the
three-judge appellate panel. “The power plan is not about salmon policy.”
has happened already in decisions elsewhere,” Shurts said. The fish and
wildlife program is amended regularly based on recommendations from fish and
primary goal of the power planning is to create a strategy that “allows you to
deliver those flow measures” and other fish mitigation outlined in the program,
attorney Steve Mashuda, representing the NRIC, called unreasonable the NPCC
interpretation of due consideration, a term used by Congress in Northwest Power
Act provisions describing both the power plan and the fish and wildlife
program. The Act spelled out the need to assure flows of adequate quality and
quantity in the Columbia-Snake system, as well as habitat, for the welfare of
salmon and other species.
intended for the Council “to come back and look at some of those factors again”
at the end of the power planning process, to see how resource plan affects the
ability to implement fish measures.
we doing enough for salmon? Are we meeting the Act’s goal?” are questions the
Council should be asking in the power planning process, Mashuda said.
NRIC in September filed a brief with the Ninth Circuit asking for a reversal of
the NPPC’s Sixth Power Plan. It was filed in support of a 2010 petition to the
Ninth Circuit that says the Council should have provided independent “due
consideration,” as required by 1980’s Northwest Power Act, to the protection,
mitigation, and enhancement of anadromous (salmon and steelhead, primarily)
fish in the Sixth Power Plan. Under the Power Act Congress gave the federal
appellate court jurisdiction over legal challenges to NPCC actions.
its September brief the “NRIC asks this Court to require the Council to
reintegrate its fish and power responsibilities by providing due consideration
to the needs of anadromous fish, to fully analyze the costs and benefits of its
resources decisions, and to ensure that it provides accurate information about
the impacts of fish protection on an economical and reliable power supply.” the
NRIC brief concludes. It asks that the court order a “tailored remand” for a
reworking of the Council’s 2009 power plan.
in the legal proceeding include the BPA, the Public Power Council and Northwest
RiverPartners. The latter two groups represent power customers that pay
Bonneville’s bills, including fish and wildlife costs.
arguments on the issue have now been completed. A decision from the appellate
panel is a likely next step in the legal process.