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Ninth Circuit Hears Arguments On Whether NPCC Power Plan Gave ‘Due Consideration’ To Fish/Wildlife
Posted on Friday, June 21, 2013 (PST)

Differing views on the interpretation of “due consideration” dominated legal arguments, and judicial feedback, during a June 7 federal appeals court hearing.

The 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.

The 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.

The 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.

The 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.

The Council, which was created at the direction of Congress’ 1980 Power Act, is required to update the Power Plan every five years.

The 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 plans.

The Council is comprised of appointees of the governors of Idaho, Montana, Oregon and Washington.

The NPCC and staff began updating the power plan in 2007.

The need to implement the latest fish and wildlife program is taken into account in assessing resource and conservation needs and costs for the plan.

“Due 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.”

“That has happened already in decisions elsewhere,” Shurts said. The fish and wildlife program is amended regularly based on recommendations from fish and wildlife managers

A 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, he said.

Earthjustice 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.

Congress 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.

“Are 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.

The 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.

In 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.

Intervenors 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.

Legal arguments on the issue have now been completed. A decision from the appellate panel is a likely next step in the legal process.

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