As it begins to amend its 2014 Columbia River
Basin Fish and Wildlife Program, the Northwest Power Act (Section 4h) requires
the Fish and Wildlife Committee of the Northwest Power and Conservation Council
to solicit recommendations from tribes, state and federal agencies, and the
That is the first step in a process that will
eventually incorporate a new Fish and Wildlife Program with a new draft
Northwest Power Plan by the third quarter of 2020. It is a step that brought in
48 recommendations from tribes and fish and wildlife agencies prior to adopting
the 2014 Plan.
According to Patty O’Toole of the Council’s
Fish and Wildlife staff, the initial step to solicit recommendations could
begin as soon as May.
She told the Committee at its meeting Tuesday,
March 13 in Portland, that a draft letter asking for recommendations could be
ready for review at the April meeting, with the intention of sending the letter
out in May, triggering at least a three month process that could take as long
as until September.
Others are allowed to submit recommendations
as well, such as federal and regional water management agencies, the region’s
electric power producers, Bonneville Power Administration customers and the
O’Toole said that once the recommendation
process is complete – that could be as late as September this year – and
comments on the recommendations have been received – perhaps November, she said
– then the Fish and Wildlife Committee and staff will initiate the next steps.
The Committee has one year from the completion of the recommendations and
comments to complete the entire amendment process, but the exact schedule won’t
be known until the recommendation step is complete, she said.
A sample schedule offered by O’Toole begins
with soliciting recommendations in May, then asking for comments on the
recommendation from September to November.
Under this sample schedule, a draft Program
prepared by the staff with input from all its federal, state and tribal partners
could be due in March 2019, amendments could be adopted by September 2019 and
the final findings would be by November 2019.
Preparing a draft Program for review and
consultation is not called for by the NW Power Act, O’Toole said, but it is a
practical step and is consistent with the federal Administrative Procedures
Act. The step, which will invite oral and written comments, as well as public
hearings in the four Northwest states, will take several months.
There were 10 public hearings in the last
amendment process, O’Toole said, and it sometimes can be controversial.
The draft Program review also includes
consultations with tribes, agencies and Bonneville customers. Although there is
no specified time to do this by statute, a reasonable time would be 60 days,
Much of the remaining process – developing and
adopting the final amendments and then producing the findings from the process
– has strict legal guidelines.
The Committee and staff must adopt findings
regarding its treatment of the recommendations and the comments received
earlier in the process. The Council must explain in writing as part of the Fish
and Wildlife Program any decisions it made regarding recommendations.
“This is important in case we get dragged into
court in the Ninth Circuit Court of Appeals,” O’Toole said.
Such an appeal was filed Jan. 14, 2016
regarding the 2014 Program by the Northwest Resource Information Center of
Eagle, Idaho. The appeal was eventually denied by the court July 19, 2017.
The Fish and Wildlife amendment process is not
officially over until the Council adopts the findings, O’Toole said. Once it
adopts the Program and Findings, those are published in the Federal Register,
triggering a 60-day period for potential judicial review with the Ninth
Fish and Wildlife staff is not hearing that
there are fundamental flaws in the current Fish and Wildlife Program or in its
scientific principles, O’Toole said. “It will be interesting to see what we get
in the door this time,” she said.
The 1980 Northwest Power Act directed the
creation of the Council, an interstate compact agency with two representatives
each appointed by the governors of Idaho, Montana, Oregon, and Washington.
The Act requires the Council to develop a
program to “protect, mitigate, and enhance fish and wildlife, including related
spawning grounds and habitat, on the Columbia River and its tributaries …
affected by the development, operation, and management of [hydroelectric
projects] while assuring the Pacific Northwest an adequate, efficient,
economical, and reliable power supply.”
The Act also says that the Council must update
or amend the fish and wildlife program every five years, using the advice of
federal, state and tribal fish and wildlife managers to take into account
advancements in science. The Council must seek widespread public involvement in
the formulation of regional power and fish and wildlife policies.
-- CBB, Jan. 19, 2018, “Council Mulling Issues
Likely To Arise During Coming Update Of Basin Fish And Wildlife Program” http://www.cbbulletin.com/440106.aspx
--CBB, July 21, 2017, “Appeals Court Rejects
Challenge To NW Power/Conservation Council’s Basin Fish/Wildlife Program,” http://www.cbbulletin.com/439307.aspx
--CBB, January 22, 2016, “Group Sues Council
In Ninth Circuit, Says 2014 Fish And Wildlife Program Fails To Protect Salmon,”
-- CBB, October 10, 2014, “NW
Power/Conservation Council Approves New Columbia River Basin Fish and Wildlife