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Briefing Begins on Court Challenge to Council's Sixth Power Plan by Staff Columbia Basin Bulletin, October 26, 2012

Petition's Focus Fish Mitigation

A petition now being debated in the U.S. Court of Appeals for the Ninth Circuit asks the court to "reverse" the Northwest Power and Conservation Council's Sixth Power Plan and "issue a tailored remand of the Power Plan to the Council to bring the Plan into compliance with the requirements of the Power Act."

The petitioner is the non-profit Northwest Resource Information Center.

The NPCC and staff began updating the power plan in 2007 and approved the latest version in February 2009. The Northwest Power Act of 1980 charges the Council with creating a power plan for the region that would ensure an adequate, efficient, economical, and reliable power supply for the Pacific Northwest.

The Council, comprised of appointees of the governors of Idaho, Montana, Oregon and Washington, offers its power, and fish and wildlife, recommendations to the Bonneville Power Administration. The federal power marketing agency is advised in the power act to heed those recommendations.

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 updated about every five years, is used to advise the development of updated power plans.

A brief filed Sept. 21 says the Council in the power plan failed both to prescribe adequate fish and wildlife mitigation in its sixth version of the power plan and define "a methodology for evaluating the environmental costs and benefits" of resources or measures it says are needed to provide a reliable power supply for the region.

"Instead, the Council outlined a post-hoc and flawed methodology in an Appendix during finalization of the Plan," the brief says. "That methodology, however, fails to account for the costs of utilizing power resources that fail to protect anadromous fish and fails to account for the benefits of measures that meet the Act's fish restoration goal, in violation of the Power Act."

The NRIC brief says the Council did not provide independent "due consideration," as required by the Act, to the protection, mitigation, and enhancement of anadromous (salmon and steelhead, primarily) fish in the Sixth Power Plan.

"Instead, the Council merely incorporated its (inadequate) 2009 Program as required by a different provision of the Act," the Sept. 21 brief says. "The Act requires the Council to separately assess whether additional fish measures and/or changes to the power system are required to ensure that the power plan will achieve both the fish protection and power supply.

"Just as the Act requires the fish and wildlife program to inform the power plan, it requires the power plan's strategy for implementing conservation measures and developing energy resources to complement and further efforts to protect, mitigate, and enhance anadromous fish," the NRIC brief says. "The Council's duty to give due consideration to anadromous fish requires the Council to consider, based on what it has learned while developing the Plan, whether and how the power system could accommodate additional fish measures."

The petitioner, the NRIC, also says the power plan uses "a methodology that overstated the costs of fish protection measures based on irrelevant calculations of forgone hydropower generation. The Council arbitrarily included that methodology in the Sixth Plan despite its earlier recognition that calculations of 'forgone' power were irrelevant and confusing, without explaining why it abandoned more valid methods to calculate that figure even if it were relevant, and without considering the chilling effect that inaccurate and inflated cost estimates would have on measures necessary to achieve to the fish protection goal of the Act."

Foregone revenues are estimations made by BPA regarding revenue generating opportunities that are lost because of dam operations intended to improve fish survival, such as spilling water at dams to provide passage. Spilling channels water away from hydro generators that produce saleable power.

The petition was filed July 6, 2010, not long after the Sixth Power Plan was made final. Within the next two months motions to intervene on behalf of the Council were filed by BPA, the Public Power Council and Northwest RiverPartners, and granted by the court. BPA markets power generated in the Federal Columbia River Power System and, as mitigation for hydro impacts, funds fish and wildlife projects through the NPCC's fish and wildlife program. Fish costs drive up BPA's wholesale power rates. The PPC and RiverPartners represent utilities that are BPA customers and power users.

The court's mediation process was explored, but parties failed reach an agreement. The Ninth Circuit on July 31 announced the briefing schedule for the litigation with NRIC ordered to file an opening brief by Sept. 21.

The "respondent," the NPCC, is scheduled deliver an answer to the Sept. 21 filing by Nov. 21. The respondents-intervenors -RiverPartners, BPA and the PPC - have a Dec. 21 deadline to file briefs regarding the petition. The NRIC may file a reply brief, which is due on or before Jan. 28.

"This case is not selected for inclusion in the mediation program," the Ninth Circuit scheduling order said. "Counsel are requested to contact the mediator should circumstances develop that might warrant further settlement discussions."

The Power Act, which called for the creation of the Council, says that the panel must periodically update its Northwest Electric Power and Conservation Plan. Such plans are to include an energy conservation program, a recommendation for research and development, a methodology for determining quantifiable environmental cost and benefits, a 20-year power demand forecast, a forecast of power resources that BPA will need to meet its obligation to power customers, and an analysis of reserve and reserve reliability requirements.

NRIC was incorporated in 1976 by Idaho-based Ed Chaney, who serves as director. The NRIC's web page says its goal is to "promote the ethic that environmental quality and long-term economic productivity are synonymous." That effort is directed Snake River basin issues, Chaney says.

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.