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Historic Agreement on LSRD Offers Hope and Fear by Steve Ernst and K.C. Mehaffey Clearing Up, December 15, 2023

This isn't about fear of the data, or finding out that it's possible. It's fear of giving in
to parties who have called for the breaching of the lower Snake River dams.
-- bluefish paraphrasing the concluding sentence of this article.

The first step to ending a three-decade fight over Columbia River System Operations was taken Dec. 14, when parties in the litigation filed an agreement in U.S. District Court for the District of Oregon that was more than two years in the making.

It's an agreement proponents are calling "a turning point," "historic," and a "salmon recovery blueprint," while one public-power official referred to it as "a blueprint for how to devalue, deplete and ultimately demolish our region's clean, renewable federal hydropower projects."

Earthjustice, a nonprofit environmental law firm, filed its first legal action to protect Snake River salmon in 1992, after the National Marine Fisheries Service issued its first biological opinion on critical salmon habitat concluding that federal dams would not jeopardize endangered or threatened salmon.

Some 31 years later -- which included six rulings that CRSO BiOps illegally threaten salmon -- attorneys for conservation and fishing groups, federal agencies, two states and four Native American tribes filed legal documents asking the court to approve their agreement and pause the case for up to 10 years.

"This creates a path that could ultimately lead to ending it, but we're not there yet," Amanda Goodin, Earthjustice's supervising senior attorney, told Clearing Up. She said the filings set up key steps that must be taken before the case can be considered closed. "We could get there, but we're not there today," she said.

Goodin said plaintiffs in the agreement anticipate that -- if the federal defendants live up to their commitments -- the four lower Snake River dams would be ready to be removed by about 2030. "That means we would like to see legislation from Congress within the next three to five years," she said.

Before then, several studies will occur to see what it will take to replace the many services the dams provide -- including hydroelectric power, irrigation, transportation and recreation services.

It's a timeline she said is necessary for fish survival, but also doable.

Plaintiffs can pull out of the agreement at any time after going through a mediation process, and the first five-year stay can be renewed for another five years if things are still on track, she noted.

Goodin also said the agreement is very clear that the Bonneville Power Administration is expected to spend an additional $300 million over the next 10 years, over and above commitments that have already been made, to fund some of the salmon recovery efforts. It also commits other agencies to seek out funds for another $200 million over the decade for fish recovery projects. "I don't see any path for BPA to be on the hook for any of that [additional] money," she said.

A memorandum of understanding was one of four documents filed with the court. It wasn't included with the U.S. government commitments document leaked to Clearing Up on Nov. 27 (Clearing Up No. 2135).

Bonneville did not release a statement on the settlement and declined to comment for this story. But the MOU says no provision in the document should be interpreted as a contravention of the Northwest Power Act.

A release from the White House Council on Environmental Quality said, "BPA estimates the agreement will have an annual average rate impact of 0.7 percent."

Altogether, the Biden administration says an additional $1 billion will be spent on both the energy and fish provisions of the agreement with the "Six Sovereigns" -- the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Nez Perce Tribe, and the states of Oregon and Washington.

According to the MOU, federal funds will be used to provide technical assistance and support the new Pacific Northwest Tribal Energy Program that will develop between 1 GW to 3 GW of clean energy resources planned as replacement power for the lower Snake River dams, if Congress authorizes the breach of those dams.

The U.S. government is "committed to supporting Columbia Basin Tribes in regional energy planning and energy project review processes in the Pacific Northwest," according to the documents.

By Feb. 1, the U.S. Department of Energy, Department of Agriculture, and Department of the Interior will identify additional federal resources that could support the tribes' energy development.

In coordination with the Six Sovereigns, the U.S. government and DOE will develop a means of accounting for the region's development of resources available to serve as replacement energy services for the lower Snake River dams, "based on the particular services needed in the event Congress authorizes dam breach," the MOU says.

This accounting mechanism will be developed no later than Feb. 1, 2024, and "will track and count all regional resources that can contribute to replacement of the dams' energy services developed or under development." The accounting approach would provide regular updates on the region's development of clean energy resources, including the type of resources needed to replace the specific energy services of the lower Snake River dams, as compared to the portfolios identified in the energy analysis.

The settlement also calls for a new Regional Energy Needs Planning Process that "will identify the best ways to meet the region's resource adequacy needs and decarbonization goals, and support meeting Washington and Oregon's power sector statutory requirements" as well as state and tribal energy strategies, "while also accounting for any long-term actions necessary to ensure abundant and healthy salmon populations throughout the Basin, including breach of the Lower Snake River dams."

DOE will fund the Pacific Northwest National Laboratory and potentially other DOE Labs to complete the Regional Energy Needs Planning Process, according to the document.

The agreement also includes creation of the Mid-Columbia Restoration Plan, which calls for the Six Sovereigns and the U.S. government to work together (with other sovereigns as appropriate) to develop recommended actions to rebuild mid-Columbia salmon and steelhead stocks as described in a 2022 NOAA Fisheries report (Clearing Up No. 2076).

NOAA Fisheries will coordinate with the appropriate federal agencies/departments and the relevant regional sovereigns (including the Six Sovereigns) to develop the plan by June 30, 2024. The plan will include a 10-year suite of mid-Columbia actions in Oregon and Washington to be implemented starting in fiscal year 2026.

The federal government says it understands "that these actions will likely require at least doubling current levels of mitigation and restoration funding. To support this agreed upon suite of actions, the [U.S. government] will identify available funding across agencies and departments."

It also says it will "include a thorough assessment of all available mechanisms without additional rate impacts, through a whole of government approach, including direct congressional requests; increased requests in future Presidential budgets; and other avenues as they may present themselves."

NOAA Fisheries and the U.S. Fish and Wildlife Service will work with the Six Sovereigns and all other relevant regional sovereigns, and seek collaboration with the Northwest Power and Conservation Council, to consider management reforms to Columbia Basin fish and wildlife mitigation programs, according to the MOU.

The conversation will identify options for increased tribal and state co-management within the scope of existing legal authorities and coordination with federal fisheries services, as well as any impediments and opportunities to maximize the beneficial impacts of available fish and wildlife funding. The conversation will be initiated no later than January 2024, and recommendations will be developed no later than September 2024, the MOU states.

The document also calls for refining the Regional Forum processes (such as the Technical Management Team Regional Implementation Oversight Group) by Sept. 30, 2024, to ensure the implementation of the agreed-to operations and any adaptive management adjustments.

Other documents filed on Dec. 14 include the Columbia Basin Restoration Initiative, which outlines the solution as proposed by the Six Sovereigns; a joint motion to stay litigation through 2028; and the mediated U.S. government commitments, a draft of which was leaked in late November.

Just before documents were filed, the White House held a press conference announcing the agreement and issued a press release outlining the federal commitments.

Leaders from the four tribes involved in the agreement spoke of how their 1855 treaties with the federal government contained promises to continued access to salmon.

Jonathan Smith, tribal council chair for the Warm Springs tribe, noted that his tribe ceded 10 million acres of land to the federal government but reserved the right to fish in all usual and accustomed fishing areas throughout the Columbia Basin.

"We are salmon people. But for too many generations our salmon, steelhead and other native fish have limped along at depressed levels. There have not been enough fish to feed our people and conduct ceremonies," he said. Smith commended the agreement for its commitments to rebuild salmon stocks to healthy levels and to advance the goal of socially just energy development.

But Shannon Wheeler, chair of the Nez Perce Tribal Executive Committee, said that the agreement also includes a risk for the tribes. "I think we as tribes are rolling the dice here," he said, noting plans to replace all of the services the dams provide -- not just hydroelectric power generated -- need to advance before congressional leaders will consider approving dam breaching.

Earthjustice attorney Goodin added, "I think there's a need to restore the lower Snake River in order to restore tribal treaty rights. We're 150 years-plus overdue in honoring those obligations."

Soon after the filing, public-power advocates issued news releases opposing it.

The Public Power Council said that as a result of its advocacy, the final agreement includes cost limitations for BPA that partly contain its fish and wildlife spending obligations and would result in a cost increase of about 3 percent. But the potential exposure for BPA for dam replacement services remains in the final agreement. "BPA's own analysis puts these costs at $415 [million] to $860 million annually. This is equivalent to a 21% to 43% rate increase," the news release states.

"BPA leadership is trying to tell the region that rate increase exposure is not that bad, which is a dubious conclusion," Scott Simms, PPC's CEO and executive director, said in a news release.

Northwest RiverPartners agreed. "The lack of transparency and fairness shows in what can only be described as a serious threat to our region's economy and clean energy future," RiverPartners' Interim Executive Director Heather Stebbings said in a release.

Kurt Miller, executive director of the Northwest Public Power Association, told Clearing Up that -- after being excluded from the process -- he found it frustrating to hear Washington Gov. Jay Inslee contend that those who oppose the deal are afraid of what replacement studies may find.

"We're not afraid of looking at the data and determining what's possible," he said, adding, "This isn't about fear of the data, or finding out that it's possible. It's fear of a really poorly written agreement that gives a lot of influence to some parties who have called for -- in many cases -- the breaching of the lower Snake River dams, and in some cases, all of the dams."