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Latest Salvos Filed in Suit Over Salmon Recovery Effort Bill Rudolph NW Fishletter, February 12, 2013

The Idaho-based Northwest Resource Information Center filed its latest brief in the 9th U.S. Circuit Court of Appeals on Jan. 28 in its challenge to the way the Northwest Power and Conservation Council has conducted salmon recovery efforts over the past 30 years.

The NRIC wants the court to direct the council to consider specific goals to achieve adequate fish protection, especially for Snake River salmon and steelhead stocks.

The newest filing jousts with intervenor briefs from the Public Power Council, Northwest RiverPartners and BPA filed in late December that support the NPPC's position staked out in its own filing last November.

Council attorneys argued the petitioner's claim directly contradicted parts of the NW Power Act, which call for the Council to amend the fish and wildlife program before the regional power plan is developed. The act also calls on the council to build the fish and wildlife program "in a highly structured, separate proceeding that gives significant deference to the state and federal fish and wildlife agencies and the region's Indian tribes."

Pushing back, the NRIC brief said, "The Council and Intervenors seek to draw bright lines between fish protection and power planning and to disconnect the process provided in the Act from its intended results. But their attempts to excuse the Council's failure to consider and accurately weigh anadromous fish protection in the Sixth Plan contradict the plain language and structure of the Power Act."

The NRIC brief said the arguments from defendant-intervenors run counter to the "plain language" of the Northwest Power Act. "[T]he Council's duty to assure a reliable power supply that protects, mitigates, and enhances anadromous fish requires the Council to meaningfully consider both of these goals in the power planning process."

But just what the Power Act said is a huge bone of contention. The Council's November filing said the NRIC argument was "really about what the NRIC believes should be appropriate flow and passage measures in the fish and wildlife program."

The Council brief said the NRIC may differ in its opinion whether current flow and passage measures for fish were sufficient, but those concerns should have been raised during the amendment process to the Council's F&W program that was completed in 2009. The NRIC had a chance to challenge those elements within 60 days of the F&W program's adoption, but did not.

The NRIC's latest brief keeps up the push for more flows. "There is no dispute that the existing system continues to harm anadromous fish," it said. "Indeed, the Council has recognized that reductions in reliance on hydropower reduce the 'potential conflict with its use for flows and spills needed for fish passage.'

"Thus, deciding to rely on hydropower going forward--and deciding not to acquire replacement resources--has environmental costs and benefits associated with it. These environmental costs are relevant when the Council makes a decision about the resource portfolio in the power plan. If it had quantified these costs and benefits according to a balanced methodology, the Council would be able to decide, for example, whether it should carry forward X megawatts of hydroelectric power versus requiring new resources that would either alleviate the need for that power and thus alleviate some of the environmental and net social costs associated with continued reliance on hydropower.

"These are not only appropriate analyses to perform in the power planning context, they are necessary to achieve the Act's fish protection and power reliability goals," the NRIC brief concluded.

Northwest RiverPartners also commented in a Dec. 21 filing. "At bottom," said the group's brief, "NRIC's arguments simply represent a disagreement with Congress's policy choices. NRIC views hydropower as a bad thing and believes that the Council should be taking every step to make 'acquisitions that reduce reliance on hydropower.' Congress disagreed. It believed that the [Federal Columbia River Power System] is a 'unique opportunity' to ensure reliable and renewable power for the Northwest, and that the river conditions necessary to protect, mitigate, and enhance salmon and steelhead are 'substantially obtainable from the management and operation of the FCRPS.' Although NRIC may not agree with these congressional choices, NRIC cannot turn the Power Plan into a referendum on the existence of the hydropower system."

RiverPartners also argued that the Power Act's express goal to "protect, mitigate and enhance" fish and wildlife resources occurred within the context of the existing FCRPS.

"As the Power Act explains, the environmental conditions necessary to support Columbia River salmon and steelhead are 'substantially obtainable from the management and operation of the Federal Columbia River Power System'--not through the elimination of that system or any part there-of."

The RiverPartners brief said, "Congress did not impose an additional obligation on the Council to revisit or second-guess its previously adopted Fish and Wildlife Program. Instead, Congress intended that fish mitigation measures would be developed in the Fish and Wildlife Program in cooperation with the regional fish managers who possess the unique expertise to determine what flows, dam modifications, or other fish passage measures are in the best interests of the imperiled salmon.

RiverPartners also argued that not only does NRIC's "due consideration" argument find no support in the text of the Power Act, its interpretation directly conflicts with other provisions of the Power Act. Specifically, NRIC's position would effectively allow "collateral attacks on the Fish and Wildlife Program, years after its promulgation, effectively obliterating the applicable statute of limitations and the statute's express prohibition on collateral attacks to the Program."

BPA's brief, filed Dec. 21, said NRIC's interpretation of the "due consideration" for fish and wildlife has no support in the language of the Power Act, and "is directly contrary to the entire statutory scheme."

Bonneville also said that "NRIC's efforts to overturn the Council's longstanding interpretation of its power planning duties would disenfranchise states and tribal fisheries managers by allowing the Council to unilaterally amend the program during the power planning process and result in the Program never really being an independent final action."