II. Legal and social context of the program

This program cannot address all fish and wildlife problems in the Columbia River Basin. Successful protection, mitigation and recovery efforts require the collaborative efforts of many entities and programs on a coordinated strategy for habitat protection and improvement, hydrosystem operations, hatchery production, harvest management, and other actions, some funded under the program and some not. The Council recognizes that a range of legal and social factors influence how the natural resources of the Columbia River Basin are managed, and how the Council shapes the program. These factors, some of which are detailed below, also influence what actions and strategies are feasible to implement to achieve the program vision.

Northwest Power Act general requirements. The Act directs the Council to protect, mitigate, and enhance the fish and wildlife affected by the development and operation of the Columbia River Basin hydropower facilities. The Council is to do so in a way that still assures the Pacific Northwest an adequate, efficient, economical, and reliable power supply, with an expectation in the Act that suitable environmental conditions for fish and wildlife are substantially obtainable from the management and operation of Federal Columbia River Power System and other power generating facilities on the Columbia River and its tributaries. The Council is to develop this program on the basis of recommended measures and objectives largely from the federal and state fish and wildlife agencies and Indian tribes, recommended measures that the Council can expect to be implemented by the Bonneville Power Administration (Bonneville) and other federal agencies under the Act and other existing laws.

Ratepayer responsibilities. Under the Act, consumers of the electric power from the hydroelectric dams of the Columbia River Basin (that is, the ultimate end users of the power) are to bear the cost of measures designed to deal only with the adverse impacts caused by the development and operation of the electric power facilities. The Council’s program includes two types of measures to address these impacts. First, the program contains measures that directly address the impacts that the hydrosystem has on fish and wildlife. Second, the program includes measures that address other limiting factors for fish and wildlife. This is because the Act authorizes the Council to include in the program, in appropriate circumstances, “enhancement measures as a means of achieving offsite protection and mitigation with respect to compensation for losses arising from the development and operation of the hydroelectric facilities of the Columbia River and its tributaries as a system.” The nexus to the hydrosystem that allows a measure to be an appropriate part of the program is whether the measure will provide protection or mitigation benefits for fish or wildlife adversely affected by the hydrosystem or to compensate for effects not already mitigated.

On this basis, the program has identified a comprehensive set of interrelated fish and wildlife issues and responsive strategies that are within Bonneville’s authority to fund as direct and offsite protection and mitigation to satisfy Bonneville’s obligations under the Act. The extent of Bonneville’s funding obligation in any particular rate period will be determined through the procedures Bonneville uses to project which activities the agency needs to implement in that period to meet its obligations, estimates of the reasonable cost for these activities (expenditure and capital budget projections), and a determination of rates (in the rate case) necessary to produce the revenue needed to cover these costs. The combined implementation of measures addressing the direct impacts of the hydrosystem and the off-site mitigation measures must be sufficient to mitigate for the impacts of the Columbia hydropower system on fish and wildlife.

Bonneville uses a portion of its revenue from the sale of electricity generated by the Federal Columbia River Power System to satisfy its Power Act responsibilities by directly funding fish and wildlife protection, mitigation, and enhancement activities in a manner consistent with the Council’s program and by reimbursing the federal Treasury for expenditures by the Corps, Bureau of Reclamation, and U.S. Fish and Wildlife Service for investments in fish passage and fish production [see the Council financial reports ]. The Council works with Bonneville and others to develop budgets, implementation plans, and project recommendations that guide Bonneville rate-setting procedures on the level of effort necessary to act in a manner consistent with the program.

Shared responsibility. The development and operation of the hydropower system is only one factor in the loss of fish and wildlife in the Columbia River Basin, albeit a major factor. Improving conditions for fish and wildlife in the Columbia Basin and providing funding is a responsibility that the Council and its program shares with citizens, private entities, and government agencies throughout the region. The Act recognizes that program measures may be more successful if implemented in coordination with the activities of others who are addressing factors other than those caused by the development and operation of electric power facilities and programs. In such a case, program implementation allows for agreements among the appropriate parties providing for the coordinated administration and funding of additional measures.

“In lieu” expenditures by Bonneville. Section 4(h)(10)(A)  of the Act provides, among other things, that Bonneville’s fish and wildlife expenditures “shall be in addition to, not in lieu of, other expenditures authorized or required from other entities under other agreements or provisions of law.”The Council will work with Bonneville and others on an appropriate application of the in-lieu provision. The focus of the provision is on the expenditures themselves, not just on shared responsibility for the underlying problems and actions. The Council expects Bonneville to apply the in-lieu prohibition and withhold Bonneville funding only when the proposed expenditure of Bonneville funds would clearly substitute for and thus be “in lieu of” expenditures authorized or required from another funding source. “In-lieu” determinations by Bonneville must be fair, consistent and equitable for all parties doing mitigation under the Council’s fish and wildlife program in the Columbia Basin. Bonneville shall inform the Council of pending in-lieu determinations and, if requested, discuss the in-lieu determination with the Council’s Fish and Wildlife Committee before the in-lieu determination is finalized or implemented. The Fish and Wildlife Committee may recommend the Council review the in-lieu determination and recommend alternatives to Bonneville.

Role of fish and wildlife agencies and tribes. The Act envisions a strong role for the state and federal fish and wildlife agencies and the basin’s Indian tribes in developing the provisions of this program. The Council’s program is to include measures, mostly recommended by the fish and wildlife agencies and tribes, that the Council determines “complement the existing and future activities of the Federal and the region’s State fish and wildlife agencies and appropriate Indian tribes” and that will “be consistent with the legal rights of appropriate Indian tribes in the region.” 

Rights of Indian tribes. The Council recognizes that Indian tribes in the Columbia River Basin are sovereigns with governmental rights over their lands and people and with rights over natural resources that are reserved and protected in treaties, executive orders, and federal statutes. The United States has a trust obligation toward Indian tribes to preserve and protect these rights and authorities. Nothing in this program is intended to affect or modify any treaty or other right of an Indian tribe. The Act and the fish and wildlife program are intended instead as an effort in part to assist the Indian tribes in realizing their treaty and other rights and responsibilities with regard to fish and wildlife. Thus the Council also recognizes that implementation of this program will require significant interaction and cooperation with the tribes. The Council commits to work with the tribes in a relationship that recognizes the tribes’ interests in co-management of affected fish and wildlife resources and respects the sovereignty of tribal governments.

Harvest and harvest management and production agreements. The harvest of salmon, steelhead, and other fish provides significant cultural, economic, and recreational benefits to the region, and so the program seeks to allow for harvest opportunities consistent with sound biological management practices. The Council’s program supports tribal and non-tribal harvest of fish and complements regional harvest management agreements, such as the Columbia River Compact, the U.S. v Oregon Management Agreement, and the Pacific Salmon Treaty.

Applicable federal and state laws. The Council recognizes that the agencies that participate in and implement the Council’s program under the Act must also comply with and implement a range of federal and state laws. Relevant federal laws include the federal Endangered Species Act, the Clean Water Act, the National Environmental Policy Act, the authorizing legislation for particular projects within the Federal Columbia River Power System, and the Federal Power Act and licenses issued by the Federal Energy Regulatory Commission for non-federal projects. The Council designs the program with the intent to complement these authorities and legal requirements and even assist other entities in their compliance through opportunities presented under the program.

Natural resources management. The Council is a planning agency that does not have management authority over natural resources, whether lands, waters, or fish and wildlife. These responsibilities lie with the federal, state, and tribal natural resources agencies. The Council’s program encourages collaboration and coordination so that program actions work in concert with, and do not conflict with fish and wildlife and other natural resources managers’ activities and authority.

Water rights. As provided by the Act, nothing in this program shall affect the rights or jurisdictions of the United States, the states, the Indian tribes, or other entities over waters of any river or stream or any groundwater resources. Nor shall anything in this program be construed to alter or establish the respective rights of the United States, the states, Indian tribes, or any person with respect to any water or water-related right.

← A. Geographic structure

III. Assuring the Pacific Northwest an adequate, efficient, economic and reliable power supply →

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