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May 12, 2000
TO: Northwest Power Planning Council
FR: Ed Chaney
RE: Recommended program amendments
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Your framework planning process and program amendment
form proved too complicated for me. Please excuse these simplified recommendations
for program amendments.
—Snake River anadromous fish were the raison d' être for the Council's program. Unfortunately, as we approach the 20th anniversary of the Act, they are threatened with extinction.
Recommendation #1: The Council should—20 years late, but you know what they say—give fulfillment of the letter and intent of the Northwest Power Act vis-à-vis Snake River anadromous fish first priority on all future program expenditures uncommitted as of May 13, 2000.
—The Army Corps of Engineers has determined that in the four lower Snake River dams it created a salmon doomsday machine that cannot be turned off; either the dams must be breached or all the fish must be removed from their habitat and catapulted to the estuary. The latter violates the letter and intent of the Power Act and, among other things, biological common sense.
Recommendation # 2: The Council's program should direct the U.S. Army Corps of Engineers to act on its own findings and breach the four lower Snake River dams. The Council should provide a schedule consistent with prudent biological and engineering considerations, i.e., not more than five years total.
Recommendation # 3: The Council should provide that the Bonneville Power Administration absorb the cost to replace any energy forgone as the result of breaching that the free enterprise, deregulated market is unable to provide, i.e., zero.
—The deregulated market will replace at competitive prices the energy forgone by breaching the four lower Snake River dams. Therefore, there will be no impact on ratepayers from fulfilling the fish restoration requirements of the Power Act. However, there will be an impact on Bonneville's revenues. This is because Bonneville for decades has been stealing the fishes' water, and destroying local and regional Native American and non-Indian economies, to pay its nuclear power plant gambling debts.
Recommendation # 4. The Council should amend its program to include a measure that prescribes how Bonneville should obtain the revenue necessary to pay its nuclear power plant gambling debts without destroying Snake River anadromous fish and dependent economies, i.e., in the absence of the revenue that would be forgone as the result of breaching the four lower Snake River dams.
Recommendation #5: Given the Army Corps of Engineers' refusal in its December 1999 DEIS to accept responsibility for failing to properly design the four lower Snake River dams, and its refusal to show how it would mitigate the impacts of remedying that error, the Council should as a program amendment posit such a mitigation plan.
As noted above, this plan should include, but not be limited to, non-fish destructive measures Bonneville should take to pay its nuclear power plant gambling debts, and measures the Corps should take [and pay for] to mitigate the effects of breaching in order to remedy its failure to properly design the four lower Snake River dams to pass juvenile anadromous fish as required by law.
— Under the Act the Corps must manage, operate, or regulate the four lower Snake River dams in a way that takes the Council's program into account "to the fullest extent practicable . . . at each relevant stage of [the] decisionmaking process."
Recommendation # 5: The Council should amend its program to require the Corps and all federal agencies to demonstrate in sufficient detail that provides for public and judicial review their compliance or noncompliance with the above mandate.
—The Act confers on the Corps, Bonneville, National Marine Fisheries Service, and all other federal agencies, the duty—independent of the Council's program— "to adequately protect, mitigate and enhance fish and wildlife, including related spawning grounds and habitat" affected by the dams "in a manner that provides equitable treatment" to anadromous fish.
It is uncontroverted in the legislative history of the Act that this provision of law "is aimed at placing fish and wildlife on a par with . . . other purposes and providing a means by which [covered agencies] will act to protect, mitigate, and enhance fish and wildlife."
The United States Court of Appeals, Ninth Circuit has affirmed this independent duty. In addition, the court ruled that each agency covered by this provision of the Act, which includes Bonneville, the Corps, and NMFS, must "develop a mechanism for fulfilling its obligation" under this provision of the Act, and "will be required to demonstrate, by means that allow for meaningful review, that it has treated fish and wildlife equitably."
The Council has never made any effort to seek compliance with this pivotal provision of the Act. Ergo, Snake River salmon are going extinct; dependent local and regional economies long have been. All other uses of the hydrosystem, however, are unaffected, fat, and happy.
Recommendation #6: The Council should amend its program to require each relevant federal agency to develop within 90 days a mechanism by which it can demonstrate for meaningful review by decision makers, the public, and the courts, that it is providing anadromous fish "equitable treatment" "on a par" with other uses of the hydrosystem.
This should include a risk analysis and management protocol which addresses all uses of the system. It should discuss the needs of each respective use of the system, the likelihood those needs will not be met, the factors that threaten or make it less likely that identified needs will not be met, and how each agency will perform its duties so that the risk a use's needs will not be met is equitably apportioned among all major users (including at least irrigation, recreation, power, navigation, fish and flows for fish, and meeting the federal government's special obligations to Indian tribes).
For example, the Corps should provide a comparison between the likelihood of meeting the minimum flows set out by NMFS in its 1995 BiOp and the likelihood of meeting firm power loads.
Thank you for the opportunity to offer these recommended
amendments to the Council's fish and wildlife program.