PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION ACT
16 U.S.C. § 839-839h, December 5, 1980.
Overview. The Act addresses the impact on fish and wildlife of hydroelectric dams on the Columbia River. The Act establishes the Pacific Northwest Electric Power and Conservation Planning Council and directs the Council to adopt a regional energy conservation and electric power plan and a program to protect, mitigate and enhance fish and wildlife on the Columbia River and its tributaries. The Act also sets forth provisions the Administrator must follow in selling power, acquiring resources, implementing energy conservation measures, and setting rates for the sale and disposition of electric energy. This summary focuses on the provisions relating to the duties of the Council.
Purposes. The Act enumerates several purposes concerning the supply of electric power in the Pacific Northwest. Among other things, the Act is intended to: assure the Pacific Northwest of an adequate, efficient, economical and reliable power supply; provide for the participation and consultation of the Pacific Northwest states, local governments, consumers, customers, users of the Colombia River System (including federal and state fish and wildlife agencies and Indian tribes), and the public; ensure development of regional plans and programs related to energy conservation; renewable and other resources; protecting, mitigating, and enhancing fish and wildlife resources; facilitating the planning of the region's power system; and providing environmental quality. The Act also is intended to protect, mitigate and enhance the fish and wildlife, including related spawning grounds and habitat, of the Columbia River and its tributaries, particularly anadromous fish. § 1
Selected Definitions. § 3
Administrator - Administrator of the Bonneville Power Administration
Conservation - reduction in electric power consumption as a result of increases in the efficiency of energy use, production or distribution
Consumer - an end user of electric power
Council - Pacific Northwest Electric Power and Conservation Planning Council
Customer - anyone who contracts for the purchase of power from the Administrator pursuant to this Act
Pacific Northwest, region or regional - the area consisting of the states of Oregon, Washington and Idaho; the portion of the state of Montana west of the Continental Divide; the portions of the states of Nevada, Utah and Wyoming within the Columbia River drainage basin; and specified contiguous areas
Plan - Regional Electric Power and Conservation plan
Secretary - Secretary of Energy
Establishment of Planning Council. The Act authorizes the establishment of a Pacific Northwest Electric Power and Conservation Planning Council to prepare and adopt a regional conservation and electric power plan and a program to protect, mitigate and enhance fish and wildlife. The Council must establish a voluntary scientific and statistical advisory committee to assist in the development, collection and evaluation of relevant statistical, biological, economic, social, environmental and other scientific information.
The Council may be set up as a regional agency with two members each appointed by the states of Idaho, Montana, Oregon and Washington for three-year terms. The appointment of six initial members constitutes an agreement by the states establishing the Council. The Secretary must establish the Council as a federal agency with state representation if it is not timely established by the states or if provisions on the functions or establishment of the Council by the states are declared unlawful by a federal court. The Council may be terminated on request of the governors of three of the states beginning one year after the Council adopts a regional conservation and electric power plan and the fish and wildlife program. Upon termination, the functions and responsibilities of the Council will be transferred jointly to the Administrator, the Secretary of the Interior and the Administrator of the National Marine Fisheries Service, who must carry out these functions in cooperation with federal and state fish and wildlife agencies and Indian tribes. § 4(a)-(c)
Regional Conservation and Electric Power Plan. The Act directs the Council to adopt and transmit to the Administrator within two years a regional conservation and electric power plan. The plan is to set forth a general scheme for implementing conservation measures and developing resources to reduce or meet the Administrator's obligations relating to environmental quality and the acquisition of electric power resources. Among other items, the Council must consider protection, mitigation, and enhancement of fish and wildlife and related spawning grounds and habitat, including sufficient quantities and qualities of flows for successful migration, survival and propagation of anadromous fish. The Act sets forth elements the plan must contain, including model conservation standards, and authorizes the Council to recommend to the Administrator a surcharge on specified customers. Following adoption of the plan, all actions of the Administrator must be consistent with it. The Act also contains provisions to ensure widespread public involvement in formulating regional power policies. § 4(d)-(g)
Fish and Wildlife Program. The Act directs the Council to develop and adopt a program to protect, mitigate and enhance fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries. Because of the unique history, problems and opportunities presented by the development and operation of hydroelectric facilities on the Columbia River and its tributaries, the program is to be designed to deal with the river and its tributaries as a system.
Prior to development or review of the plan, or a major revision, the Council must request recommendations from federal and regional state fish and wildlife agencies and Indian tribes in the region on: measures that can be expected to be implemented by the Administrator and other federal agencies to protect, mitigate and enhance fish and wildlife affected by the development and operation of hydroelectric projects on the river and its tributaries; objectives for developing and operating projects on the river and its tributaries in a manner designed to protect, mitigate and enhance fish and wildlife; fish and wildlife management coordination, research and development that will assist protection, mitigation, and enhancement of anadromous fish at and between hydroelectric dams. The Council must develop a program based on the recommendations, supporting documents, and views and information obtained through public comment and consultation with the federal and state agencies, tribes and customers in the region. The program must consist of measures to protect, mitigate and enhance fish and wildlife affected by the development, operation and management of the hydroelectric facilities while assuring the Pacific Northwest an adequate, efficient, economical and reliable power supply. Enhancement measures must be included in the program to the extent they are designed to achieve improved protection and mitigation. The program must: complement existing and future activities of the federal and state fish and wildlife agencies and Indian tribes in the region; be based on the best available scientific knowledge; use the least costly alternative means of achieving biological objectives, where alternatives are equally effective; be consistent with the legal rights of Indian tribes; provide for improved survival of anadromous fish at hydroelectric facilities and sufficient flows between facilities to improve fish production, migration and survival. The Act also lists a number of principles the Council must consider in developing the program. The Council is required to submit an annual report to Congress that describes: the actions taken and to be taken by the Council; the effectiveness of the fish and wildlife program; potential revisions or modifications to the program.
The Act directs the Administrator to use the Bonneville Power Administration fund and applicable laws to protect, mitigate and enhance fish and wildlife projects of the Columbia River and its tributaries in a manner consistent with the Act, the plan, and the fish and wildlife program. The Act also directs the Administrator and other federal agencies responsible for managing, operating or regulating hydroelectric facilities on the Columbia River or its tributaries to provide equitable treatment for fish and wildlife in comparison with the other purposes of the facilities and take the Council's program into account as much as possible at each stage of decisionmaking. The Administrator and other federal agencies are to consult and coordinate activities with the Secretary of the Interior, the Administrator of the National Marine Fisheries Service, state fish and wildlife agencies in the region, appropriate Indian tribes and affected project operators in carrying out their responsibilities. § 4(h)
Review of Administrator's Actions. The Act authorizes the Council periodically to review the Administrator's actions to determine their consistency with the plan and the fish and wildlife program and to assist the Council in preparing amendments to the plan and program. The Council may request the Administrator to take action to carry out the Administrator's responsibilities under the plan. § 4(i)-(k)