Prior to 1980, with the passage of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act) and its mandate to “protect, mitigate and enhance,” the prevailing notion of mitigation in the Columbia Basin was to make the habitat safe for development by moving fish production to federal hatcheries in the lower river as mitigation for hydro, timber, mining and irrigation development in the watersheds of the upper Columbia.51 Federal statutes such as the Federal Power Act52 and the Fish and Wildlife Coordination Act of 193453 were designed to provide mitigation for the damage caused by water and other federal projects but not necessarily in the place where the damage occurred or for the same species that were damaged.
Mitigation for federal mainstem dams is illustrative. The Mitchell Act54 was passed in 1938 as companion legislation to the Bonneville Project Act of 193755 to mitigate for fishery damage caused by Bonneville and Grand Coulee Dams as well as other federal water projects. The Mitchell Act was implemented by state and federal agencies through development of hatchery programs that resulted in taking upper Columbia and Snake River salmon as broodstock for downriver hatcheries.56 Less than 5% of Mitchell Act production is now released above The Dalles Dam.57 Placement of Mitchell Act facilities resulted in mixed-stock fisheries that focused on the abundance of lower river hatchery production rather than the protection of the naturally-spawning stocks of the upper river that were being diminished by the combined effects of water withdrawals, land management activities, and hydroelectric projects.58
To address the impacts of the four federal hydro projects on the Lower Snake River,59 Congress included the Lower Snake River Compensation Plan in the Water Resources Act of 1976.60 This series of hatchery programs, though located in the general area of damage caused by the Lower Snake dams, failed to mitigate for Snake River coho, sockeye or fall chinook in Idaho.61 Snake River coho were extirpated from the Snake during the late 1980’s62 while Snake River sockeye63 and fall chinook64 are listed under the ESA.65
Since the 1968 passage of the National Environmental Policy Act with its provision for environmental impact statements,66 federal conservation statutes have shifted from earlier policies of off-site mitigation for damage to fisheries to protecting fish and wildlife in their habitats. The Endangered Species Act67 and the National Forest Management Act,68 among others defined a new federal policy that shifted from the mitigation/ substitution concept to a habitat-based policy.
The Northwest Power Act69 is an example. In this legislation, Congress incorporated the notion of protecting anadromous fish in their habitat by providing for a “program to protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries.”70
The Act required the NPPC to adopt a fish and wildlife program that would deal with the Columbia Basin as a system and that would rely upon the recommendations of the region’s State fish and wildlife agencies and appropriate Indian tribes. The Act also specified that the Bonne-ville Power Administrator was to use the funds and authorities of BPA to “protect, mitigate, and enhance fish and wildlife to the extent affected by the development and operation of any hydroelectric project of the Columbia River and its tributaries.”71
The 198272 and 198773 FWPs adopted by the NPPC consisted of measures required to be funded by the Bonneville Power Administration and established the foundation for carrying out congressional intent.
Throughout implementation of the program, BPA funding processes were a cause for concern. As early as 1983, the tribes and NMFS found it necessary to intervene as parties to the BPA wholesale power rate adjustment proceedings (rate case) in order to assure adequate funding to implement high priority projects in the 1982 FWP.74 Though the Administrator denied the rate adjustments sought by the tribes and NMFS, Congress subsequently directed BPA to implement the high priority projects in the BPA appropriation bill.75
During the rate case and in the following year, BPA was reluctant to fund projects adopted by the NPPC until a programmatic assessment of BPA’s mitigation obligations was carried out.76 Completed in 1986, the NPPC’s assessment found that development and operation of the hydroelectric system accounted for annual losses of 5-11 million salmon from pre-development run sizes of 10-16 million salmon.77
The NPPC’s losses assessment was incorporated into the 1987 FWP and the NPPC adopted an interim goal of doubling adult salmon run sizes, with emphasis on protecting genetic diversity, monitoring and evaluation, and the restoration of salmon runs above Bonneville Dam that were impacted by the dams.78 The program was to be implemented by using adaptive management methods whereby carefully designed projects would improve knowledge of restoration techniques. The 1987 FWP called for an extensive subbasin planning effort carried out by the agencies and tribes that would assess the opportunities for rebuilding. In concert with the production policies and process of the CRFMP under U.S. v. Oregon, and the rebuilding goals of the Pacific Salmon Treaty, the 1987 program included elements of the first major workplan for Columbia basin salmon rebuilding. However, pending completion of the subbasin plans, the NPPC agreed to only support limited priority habitat and production measures.
Over a period of three years, the agencies and tribes met with subbasin stakeholders and fashioned plans designed to rebuild salmon runs consistent with the NPPC’s doubling goal opportunities.
By 1991, when the completed plans were submitted to the NPPC, the prospect of ESA listings of Snake River chinook and sockeye populations diverted its attention. Instead of completing the subbasin planning process that addressed salmon needs in thirty-one subbasins and was an integral part of the CRFMP, the NPPC attempted to guide, if not foreclose, application of the ESA.79 However, in its 1994 amendments to the FWP, the Council revisited subbasin planning and included measures designed to encourage watershed approaches to salmon restoration and the updating of subbasin plans.80
The BPA, in response to the listings, also de-emphasized the rebuilding goal and directed its budget priorities in the direction of ESA recovery activities.81
Since the adoption of the first Fish and Wildlife Program in 1982, BPA Fish & Wildlife Division management of implementation has proven highly problematical. As stated in a recent report of the BPA Task Force, House Committee on Natural Resources:
BPA’s administration of the fish and wildlife program has been criticized by both power users and environmental advocates. BPA’s customers, conducting a “function by function review” of BPA’s programs, presented draft recommendations to streamline and possibly restructure the administration of the fish and wildlife program. Environmental advocates have argued that BPA commits excessive program resources to activities that are better implemented by fish and wildlife specialist agencies, and that BPA has failed to implement all of the actions required by the Strategy for Salmon on the schedule set by the NPPC.82
The alternative to direct BPA management is a lump sum transfer of fish and wildlife funds to a combined entity of fish and wildlife agencies and tribes. This method is currently used to fund the NPPC’s wildlife program.83 As stated by the House Task Force:
A lump sum transfer could allow Bonneville to substantially reduce its fish and wildlife staffing level, which now stands at 77 full-time equivalent positions. Many of Bonneville’s critics complain that the BPA’s fish and wildlife program is at best redundant, and in some cases operates at cross purposes with other federal, state, and tribal fish and wildlife agencies.84
A transfer could alleviate the substantial but unquantified transaction costs incurred by agencies negotiating with BPA for detailed program costs. An additional benefit of a lump sum transfer would be to transfer accountability for meeting FWP objectives to the agencies and tribes who have the legal responsibility to maintain salmon resources.
The agency and tribal members of the Columbia Basin Fish and Wildlife Authority (CBFWA), beginning in 1989, initiated a process for prioritizing FWP expenditures. However, BPA ignored CBFWA priorities. Permitting the agencies and tribes to determine priorities and methods for FWP implementation is not only a means for greater accountability, it is also consistent with the Regional Act which states in §4(h)(1)(C)(iv)(1) that measures in the program shall:
(1) complement the existing and future activities of the Federal and the region’s State fish and wildlife agencies and appropriate Indian tribes;
Because the measures in the Program are to complement existing and future activities of the agencies and tribes, it is crucial that the agencies and tribes are actively involved in the direction of implementation under the oversight of the Council as FWP developer.85 Furthermore, because the NPPC is also responsible for preparing a regional power plan, there is a critical need for the NPPC to develop a longer-term, expansive vision for Northwest power options that accommodates the need for salmon restoration.
51 Leo Laythe, The Fishery Development Program in the Lower Columbia River, Trans. 78 Am. Fish. Soc. 42, 43-44, 49 (1948).
52. 16 U.S.C. §792 et seq. But see supra. note 119 and accompanying text regarding 1986 amendments to the Federal Power Act that explicitly reference “fish and wildlife (including related spawning grounds and habitat)” 16 U.S.C. §803(j) (1985 & Supp. 1995); Pub. l. No. 99-495 §3(c); 100 Stat. 1252 (1986).
53. 16 U.S.C. §§ 661-666c (1988).
54. 16 U.S.C. §§ 755-757 (1988).
55. 16 U.S.C. § 832 (1985).
56. Laythe, supra note 80, at 53.
57. Report to Congress on Mitchell Act Hatchery Fish Releases, NMFS, Feb. 1992, Appendix Table 1.
58. Laythe, supra at 49.
59. Public Works Appropriations. 1961: Hearings on H.R. 12326 Before the Subcommittee of the Senate Committee on Appropriations, 86th Cong., 2nd Sess. 1938 (Feb. 18, 1960).
60. Water Resources Development Act of 1976.
61. Idaho Department of Fish and Game, Idaho Anadromous Fisheries Management Plan at 16, 17 and 25 (March 1985).
62. U.S. Army Corps of Engineers, Annual Fish Passage Report—1988, Table 93.
63. Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619 (1991) (codified at 50 C.F.R. §17.11).
64. Endangered and Threatened Species; Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653 (1992) (codified at 50 C.F.R. §17.11).
65. Though the Lower Snake Plan was preset to Congress as a means of improving salmon populations in their habitat, most salmon other than steelhead were released at the hatchery, except for releases in the Imnaha River in northeastern Oregon and the Red River in the Clearwater system. These programs were designed to rebuild naturally spawning spring chinook and demonstrated success during their few years of operation. U.S. v. Oregon Production Advisory Committee, Imnaha River Spring Chinook Fact Sheet (Aug. 24, 1993).
66. 42 U.S.C. §§ 4331-4332 (1988).
67. 35 U.S.C. 1531-1539 (1988).
68. 16 U.S.C. 1600-1614 (1988).
69. Northwest Power Act, supra. note 4.
70. 16 U.S.C. §839b(h)(1)(A) (emphasis added).
71. 16 U.S.C. §839b(h)(10)(A) (emphasis added).
72. Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program (November 1982) (hereinafter 1982 Program). The 1982 Program called for a series of habitat and production measures (including major tribal production programs). It also called for research on supplementation as a means to rebuild diminished upriver runs and for reprogramming of the Mitchell Act hatcheries to rebuild upriver fish runs. The Program also prepared a base for a watershed strategy by including a number of tribal programs for the restoration of salmon in key ceded areas and reservation watersheds through habitat protection and supplementation. Id. at Sec. 704 (d) and (e).
73. 1987 Programs, supra. note 60.
74. Id. at Sec. 704 (d) and (e).
75. Id. at Sec. 704 (d) and (e).
76. BPA expressed concern that it might overcompensate for the losses incurred by the hydro system. In 1984, the Council adopted measures designed to lead to establishment of program goals for anadromous fish. These included a requirement that BPA fund a study by the fish and wildlife agencies and tribes to identify salmon losses that occurred as result of development and operation of the Columbia River hydro system. The tribes and fish and wildlife agencies submitted a report to the Council in 1985 outlining a proposed method for establishing losses and goals for salmon mitigation under the Northwest Power Act. Not satisfied with the report, the Council undertook its own assessment of Columbia Basin salmon losses in 1985.
77. Northwest Power Planning Council, Compilation of Information on Salmon and Steelhead Losses in the Columbia River Basin, 4 (1986).
78. 1987 Program, supra. note 101, Sec. 203-205.
79. The Council established a model watershed program that would focus on three sub basins and included a subsection on subregional planning, a de-emphasis away from the three-year planning program costing $5 million completed by the agencies and tribes. Northwest Power Planning Council, 1993 Program (1993).
80. Northwest Power Planning Council, 1994 Program Chap. 7.
81. BPA, Columbia River Basin Fish and Wildlife Program Annual Implementation Work Plan for Fiscal Year 1993 (Sept. 1992) iii.
82. House Committee on Natural Resources, BPA at a Crossroads (May 1994) 38.
83. BPA has signed trust agreements with Idaho and Montana. It is currently negotiating with Oregon and its affected tribes and has negotiated an interim agreement with the State of Washington for $43 million. Apart from the fact that BPA has responsibilities to protect, mitigate and enhance salmon at the mainstem hydro projects, which should have no bearing on the issue of funding the FWP, there appears to be no substantive differences between the funding of the Council’s salmon program and its wildlife program.
84. Id. at 38.
85. See NRIC v. NPPC, slip. op. 10861 (9th Cir. 1994) for a detailed analysis of the deference that the NPPC must pay to tribes’ and fish and wildlife agencies’ proposals in the development of the NPPC FWP.