117 F.3d 1520 (9th Cir. 1997), 90-70548, Northwest Environmental Defense Center v. Bonneville Power Admin.

Docket Nº:90-70548, 91-70265.
Citation:117 F.3d 1520
Party Name:Serv. 5234, 97 Daily Journal D.A.R. 8493 NORTHWEST ENVIRONMENTAL DEFENSE CENTER; Northwest Resource Information Center, Inc.; Oregon Trout, Inc.; Idaho Steelhead and Salmon Unlimited; Salmon For All, Petitioners, v. BONNEVILLE POWER ADMINISTRATION; U.S. Department of Energy, Respondents, Direct Service Industrial Customers (Aluminum Co. of America,
Case Date:July 01, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1520

117 F.3d 1520 (9th Cir. 1997)

Serv. 5234,

97 Daily Journal D.A.R. 8493

NORTHWEST ENVIRONMENTAL DEFENSE CENTER; Northwest Resource

Information Center, Inc.; Oregon Trout, Inc.;

Idaho Steelhead and Salmon Unlimited;

Salmon For All, Petitioners,

v.

BONNEVILLE POWER ADMINISTRATION; U.S. Department of Energy,

Respondents,

Direct Service Industrial Customers (Aluminum Co. of

America, Atochem North America, Columbia Falls Aluminum

Company, Georgia-Pacific Corp., Kaiser Aluminum & Chemical

Corp., Intalco Aluminum Corp., et al.); Puget Sound Power &

Light Company, a Maine Corporation; City of Seattle, City

Light Department ("City"); Public Utility Dist. No. 2 of

Grant County, Washington ("Grant"); Washington Water Power

Company; Public Utility Dist. No. 1 of Chelan County,

Washington, A Washington municipal corporation ("Chelan");

Public Power Council; Canby Utility Board ("Canby");

Tillamook Peoples' Utility District; Public Utility

District # 1 of Benton County, Washington; Public District

# 1of Franklin County, Washington; Public Utility # 1 of

Skamaia County; Washington and Western Montana Generating &

Transmission Cooperative, Inc.; Portland General Electric

Company; Pacific Power & Light Company; Public Utility

District No. 1 of Douglas County, Respondents-Intervenors.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER; Northwest Resource

Information Center, Inc.; Idaho Steelhead and

Salmon Unlimited; Petitioners,

Public Power Council, Petitioner-Intervenor,

v.

BONNEVILLE POWER ADMINISTRATION; U.S. Department of Energy,

Respondents,

Direct Service Industrial Customers (Aluminum Co. of

America, Atochem North America, Columbia Falls Aluminum

Company, Georgia-Pacific Corp., Kaiser Aluminum & Chemical

Corp., Intalco Aluminum Corp., et al.); Puget Sound Power &

Light Company, a Maine Corporation; City of Seattle, City

Light Department ("City"); Public Utility Dist. No. 2 of

Grant County, Washington ("Grant"); Washington Water Power

Company; Public Utility Dist. No. 1 of Chelan County,

Washington, A Washington municipal corporation ("Chelan");

Public Power Council; Canby Utility Board ("Canby");

Tillamook Peoples' Utility District; Public Utility

District # 1 of Benton County, Washington; Public District

# 1of Franklin County, Washington; Public Utility # 1 of

Skamaia County; Washington and Western Montana Generating &

Transmission Cooperative, Inc.; Portland General Electric

Company; Pacific Power & Light Company; Public Utility

District No. 1 of Douglas County, Respondents-Intervenors.

Nos. 90-70548, 91-70265.

United States Court of Appeals, Ninth Circuit.

July 1, 1997

Argued and Submitted Nov. 4, 1993.

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Daniel J. Rohlf, Portland, Oregon, for petitioners.

Philip S. Key, Bonneville Power Administration, Portland, Oregon, for respondent, Bonneville Power.

Kristi M. Wallis, Culp, Guterson & Grader, Seattle, Washington, for Public Utility Dist. No. 1, et al.

Petitions to Review a Decision of the Bonneville Power Administration. BPA No. NWPA.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

Opinion by Judge BRUNETTI; Dissent by Judge REINHARDT.

BRUNETTI, Circuit Judge:

BACKGROUND

Petitioners representing environmental and fishing interests 1 challenge final actions of the Bonneville Power Administration (BPA) 2 in these consolidated petitioners for review. In 1990, BPA entered into agreements with British Columbia Hydro and Power Authority (BC Hydro) and several electric utilities, known as the Mid-Columbia Participants, 3 governing rights to water stored behind hydroelectric dams on the Columbia River system in Canada. Petitioners argue that BPA ignored its statutory duty to provide equitable treatment for fish and wildlife on the river by entering into these agreements. Petitioners also argue that BPA violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement.

There is no single "Law of the River" on the Columbia. Rather, as we consider BPA's decision to enter into these two agreements we must navigate a maze of overlapping treaties, laws, and regulations, which together

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attempt to balance the varied interests on the river. Prominent among the laws on the river are the United States-Canada Columbia River Treaty, the Northwest Power Act, and the National Environmental Policy Act (NEPA). Subsequent to the submission of this case for decision, the Endangered Species Act (ESA) began playing a significant role. See, e.g., Ramsey v. Kantor, 96 F.3d 434 (9th Cir.1996); Aluminum Co. of America v. National Marine Fisheries Serv., 92 F.3d 902 (9th Cir.1996); Idaho Conservation League v. Thomas, 91 F.3d 1345 (9th Cir.1996); Idaho Dep't Fish & Game v. National Marine Fisheries Serv., 56 F.3d 1071 (9th Cir.1995). It is important to understand both the terms of the agreements, and the law of the river as it existed when BPA entered into them, to properly analyze BPA's decision to enter into the NTSAs.

Columbia River Treaty

The 1964 Columbia River Treaty between the United States and Canada provided for building four storage reservoirs: three in Canada (Mica, Kennleyside, and Duncan) and one in the United States (Libby). The reservoirs that were built and operated under the Treaty represent almost half the water storage on the Columbia River System. The Treaty required 15.5 million acre-feet of Canadian storage, but reservoirs actually built contained storage capacity of 20.5 million acre-feet. The excess storage capacity, most of which is behind Mica Dam, is referred to as non-Treaty storage. The Non-Treaty Storage Agreements, discussed below, were necessary to govern the rights to this additional storage capacity. Nothing in the Treaty prevented Canada from using all of the non-Treaty storage unilaterally, although the United States argued it had the right to compensation if use of the non-Treaty storage resulted in reduced Columbia River flows in the United States.

Northwest Power Act

In 1980, Congress enacted the Northwest Power Act (NPA), 16 U.S.C. §§ 839-839h, which "marked an important shift in federal policy." Northwest Resource Information Center v. Northwest Power Planning, 35 F.3d 1371, 1377 (9th Cir.1994). "Continually declining fish runs had revealed the failures of previous legislative efforts requiring that 'equal consideration' be given to fish and wildlife affected by resource exploitation." Id. The NPA created "a pluralistic intergovernmental and public review process." Id. at 1378. At the hub of this process, Congress established the Pacific Northwest Electric Power and Conservation Planning Council (Council), directing it to create "a program to protect, mitigate, and enhance" the Columbia River Basin's fish and wildlife "to the extent affected by the development and operation of the Basin's hydropower system." 4 16 U.S.C. § 839b(h)(1)(A), (h)(10)(A). The Council's authority with respect to fish and wildlife measures is constrained; the Council "can guide, but not command, federal river management." 16 U.S.C. §§ 839b(h)(10), 839b(i), 839b(j); see also Northwest Resource Information Center v. National Marine Fisheries Serv., 25 F.3d 872, 874 (9th Cir.1994).

Under this statutory scheme, the BPA Administrator has two responsibilities: First, the Northwest Power Act requires the Administrator to exercise his responsibilities under the Act "in a manner that provides equitable treatment" for fish and wildlife. 16 U.S.C. § 839b(h)(11)(A)(i). Second, the Administrator must take into account "to the fullest extent practicable, the program adopted by the Council." 16 U.S.C. § 839b(h)(11)(A)(ii). Attempting to balance environmental and energy considerations, the Act states that fish and wildlife protection measures cannot jeopardize "an adequate, efficient, economical, and reliable power supply." 16 U.S.C. § 839b(h)(5).

Since the adoption of the Northwest Power Act, BPA has exercised its responsibility to take into account the Council's Program by adopting many of the Program's essential fish protection measures. First, BPA

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adopted the centerpiece of the Council's 1987 Program, the "Water Budget," which is a volume of water to be released during the spring in order to "create an artificial freshet that speeds juvenile fish to the ocean." O.R. at 2856. To assist migrating juvenile salmon, the Council established a water budget of 1.19 million acre-feet for the Snake river and 3.45 million acre-feet for the Columbia. Second, BPA agreed to spill water through a spillway, rather than the dam's turbines, which assists juvenile passage through dams. Third, BPA funded fish hatcheries throughout the Columbia River Basin.

After the implementation of the Council's 1987 Fish and Wildlife Program, BPA adopted further protective measures for anadromous fish. In 1988, BPA entered in the Vernita Bar Agreement with the Mid-Columbia utility districts to protect chinook spawning, incubation and emergence on Vernita Bar. In 1989, BPA entered into a spill agreement with several fish agencies and the U.S. Army Corps of Engineers.

The Council's Program, and BPA's implementation of the Program, failed to reverse the trend of decreasing fish populations on the Columbia. See generally Northwest Resource Information Center, Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1381-84 (9th Cir.1994). Salmon and steelhead populations continued to decline through 1990. Id. at 1381. In 1990, environmental advocates petitioned the National Marine Fisheries Service to list three Snake River stocks and one Columbia River stock under the...

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