If Columbia River Basin Salmon MOU Approved By Court, What Will Be The Role Of Northwest Power/Conservation Council? Hard To Say

Commitments to restore Columbia River basin salmon and steelhead populations made by the federal government and “six sovereigns” will intersect or overlap with the Northwest Power and Conservation Council’s responsibilities under the Northwest Power Act, according to a presentation at last week’s Council meeting.

The Biden Administration, four Columbia River treaty tribes and the states of Oregon and Washington (the sovereigns) announced Dec. 14 in a Memorandum of Understanding that they would work to restore wild salmon populations in the Columbia and Snake river basins, prepare the region and local economies for removal of the four lower Snake River dams, including a build-up of up to 3,000 megawatts of tribal sponsored wind and solar energy projects, and delay ongoing litigation.

The MOU, together with a request to stay (delay) litigation for five and up to 10 years, was filed in the U.S. District Court of Oregon in Portland. The MOU describes how the sovereigns and others will work together. Attached to the MOU are two documents: the Columbia Basin Restoration Initiative that describes what the sovereigns believe to be a path to salmon and steelhead recovery, and the list of U.S. Government Commitments that outlines the funding and commitments to support the Initiative.

The MOU, Initiative and Commitments documents are here.

At the Council’s Fish and Wildlife Committee and Power Committee meetings Tuesday, Jan. 9, John Shurts, the NPCC attorney, generally described how many of the U.S. government pledged commitments intersect with Council responsibilities and with the Northwest Power Act.

“The Initiative provides a framework for a durable long-term strategy that restores salmon and other native fish populations to healthy and abundant levels, ensures a clean energy future, supports local and regional economic resilience, restores ecosystem function and honors longstanding unmet commitments to Tribal Nations,” the Initiative says.

“I don’t see any way this gets in the way of our work,” Shurts said at the Power Committee meeting. “Our (power) plan has value because we ensure it has value and BPA’s responsibilities don’t go away. Our relevance will remain what it is.”

At the Fish and Wildlife Committee meeting he added that in the sovereigns’ Commitments document, the U.S. government used the word “conversation” to refer to processes that would bring other parties to the table, adding that the Northwest Power Act is a “good law to make this work.”

The 1980 Northwest Power Act created the Council with its 8 member (two from each state) appointed by governors and confirmed by legislatures. Included in the responsibilities given by the Power Act to the Council are long-range power planning (see the 2021 Northwest Power Plan at https://www.nwcouncil.org/2021-northwest-power-plan/) and a plan to protect and recover fish and wildlife (see the 2014/2020 Columbia River Basin Fish and Wildlife Program at https://www.nwcouncil.org/reports/2014-columbia-river-basin-fish-and-wildlife-program/). The Fish and Wildlife Program is the largest of its kind in the nation.

“We are always open to talk if approached for a discussion, although this is not something we initiated and not something we would go into with preconceived notions or assumptions,” Shurts said in a statement.

The MOA was developed by the federal government along with what it calls the six sovereigns. They are Oregon and Washington, along with Columbia River tribes – Nez Perce, Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes of the Warm Springs Reservation.

Others, including two states and other tribes, were left out of negotiations as was noted by Council Chair and Idaho representative Jeff Allen.

“Idaho didn’t know anything about this settlement,” he said at the Council’s Power Committee meeting last week. “We were out in the hallway. Should we take it as a slight that we weren’t involved?”

However, the Columbia Basin Restoration Initiative says that “Regional” sovereigns could also include Idaho and Montana as well as other Northwest tribes not initially identified is one of the six sovereigns. Those tribes include the Spokane Tribe of Indians, Coeur d’Alene Tribe, Confederated Tribes of the Colville Reservation, Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribe, Confederated Tribes of Siletz Indians, Shoshone‐Bannock, Burns Paiute Tribe, Confederated Tribes of the Grand Ronde, Cowlitz Indian Tribe, Fort McDermitt Paiute and Shoshone Tribe, Kalispel Tribe of Indians, and Shoshone‐Paiute Tribes.

In a Dec. 15 letter to Brenda Mallory, Chair of the White House Council on Environmental Quality, Allen argued for Council involvement:

“The Council brings a strong statutory commitment and decades of experience in engaging the region on these power and fish and wildlife resource issues,” the letter says. “Many of the commitments in the document would benefit from broader governmental and public engagement. Our existing processes for working with regional entities will provide benefits moving forward.

“In sum, the Council was established by Congress to plan for future power needs and to mitigate the impacts of the hydropower system on fish and wildlife – and to do both for the benefit of our entire region. These commitments from the federal government do not change our obligations under the Act. This work is ever more complex, and we welcome the collaboration that must follow to ensure that the work of the federal government builds on and enhances the region’s work. We look forward to continuing this conversation with you.”

The letter goes on to assert the overlap of the government’s commitments with the Council’s responsibilities under the Power Act.

“There are ways to implement these commitments that are also consistent with the Council’s responsibilities,” the letter says. “But, doing so requires thoughtful engagement and coordination with the Council. We are ready and willing to work together on these matters, and we request that the federal agencies commit to doing so, too.

See the Council letter here.

This may not be contrary to what the government is thinking. In the Commitments document, they say:

“The commitments described here do not undermine commitments the United States Government (USG) has made to other sovereigns in the region under existing agreements. The effort is intended to foster partnership on matters of shared interest among the USG and the Six Sovereigns, with the expectation that these efforts will grow, expand, and include other sovereigns and stakeholders. Moreover, when implementing the commitments below, the USG and Six Sovereigns are committed to including others and working in partnership.”

The MOU is the result of the latest lawsuit challenging the federal government’s 2020 environmental impact statement and salmon/steelhead biological opinion. That lawsuit has been stayed for more than two years, while both plaintiffs and defendants sought a solution outside of litigation. The lists of actions, commitments and funding put out by the six sovereigns and federal government have at this point put a temporary end to lawsuits that have challenged the federal Columbia River power system BiOps since 2001.

Judge Michael H. Simon of the U.S. District Court in Oregon first stayed the litigation in 2021 for one year and has since extended the stay another year to allow the White House-mediated discussions on potential solutions. In early September, Simon extended the stay for 60 more days to Oct. 31 to allow the litigants –fisheries advocates, states, tribes and federal agencies – to continue to hammer out a lasting agreement on how to operate a hydro system while recovering threatened and endangered salmon and steelhead. The parties is still waiting on a court judgement whether to stay the proceedings for the first five-year period.

The Commitments document promises money to be paid by BPA for tribal habitat projects, hatchery upgrades in the basin and reintroduction of salmon in blocked areas for up to 10 years.

In addition, it funds one- to three-gigawatts of tribal-sponsored clean energy projects that, if lower Snake River dam breaching does occur, would replace the dams’ power output. However, the MOU does not specifically endorse breaching the four lower Snake River dams. That, the Administration said in a previous press release, would require Congressional approval and action.

Total funding could bring more than $1 billion to the region to fund salmon and steelhead restoration, power replacement projects and preparation for farms and communities to adjust to a lower Snake River without the dams.

See CBB, December 15, 2023, BIDEN ADMINISTRATION, TWO STATES, TREATY TRIBES REACH MOU ON COLUMBIA RIVER BASIN SALMON RECOVERY, LITIGATION PAUSED FOR AT LEAST FIVE YEARS,

Shurts said that on the power side there are just a handful of related elements that affect or intersect with Council work. The three policy goals that help transition the region to clean and carbon free energy “line up with what we’re doing with the Power Plan,” he said.

Those commitments include:

1. Support for Columbia Basin tribes to develop energy resources;

2. Support for tribal energy facility siting review;

3. Support for non-tribal communities;

4. New energy resource development by tribes of 1,000 to 3,000 megawatts of renewable energy;

5. Accounting for new resources as a potential to replace the power from the lower Snake River dams;

6. Link regional energy planning (a Council activity) with tribal energy planning. That will largely be a U.S. Department of Energy process, Shurts said, and the Council needs to make sure that DOE works with BPA to make this happen.

“We will need time to put our thoughts together,” Shurts told the Power Committee. “They will need to, too.”

“It looks like a lot in our Plan needs to develop at a faster pace,” said KC Golden, Washington representative and Vice Chair of the Council. “And much of this is with other than ratepayer money.”

“We intend to keep our eye on it,” Shurts said. “This is one forum that people come to. These commitments will evolve.”

Among the commitments that are directly related to fish and wildlife, those with funding by Bonneville are:

1. $200 million in capital funding over 10 years to the U.S. Fish and Wildlife Service to fund the Lower Snake River Compensation Plan hatchery modernization and maintenance.

2. $100 million over 10 years for projects that contribute to the restoration of salmon and other native fish populations. To implement this, BPA would provide $10 million each of the 10 years to the six sovereigns.

“How to define the work, how to use the money and how to divide it among the sovereigns? We will have more conversations on this,” Shurts said.

3. Continue BPA funding of the Council Fish and Wildlife Program projects of about $300 million annually.

“Bonneville has one fund – that’s ratepayer funding,” Shurts said. “Can we bring other resources to the basin that is not using ratepayer money?”

Indicating that is possible, Patty O’Toole, director of the Council’s Fish and Wildlife department, said that some of these “could still be a Program (Council’s Fish and Wildlife Program) activity, even if not BPA-funded.”

Previously announced was BPA funding to the tune of $200 million over 20 years to implement the Phase 2 Implementation Plan with upper Columbia tribes. P2IP involves the reintroduction of salmon upstream of Grand Coulee and Chief Joseph dams.

Some of the funding for projects identified in the Commitments document have already been allocated and others would require future funding. Examples of projects and funding from government entities other than BPA ratepayers, are:

NOAA Fisheries Funding:

To partially fund the backlog of hatchery infrastructure projects, NOAA will provide $60 million for high priority Mitchell Act facility needs identified by tribes and states. NOAA previously committed this money prior to the Dec. 14 filing.

In addition, according to the Commitments document, NOAA is currently involved in tribal consultations to determine how to allocate $240 million more for hatchery funding to tribes.

NOAA will also conduct fish research in the estuary and ocean and collaborate with fisheries managers when doing so, all by Sept. 30, 2024. The purpose is to identify actions that can be taken in freshwater estuarine and marine habitats to improve fish condition and survival, including controlling predation.

Removal of Enloe Dam. NOAA provided $2.3 million in FY2023 for a dam removal analysis. The federal government will work with the Confederated Tribes of the Colville Reservation in the project.

Environmental Protection Agency

Through the Columbia River Basin Restoration Initiative, the EPA will provide about $85 million through 2026 for projects to assess and reduce toxics throughout the basin. That includes $17 million already allocated for these grants to tribes.

Creating and restoring cold water refuges and habitat in the mainstem Columbia River and tributaries could cost as much as $50 million over 10 years. The EPA is directed to take actions contained in its 2021 Cold Water Refuge Plan, including three to five projects, mostly in the lower Columbia River, and two projects in the mid-Columbia.

As much as $50 million over 10 years for riparian restoration

U.S. Army Corps of Engineers

The Corps will provide at least $50 million in funding for Columbia River fish operation and maintenance funding in 2024 “to begin addressing and prioritize the backlog of projects identified by the Columbia River Inter-Tribal Fish Commission at Columbia and Snake river facilities for fish passage and survival.

The Corps commits to $20 million over the next two years for new ecosystem restoration projects.

The Corps has said it could spend an additional $5 million in fiscal year 2025 for Pacific lamprey mitigation, including a lamprey supplementation/augmentation plan and for modernizing and funding passage structures at dams.

U.S. Fish and Wildlife Service

Pacific Lamprey mitigation, including translocation to Snake River basin

Bull trout recovery — $700,000

Native resident fish and shellfish (freshwater mussels)

Fish passage improvements on a watershed scale

Cold water refuge planning and projects

Bureau of Land Management

BLM already has provided $1.2 million in funding for culvert removal in Washington and Oregon in 2022 and 2023 to restore and protect stream habitat.

$500,000 culvert removal on federal lands.

Department of Transportation

DOT also has the ability to replace culverts through grants.

Columbia/Snake River Operations – next 10 years

Spring spill – spill to 125 percent total dissolved gas for 24 hours at Columbia and Snake river dams (to be implemented 2023 spring)

Summer spill – fewer changes, except lower summer spill beginning Aug. 1.

For background, see:

— CBB, November 20, 2023, LEAKED COURT MEDIATION DOCUMENT LISTING ‘ACTIONS AND COMMITMENTS’ FOR BASIN SALMON RECOVERY DRAWS OBJECTIONS, QUESTIONS, HTTPS://CBBULLETIN.COM/LEAKED-COURT-MEDIATION-DOCUMENT-LISTING-ACTIONS-AND-COMMITMENTS-FOR-BASIN-SALMON-RECOVERY-DRAWS-OBJECTIONS-QUESTIONS/

— CBB, November 16, 2023, REPUBLICAN U.S. HOUSE MEMBERS REQUEST ALL CEQ DOCUMENTS RELATED TO MEDIATION, SETTLEMENT DISCUSSIONS ON LOWER SNAKE DAMS, HTTPS://CBBULLETIN.COM/REPUBLICAN-U-S-HOUSE-MEMBERS-REQUEST-ALL-CEQ-DOCUMENTS-RELATED-TO-MEDIATION-SETTLEMENT-DISCUSSIONS-ON-LOWER-SNAKE-DAMS/

–CBB, Nov. 3, 2023, COLUMBIA/SNAKE SALMON RECOVERY LAWSUIT ON HOLD AGAIN AS PARTIES SEEK BUY-IN ON ‘ACTIONS AND COMMITMENTS’ NOT YET MADE PUBLIC https://columbiabasinbulletin.org/columbia-snake-salmon-recovery-lawsuit-on-hold-again-as-parties-seek-buy-in-on-actions-and-commitments-not-yet-made-public/

— CBB, September 22, 2023, BIDEN ADMINISTRATION SAYS BPA TO PROVIDE $200 MILLION OVER 20 YEARS TO ADVANCE SALMON REINTRODUCTION IN UPPER COLUMBIA RIVER BLOCKED AREAS, HTTPS://CBBULLETIN.COM/BIDEN-ADMINISTRATION-SAYS-BPA-TO-PROVIDE-200-MILLION-OVER-20-YEARS-TO-ADVANCE-SALMON-REINTRODUCTION-IN-UPPER-COLUMBIA-RIVER-BLOCKED-AREAS/

-CBB, Sept. 7, 2023, JUDGE APPROVES THIRD EXTENSION ALLOWING PARTIES IN LAWSUIT OVER COLUMBIA RIVER BASIN SALMON RECOVERY TO KEEP TALKING https://columbiabasinbulletin.org/judge-approves-third-extension-allowing-parties-in-lawsuit-over-columbia-river-basin-salmon-recovery-to-keep-talking/

–CBB, Sept. 28, 2023, BIDEN ADMINISTRATION MEMO ORDERS FEDERAL AGENCIES TO REVIEW ALL COLUMBIA BASIN SALMON RECOVERY PROGRAMS, IDENTIFY NEEDS, PRIORITIZE ACTIONS https://columbiabasinbulletin.org/biden-administration-memo-orders-federal-agencies-to-review-all-columbia-basin-salmon-recovery-programs-identify-needs-prioritize-actions/

–CBB, June 29, 2023, NW HOUSE REPUBLICANS HOLD FIELD HEARING ON LOWER SNAKE DAMS TITLED ‘THE NORTHWEST AT RISK’ https://columbiabasinbulletin.org/nw-house-republicans-hold-field-hearing-on-lower-snake-dams-titled-the-northwest-at-risk/