The History and Legislative Background of the Northwest Power Act
Bodi, Lorraine, Environmental Law
It is depressing to talk about salmon restoration and the Northwest Power Act in 1994.1 So little progress has been made over a period of many years. The promise of salmon restoration that was a central tenet of the Act has never been realized.
In 1980, when the fish provisions of the Northwest Power Act were being drafted, I was a member of the Ad Hoc Committee, a coalition of utility and aluminum company representatives, and fishery agency and tribal representatives which drafted the fish provisions that were eventually incorporated into the Northwest Power Act. So when I speak about the history of these provisions, it is with personal insight into our hopes and expectations at that time.
Before examining the Northwest Power Act itself, I want to recap some basic facts about the Columbia River. Salmon and steelhead have made their way up and down the Columbia and Snake Rivers for thousands of years. For thousands of years, they were harvested by tribal people, and more recently they supported the economy of European settlers. The Columbia once had world-renowned, world-class salmon runs in the range of fifteen million to twenty million adult fish each year. But by the early 1980s, the maturation of the hydroelectric system was beginning to take its toll. Only about two and a half million fish were left in the Columbia Basin at the time the Northwest Power Act was passed.
Hydroelectric dams and reservoirs are responsible for the vast majority of the human-caused impact to these runs. Eighty to ninety percent--in some cases more than ninety percent--of the impact caused by humans on salmon is attributable to the dams. Harvest of these stocks, as you know, was closed this year. But even before this year, harvest was a small fraction of the impact on these runs. In fact, our primary conservation strategy in the Columbia has been to close harvest in lieu of changing the operation of the dams.
In 1994, fewer than a million fish returned to the Columbia Basin. Next year will be worse. We are truly on the downward slide, facing an urgent crisis. We will know the end result in very short order. That is sobering information, and it provides the context for the rest of my analysis. It is important to keep these basic facts and figures in mind in examining the law.
Almost exactly fourteen years ago, in December 1980, Congress enacted the Northwest Power Act. A number of circumstances led to adoption of fish provisions in a bill that started out as power legislation. At the time, salmon and steelhead in both the upper Columbia River and the Snake River were being considered for listing under the Endangered Species Act (ESA).(2) The National Marine Fisheries Service, the agency in charge of the evaluation, was due to make a decision on listing in short order.
The central issue in dispute fourteen years ago was fish migration flows. The region's state and federal fishery agencies had developed a flow proposal in 1978, which was being completely ignored by dam operators. The Bonneville Power Administration (BPA), the region's utilities, and other power customers opposed the imposition of the flow recommendations because of their impacts on the hydrosystem. These opponents raised questions about the scientific certainty and reliability of available flow information. Fourteen years ago, as today, there was a sense of crisis and urgency. There was a feeling that if we did not act quickly, we would lose our salmon runs.
When the fish provisions of the Northwest Power Act were being drafted, our focus was very clear: we were trying to solve these very specific problems with very specific language. We thought that the Northwest Power Act would be our recovery plan, or at least would produce a recovery plan for the salmon. The Act was comprehensive; it covered all the bases. It called for action, not delay, while we waited for additional studies. It specifically required fish flows and improved survival at and between the dams. …