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Comments on Draft 8th NW Power Plan

Submitted to: Northwest Power and Conservation Council

Submitted by: Ed Chaney, Northwest Resource Information Center, Inc. (i)

November 19, 2021

The following comments on the Council’s 2001 draft Eighth Power Plan [sic] are updated comments submitted previously on the draft 2015 Seventh power plan which were updated comments on the draft 2009 Sixth power plan.

The draft 2021 Eighth Power Plan continues the Council’s four decades-long egregious betrayal of the public trust by persisting in subverting the intent of Congress and the letter of the Pacific Northwest Power Planning and Conservation Act of 1980 (ii). The draft plan also seeks to evade the findings and direction of the Ninth Circuit Court of Appeals in Northwest Resource Information Center, Inc. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), cert. Denied,116 S. Ct. 50 (1995), and in NRIC v. NW Power and Conservation Council, 730 F.3d 1008, 1019 (9th Cir. 2013) (iii).

The Council was established in 1980 by what is commonly called the Northwest Power Act. It is comprised of two appointees by each governor of Oregon, Washington, Idaho and Montana. It was given one year to develop a plan to restore Snake River salmon threated with extinction by the Federal Columbia River Power System, notably the four dams on the lower Snake River in southeast Washington, while ensuring an economical and reliable regional power supply.

The Council was quickly corrupted and subsumed into the Bonneville Power Administration Northwest political hegemon (iv). The Council refused to do its job; betrayed the public trust. This betrayal caused billions of public dollars to be wasted, caused $billions in damage, devastated untold thousands of lives, destroyed innumerable small businesses and jobs, caused the loss of untold $billions in economic opportunity foregone, and corrupted governance throughout the Pacific Northwest. Snake River salmon were not restored—they were driven to the threshold of extinction and classed as threatened and endangered under the Endangered Species Act.

Energy produced by the FCRPS is not economical by any rational standard of measure—it is arguably the most costly in the nation. BPA, which markets the power, is functionally bankrupt, surviving on money borrowed from the U.S. Treasury to which it is indebted for tens of billions of dollars. In short, the Council will go down in history as the poster child of corrupt, incompetent, failed experiments in federalism.

NOTE: This 11/26/2021 version of the formal comments submitted 11/19/21 has been edited to improve clarity and add emphasis. +++++

The draft 2021 Eighth Power Plan offers no substantive changes in the previous fatally flawed Sixth and Seventh Power Plans; it is similarly based on the extinction of Snake River salmon—a fact studiously ignored in the draft Eighth Plan, of course. Therefore, if adopted as is, the 2021 Eighth Power Plan would perpetuate the most inefficient, economically, ecologically and socially destructive energy portfolio/supply in the Nation. The draft 2001 Plan has the virtue of making it possible for these comments to recycle NRIC’s comments on the draft and its suit against the Sixth Power Plan (v), comments on the Seventh Power Plan [these comments as edited], all NRIC comments and filings in its suit against the Council's 1992 Strategy for Salmon [fish and wildlife program] (vi), NRIC's 1995 Power Act "equitable treatment" suit against Bonneville (vii), NRIC comments on the 2009 draft Fish and wildlife program (viii), comments on 2013/2014 draft and suit against the 2014 Columbia River Basin Fish and Wildlife Program (ix), and comments on the Sixth Power Plan’s methods for determining environmental costs and benefits (x). All are incorporated herein by reference. A brief overview is sufficient to illustrate the Council’s epic betrayal of the public trust and the devastating consequences of that betrayal. Legislation authorizing construction of the four lower Snake River dams in southeastern Washington required that the dams be designed to provide safe passage for juvenile salmon migrating from the vast pristine headwaters of the Snake River Basin (xi). The Army Corps of Engineers ignored that requirement; its design negligently made no provision whatsoever for juvenile fish passage. Disaster happened. This was the “urgent priority” that drove Congress to embed strong salmon restoration measures in what is commonly called the Northwest Power Act (xii). The Act created the Council and gave it one year, using existing information and with due consideration to recommendations of fish agencies and tribes, to develop a plan to restore salmon and fisheries devastated by the Federal Columbia River Power System while maintaining a reliable and economical regional power supply. In passing the Act Congress was focused on the impact of the Corps’ four dysfunctional dams on the lower Snake River, but included the entire Columbia River Basin impacted by the FCRPS in its salmon restoration mandate. To date, 40 years after the Act was signed into law, and after the purported expenditure of $17 billion ratepayer and taxpayer dollars, the Council steadfastly refuses to even identify what changes in the hydrosystem are necessary to achieve the salmon restoration intent of the Act (xiii).

Even after the Snake River salmon-killing federal agencies spent $110 million on studies which show that the four ill-designed dams on the lower Snake River must be breached if Snake River salmon are to be restored, and that breaching would have a positive economic impact on Bonneville’s bottom line and customers' rates (xiv), the Council steadfastly refuses to include breaching in its so-called power planning. This is beyond run-of-the-mill corruption. This is pure, unadulterated fanaticism. It follows, then, that the Council’s 2021 draft Eighth Power Plan does not contain measures to mitigate any energy effects of changes in the hydro system necessary to achieve the salmon restoration intent of the Act. I.e., breaching the four zombie Corps of Engineers dams on the lower Snake River. Instead, the Council’s existing power plan and the proposed Eighth Power Plan are based on extinction of Snake River salmon. In its 2009 Fish and Wildlife Program the Council finally formally abdicated its duty and adopted as the “baseline” for its salmon plan [sic]—wait for it—the mainstem hydrosystem measures of the salmon killing federal agencies' court-ordered ESA Biological Opinion repeatedly rejected as unlawful by the federal courts (xv). This, of course, was a transparent Council shyster-lawyers’ effort to cover up the fact that the BiOp “baseline” is in fact the pivotal mainstem element of the Council’s plan, which equals extinction for Snake River salmon. This was very difficult not to notice. Most politicians, news media and NGO Salmon Advocates Lite (SALs) made the necessary effort. The federal salmon killers—Bonneville, Corps of Engineers, NOAA Fisheries—spent $110 million on studies [2002/2020 (xiv)] that demonstrated BiOp actions will not even prevent extinction of Snake River salmon. And, that ONLY breaching the four lower Snake River Dams will restore them to productive levels as mandated by the Power Act forty years ago. This is not difficult to understand. The Council just ignores it and hopes no one will notice. Which to date has been a very successful strategy, given that pusillanimous NGO SALs have not been paying attention. In plain sight the Council conspired with Bonneville Power Administration to use more than a billion dollars in ratepayer funds via Columbia Basin Fish Accord/MOAs to suborn [a.k.a. bribe] states and tribes to support these BiOp measures and to oppose breaching the lower Snake River dams. The money also was used to bribe state and tribal governments to support the preposterous assertion that the BiOp not only satisfies the ESA and the Clean Water Act, but also satisfies the much greater salmon and salmon fisheries restoration requirements of the Northwest Power Act—or they would risk losing hundreds of millions of dollars (xvi).

These Godfather bribes in plain sight somehow escaped notice of politicians owned by and/or terrified of the Bonneville Hegemon, and the notice of the news media and NGO SALs. Here is a snapshot of the results to date of the Council’s ongoing betrayal of the public trust. * Snake River salmon, a unique-in-the-world genetic heritage—and the Council’s raison d’être—were driven to the edge of extinction. * The repeatedly court-rejected BiOp represents what may be the most elaborate, costly and destructive government-funded scientific hoax in United States history. The Council is a (so-far unindicted) co-conspirator. * Untold thousands of jobs have been lost, many small businesses destroyed, and the damage continues and compounds.

True to form, for years the Council loved to tout to the dollar how much money BPA “lost” by having to reduce its Snake River salmon kill rate by spilling water at the lower Snake River dams. An NRIC lawsuit supposedly stopped that grotesque practice. It is creeping back, notably among the Bonneville Hegemon’s enablers and shills such as notorious apologists for extinction Public Power Council and Northwest River Partners. * Ecological and economic damage throughout the migratory range of Snake River salmon extends 700 miles inland and thousands of miles along the Pacific Coast. * The ecological damage ranges the gamut from depriving ESA-listed bull trout and a multitude of other freshwater organisms of critical marine-derived nutrients 700 miles inland, to impoverishing ESA-listed Southern Pod Orca by denying them a critical food resource. * ESA-listed sea lions preying on inconsequential numbers of ESA-listed salmon are killed in a grotesque “salmon protection” public relations scam while Bonneville and the Corps of Engineers annually slaughter ESA-listed Snake River salmon by the millions at the four dysfunctional lower Snake River dams with the Council’s blessing and support.

* The draft Eighth Plan portends to destroy Snake River salmon long after the uneconomical energy produced by the four lower Snake River dams has been replaced many times over by conservation as envisioned/mandated by the Power Act. This is the plain, unadorned face of corruption—of personal and institutional madness. * The region is wracked with interminable litigation in the federal courts and concomitant civic and political turmoil that hemorrhages enormous amounts of human and economic capital and diverts attention from pragmatic solutions that would produce substantial national and Northwest net social benefits. * The regional energy system is at risk of draconian intervention by the federal courts. * Governance throughout the Northwest, notably fish and wildlife management, has been politically corrupted at federal, regional, state, and tribal levels of government. * The rule of law has been made a mockery. * The role of science in public decision-making has been egregiously debased. * Billions of dollars have been deliberately wasted on no- to low-priority “salmon habitat enhancement projects” [sic] to create a smokescreen for the scofflaw Snake River salmon killing behavior of Bonneville, Corps and NOAA Fisheries upper management (xvii). * Humanity is being defrauded of its genetic heritage of one of the world’s unique, valuable, and perpetually renewable natural resources.

Conclusions The compounding cost of all this ecological, economic and social damage is a truly breathtaking negative return on investment, incompetence and corruption. It is the result of the scofflaw Bonneville Hegemon's and its dutiful hand puppet Council’s pathological obsession with preserving the destructive status quo at the four dysfunctional lower Snake River dams, instead of championing business-like joint production of electrical energy and salmon as definitively required by law four decades ago. Meanwhile, since 1978 the market, nudged by the Northwest Power Act, has produced energy conservation/efficiency savings of almost 5,800 average megawatts which now represents the second largest resource in the Northwest after hydropower.

The Council says the region can meet nearly all its power demand over the next 20 years with energy efficiency and voluntary reductions in use during peak demand. By 2035, energy efficiency will be nearly the size of the hydrosystem. Several coal-fired power plants will be retired in the foreseeable future.

Regional electrical rates, already among the lowest in the Nation, are projected to go down in the foreseeable future.

The preceding two paragraphs were written in 2015 comments on the draft Seventh Power Plan. Then, as now, the Council pathetically attempts to take credit for the product of market forces. Snake River salmon, however, are threatened with extinction, and the Council works tirelessly to keep them there while economic, ecological and social damage compounds to epic proportions. It is very difficult not to notice what is wrong with this picture. Many, including fans of the Council’s power planning [sic] who profess to be salmon advocates, have made the necessary effort. In early 2021, Bonneville and the Council publicly celebrated the 40th anniversary of the Power Act. They were joined by two long-time sycophant NGOs, Northwest Energy Coalition and Natural Resource Defense Council.

Recommendations Lacking the legally required plan to restore salmon adversely impacted by operations of the FCRPS as the legally required baseline of its power plan, it is impossible to satisfy the intent and letter of the Act requiring the Council to adopt a power plan to mitigate the effects of a salmon restoration plan on the output of the FCRPS as necessary to ensure an efficient, economical and reliable regional energy supply. The Council’s 2009 draft sixth power plan acknowledged the legally-required nexus between its fish and wildlife program and draft power plan, i.e., “The Act requires the Council to update its fish and wildlife program before revising the power plan, and the amended fish and wildlife program is to become part of the power plan.” At NRIC’s urging, the Ninth Circuit Court of Appeals has twice instructed the Council to do its job vis-à-vis developing a program to achieve the salmon restoration provisions of the Power Act (iii). The Council to date has simply refused to do so. Instead, it conspired with Bonneville Power Administration to keep Snake River salmon threatened with extinction, and to cover up the horrendous economic, ecological and social cost. Prior to adopting an Eighth Power Plan, by law the Council must:

1] Reopen its current Fish and Wildlife Program; produce a new draft program, and ultimately adopt a Snake River salmon restoration plan that will ensure achievement of the salmon restoration intent of the Act. 2] Based upon the resulting adopted salmon restoration plan in 1], develop a revised draft Eighth Power plan to achieve the Act’s goal of maintaining an efficient, economical and reliable power supply. 3] In the revised draft Eighth Power Plan the Council must explicate the quantifiable environmental costs and benefits of the proposed new energy portfolio/plan compared to the Federal Columbia River Power System status quo and compared to the Snake River salmon mandate of the Power Act.

The Council must explicate all priceable and non-priceable benefits of fulfilling the 40 year-old unrequited Power Act mandate to make changes in the Federal Columbia River Power System necessary to restore Snake River salmon to productive levels while maintaining an economic and reliable power supply. Epilogue

The Council members who’ve betrayed the public trust and committed this ecological crime against humanity really think they’re going to get away with it without consequences. They’re wrong. The Council long ago degenerated into being a bag man for the Bonneville Hegemon. The Council is notoriously a worthless, costly cruel joke on the people of the Northwest and Nation. To “justify” its existence at public expense, the Council endlessly churns data and public money under the pretext it is “planning”. Of course, it is “planning” nothing, except how keep those lucrative salaries, expense accounts and retirement contributions fully funded as long as possible. The Council for decades has known what must be done to fulfill its legal duty, respect the will of the people and short-circuit the ongoing ecological crime against humanity. But, of course, the Council is so deeply and corruptly subsumed into the Bonneville Hegemon it can’t voluntarily change course. No one seems to care, notably NGO SALs for whom the process is their product and their meal tickets. Given the Bonneville Hegemon’s iron grip on the Northwest, it is magical thinking that Council members would somehow be formally called to account, bedecked in orange jump suits, and the money defrauded of the public clawed back. [Alas. But NRIC will keep trying to find legal representation to make all or part of that happen.] Current Council members and predecessors think they’ve gotten away with it; i.e., for them it’s the Northwest Big Short (xviii), “I’ll be gone, you’ll be gone.” After bilking the public for money while on the Council, they will move on to sinecures and retire at the expense of the public they so egregiously betrayed. They think no one will remember the evil they did. They err. NRIC’s end game mission is to bear witness to the Bonneville Hegemon’s and Council’s egregious betrayal of the public trust and the catastrophic economic, ecological and social consequences. NRIC is creating digital notes-in-a-bottle to launch into cyberspace which will endure and bear witness to future generations about the horrendous ecological crime against humanity individual Council members committed. After years of pondering how best to visually characterize the depth of the Hegemon’s and Council’s soul-rotting betrayal of the public trust, NRIC established a digital Snake River Salmon Killer Memorial Dog Park. Fire hydrants will display the names and photos [head shots] of principal Snake River salmon killers, including individual Council members. The prototype Council version follows and is submitted as part of these comments for the record. In the coming years, NRIC will seek to create physical monuments/interpretative sites in strategic high traffic areas in Oregon, Washington, Idaho and Montana bearing the names of Council members, their respective Governor patrons, and their Snake River salmon-killing shills such as the Public Power Council and Northwest River Partners, with digital leads to details of their crime against humanity.


i NRIC is a scientific, educational organization incorporated in 1976 under section 501(c)(3) of the Internal Revenue Code specifically to address the then-critical threat to the survival of Snake River salmon posed by four dysfunctional Army Corps of Engineers’ dams on the lower Snake River in southeastern Washington.

ii Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96-501. (1980)

iii The Council’s strategy to defeat the salmon restoration intent of the Act is simple and straightforward: First, and most importantly, ignore the purposes of the Act; Second, simply refuse to do Job 1 required by the Act, i.e., to identify how the hydrosystem must be changed to meet the salmon restoration mandate; Third, deconstruct the Act into independent salmon restoration and power elements out of legal context; Fourth, game the Administrative Procedures Act to keep the focus on process instead of results; and Fifth, refuse to divulge to the public and decisionmakers the net social benefits and costs of the Council’s failure to comport with the intent and letter of the salmon restoration provisions of the Act.

iv Bonneville’s authority to borrow enormous sums of taxpayer money from the Treasury, its monopoly control over vast amounts of energy generated by the Federal Columbia Power System, its notorious upper management culture of political hacks and mediocrities, and the lack of federal oversight, long ago encouraged and enabled the agency to be politically captured/dominated by its large, politically powerful customers. Together Bonneville and its politically powerful customers captured regional state and congressional elected officials—then other federal agencies, notably the Northwest offices of the Army Corps of Engineers and NOAA Fisheries. The resulting incestuous relationship is a regional political hegemon that protects and covers up for Bonneville and its patrons and shills, no matter how much economic, ecological and social damage they do.

v vi Northwest Information Center, Inc. v. Northwest Planning Council, 35 F.3d 137 (9th Cir. 1004) cert. denied. vii N.W. Envtl. Def. Ctr. v. Bonneville Power Ass’n, 117 F.3d 1520 (9th Cir. 1997) viii ix Comments on Public Review Draft Columbia River Basin Fish and Wildlife Program 2013/2014, Northwest Power and Conservation Council Document 2014-03, Northwest Resource Information Center, July 25, 2014, incorporated into these comments by reference. x Comments on Appendix P to the Sixth Northwest Power Plan, “Methodology for Determining Quantifiable Environmental Costs and Benefits”, submitted by Northwest Resource Information Center, March 5, 2014. xi Within the Snake River Basin is the largest contiguous wilderness and roadless land complex and largest expanse of pristine and near pristine salmon habitat in the coterminous United States. This 14 million acre area includes more than 4.4 million acres in 6 Wilderness Areas, more than 700 miles in 12 Wild and Scenic Rivers, and nearly 1 million acres within 2 National Recreation Areas. Protecting wild salmon was a primary purpose of the laws creating all these areas. For example, legislation establishing the Sawtooth National Recreation Area in 1972 has as its first purpose "the protection and conservation of the salmon and other fisheries." The Central Idaho Wilderness Act of 1980 states: "...these wildlands and a segment of the Salmon River should be incorporated within the National Wilderness Preservation System and the National Wild and Scenic Rivers System in order to provide statutory protection for the lands and waters and the wilderness-dependent wildlife and the resident and anadromous fish which thrive within this undisturbed ecosystem…”

xii “. . . conservation and enhancement of the great migratory fish and wildlife populations of the Pacific Northwest, something of great concern to the sportsmen and conservationists of this Nation, are for the first time, a matter of urgent priority under this legislation. They are placed on a par with other purposes for Federal facilities in this area. If the fish populations of the Pacific Northwest are to be restored to the sportsmen, the Indians and the commercial fishermen, this is the mechanism which will do it.” 126 Cong. Rec. H10680 (Rep. Dingell). xiii As noted, Congress passed the Power Act to address the devastating effect on salmon and fisheries caused by the existing hydrosystem—notably the four lower Snake River dams—and directed the Council to develop a plan directing the federal agencies to modify the hydrosystem as necessary to restore impacted salmon and fisheries. The Act “emphasiz[es] changes in hydro project operations,” NRIC v. NW Power Planning Council, 35 F.3d 1371, 1378 (9th Cir. 1994) and Congress “expected increased costs and lost profits to the hydropower system to the extent the system was responsible for damaging fish and wildlife in the region,” id. at 1395. Recognizing that these changes would reduce the generating capacity of the existing system, Congress provided new authority to acquire resources as needed to ensure a reliable and economical power supply. 16 U.S.C. § 839d(a)(4) (allowing acquisition of resources “to replace Federal base system resources”); id. At §§ 839a(10)(A), (C) (defining “Federal base system resources” in part to mean “the Federal Columbia River Power System hydroelectric projects”). In short, the Power Plan is to guide any resource acquisitions needed to ensure that changes in the existing hydrosystem necessary to meet the salmon restoration purposes of the Act do not jeopardize an economical and reliable regional energy supply. Read again. Repeat. In classic Orwellian black-is-white Newspeak fashion, the Council rewrote its job description to black out the clear intent of the Power Act; and is getting away with it in plain sight. The Council claims it is not legally required to identify and analyze the effects of changes in the existing FCRPS necessary to restore Snake River salmon, only the effects of any new resources that may be acquired to meet future power demands. Which is interesting, and instructive, given that conservation has legal priority for acquisition of new resources, the region has a surplus of energy far, far into the future, and that the market—not the Council—has determined and will continue to determine the Northwest’s energy future.

The required methodology to determine quantifiable environmental costs and benefits is to reveal the “system” environmental costs and benefits of new resources. In the case of breaching the four lower Snake River dams, no further new resource acquisitions are necessary. The energy that would be forgone was long ago replaced many times over with carbon-free conservation as envisioned in the Power Act.

xiv Columbia River System Operations Final Environmental Impact Statement, U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration, July 2020. Lower Snake River Juvenile Salmon Migration Feasibility Report/Environmental Impact Statement, U.S. Army Corps of Engineers, February 2002.

xv “At one time the Council’s Fish and Wildlife Program included detailed hydrosystem operations for fish and wildlife. This is no longer necessary. The federal agencies that manage, operate, and regulate the federal dams on the Columbia and Snake rivers now have detailed plans for system operations and for each hydroelectric facility intended to improve conditions for fish and wildlife affected by the hydrosystem. These federal agency plans are described and reviewed largely in biological opinions issued by NOAA Fisheries (formerly the National Marine Fisheries Service) and the U.S. Fish and Wildlife Service for the operation of the Federal Columbia River Power System and the Bureau’s projects in the Upper Snake.” Columbia River Basin Fish and Wildlife Program, 2009 Amendments. Northwest Power and Conservation Council, Council document 2009-09, p 34. October 2009.

xvi See an overview of the Council’s complicity in the MOAs on pp 27-29 of NRIC’s Request for Department of Energy investigation incorporated in these comments by reference.

xvii For discussion of this deliberate waste of federal funds for political purposes and to deceive the federal court, see Item 6 on pp 32-35 of Request for U.S. Department of Energy Inspector General Investigation of Waste of Federal Funds and Violations of Other Federal Laws by Scofflaw Culture in Upper Management of Bonneville Power Administration, 42 pp. NRIC, March 4, 2013. incorporated by reference into these comments.

xviii The Northwest Big Short—Fact Sheet, A Northwest Energy Solution: Regional power benefits of the lower Snake River dams—Spin Doctors Hoist Bonneville Power Administration On Its Own Petard, Northwest Resource Information Center, Inc. June 2016 incorporated by reference into these comments.


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