Is equity for fish and wildlife a real possibility under the Northwest Power Act?
The Columbia River Basin is the site of the world's largest integrated hydropower system. Over 150 dams along the Columbia River and its tributaries generate approximately seventy-five percent of the Pacific Northwest's hydropower.(1) However, this area is not only valuable for its capacity to generate electricity, but also as habitat for anadromous fish such as salmon, which have suffered a decline of main stocks by ninety-nine percent or more since European settlement of the Northwest.(2) Although development activities such as deforestation, grazing, urbanization, and irrigation as well as overfishing have contributed to the decline, the hydropower system plays the major role, and is responsible for eighty percent of annual loss.(3)
Congress, recognizing that dams have had a devastating impact on fish runs, made the pledge that "no longer [would] fish and wildlife be given a secondary status" behind power interests,(4) and enacted the Northwest Power Act (Act or NPA) in 1980.(5) The Act called for a prompt development of a program to "protect, mitigate, and enhance the fish and wildlife [particularly anadromous fish], including related spawning grounds and habitat, on the Columbia River and its tributaries,"(6) and demanded "equitable treatment for ... fish and wildlife [on par] with the other purposes for which [the hydrosystem] is operated."(7) In meeting these restoration goals, federal agencies such as the Bonneville Power Administration (BPA) are guided by the Northwest Power and Conservation Planning Council (Council),(8) an interstate body made up of representatives from Oregon, Washington, Idaho, and Montana, that develops a program to "protect, mitigate, and enhance fish and wildlife."(9)
Few Ninth Circuit cases have examined BPA's responsibility to provide equitable treatment under the NPA, and none have determined the extent of this obligation.(10) The Ninth Circuit previously held that the equitable treatment mandate imposes substantive as well as procedural obligations on the federal agency in question.(11) Therefore, the agency has ah obligation that goes beyond the procedural duty to take into account the Council's fish and wildlife program.(12) For example, in the event that the program failed to ensure adequate fish survival, BPA would have the nondiscretionary duty to take additional measures.(13)
A recent Ninth Circuit case further refined the equitable treatment mandate by modifying the scope of the inquiry into whether the requirement has been met. That case, Northwest Environmental Defense Center (NEDC) v. BPA,(14) established that BPA may "balance power needs and wildlife needs on a system-wide basis," and stated that "'equitable treatment' is a highly fact-specific determination."(15) These two requirements, taken together, potentially make challenging BPA decisions very difficult, as the system in question is the entire Columbia River Basin, and the fact-specific inquiry encompasses the actions and results of the Council's fish and wildlife program, as well as any other fish and wildlife measures implemented by BPA.(16) Courts are unlikely to have the judicial resources to wade through such a morass of information, assuming anyone would have the time and money to challenge a decision based on an equitable treatment argument.(17) Therefore, in the interest of providing meaningful review of agency decisionmaking, the court required BPA to develop a "mechanism for fulfilling ... [this] obligation" under the Act.(18)
Exactly what form this "mechanism" should take was left to agency discretion. Because the concept of equitable treatment for fish and wildlife is the linchpin of improved survival of anadromous fish under the Act, it is imperative that a viable procedure be developed which will enable meaningful review of BPA decisionmaking. Otherwise, challenging decisions made by the agency that may detrimentally affect fish and wildlife will be virtually impossible, and the concept of equitable treatment will be yet another missed opportunity to improve the chances of wild salmon existing into the next millennium.
This Chapter will discuss the meaning and role of "equitable treatment" in the context of fish and wildlife programs under the Act and suggest mechanisms by which BPA and the courts can determine if BPA's duty to treat fish and wildlife equitably is being met.(19) Part II will trace the genesis of the NPA and its innovations in the context of the struggle to preserve salmon, including efforts under the ESA, such as biological opinions, and the Council's fish and wildlife program. Part III will analyze the Ninth Circuit's holding in NEDC and describe how the definition of "equitable treatment" was expanded from earlier holdings. Part IV will describe what BPA is currently instituting as a mechanism to ensure that equitable treatment is occurring. Part IV will also discuss why this approach is an invalid interpretation of the relationship between the ESA and the NPA, Ninth Circuit precedent, and Congressional intent. Finally, Part V describes a more viable approach to the court's mandate.
A. Brief Overview of the Northwest Power Act's Fish and Wildlife Provisions
The world's largest hydropower system is located in the Columbia River Basin (Basin), where more than 150 dams generate over forty percent of the nation's hydropower.(20) However, this area is not only valuable for its potential to generate power, but also as the location of what were once the world's most magnificent salmon runs.(21) The unfortunate result of hydropower development in the Basin has been to send many of the runs to the very brink of extinction.(22)
Migrating anadromous fish(23) encounter a number of dangers within the hydropower system. First, young salmon, or smolts, migrating downstream are often crushed by dam turbines.(24) In addition, they are exposed to more predation. The migration downstream to the Pacific Ocean now takes twice as long as it once did due to the taming of the previously strong, swift current of the river by dams.(25) This delay also affects the migratory behavior of juvenile fish, which are on a biological time clock, and therefore must complete the downstream journey quickly.(26) Adult fish migrating upstream to spawn are also detrimentally affected, as the dams create obstacles to reaching upstream spawning grounds. Although "fish ladders," which theoretically enable upstream migrating fish to ascend the height of the dam stepwise, have been installed to aid fish in reaching their spawning grounds, some have failed to be effective.(27) Some runs had to be relocated or replaced by hatchery production.(28) Each problem faced by migrating fish is made more detrimental by virtue of cumulative effects, as each of the 150 dams poses an additive risk to the migrating salmon.(29) This cumulative risk of encountering dangers has been estimated to be seventy-seven to ninety-six percent for juvenile fish migrating past nine dams, depending on the volume and timing of streamflows.(30)
When the Northwest Power Act (Act or NPA) was signed into law December 5, 1980, new and unprecedented legal protection was given to the Basin's fish and wildlife.(31) The statute promised to "protect, mitigate, and enhance" these resources, especially anadromous fish, such as salmon, which had been adversely affected by the development, operation, and management of the Basin hydrosystem.(32) The Act resulted in part from the realization that previous legislative efforts to restore the Northwest's imperiled salmon runs had failed, and as a result, in 1978 the National Marine Fisheries Service was considering listing several runs under the ESA for the first time.(33) Legislative history clearly indicates that Congress intended to make fishery protection and restoration a "[coequal] partner" with hydroelectric power generation, but exactly how this balance was to be struck was not specified.(34) In addition, the Act sought to shift the burden of uncertainty, inherent in proving specific harm to salmon, from salmon advocates to the hydropower industry.(35)
The Act charges the Administrator of BPA and other federal agencies responsible for managing, operating, or regulating hydroelectric facilities in the Columbia basin(36) with protecting, mitigating, and enhancing fish and wildlife by exercising their responsibilities in a manner providing "equitable treatment" for fish and wildlife with other purposes of the facilities.(37) In meeting the restoration goals of the Act, federal agencies are guided by the Pacific Northwest Electric Power and Conservation Planning Council (Council).(38) The Council is entrusted to develop a program to "protect, mitigate, and enhance fish and wildlife affected by the development, operation, and management [of the hydrosystem] while assuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply."(39) The Council's fish and wildlife program is to give "due weight to the recommendations, expertise, and legal rights and responsibilities of the federal and state fish and wildlife agencies and appropriate Indian tribes."(40) The program must include measures that "provide for improved survival of [anadromous] fish at hydroelectric facilities located on the Columbia River system"(41) and "provide flows of sufficient quality and quantity between such facilities to improve production, migration, and survival of such fish as necessary to meet sound biological objectives."(42) In turn, the Administrator and federal agencies are required to take into account this program at each relevant stage of decisionmaking "to the fullest extent practicable."(43) Power losses ate clearly contemplated as a result of these conservation measures because the Act specifies that the Administrator shall bear the cost of such losses if and when they occur.(44)
B. The Northwest Power Act Took an Innovative Approach to Salmon Recovery
Several innovations were included in the Northwest Power Act (Act) in an attempt to overcome inadequacies of previous legislation intended to restore the Columbia River Basin's fish and wildlife.(45) First, the Act aimed for a system-wide remedial program rather than strategies based on individual projects.(46) Therefore, cumulative impacts of the dams on fish and wildlife ate to be considered in restoration efforts. Also, "irretrievable losses in particular locations can be compensated by remedial efforts in other [basin] locations."(47) Such measures might include off-site enhance(48) such as habitat rehabilitation leading to restoration of naturally spawning fish runs, an undertaking many prefer to hatchery construction.(49) Second, mitigation measures emphasizing the alteration of project operations were included in the Act, including altering flows "to improve production, migration, and survival of [anadromous] fish."(50)
The Act also puts a premium on prompt action by establishing that the burden of proof necessary to justify remedial effort is to be based on "best available scientific knowledge" rather than absolute certainty,(51) and by mandating that once the Council was established, it should "promptly develop" a fish and wildlife program.(52) The Act also emphasized the greater importance of biological outcomes over economic results by relegating cost to a secondary status.(53) The only situations in which economics can lead to rejection of a program measure are where there is a cheaper way to accomplish the same sound biological objective,(54) or where costs would jeopardize the Act's guarantee of an "adequate, efficient, economical, and reliable power supply."(55) A final innovation regarding cost is that electric ratepayers, not taxpayers, are to finance the restoration program.(56)
The Act also implemented a new institutional arrangement to formulate and implement the restoration program by creating the Northwest Power Planning Council (Council). The Ninth Circuit held that the Council is guided by substantive standards contained in the Act when formulating its program, and there are five statutory criteria which program recommendations must satisfy.(57)
In sum, the measures must complement fishery agency and tribal actions, make use of best available scientific information,(58) set sound biological objectives,(59) adopt the cheapest alternative only where equally effective alternatives exist, be consistent with Indian treaty rights, improve salmon survival at dams, and improve river flows.(60) In addition to these criteria, which significantly circumscribe the Council's discretion, the Council is authorized to act only after widespread public involvement.(61) In turn, BPA is required to "tak[e] into account [the Council's program] at each relevant stage of decisionmaking processes to the fullest extent practicable"(62) and act "in a manner consistent" with the program.(63) Unfortunately, BPA, as well as the Ninth Circuit, has interpreted these provisions to mean that BPA must consider, but is not required to implement, the Council's fish and wildlife program.(64)
C. Despite These Innovations, Listing of Columbia Basin Salmon Stocks Was Not Avoided, and Numbers Continue to Plummet
Although the Council's fish and wildlife program initially seemed to improve some salmon stocks in the Hanford Reach and Yakima subbasin, this progress was fleeting, because by 1989, runs throughout the Northwest and California were rapidly declining.(65) The failure of the program led to the listing of salmon runs under the Endangered Species Act.(66) On November 20, 1991, the National Marine Fisheries Service (NMFS) listed the Snake River sockeye as an endangered species,(67) and in April 1992, NMFS listed the Snake River fall and spring/summer chinook as a threatened species.(68) The ESA listings illustrate the Council program's inability to achieve the Northwest Power Act's purpose of restoring the Columbia Basin salmon runs, and shifted the focus of salmon preservation to efforts under the ESA.
There are several reasons why, since 1995, the ESA has eclipsed the Northwest Power Act as the driving force behind salmon restoration.(69) First, the enforceability of the Council's program is unclear,(70) and the biological opinions were initially thought to establish a more legally binding restoration plan.(71) Also, environmental groups have been more willing to test the adequacy of the Biological Opinions in court, probably because the ESA is more prescriptive than the NPA with regard to both standards that federal agencies must meet, and to the appeal process.
Despite listings, overall numbers continue to plummet, with listed runs drawing ever closer to extinction.(72) By 1994, fewer than half as many salmon remained in the Columbia as when the Act was passed in 1980.(73) Not surprisingly, 1997 runs showed smaller numbers than a decade ago.(74) Returns of "wild" steelhead in the upper Mid-Columbia River are at extremely low levels.(75) Ironically, a little-known Ninth Circuit case may provide one of the best, and perhaps last, opportunities to improve wild salmon survival in the Columbia basin.
III. NEDC v. BPA
A. The Controversy and Arguments Regarding Non-Treaty Storage Agreements
Almost half the water on the Coordinated Columbia River System(76) is stored in reservoirs built according to the terms of the 1964 Columbia River Treaty (Treaty),(77) an agreement between the United States and Canada.(78) The Treaty required that 15.5 million acre-feet of water be allocated for Canadian storage, but actual reservoir capacity reached 20.5 million acre-feet.(79) The excess storage capacity is referred to as non-Treaty storage, and various agreements were enacted to govern rights to this additional storage capacity after arguments arose between the United States and Canada regarding its use.(80)
The Columbia River Treaty did not unilaterally limit Canada's ability to use all non-Treaty storage, but when the British Columbia Hydro and Power Authority (B.C. Hydro) asserted the right to do so in the early 1980s, BPA argued that it had a right to compensation if use of non-Treaty storage resulted in reduced Columbia River flows in the United States.(81) The parties entered into a ten-year agreement providing B.C. Hydro and BPA equal access to 2 million acre-feet of water in non-Treaty storage space.(82) However, a 1990 Non-Treaty Storage Agreement (NTSA) expanded the amount of non-Treaty storage capacity from 2 million acre-feet to approximately 4.5 million acre-feet, and extended the agreement to the year 2003.(83)
During the public comment process before the NTSA was signed, various fishery advocates focused on two issues: 1) a concern that the agreement would adversely impact fisheries interests, and 2) "a request that the non-Treaty storage be dedicated to increase flows for anadromous fish."(84) In response to the first concern, BPA entered into an agreement to operate non-Treaty storage in a manner which would neither harm fish and wildlife nor disrupt existing fish protection measures (NTS Fish and Wildlife Agreement).(85) Also, under this agreement, BPA agreed to fund a study regarding the rental of irrigation water in Idaho to augment Snake River flows, and if feasible, to provide funds for the rental.(86) However, BPA asserted "that `the NTSA does not compel any particular allocation of non-Treaty storage,"(87) therefore, it refused to commit non-Treaty storage to benefit anadromous fish. Ironically, six months after signing the NTSA, BPA entered into a third agreement with several utility districts known as the Mid-Columbia Participants (MCP).(88) In this agreement (MCP NTSA) BPA dedicated a share of its non-Treaty storage capacities to the utility districts, subject to the NTS Fish and Wildlife Agreement.(89) Therefore, the Mid-Columbia Participants could not use their share of the storage water in a manner that would cause adverse effects on the fish to be "greater than would have occurred in the absence of non-Treaty storage."(90)
Frustrated by BPA's decision to use non-Treaty storage to help power interests rather than aid salmon restoration,(91) the Northwest Environmental Defense Center (NEDC) petitioned the Ninth Circuit for review of the NTSA and MCP NTSA agreements, arguing that BPA violated the Northwest Power Act by failing to provide equitable treatment for fish and wildlife. NEDC argued that the challenged agreements would reduce the number of fish in the river, and that by entering into the agreements, BPA benefited power interests without guaranteeing a concomitant benefit for fish. NEDC's argument focused on the fact that at the time BPA entered into the NTSA agreements, the Council's fish and wildlife program was "insufficient" according to the Council itself, and therefore BPA was required to take additional measures to ensure the survival of fish and wildlife.(92) Accordingly, BPA should have dedicated a portion of the considerable amount of water it gained control over to benefit fish.(93) NEDC asked the Ninth Circuit to invalidate both agreements, and pursuant to the Northwest Power Act, the court exercised original jurisdiction over the action.(94)
BPA took the position that the Act's equitable treatment mandate describes a balancing test requiring a "[systematic] and comprehensive approach to fish and wildlife protection and enhancement in the region."(95) The agency argued that it provides equitable treatment in a system-wide manner through its implementation of the Council's program and other elected fish and wildlife measures. Therefore, it is not required to make equal payment or compensation for every power marketing decision, including the one to enter into the NTSA and MCP NTSA.(96)
B. The Ninth Circuit's Equitable Treatment Analysis
Writing for the Ninth Circuit, Judge Brunetti first established that a deferential standard of review would be adopted in analyzing the challenged agency decisions to enter into the NTSA agreements.(97) Accordingly, as long as the court found that BPA's interpretation of their duties under the Northwest Power Act were "reasonable," the agreements would be upheld.(98)
Judge Brunetti reinforced prior Ninth Circuit precedent finding the Act's equitable provision to be substantive rather than merely procedural.(99) He stated that "BPA's responsibilities to protect fish and wildlife do not end with even complete adoption of the Council's fish and wildlife program,"(100) and "the [equitable treatment] obligation is `independent' of BPA's responsibility to take into account the Council's program."(101) He conceded, however, that the court had never determined the extent of BPA's responsibility to provide equitable treatment, and he turned to Ninth Circuit precedent for guidance in refining the mandate.(102)
In Confederated Tribes,(103) the court directed the Federal Energy Regulatory Commission (FERC) to consider fishery issues before granting a forty-year renewal of a power license.(104) FERC had begun hearings to develop fish and wildlife protection measures in the mid-Columbia but had granted the license renewal before the hearings were concluded.(105) The agency argued that it was not required to consider fish and wildlife prior to granting the renewal because the license contained a provision allowing the imposition of protection measures once the mid-Columbia proceedings were complete.(106) The court held that FERC's complete failure to consider the license renewal's impact on fish and wildlife violated the Act's equitable treatment mandate,(107) However, Judge Brunetti distinguished the present case from Confederated Tribes, as BPA at least considered fish and wildlife, as evidenced by implementation of at least some provisions of the Council's program.(108)
However, in Public Utility District No. 1 of Douglas County (PUD No. 1),(109) the Ninth Circuit held that a federal agency could not satisfy its equitable treatment responsibilities under the Act simply by adopting the Council's program.(110) The court recognized that if the program failed to ensure adequate fish survival, then BPA would be required to take additional measures to satisfy the mandate.(111) In PUD No. 1, the court was analyzing the requirement that BPA "compensate private losses resulting from its imposition of fish protection 'measures.'"(112) The Ninth Circuit rejected BPA's argument that the Act distinguishes between program measures and nonprogram measures. It held that BPA may undertake protection measures under the program or in addition to the program (if the program is inadequate), and in either case BPA was required to compensate private losses.(113)
After examining relevant precedent, Judge Brunetti concluded that it was premature to decide whether BPA had satisfied the equitable treatment provision of the Northwest Power Act. He stated that because the vast amount of storage capacity of NTS was unallocated, it remained to be seen whether BPA's distribution of the non-Treaty storage would provide equitable treatment for fish and wildlife.(114) In addition, he upheld BPA's interpretation of the Act's equitable treatment provision, finding it reasonable that BPA balance power and wildlife needs on a system-wide basis. Accordingly, BPA is not required to justify each individual action in terms of equitable treatment.(115) The opinion states that "[w]hile each power marketing action that affects the system implicates the equitable treatment provision, BPA may properly exercise its obligation by insuring equitable treatment for fish on a system-wide basis."(116)
Judge Brunetti concluded "that `equitable treatment' is a highly fact-specific determination."(117) In evaluating the equity of BPA's decisions to enter the agreements, he found the following facts especially compelling: 1) there was no evidence before the court that the NTSA agreements would significantly impact fish populations; 2) BPA guaranteed that B.C. Hydro and the mid-Columbia Participant's use of non-Treaty storage would not harm fish and wildlife;(118) and 3) BPA had left approximately half of its share of the non-Treaty storage unallocated at the time of oral argument.(119) However, the opinion stressed that the holding applied only to the determination that BPA did not violate the Northwest Power Act by entering into the agreements,(120) implying an invitation for petitioners to challenge the equity of the final allocation scheme.(121)
The court recognized that requiring a highly fact-specific review of BPA decisions for satisfaction of equitable treatment responsibilities on a system-wide basis imposes a difficult task, both on those who would challenge BPA's actions, and on a reviewing court. The court also recommended that BPA develop a "mechanism for fulfilling this obligation."(122) The court hinted that BPA should define such a procedure sooner rather than later, noting that once BPA allocated the non-Treaty storage, it would be required to "demonstrate, by means that allow for meaningful review, that it has treated fish and wildlife equitably."(123)
The NEDC holding represents a refinement of previous Ninth Circuit descriptions of "equitable treatment" under the Northwest Power Act. The court previously declared the mandate to be a substantive obligation, rejecting BPA's argument that equitable treatment merely requires the agency to take the Council's program into account "to the fullest extent possible," which would relegate the parity provision to being a procedural obligation at most. In PUD No. 1, the court stated that BPA must not only take the Council's program into account, it must take additional measures if the program fails to ensure adequate survival of fish. This holding indicates that the overall results of fish and wildlife measures may figure into a court's analysis of what constitutes equitable treatment. NEDC established that BPA may balance power needs with those of wildlife on a system-wide basis, but stated that the determination of equitable treatment is "highly fact-specific." For the first time, the Ninth Circuit defined the scope of inquiry for determining whether BPA has met its equitable treatment obligation. However, because the amount of information to be evaluated would be immense, this holding burdens individuals who challenge agency decisions and courts that hear the claims. According to the court's holding, the scope of inquiry encompasses the entire Columbia River Basin,(124) the actions and results of the Council's Fish and Wildlife Program, and any other fish and wildlife measures implemented by BPA. All of these would need to be evaluated in a highly fact-specific manner. Perhaps recognizing this difficulty, the court ordered BPA to facilitate meaningful review of its purported equitable treatment of fish and wildlife, but was silent regarding what sort of "mechanism" BPA might institute to meet the court's demand.
IV. WHAT DOES EQUITABLE TREATMENT REQUIRE?
A. Current Implementation of the Equitable Treatment Mandate by BPA
In response to a query regarding how the agency is accomplishing equitable treatment on a system-wide basis, BPA described two arenas where it considers the mandate to be effected,(125) First, BPA relies on the Columbia River System Operational Review (SOR) Environmental Impact Statement (EIS). This document, written by BPA, the Army Corps of Engineers, and the Bureau of Reclamation, was intended to satisfy BPA's obligation under the National Environmental Policy Act (NEPA)(126) to "consider" environmental impacts resulting from system operations.(127) BPA claims that its adoption of the SOR EIS preferred system operating strategy (SOS) in the Record of Decision (ROD)(128) issued at the end of the NEPA process is "the most dramatic example of BPA's system-wide equitable treatment for fish.(129) BPA stresses that the SOS adopts operations recommended in the biological opinions. (130) In fact, the strategy adopted in the SOR contains essentially the same measures called for in the 1995 BiOp.(131) A second way BPA claims to provide system-wide equitable treatment is by "implementing the Council's program and other mitigation measures."(132)
B. Inadequacies of the Current Paradigm
BPA's current paradigm for implementation of equitable treatment is inadequate. Compliance with the ESA is not equivalent to providing equitable treatment under the NPA, because the NPA sets a higher standard for recovery and has broader goals. In addition, restoration measures under the ESA are considered by many experts to be inferior to those recommended by the Council, and even NMFS does not profess much optimism that they will result in recovery under the narrow ESA definition. Not only is BPA's current scheme for implementation of equitable treatment by BPA legally inadequate, but to add insult to injury there is evidence that conformity with adopted measures is far from perfect. Finally, BPA treats fish and wildlife needs differently than other system requirements when making economic decisions and when guaranteeing system performance.
1. Compliance with the ESA is not Equivalent to Equitable Treatment Under the NPA
BPA seems to rely on compliance with the ESA as the primary means of satisfying the Northwest Power Act.(133) This is a misguided approach at best, because the NPA sets higher standards for recovery and is broader in scope than the ESA. While the NPA seeks to "protect, mitigate, and enhance" salmon runs,(134) the ESA merely strives to restore runs to the point that listed stocks are no longer threatened or endangered.(135)
Section 7 of the ESA requires BPA, the Army Corps of Engineers, and the Bureau of Reclamation to "insure that any action authorized, funded, or carried out ... is not likely to jeopardize the continued existence of any endangered species or threatened species."(136) In other words, the mandate of the ESA would be satisfied by achieving "museum-piece runs."(137) The NPA, on the other hand, is designed to mitigate the detrimental effects of hydropower development, and therefore restore salmon stocks to the point where they are harvestable.(138) While the NPA considers all species affected by the hydrosystem, the ESA's statutory consideration is limited to listed species. Finally, the NPA is more specific than the ESA regarding how the goals of the statute are to be met, specifically calling for increased flows to enhance salmon survival.(139) In sum, the NPA's higher standard of restoration and broader consideration of the Columbia Basin as a whole differ from the ESA's narrow mandate to prevent jeopardy of listed or threatened species, and therefore compliance with the ESA is not equivalent to equitable treatment under the Act.
2. Restoration Measures Under the ESA Are Inferior to the Council's Program
Although restoration measures under NMFS's 1995 BiOp(140) have been the focus of recovery efforts since stocks were first listed,(141) the Council's 1994 program(142) provides a better chance of improving the situation. The major difference between the two plans concerns the emphasis placed on improvement of inriver migration, which can be accomplished by increased flows or reservoir drawdown, as compared to out-of-river transport by barge or truck.(143)
Both the Council and NMFS called for improved flows in the Snake and Columbia Rivers, but peak flow targets in the 1995 BiOp are lower than those contained in the Council's 1994 program,(144) and NMFS failed to require the flow targets advocated by state fish and wildlife agencies and tribes.(145) In contrast to the Council's program, which advocated phased drawdowns of the Lower Granite Dam reservoir, Little Goose Dam reservoir, and John Day reservoir,(146) the BiOp refused to commit to Snake River reservoir drawdowns. Instead, it directed the Army Corps of Engineers to conduct a drawdown feasibility study to provide information for a 1999 decision.(147) Although the BiOp did call for drawing down the John Day reservoir to near minimum operating pool (MOP) by 1996,(148) decisions to draw down any other reservoirs would require detailed evaluations.(149) As one commentator noted, the distinction between the approach to drawdowns adopted by the Council and that adopted by NMFS can be summarized by stating that the Council called for "immediate action" while NMFS called for "immediate research."(150) Like the Council's program, the 1995 BiOp recommended the purchase of additional water to increase flow on the Snake River.(151) NMFS apparently concluded that it would be unrealistic to purchase the additional million acre-feet recommended by the Council, and NMFS merely called for "an additional amount of water ... as may be necessary to further reduce human-caused mortality of endangered salmon in the Snake River."(152)
While both NMFS and the Council recommended increased fish passage efficiency,(153) the BiOp placed emphasis on improved transportation, rather than spill, to achieve results.(154) Although NMFS directed managers to spill at all projects during the spring, the agency limited spill for the benefit of spring and summer Snake River chinook to high flow conditions and called for maximum transportation during low flow conditions.(155) This requirement, coupled with the determination that all fish collected at the lower Snake River collector projects would be transported, increased the proportion of fish to be transported during low Snake River flow conditions.(156) This approach is in opposition to the Council's recommendation that transportation occur only during "extremely adverse" conditions.(157)
In summary, the NMFS 1995 BiOp is inferior to the Council's 1994 program in several ways.(158) First, the BiOp is less ambitious in improving inriver conditions for juveniles.(159) The BiOp also delayed implementation of measures, such as reservoir drawdowns, that offer the greatest hope for improved salmon survival. (160) According to NMFS itself, the chances of the listed salmon stocks reaching recovery levels(161) are around fifty percent, and could take twenty-four to one hundred years.(162)
3. Salmon Restoration Measures Are Not Being Adequately Implemented
In addition to the legal inadequacies of BPA's approach to providing equitable treatment, implementation of the salmon restoration measures adopted by BPA has been far from exemplary. River operations indicate that many of the major elements of the 1995 BiOp are simply not being met.(163) In 1995, the target flow at Lower Granite Dam was not met for the first twenty-five days of the spring/summer chinook migration season, which means that the flow promised by the BiOp was not provided when migration peaked.(164) The situation was even worse for the fall chinook, a majority of which passed by the dam before the target flows were met forty-one days into the season, even though the water was allegedly available.(165)
Spills necessary to achieve eighty percent fish passage efficiency (FPE) were not achieved at any dam at any time, except at Ice Harbor Dam where two power turbines were out of operation.(166) The lack of target flows as well as adequate spill resulted in transportation being the emphasis of restoration measures, with eighty percent of smolts being barged. Only 1.6 million out of 8.3 million spring/summer chinook smolts migrating down the Snake River survived to enter the Columbia.(167) In summary, despite the fact that 1995 was considered a "good water year,"(168) a major portion of the 1995 BiOp was not implemented, illustrating the inability of the plan to change old ways of doing business.(169)
Implementation of the BiOp measures improved in 1996 and 1997, primarily because of above-average precipitation.(170) As a result of concomitant flood control operations, spring seasonal flow targets were met and exceeded at most projects.(171) However, weekly flow targets at the Lower Granite and McNary projects were not consistently met either year despite the fact that there was available water in the system.(172) Spill during both years was primarily uncontrolled and resulted from high natural runoff and flood control
operations.(173) However, some projects still failed to meet the eighty percent FPE target. For example, in 1996 The Dalles met the goal only fifteen percent of the time during spring migration and thirty percent during the summer.(174) In addition, spill called for by the 1995 BiOp was terminated altogether at The Dalles for over three days during summer migration in response to a west coast power emergency.(175)
As discussed in Part II.C, the 1995 BiOp has eclipsed the program as a means of increasing salmon survival. Therefore, BPA has been even less attentive to the Council's recommendations, and actual flows and FPE are further from the Council's recommendations than from those of NMFS.(176) Although BPA does not rely exclusively on the SOR as a means to implement system-wide equitable treatment, the fact that BPA is not following the selected strategy, which closely tracks the 1995 BiOp, is at least some evidence that BPA is not meeting its obligation.
4. BPA Distinguishes Fish and Wildlife Needs From Other System Requirements in Decisionmaking
BPA's disparate treatment of fish and wildlife needs, as compared to other system requirements, also demonstrates that BPA is not providing equitable treatment. For example, BPA has sought to limit its obligation to fund fish and wildlife measures, which indicates that economic rather than biological factors are driving funding decisions.(177) In September 1996, BPA entered into a Memorandum of Agreement (MOA) with the Departments of the Army, Commerce, Energy, and the Interior which caps BPA's obligation to fund program and other mitigation measures at $252 million annually.(178) Although this figure might seem generous, it actually represents a mere six percent of BPA's annual revenues.(179) Other expenses, such as BPA's payments on its $7 billion nuclear debt,(180) which account for nearly twenty-five percent of its annual operating expenses,(181) are a much more significant portion of BPA's overall budget.
The agreement is a good illustration of BPA's disparate treatment because it singles out hydropower "costs" of fish and wildlife.(182) The Fish Cap authorizes a dual budget, which consists of the "fixed" amount of $252 million as well as a separate, unfixed amount covering the cost of implementing operational changes at the dams to benefit migrating salmon, a concept known as "foregone hydropower revenues."(183) As long as BPA considers "foregone revenue" as part of its fish and wildlife costs, the agency is placing hydropower first as a system priority, because this analysis first considers what the ultimate power generation revenue could have been had no efforts been made to "protect, mitigate, and enhance fish and wildlife,"(184) and then uses the difference between this value and actual revenue as a credit to offset fish and wildlife obligations. The concept of foregone revenue illustrates that BPA considers its obligation to protect fish and wildlife as a limitation on the ability to optimize power generation, which contradicts Congress's express intent that fish and wildlife be a coequal partner with power interests.(185) The disparity in treatment of fish and wildlife costs is also evident from the fact that the MOA singles out fish and wildlife expenditures without addressing other uses of the river which "cost" hydropower revenues, such as flood control, navigation, and irrigation.(186)
The Fish Cap money is not enough to implement both the 1995 BiOp and the Council's program measures.(187) In fact, BPA's funding has predictably focused on the immediate measures called for in the 1995 BiOp.(188) In addition, the budget does not authorize drawdowns of the lower Snake and John Day reservoirs, which were recommended by both the Council's program and 1995 BiOp.(189) The Fish Cap, which emphasizes the role of economics in fish and wildlife restoration, is in direct opposition to the Northwest Power Act, which "limited the role of economic considerations."(190) Both the ESA and NPA call for science-based decision making, and relegate economics to a secondary concern.(191)
Equitable treatment also requires that the needs of salmon be met "with a level of certainty comparable to that accorded other operational purposes."(192) However, BPA currently makes no guarantee that fish measures such as adequate flows and spill will be provided, but it virtually guarantees other system operational requirements.(193) Under the Pacific Northwest Coordination Agreement, planning studies are made as if the total coordinated river system were operated by a single owner, which allows synchronization of operations to maximize power production on a daily basis.(194) This intricate planning process results in both rule curves(195) and monthly estimates of the firm energy that can be produced by each project during the critical period.(196) Coordinated planning of operations throughout the basin is also used to specify with a high degree of reliability the amount of firm energy that will be generated in any given year.(197) Arguably, equitable treatment requires that BPA guarantee with the same degree of reliability that biological objectives under the Council's program and NMFS BiOp will be met, and justify any probabilities that are lower than standard guarantees for firm power.
C. Objective Indicators of Compliance With Equitable Treatment Mandate
The Northwest Power Act contemplates specific results, namely "improved survival of [anadromous fish]."(198) Therefore, an objective evaluation of BPA's compliance with the equitable treatment mandate should have as its endpoint an assessment of how salmon have fared in the Basin since the Act became law in 1980. The Act itself provides evidence that Congress intended significant changes in hydrosystem operation, because provisions providing for assumption of costs and power losses were included in the statute. By requiring that the Council base program measures on the "best available scientific knowledge" rather than absolute certainty,(199) Congress lowered the burden of proof for action, which indicates an expectation for results. Legislative history also indicates that the statute is remedial, and is therefore intended to "offset the cumulative impact of the hydroelectric dams of the Columbia and its tributaries."(200) Congress spoke of correcting past mistakes and avoiding future ones by making fish and wildlife "a [coequal] partner" with other river uses. This indicates that Congress relied heavily on the equitable treatment mandate of the Act to achieve restoration goals.(201)
Case law also supports the conclusion that evaluation of the recovery situation should figure into the equitable treatment analysis. For instance, the Ninth Circuit has interpreted BPA's equitable treatment obligation to be both "substantive" and "independent" of BPA's responsibility to "take into account the Council's program to the fullest extent possible."(202) In other words, if program measures fail to ensure adequate survival of fish, BPA's equitable treatment obligation requires the agency to take further steps.(203)
Judges have generally expressed impatience with the rate at which salmon survival has improved in the Basin.(204) When Oregon and Idaho challenged the 1993 "no jeopardy" BiOp in court, Oregon District Judge Malcolm Marsh admonished NMFS not to rely on small, incremental steps in attempting to satisfy the directives of the ESA when producing a BiOp.(205) He stated that:
[T]he process [of jeopardy analysis] is seriously, "significantly," flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation--that is, relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption.(206)
Judge Marsh's pessimism about the rate of improvement in the Basin was reiterated by the Ninth Circuit six months later when it rejected the Council's 1991 amendments to the Columbia Basin Fish and Wildlife Program (Program).(207) The court criticized the Council's predilection for small steps and the tendency to act as a consensus builder, rather than a leader, in restoring fish and wildlife.(208) The court seemed to conclude that these shortcomings were the primary reasons behind the "few profound successes" resulting from innovations implemented in the Northwest Power Act.(209) Taken together, these two cases indicate that the federal courts will no longer sanction the incremental improvements embraced by the early salmon restoration plans, and that real, tangible results should be the goals of agencies implementing plans formulated under both the NPA and ESA.
Because the NPA, legislative history, and Ninth Circuit precedent indicate that Congress anticipated objectively quantifiable results, not just consideration of fish and wildlife needs, analysis of the equitable treatment mandate requires assessment of performance indicators. Such indicators might include the following: number of adult fish counted at dams, number of redds, number of fish harvested and available harvest opportunities, stability of production and harvest, flows, temperatures, and other values determined to be indicative of restoration status.(210) If these parameters indicate that there has been no measurable improvement, BPA and the other agencies responsible for managing, operating, or regulating hydroelectric projects should have the burden of proof to show that dam operations are not responsible for the continued decline. Such an approach would be in accord with Congress's intent that the burden of uncertainty be shifted to the hydropower system when proving specific harm to salmon.(211) Determining exactly how much flow and spill is enough to enhance survival may require "adaptive management," or a trial and error approach.(212) The recommendations of the Council and NMFS should be the starting point, because compliance with both the Council's program and NMFS biological opinions provide an objective indication of equitable treatment.
The degree of BPA's compliance with the Council's program and progress toward meeting the Council's overall goal of doubling salmon and steelhead runs without loss of biological diversity(213) also figures into the equitable treatment analysis. As a means to achieve the Act's biological objectives, Congress created the Council and ordered it to adopt measures to improve production, migration, and survival of anadromous fish at hydroelectric facilities, specifically by providing flows of sufficient quality and quantity between dams.(214) BPA has asserted that one way it gives fish and wildlife equitable treatment is through adoption of the Council's program.(215) Therefore, if the program is being virtually ignored and there is negligible progress toward the goal of doubling runs, there is at least some evidence that BPA is failing to meet its equitable treatment obligation.
Similarly, compliance with the ESA through adoption of the NMFS BiOp is an important indicator of equitable treatment. As discussed in Part IV.A, BPA asserts that its SOR EIS preferred system operating strategy, which closely resembles the 1995 BiOp, is the "most dramatic example of BPA's system-wide equitable treatment for fish."(216) Therefore, another component of equitable treatment is conformity with the NMFS BiOp.
Economics also play a role in providing equitable treatment for fish and wildlife under the NPA, because the Act states that "monetary costs and power losses" resulting from the Council's program are to be borne by BPA.(217) Logically, if BPA fails to allocate enough money to implement the Council's program and the NMFS BiOp, the agency will have failed to provide two important components of equitable treatment under this analysis. As discussed above, calculating foregone revenues as part of the fish and wildlife budget places an undue emphasis on power generation, which is not indicative of equitable treatment.(218)
In summary, the Act's bias toward action and results indicates that an equitable treatment analysis should consider the status of restoration in the Basin. Lack of progress toward the biological objectives set by both the Council and NMFS, and lack of a guarantee that they will be met in the future, creates a rebuttable presumption that equitable treatment is not being provided to fish and wildlife. As the Council is required to justify why it rejects recommendations from the fishery agencies and tribes, so should BPA be required to explain why it has not implemented measures such as drawdowns, spill, and increased flows.(219) If salmon numbers continue to plummet, BPA must be held accountable for not taking additional measures to counteract the effects of hydropower development on migration, production, and survival of salmon, which the Act acknowledged as an "irreplaceable finite resource."(220)
V. POSSIBLE MECHANISMS FOR ENSURING COMPLIANCE WITH THE EQUITABLE TREATMENT MANDATE
As discussed in Part IV.B, relying on the SOR EIS as a "mechanism" to implement equitable treatment is not acceptable. Because neither river conditions nor power needs are static, a "living" document is required to adequately evaluate the status of restoration efforts as well as compliance with both the Council's fish and wildlife program and biological opinions. In addition, the "mechanism" should target decisionmaking that occurs on a systemwide level in order to comport with the "systematic" approach approved by the Ninth Circuit in NEDC. Finally, BPA should clearly document the decisiomaking process and explain how operations are affected by certain resolutions. Otherwise, a court attempting to review BPA's actions in the context of equitable treatment will be unlikely to understand the cause and effect relationship between challenged decisions and their influences on fish and wildlife, due to the complexity of the hydropower system.
With these prerequisites in mind, there are several opportunities for BPA to step back and evaluate system requirements, including fish and wildlife needs, in the context of overall hydrosystem operations. For instance, BPA could institute an annual programmatic tiering off of the Business Plan EIS generated in 1995.(221) The plan establishes "policies to guide `pricing, power marketing, transmission, and fish and wildlife activities,' with the overall goal of improving operational efficiency and flexibility."(222) While analyzing business alternatives and their impacts, it would make sense that BPA also determine the likelihood of meeting its equitable treatment obligations under the Northwest Power Act according to the criteria described above. Such an analysis would satisfy the Ninth Circuit's mandate in NEDC that BPA develop a mechanism "to demonstrate, by means that allow for meaningful review, that it [is treating] fish and wildlife equitably."(223) Similarly, BPA could implement an annual tiering off of the SOR EIS, taking into consideration projected water conditions and returning salmon numbers, which would allow BPA an opportunity to document its decisioumaking process and examine the overall effect of the hydrosystem on fish and wildlife.
As discussed in Part IV.B.4, the PNCA is another juncture where BPA makes decisions that affect the operations of the entire Columbia River system. By coordinating operations at hydroprojects, flood control and maximum energy generation is planned out months in advance, and operations are later fine-tuned to accommodate variations in the actual water conditions, as compared to the original projection.(224) If managers can plan for floods and maximum energy production, why not for adequate flows and spills for migrating fish? The PNCA is another opportunity for BPA to demonstrate how it places fish and wildlife on par with other purposes of the hydrosystem.
Finally, BPA must assess system capabilities when entering into long-term energy sales contracts in order to evaluate how much power can be guaranteed to a particular subscriber. Therefore, allocating water to meet the goals of the biological opinions and the Council's program before dedicating the remaining water to power generation would also provide a reviewable record to evaluate whether BPA is providing equitable treatment for fish and wildlife.
The NPA's equitable treatment mandate is a tacit concession that the development of the Columbia hydropower system is accountable for the downward spiral of salmon numbers in the Pacific Northwest. By making fish and wildlife coequal with power interests, Congress intended to reverse the trend and restore runs to harvestable levels. BPA's "business as usual" stance to implementing fish and wildlife measures is no longer acceptable in light of judicial impatience with the incremental rate of improvement in salmon survival, expressed in both IDFG and NRIC, as well as the continued decline of wild salmon stocks. This conclusion is bolstered by Ninth Circuit precedent indicating that under the equitable treatment mandate of the NPA, BPA has a nondiscretionary, substantive duty to consider the results of program fish and wildlife measures and to act to supplement them if necessary. Analogous to the situation in NRIC where the Council failed to justify its decisionmaking, BPA's current lack of explanation as to how its actions provide equitable treatment for fish and wildlife precludes meaningful review of its decisions, which in turn frustrates holding the agency accountable for its equitable treatment obligation. Now that the Ninth Circuit has determined that equitable treatment may be satisfied on a system-wide basis and that the analysis is "highly fact-specific," it is imperative that BPA periodically analyze its success in meeting the restoration goals of the Northwest Power Act using objective indicators which will facilitate judicial review. This self-critique should become a "living" document, reflecting that the Basin and its resources are dynamic.
(1) U.S. DEFT OF ENERGY ET AL., THE COLUMBIA RIVER SYSTEM: THE INSIDE STORY 2, 72-74 (1991) [hereinafter THE INSIDE STORY].
(2) For instance, during the 1950s and 1960s Snake River sockeye salmon returns to Redfish Lake numbered more than 4000 fish, but in 1994 only one fish returned. National Marine Fisheries Serv., U.S. Dep't of Commerce, Endangered Species Act--Section 7 Consultation: Biological Opinion: Reinitiation of Consultation on 1994-98 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years 17-18 (Mar. 1995) [hereinafter 1995 BiOp]. In 1997, none returned. FISH PASSAGE CTR. OF THE COLUMBIA BASIN FISH and WILDLIFE AUTHORITY, DRAFT 1997 ANNUAL REPORT 69 (Mar. 1998) [hereinafter 1997 REPORT]. The total number of chinook migrating in the Snake River declined from 80,000 in the late 1960s to 10,000 in 1992. John Ogan, The Need for a Smolt Travel Time Objective in the Columbia Basin Fish and Wildlife Program to Protect and Restore the Northwest's Imperiled Salmon Runs, 24 ENVTL L. 673, 699 (1994).
(3) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th Cir. 1994) (citing 56 Fed. Reg. 14,055, 14,058 (1991)), cert. denied, 516 U.S. 806 (1995).
(4) NRIC, 35 F.3d at 1377 (quoting 126 CONG. REC. H10,681 (1980) (statement of Rep. Dingell (D-Mich.))).
(5) Pacific Northwest Electric Power Planning and Conservation Act (NPA or Northwest Power Act) 16 U.S.C. [subsections] 839-839h (1994). See generally Ogan, supra note 2, for a discussion of the Act's development.
(6) 16 U.S.C. [sections] 839b(h)(1)(A) (1994).
(7) Id. [sections] 839b(h)(11)(A)(i).
(8) Id. [sections] 839b(a).
(9) Id. [sections] 839b(h)(1)(A).
(10) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1389 (9th Cir. 1994); Public Util. Dist. No. 1 of Douglas County (PUD NO. 1) v. Bonneville Power Admin., 947 F.2d 386, 392 (9th Cir. 1990), cert. denied, 503 U.S. 1004 (1992); Confederated Tribes and Bands of Yakima Indian Nation v. FERC, 746 F.2d 466, 473 (9th Cir. 1984), cert. denied, 471 U.S. 1116 (1985).
(11) PUD NO.1, 947 F.2d at 392; Confederated Tribes, 746 F.2d at 473.
(12) PUD NO.1, 947 F.2d at 392.
(14) 117 F.3d 1520 (9th Cir. 1997).
(15) Id. at 1533-34.
(17) To give some perspective on the amount of information encompassed by a system-wide analysis, the Columbia River, which is 1,214 miles long, is the fourth largest river in North America, and its basin drains 219,000 square miles in seven western states: Washington, Oregon, Idaho, Montana, Wyoming, Nevada, and Utah. THE INSIDE STORY, supra note 1, at 4.
(18) Northwest Envtl. Defense Ctr. (NEDC) v. BPA, 117 F.3d 1520, 1520, 1534 (9th Cir. 1997).
(19) Although the NEDC decision and its holding regarding BPA's equitable treatment obligation is the focus of this Chapter, the Act makes clear that "other Federal agencies responsible for managing, operating, of regulating Federal or non-Federal hydroelectric facilities located on the Columbia River or its tributaries" are also bound to provide equitable treatment to fish and wildlife. 16 U.S.C. [sections] 839b(h)(11)(A) (1994). Therefore, the equitable treatment analysis discussed herein applies equally to the Army Corps of Engineers, Bureau of Reclamation, and Federal Energy Regulatory Commission. Id.
(20) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1375 (9th Cir. 1994).
(21) The Columbia River Basin produces four principle species of salmon: chinook, sockeye, coho, and chum. Biologists distinguish salmon species by the season during which they migrate upstream to spawn (i.e., fall or spring/summer "runs"). American Rivers v. National Marine Fisheries Serv., 109 F.3d 1484, 1486 n.3 (9th Cir. 1997).
(22) Only one Snake River sockeye returned to spawn in the Snake River in 1994. In 1995, only 1800 Snake River spring/summer chinook and 350 Snake River fall chinook returned. Id. at 1487.
(23) Anadromous fish are born in freshwater and migrate as juveniles to saltwater. "They reach adulthood at sea, and return to their freshwater birthplace to reproduce." THE INSIDE STORY, supra note 1, at 38.
(24) NORTHWEST POWER PLANNING COUNCIL, 1994 COLUMBIA BASIN FISH AND WILDLIFE PROGRAM 5-1 (1994) [hereinafter FISH AND WILDLIFE PROGRAM].
(27) Charles F. Wilkinson & Daniel K. Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. KAN. L. REV. 17, 39 (1983). Brownlee Dam, built in 1958 on the Snake River, failed miserably and blocked all fish passage to the upper Snake River System. Id. at 39 n. 117.
(28) Id. at 38.
(29) Id. at 43.
(30) FISH AND WILDLIFE PROGRAM, supra note 24, at 4-7.
(31) Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act) 16 U.S.C. [subsections] 839-839g (1994). See John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, The Endangered Species Act, and Adaptive Management, 23 ENVTL. L. 1249, 1263-64 (1993) (discussing how the NPA helps to overcome previous obstacles to salmon recovery).
(32) 16 U.S.C. [sections] 839b(h)(11)(A)(i) (1994); Michael C. Blumm, Reexamining the Parity Promise: More Challenges than Successes to the Implementation of the Columbia Basin Fish and Wildlife Program, 16 ENVTL. L. 461, 464 (1986).
(33) Henry B. Lacey, New Hope for Pacific Salmon?, 3 HASTINGS W.-N.W.J. ENVTL. L. & POL'Y 19, 25-26 (1995).
(34) H.R. REP. No. 96-976, at 46 (1980), reprinted in 1980 U.S.C.C.A.N. 5989, 6015.
(35) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1377 (9th Cir. 1994).
(36) See supra note 19 (discussing agencies, in addition to BPA, that have equitable treatment obligations under the Act).
(37) 16 U.S.C. [sections] 839b(h)(11)(A)(i) (1994).
(38) Id. [sections] 839b(a).
(39) Id. [sections] 839b(h)(5).
(40) Id. [sections] 839b(h)(7).
(41) Id. [sections] 839b(h)(6)(E)(i).
(42) Id. [sections] 839b(h)(6)(E)(ii).
(43) Id. [sections] 839b(h)(11)(A)(ii).
(45) Blumm, supra note 32, at 467-68 (discussing innovations of the Act). See also, Lorraine Bodi, The History and Legislative Background of the Northwest Power Act, 25 ENVTL. L. 365, 365-66 (1995).
(46) Blumm, supra note 32, at 467-68.
(47) Id. at 468.
(48) 16 U.S.C. [sections] 839b(h)(8)(A) (1994).
(49) Hatchery production has several drawbacks, such as decreasing the adaptive capability of wild stocks by reducing genetic diversity, impairing natural reproduction, transmitting disease, and increasing available food and habitat competition. Lacey, supra note 33, at 59.
(50) 16 U.S.C. [sections] 839b(h)(6)(E)(ii) (1994). Unless flows are sufficient to propel migrating smolts downriver to the ocean within the timeframe dictated by biology, they may lose the urge to migrate. FISH AND WILDLIFE PROGRAM, supra note 24, at 5-1. The smolts are also preyed upon by predators and exposed to diseases fostered by the artificial reservoir environment. Id.
(51) 16 U.S.C. [sections] 839b(h)(6)(B) (1994).
(52) Id. [sections] 839(h)(1)(A).
(53) Blumm, supra note 32, at 468. For a discussion of how the Act raises biological objectives to a status that expressly precludes cost-benefit analysis from frustrating the selection of restoration measures, see Robert C. Lothrop, The Misplaced Role of Cost-Benefit Analysis in Columbia Basin Fishery Mitigation, 16 ENVTL. L. 517 (1986).
(54) 16 U.S.C. [sections] 839b(h)(6)(C) (1994).
(55) Id. [sections] 839b(h)(5). However, the Act does not specify that adequate hydropower be assured.
(56) Id. [sections] 839(h)(8)(B).
(57) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994). See also, Michael C. Blumm et al., Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the Mid-1990s, 27 ENVTL. L. 21, 47-49 (1997) (discussing NRIC's effect on the Council's discretion in adopting program measures).
(58) Using the "best available scientific knowledge" requires deference to the fishery agency and tribal scientific interpretations and inferences. Therefore, the Council must explain its rejection of agency and tribal recommendations. NRIC, 35 F.3d at 1389.
(59) Biological objectives must be fairly specific, such as recruits per spawner, smolt-to-adult return to individual subbasins and to the Columbia River mouth, adult passage conversation rates, and water particle travel times. Id. at 1392.
(60) Improved salmon survival at dams and improved river flows necessary to meet sound biological objectives require a "high degree of deference" to the fishery agencies and tribes. Id.
(61) 16 U.S.C. [subsections] 839b(h)(4)(B), 839b(h)(7) (1994).
(62) Id. [sections] 839b(h)(11)(A)(ii). This vague enforcement language has been the greatest weakness of the Act, and is also the reason attention has been focused on salmon restoration plans under the ESA, which has clearer enforcement provisions. Blumm et al., supra note 57, at 61 n.253.
(63) 16 U.S.C. [sections] 839b(h)(10)(A) (1994).
(64) Blumm et al., supra note 57, at 61 n.253. See also, Harvey Spigal, The Implications of Salmon Recovery for the Bonneviile Power Administration and the Region, 25 ENVTL. L. 407, 410 (1995). The Ninth Circuit previously held that BPA "must act consistently with the Council's program but in the end has final authority to determine its own decisions." NRIC, 35 F.3d at 1379. However, the Council does arguably have some authority, because the wording of the Act strongly indicates that Congress expected the program to be implemented. Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 ENVTL. L. 657, 675-76 (1991). Because the Council has not chosen to test its authority and has ignored flagrant violations of program measures, it is unclear how much authority it has to enforce the program. Id.
(65) For a discussion of the Council's fish and wildlife program from 1981 to 1990, see Lacey, supra note 33, at 26-29. The sockeye run returning to Redfish Lake in Idaho dwindled from 4400 in the 1950s to one returning adult in 1990. Ogan, supra note 2, at 698. The total number of chinook migrating in the Snake River declined from 80,000 in the late 1960s to 10,000 in 1992. Id. at 698-99.
(66) Endangered Species Act of 1973 (ESA), 16 U.S.C. [subsections] 1531-1544 (1994 & Supp. II 1996).
(67) Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619, 58,619 (Nov. 20, 1991) (codified at 50 C.F.R. [sections] 17.11 (1997)).
(68) Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653, 14,653-54 (Apr. 22, 1992) (codified at 50 C.F.R. [sections] 17.11(h) (1997)).
(69) For a discussion of the preference of the biological opinions over the Council's program as a means to restore salmon, see Blumm et al., supra note 57, at 64-65.
(70) For a discussion of the enforceability of the Council's program, see supra note 64 and accompanying text.
(71) Blumm et al., supra note 57, at 64.
(72) American Rivers v. National Marine Fisheries Serv., 109 F.3d 1484, 1487 (9th Cir. 1997).
(73) Bodi, supra note 45, at 365-66.
(74) Northwest Power Planning Council, Good News, Bad News for Columbia River Salmon, NORTHWEST ENERGY NEWS, Spring 1998, at 16.
(75) 1997 REPORT, supra note 2, at 70.
(76) The Coordinated Columbia River System covers projects that are administered under three separate agreements: the Pacific Northwest Coordination Agreement, the Columbia River Treaty, and federal flood control statutes. THE INSIDE STORY, supra note 1, at 16.
(77) Columbia River Treaty, Jan. 17, 1961, U.S.-Can., 15 U.S.T. 1555 (although the U.S. ratified the treaty in 1961, Canada did not do so until 1964).
(78) THE INSIDE STORY, supra note 1, at 21.
(79) Northwest Envtl. Defense Center (NEDC) v. BPA, 117 F.3d 1520, 1525 (9th Cir. 1997).
(80) Id. at 1525.
(81) Id. at 1526.
(83) Id. The 1984 agreement would have expired in 1993. Id.
(84) Id. at 1527.
(85) Id. However, this agreement has never been implemented by BPA, and is never mentioned or apparently considered during decision making. Interview with Daniel J. Rohlf, Pacific Environmental Advocacy Center, in Portland, Or. (Mar. 12, 1998).
(86) Id. at 1527.
(87) Id. at 1526 (quoting the Official Record at 1337).
(88) Id. at 1527.
(90) Id. (quoting the Official Record at 1337). The condition that the utilities adhere to the NTS Fish and Wildlife Agreement is meaningless, because, as discussed supra note 85, the agreement has never been implemented.
(91) Neither BPA nor the court viewed the MCP NTSA as a decision unilaterally aiding power interests. Id. at 1533.
(92) NEDC, 117 F.3d at 1532-33.
(94) Id. at 1527. See also, 16 U.S.C. [sections] 839f(e) (1994) (outlining what actions are subject to judicial review under the Act).
(95)NEDC, 117 F. 3d at 1533 (quoting the Official Record at 1331).
(96) Id. However, by asserting that the NTSA did not compel any particular allocation of non-Treaty storage, BPA made the point that the decision to enter into the NTSA was not a power marketing decision, therefore this argument is irrelevant. Id. at 1526.
(97) Id. at 1530.
(99) Id. at 1532-33. Procedurally, BPA is required to take the Council's program into consideration "to the fullest extent possible." Id. at 1532. See also, 16 U.S.C. [sections] 839b(h)(11)(A)(ii) (1994).
(100) NEDC, 117 F.3d at 1532.
(103) Confederated Tribes and Bands of Yakima Indian Nation v. FERC, 746 F.2d 466 (9th Cir. 1984), cert. denied, 471 U.S. 1116 (1985).
(104) NEDC, 117 F.3d at 1532 (discussing Confederated Tribes, 746 F.2d 466 (9th Cir. 1984)).
(109) Public Util. District No.1 of Douglas Co. (PUD No.1) v. Bonneville Power Admin., 947 F.2d 386 (9th Cir. 1991), cert. denied, 503 U.S. 1004 (1992).
(110) NEDC, 117 F.3d at 1532 (discussing PUD No. 1,947 F.2d 386).
(112) Id. (quoting PUD No.1, 947 F.2d at-391).
(114) Id. at 1533. The court apparently did not consider the argument that simply entering into the NTSA could have a detrimental effect on fish, because BPA relinquished control over more than half of the non-Treaty storage it previously controlled, and Canada has no affirmative duty to protect U.S. fish and wildlife. Therefore, even if BPA dedicated one hundred percent of its non-Treaty storage to benefit fish, the agreement dramatically decreases the amount of water available in the system for increasing flows.
(116) Id. at 1533-34.
(117) Id. at 1534.
(118) This guarantee was premised on the fact that the NTS Fish and Wildlife Agreement was being adequately implemented, and therefore adherence to this agreement would prevent harm to fish and wildlife. However, as discussed previously, this is not the case, and so this argument is less than compelling. Rohlf, supra note 85.
(119) NEDC, 117 F.3d at 1534.
(121) The court stated that "[o]nce BPA allocates the non-Treaty storage, however, BPA will be required to demonstrate, by means that allow for meaningful review, that it has treated fish and wildlife equitably." Id. Therefore, allocation of non-Treaty storage does trigger BPA's equitable treatment obligation, and the final allocation scheme will be reviewable accordingly.
(124) See supra note 17 for information regarding the enormous size of the Columbia Basin.
(125) Letter from Mark W. Maher, Vice President for Power Supply of Bonneville Power Administration, to Daniel J. Rohlf, Pacific Environmental Advocacy Center (Sept. 4, 1997) (on file with author) [hereinafter Maher Letter].
(126) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1994).
(127) BONNEVILLE POWER ADMIN. ET AL., COLUMBIA RIVER SYSTEM OPERATION REVIEW: FINAL ENVIRONMENTAL IMPACT STATEMENT SUMMARY 2 (1995) [hereinafter SOR EIS].
(128) BONNEVILLE POWER ADMIN. ET AL., COLUMBIA RIVER SYSTEM OPERATION REVIEW: RECORD OF DECISION (1997) [hereinafter ROD].
(129) Maher Letter, supra note 125.
(130) Id. See also, ROD, supra note 128, at 9.
(131) Blumm et al., supra note 57, at 74 n.42. The Record of Decision states that the "specific operating requirements to meet the selected strategy stem from the 'reasonable and prudent alternatives (RPAs)' in the March 2, 1995 Biological Opinion (BO), prepared by the National Marine Fisheries Service (NMFS) and the March 1, 1995 Biological Opinion (BO) prepared by the U.S. Fish and Wildlife Service (USFWS)." ROD, supra note 128, at 4. It also says that "a major issue in this decision was Snake River salmon recovery." Id. at 11.
(132) Maher Letter, supra note 125.
(133) See supra notes 69-74 and accompanying text.
(134) 16 U.S.C. [sections] 839b(h)(2)(A) (1994). Legislative history reveals that Congress intended the statute to "offset the cumulative impacts of the hydroelectric dams of the Columbia and its tributaries on fish and wildlife" and thereby "correct past mistakes." H.R. REP. No. 96-976(I), at 48-49 (1980), reprinted in 1980 U.S.C.C.A.N. 5989, 6015.
(135) Recovery under the ESA means "improvement in the status of listed species to the point at which listing is no longer appropriate under criteria set out in ... the Act." 50 C.F.R. [sections] 401.02 (1997).
(136) 16 U.S.C. [sections] 1536(a)(2) (1994).
(137) Daniel J. Rohlf, Legal Issues Shaping Salmon's Future, 25 ENVTL. L. 413, 415 (1995).
(138) See Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994).
(139) The NPA specifically lists increased flows as a means to achieve the goal of restoring salmon to the Columbia Basin. 16 U.S.C. [sections] 839b(h)(6)(E)(ii) (1994).
(140) 1995 BiOp, supra note 2.
(141) See supra notes 66-68 and accompanying text for a discussion regarding the focus of recovery efforts being on the ESA rather than NPA.
(142) FISH AND WILDLIFE PROGRAM, supra note 24.
(143) See Blumm et al., supra note 57, at 49-83 (discussing the competing plans and their primary differences). Professor Blumm states that inriver conditions "can be improved by increasing river flow rates, improving dam structures, or changing dam operations (such as increasing spill) for safer fish passage. Flow improvement measures include flow augmentation and reservoir drawdowns." Id. at 30. Flow augmentation involves releasing water from storage dams, which increases river flows, decreases smolt travel time to the ocean, reduces smolt exposure to predation, and minimizes water quality problems such as nitrogen super-saturation and high temperatures. Id. Reservoir drawdowns lower the elevation of reservoirs by releasing the stored water downstream, thus reducing the cross-sectional area of the reservoirs and increasing the rate of flow. Id. at 31.
(144) For example, at the Lower Granite Dam, the Council recommended spring flows ranging from a minimum monthly flow average of 85,000 cubic feet per second (cfs) to 140,000 cfs, while NMFS recommended flows of 85,000 cfs to 100,000 cfs. Fish AND WILDLIFE PROGRAM, supra note 24, at 5-20; 1995 BiOp, supra note 2, at 104.
(145) Lacey, supra note 33, at 66-67.
(146) FISH AND WILDLIFE PROGRAM, supra note 24, at 5-24 to 5-28.
(147) 1995 BiOp, supra note 2, at 93-94, 116-18.
(148) Id. at 113. Minimum operating pool (MOP) refers to "the lowest water level of an impoundment at which navigation locks can still operate." Fish AND WILDLIFE PROGRAM, supra note 24, at G-9.
(149) 1995 BiOp, supra note 2, at 92-94.
(150) Blumm et al., supra note 57, at 69.
(151) 1995 BiOp, supra note 2, at 99.
(153) Fish passage efficiency (FPE) is the "percentage of the total number of fish that pass a dam without passing through the turbine units." Fish AND WILDLIFE PROGRAM, supra note 24, at G-5.
(154) 1995 BiOp, supra note 2, at 110-12. Spill refers to releasing water through the spillway rather than through the turbine units. THE INSIDE STORY, supra note 1, at 80. This practice enhances juvenile fish passage, but is disfavored by the dam operators because no electricity is generated by the water. Id.
(155) 1995 BiOp, supra note 2, at 105.
(156) Blumm et al., supra note 57, at 71-72.
(157) Fish AND WILDLIFE PROGRAM, supra note 24, at 5-47. The benefits of transportation (the barging and trucking of smolts around dams) remain controversial despite considerable research. Id. at 5-46.
(158) See Blumm et al., supra note 57, at 74.
(161) See supra note 135 (defining recovery under the ESA).
(162) 1995 BiOp, supra note 2, at Technical Appendix.
(163) Charles Ray, 1995 River Operations Under the Endangered Species Act: Continuing the Salmon Slaughter, 26 ENWTL. L. 675 (1996).
(164) Id. at 676.
(165) Id. at 676-77.
(166) Id. 5.5 million of 8.3 million smolts migrating down the Snake River passed through at least one turbine before reaching the Columbia, and 1.5 million died in turbines. Id. at 677-78.
(167) Id. at 677-78.
(168) Id. at 678.
(169) Id. at 679.
(170) FISH PASSAGE CTR. OF THE COLUMBIA BASIN FISH and WILDLIFE AUTHORITY, 1996 ANNUAL REPORT 1 (July, 1997) [hereinafter 1996 REPORT]; 1997 REPORT, supra note 2, at 2.
(171) 1996 REPORT, supra note 170, at 1-27; 1997 REPORT, supra note 2, at 1-29.
(172) 1997 REPORT, supra note 2, at 17. Lack of cooperation between the regulating and fishery agencies was blamed for the failure to meet weekly flow targets when there were available resources in the system of federal reservoirs. Id.
(173) 1996 REPORT, supra note 170, at 38; 1997 REPORT, supra note 2, at 39.
(174) 1996 REPORT, supra note 170, at 36.
(176) See supra notes 69-71 and accompanying text.
(177) Blumm et al., supra note 57, at 123-26 (discussing BPA's efforts to cap fish and wildlife expenditures).
(178) Memorandum of Agreement Among the Department of the Army, the Department of Commerce, the Department of Energy, and the Department of Interior Concerning the Bonneville Power Administration's Financial Commitment for Columbia River Basin Fish and Wildlife Costs (Sept. 16, 1996) [hereinafter Fish Cap].
(179) Northwest Power Planning Council, The Region's Fish and Wildlife Project Selection Process, NORTHWEST ENERGY NEWS, Summer 1997, at 14.
(180) Blumm et al., supra note 57, at 101. The debt is the legacy of three nuclear power plants constructed by the Washington Public Power Supply System, of which only one has produced electricity. Id. at 101 n.576.
(181) Timothy A. Johnson, Coping with Change: Energy, Fish, and the Bonneville Power Administration, 26 ENVTL L. 589, 600 (1996).
(182) Blumm et al., supra note 57, at 124.
(183) Id. at 105.
(184) 16 U.S.A. [sections] 839b(h)(11)(A)(i) (1994).
(185) H.R. REP. No. 96-976, at 46 (1980), reprinted in 1980 U.S.C.C.A.N. 5989, 6015.
(186) Blumm et al., supra note 57, at 103-04.
(187) Id. at 106.
(188) Id. at 106-07. See supra Part IV.B. 1 (discussing why compliance with the ESA is not equivalent to equitable treatment under the NPA).
(189) Blumm et al., supra note 57, at 107. Separate congressional approval would be necessary for the drawdowns. Id.
(190) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994). NRIC also held that cost considerations cannot preclude "biologically sound restoration of anadromous fish in the Columbia River Basin to the extent affected by hydropower development ... so long as an adequate, efficient, economical, and reliable power supply is assured." Id. at 1394.
(191) The ESA requires that agencies use "the best scientific and commercial data available." 16 U.S.C. [sections] 1536(a)(2) (1994). The NPA demands that the Council's program measures be "based on, and supported by, the best available scientific knowledge." Id. [sections] 839b(h)(6)(B). Program measures consider economic cost only where "equally effective alternative means of achieving the same sound biological objective exist." Id. [sections] 839b(h)(6)(C).
(192) FISH AND WILDLIFE PROGRAM, supra note 24, at 1-5.
(193) See infra notes 215, 216.
(194) THE INSIDE STORY, supra note 1, at 59.
(195) Rule curves are designated reservoir elevations that must be maintained to ensure that various requirements of the hydrosystem are met, such as firm energy generation, flood control, and assured refill. Id. at 80.
(196) The term "critical period" refers to the portion of the historical 50-year streamflow record that would produce the least amount of energy with all reservoirs drafted from full to empty. Id. at 52.
(197) "Firm energy" is the amount of energy that can be generated given the region's worst historical water conditions and is produced on a guaranteed basis. Id. at 79. Under the Columbia River Treaty, use of treaty storage is dictated by various plans which address flood control needs and power objectives only, because these were the only recognized purposes for project operation when the treaty was signed. Id. at 58. The contractual obligation for coordinating system operations in the United States portion of the Columbia Basin is the Pacific Northwest Coordination Agreement. Id. at 58.
(198) 16 U.S.C. [sections] 839b(h)(6)(E) (1994).
(199) Id. [sections] 839b(h)(6)(B).
(200) H.R. REP. No. 96-976, at 46 (1980), reprinted in 1980 U.S.C.C.A.N. 5989, 6015.
(202) Northwest Envtl. Defense Ctr. (NEDC) v. Bonneville Power Admin., 117 F.3d 1520, 1532 (9th Cir. 1997).
(203) Id. at 1532 (citing Public. Util. Dist. No. 1 of Douglas County. (PUD No.1) v. Bonneville Power Admin., 947 F.2d 386, 392 (9th Cir. 1991)).
(204) See, e.g., Idaho Dep't. of Fish and Game (IDFG) v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995).
(205) Id. at 900.
(207) Northwest Resource Info. Ctr. (NRIC) v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994).
(209) Id. The court stated that fish and wildlife restoration is a primary goal of the Northwest Power Act, which places a premium on prompt action, limits the role of economic considerations in decisionmaking, and acknowledges fish and wildlife as an irreplaceable finite resource. Id. For a discussion of Northwest Power Act innovations, see supra Part II.B.
(210) NORTHWEST POWER PLANNING COUNCIL, ISSUE PAPER 97-2, AN INTEGRATED FRAMEWORK FOR FISH AND WILDLIFE MANAGEMENT IN THE COLUMBIA RIVER BASIN 15, 26 (1997). The NPA does not specifically establish biological goals of restoration. However, Congress justified the fish and wildlife provision by affirming that anadromous fish are of "significant importance to the ... economic well-being of the Pacific Northwest," therefore, the Act seems to contemplate restoring the runs to harvestable levels. 16 U.S.C. [sections] 839(6) (1994).
(211) NRIC, 35 F.3d at 1377.
(212) The principle of adaptive management is seen by the Council as the only way to resolve the conflict between the need to act promptly to arrest decline of anadromous fish and the limited, and sometimes conflicting, available scientific information. FIsH AND WILDLIFE PROGRAM, supra note 24, at 2-5.
(213) Id. at 4-1.
(214) 16 U.S.A. [sections] 839b(h)(6)(E)(ii) (1994).
(215) NEDC v. Bonneville Power Admin., 117 F.3d 1520, 1533 (9th Cir. 1997). Maher Letter, supra note 125, at 2.
(216) Maher Letter, supra note 125, at 1.
(217) 16 U.S.C. [sections] 839b(h)(11)(A)(ii) (1994).
(218) See supra notes 183-86 and accompanying text.
(219) In Northwest Resources Info. Ctr. (NRIC) v. Northwest Power Planning Council, the court stated that the Council's failure to explain its rationale for rejecting recommendations of fishery managers limited its ability to review the Council's actions, and hampered Petitioner's efforts to scrutinize and challenge the Council's decision. 35 F.3d 1371, 1386 (9th Cir. 1994). BPA's lack of justification for its fish and wildlife restoration decisions lead to a similar difficulty in determining if the agency had met its equitable treatment obligation.
(220) Id. at 1395.
(221) BONNEVILLE POWER Al)MIN., BUSINESS PLAN: FINAL ENVIRONMENTAL IMPACT STATEMENT 1-3 (1995).
(222) Johnson, supra note 181, at 607 (quoting BONNEVILLE POWER ADMIN., BUSINESS PLAN: FINAL ENVIRONMENTAL IMPACT STATEMENT 1-3 (1995)).
(223) Northwest Envtl. Defense Ctr. (NEDC) v. Bonneville Power Admin., 117 F.3d 1520, 1534 (9th Cir. 1997).
(224) THE INSIDE STORY, supra note 1, at 59.
AMY J. MACKENZIE, Student, Northwestern School of Law of Lewis and Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected May 1999; M.S. 1995, University of Tennessee, Knoxville; B.S. 1991, University of Tennessee, Knoxville (Biology/German). I wish to thank Professor Dan Rohlf of Northwestern School of Law of Lewis and Clark College for his guidance and advice in completing this Chapter. His tireless, dedicated advocacy of pacific salmon issues has improved the chance of wild stocks surviving into the next millennium.
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|Author:||Mackenzie, Amy J.|
|Date:||Sep 22, 1998|
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