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As Decision Day for the Columbia River Treaty Looms, BPA and Corps Seek Comments On Draft Recommendations

July 03, 2013 posted by Eric Christensen

As previously discussed here, the impending decision about whether to seek termination or renegotiation of the Columbia River Treaty next year carries with it enormous long-term implications for the Pacific Northwest and the region's power industry. In preparation for this decision, the "U.S. Entity" -- Treaty-speak for the Bonneville Power Administration and the U.S. Army Corps of Engineers, which jointly administer the Treaty on behalf of the U.S. -- is seeking comments by August 16 on the its "Working Draft of a Regional Recommendation: Improving the Columbia River Treaty Post-2024", which was released late last month. The Working Draft Recommendation is primarily the product of input from the "Sovereign Review Team," composed of representatives from the four Columbia Basin states, eleven federal agencies, and fifteen Native American tribes. Those entities have not yet reached full agreement, so the Draft remains a work in progress. The comments the U.S. Entity solicited will be part of an ongoing process of refining the recommendations that will be made by the U.S. Entity to the Department of State in December 2013. Ultimately, the Department of State will be responsible for terminating or renegotiating the Treaty. Perhaps most notably, the Working Draft argues that the Columbia River Treaty should be revised to include ecosystem function as one of the values supported by the Treaty, along with hydropower production, flood control, navigation, and other utilitarian values reflected in the Treaty when it was initially ratified in 1964. To support ecosystem functions, the Working Draft contains nine recommendations, such as improving stream conditions to support Native American resources and providing streamflow and reservoir conditions that will enhance recovery of endangered anadromous fish stocks and support native fish and wildlife. The Working Draft contains four recommendations concerning hydroelectric power production, each of which could have serious implications for the future of U.S. utilities and electric consumers. The recommendations are: (1) To rebalance the benefits of coordinated river operations, which now heavily favor the Canadians. To be sustainable, the Working Draft asserts, the benefits of coordinated river operations must be equitably shared between the U.S. and Canada. (2) To renegotiate the current transmission arrangements related to the Treaty to minimize the costs of transmitting the Canadian Entitlement (the amount of power Canada receives as compensation when it adjusts its reservoir storage operations to maximize the overall output of the Columbia hydro system on both sides of the border) to Canada. (3) The revised Treaty should recognize and account for any loss of generation capability that may arise after the Treaty is finalized. This recommendation perhaps reflects bitter experience under the current Treaty, which has resulted in Canada receiving outsized benefits under the Canadian Entitlement because calculation of the Entitlement does not recognize limitations on U.S. hydrosystem capacity that have arisen from compliance with the Endangered Species Act and other post-1964 environmental legislation. (4) The parties should avoid loss of power generation during peak load periods in order to protect electric system reliability. These recommendations underscore the importance of the treaty for the future of the Pacific Northwest's power and transmission system, and the need for regional industry leaders to focus on formulation of the U.S. Entity's recommendations as the process enters its latter stages. If you have any questions about the Columbia River Treaty, Bonneville, the Corps of Engineers, the Endangered Species Act, water resources, tribal issues, or other matters discussed in this post, please contact a member of GTH's Energy, Telecommunications & Utilities practice group or our Environment & Natural Resources practice group. Our attorneys have decades of experience dealing with Washington's Native American tribes, water resources, environmental laws, federal and state agencies, and related matters. Our practices in these areas are consistently recognized as among the best in the nation and the region.