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-CITE-
16 USC Sec. 839b 01/26/98-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND
CONSERVATION-HEAD-
Sec. 839b. Regional planning and participation-STATUTE-
(a) Pacific Northwest Electric Power and Conservation Planning
Council; establishment and operation as regional agency
(1) The purposes of this section are to provide for the prompt
establishment and effective operation of the Pacific Northwest
Electric Power and Conservation Planning Council, to further the
purposes of this chapter by the Council promptly preparing and
adopting (A) a regional conservation and electric power plan and
(B) a program to protect, mitigate, and enhance fish and wildlife,
and to otherwise expeditiously and effectively carry out the
Council's responsibilities and functions under this chapter.
(2) To achieve such purposes and facilitate cooperation among the
States of Idaho, Montana, Oregon, and Washington, and with the
Bonneville Power Administration, the consent of Congress is given
for an agreement described in this paragraph and not in conflict
with this chapter, pursuant to which -
(A) there shall be established a regional agency known as the
''Pacific Northwest Electric Power and Conservation Planning
Council'' which (i) shall have its offices in the Pacific
Northwest, (ii) shall carry out its functions and
responsibilities in accordance with the provisions of this
chapter, (iii) shall continue in force and effect in accordance
with the provisions of this chapter, and (iv) except as otherwise
provided in this chapter, shall not be considered an agency or
instrumentality of the United States for the purpose of any
Federal law; and
(B) two persons from each State may be appointed, subject to
the applicable laws of each such State, to undertake the
functions and duties of members of the Council.
The State may fill any vacancy occurring prior to the expiration of
the term of any member. The appointment of six initial members,
subject to applicable State law, by June 30, 1981, by at least
three of such States shall constitute an agreement by the States
establishing the Council and such agreement is hereby consented to
by the Congress. Upon request of the Governors of two of the
States, the Secretary shall extend the June 30, 1981, date for six
additional months to provide more time for the States to make such
appointments.
(3) Except as otherwise provided by State law, each member
appointed to the Council shall serve for a term of three years,
except that, with respect to members initially appointed, each
Governor shall designate one member to serve a term of two years
and one member to serve a term of three years. The members of the
Council shall select from among themselves a chairman. The members
and officers and employees of the Council shall not be deemed to be
officers or employees of the United States for any purpose. The
Council shall appoint, fix compensation, assign and delegate duties
to such executive and additional personnel as the Council deems
necessary to fulfill its functions under this chapter, taking into
account such information and analyses as are, or are likely to be,
available from other sources pursuant to provisions of this
chapter. The compensation of the members shall be fixed by State
law. The compensation of the members and the officers shall not
exceed the rate prescribed for Federal officers and positions at
step 1 of level GS-18 of the General Schedule.
(4) For the purpose of providing a uniform system of laws, in
addition to this chapter, applicable to the Council relating to the
making of contracts, conflicts-of-interest, financial disclosure,
open meetings of the Council, advisory committees, disclosure of
information, judicial review of Council functions and actions under
this chapter, and related matters, the Federal laws applicable to
such matters in the case of the Bonneville Power Administration
shall apply to the Council to the extent appropriate, except that
with respect to open meetings, the Federal laws applicable to open
meetings in the case of the Federal Energy Regulatory Commission
shall apply to the Council to the extent appropriate. In applying
the Federal laws applicable to financial disclosure under the
preceding sentence, such laws shall be applied to members of the
Council without regard to the duration of their service on the
Council or the amount of compensation received for such service.
No contract, obligation, or other action of the Council shall be
construed as an obligation of the United States or an obligation
secured by the full faith and credit of the United States. For the
purpose of judicial review of any action of the Council or
challenging any provision of this chapter relating to functions and
responsibilities of the Council, notwithstanding any other
provision of law, the courts of the United States shall have
exclusive jurisdiction of any such review.
(b) Alternative establishment of Council as Federal agency
(1) If the Council is not established and its members are not
timely appointed in accordance with subsection (a) of this section,
or if, at any time after such Council is established and its
members are appointed in accordance with subsection (a) of this
section -
(A) any provision of this chapter relating to the establishment
of the Council or to any substantial function or responsibility
of the Council (including any function or responsibility under
subsection (d) or (h) of this section or under section 839d(c) of
this title) is held to be unlawful by a final determination of
any Federal court, or
(B) the plan or any program adopted by such Council under this
section is held by a final determination of such a court to be
ineffective by reason of subsection (a)(2)(B) of this section,
the Secretary shall establish the Council pursuant to this
subsection as a Federal agency. The Secretary shall promptly
publish a notice thereof in the Federal Register and notify the
Governors of each of the States referred to in subsection (a) of
this section.
(2) As soon as practicable, but not more than thirty days after
the publication of the notice referred to in paragraph (1) of this
subsection, and thereafter within forty-five days after a vacancy
occurs, the governors of the States of Washington, Oregon, Idaho,
and Montana may each (under applicable State laws, if any) provide
to the Secretary a list of nominations from such State for each of
the State's positions to be selected for such Council. The
Secretary may extend this time an additional thirty days. The list
shall include at least two persons for each such position. The
list shall include such information about such nominees as the
Secretary may request. The Secretary shall appoint the Council
members from each Governor's list of nominations for each State's
positions, except that the Secretary may decline to appoint for any
reason any of a Governor's nominees for a position and shall so
notify the Governor. The Governor may thereafter make successive
nominations within forty-five days of receipt of such notice until
nominees acceptable to the Secretary are appointed for each
position. In the event the Governor of any such State fails to
make the required nominations for any State position on such
Council within the time specified for such nominations, the
Secretary shall select from such State and appoint the Council
member or members for such position. The members of the Council
shall select from among themselves one member of the Council as
Chairman.
(3) The members of the Council established by this subsection who
are not employed by the United States or a State shall receive
compensation at a rate equal to the rate prescribed for offices and
positions at level GS-18 of the General Schedule for each day such
members are engaged in the actual performance of duties as members
of such Council, except that no such member may be paid more in any
calendar year than an officer or employee at step 1 of level GS-18
is paid during such year. Members of such Council shall be
considered officers or employees of the United States for purposes
of title II of the Ethics in Government Act of 1978 (5 U.S.C. app.)
(FOOTNOTE 1) and shall also be allowed travel expenses, including
per diem in lieu of subsistence, in the same manner as persons
employed intermittently in Government service are allowed expenses
under section 5703 of title 5. Such Council may appoint, and assign
duties to, an executive director who shall serve at the pleasure of
such Council and who shall be compensated at the rate established
for GS-18 of the General Schedule. The executive director shall
exercise the powers and duties delegated to such director by such
Council, including the power to appoint and fix compensation of
additional personnel in accordance with applicable Federal law to
carry out the functions and responsibilities of such Council.
(FOOTNOTE 1) See References in Text note below.
(4) When a Council is established under this subsection after a
Council was established pursuant to subsection (a) of this section,
the Secretary shall provide, to the greatest extent feasible, for
the transfer to the Council established by this subsection of all
funds, books, papers, documents, equipment, and other matters in
order to facilitate the Council's capability to achieve the
requirements of subsections (d) and (h) of this section. In order
to carry out its functions and responsibilities under this chapter
expeditiously, the Council shall take into consideration any
actions of the Council under subsection (a) of this section and may
review, modify, or confirm such actions without further
proceedings.
(5)(A) At any time beginning one year after the plan referred to
in such subsection (d) of this section and the program referred to
in such subsection (h) of this section are both finally adopted in
accordance with this chapter, the Council established pursuant to
this subsection shall be terminated by the Secretary 90 days after
the Governors of three of the States referred to in this subsection
jointly provide for any reason to the Secretary a written request
for such termination. Except as provided in Subparagraph (B), upon
such termination all functions and responsibilities of the Council
under this chapter shall also terminate.
(B) Upon such termination of the Council, the functions and
responsibilities of the Council set forth in subsection (h) of this
section shall be transferred to, and continue to be funded and
carried out, jointly, by the Administrator, the Secretary of the
Interior, and the Administrator of the National Marine Fisheries
Service, in the same manner and to the same extent as required by
such subsection and in cooperation with the Federal and the
region's State fish and wildlife agencies and Indian tribes
referred to in subsection (h) of this section and the Secretary
shall provide for the transfer to them of all records, books,
documents, funds, and personnel of such Council that relate to
subsection (h) matters. In order to carry out such functions and
responsibilities expeditiously, the Administrator, the Secretary of
the Interior, and the Administrator of the National Marine
Fisheries Service shall take into consideration any actions of the
Council under this subsection, and may review, modify, or confirm
such actions without further proceedings. In the event the Council
is terminated pursuant to this paragraph, whenever any action of
the Administrator requires any approval or other action by the
Council, the Administrator may take such action without such
approval or action, except that the Administrator may not implement
any proposal to acquire a major generating resource or to grant
billing credits involving a major generating resource until the
expenditure of funds for that purpose is specifically authorized by
Act of Congress enacted after such termination.
(c) Organization and operation of Council
(1) The provisions of this subsection shall, except as
specifically provided in this subsection, apply to the Council
established pursuant to either subsection (a) or (b) of this
section.
(2) A majority of the members of the Council shall constitute a
quorum. Except as otherwise provided specifically in this chapter,
all actions and decisions of the Council shall be by majority vote
of the members present and voting. The plan or any part thereof
and any amendment thereto shall not be approved unless such plan or
amendment receives the votes of -
(A) a majority of the members appointed to the Council,
including the vote of at least one member from each State with
members on the Council; or
(B) at least six members of the Council.
(3) The Council shall meet at the call of the Chairman or upon
the request of any three members of the Council. If any member of
the Council disagrees with respect to any matter transmitted to any
Federal or State official or any other person or wishes to express
additional views concerning such matter, such member may submit a
statement to accompany such matter setting forth the reasons for
such disagreement or views.
(4) The Council shall determine its organization and prescribe
its practices and procedures for carrying out its functions and
responsibilities under this chapter. The Council shall make
available to the public a statement of its organization, practices,
and procedures, and make available to the public its annual work
program budget at the time the President submits his annual budget
to Congress.
(5) Upon request of the Council established pursuant to
subsection (b) of this section, the head of any Federal agency is
authorized to detail or assign to the Council, on a reimbursable
basis, any of the personnel of such agency to assist the Council in
the performance of its functions under this chapter.
(6) At the Council's request the Administrator of the General
Services Administration shall furnish the Council established
pursuant to subsection (b) of this section with such offices,
equipment, supplies, and services in the same manner and to the
same extent as such Administrator is authorized to furnish to any
other Federal agency or instrumentality such offices, supplies,
equipment, and services.
(7) Upon the request of the Congress or any committee thereof,
the Council shall promptly provide to the Congress, or to such
committee, any record, report, document, material, and other
information which is in the possession of the Council.
(8) To obtain such information and advice as the Council
determines to be necessary or appropriate to carry out its
functions and responsibilities pursuant to this chapter, the
Council shall, to the greatest extent practicable, solicit
engineering, economic, social, environmental, and other technical
studies from customers of the Administrator and from other bodies
or organizations in the region with particular expertise.
(9) The Administrator and other Federal agencies, to the extent
authorized by other provisions of law, shall furnish the Council
all information requested by the Council as necessary for
performance of its functions, subject to such requirements of law
concerning trade secrets and proprietary data as may be applicable.
(10)(A) At the request of the Council, the Administrator shall
pay from funds available to the Administrator the compensation and
other expenses of the Council as are authorized by this chapter,
including the reimbursement of those States with members on the
Council for services and personnel to assist in preparing a plan
pursuant to subsection (d) of this section and a program pursuant
to subsection (h) of this section, as the Council determines are
necessary or appropriate for the performance of its functions and
responsibilities. Such payments shall be included by the
Administrator in his annual budgets submitted to Congress pursuant
to the Federal Columbia River Transmission System Act (16 U.S.C.
838 et seq.) and shall be subject to the requirements of that Act,
including the audit requirements of section 11(d) of such Act (16
U.S.C. 838i(d)). The records, reports, and other documents of the
Council shall be available to the Comptroller General for review in
connection with such audit or other review and examination by the
Comptroller General pursuant to other provisions of law applicable
to the Comptroller General. Funds provided by the Administrator for
such payments shall not exceed annually an amount equal to 0.02
mill multiplied by the kilowatt hours of firm power forecast to be
sold by the Administrator during the year to be funded. In order
to assist the Council's initial organization, the Administrator
after December 5, 1980, shall promptly prepare and propose an
amended annual budget to expedite payment for Council activities.
(B) Notwithstanding the limitation contained in the fourth
sentence of subparagraph (A) of this paragraph, upon an annual
showing by the Council that such limitation will not permit the
Council to carry out its functions and responsibilities under this
chapter the Administrator may raise such limit up to any amount not
in excess of 0.10 mill multiplied by the kilowatt hours of firm
power forecast to be sold by the Administrator during the year to
be funded.
(11) The Council shall establish a voluntary scientific and
statistical advisory committee to assist in the development,
collection, and evaluation of such statistical, biological,
economic, social, environmental, and other scientific information
as is relevant to the Council's development and amendment of a
regional conservation and electric power plan.
(12) The Council may establish such other voluntary advisory
committees as it determines are necessary or appropriate to assist
it in carrying out its functions and responsibilities under this
chapter.
(13) The Council shall ensure that the membership for any
advisory committee established or formed pursuant to this section
shall, to the extent feasible, include representatives of, and seek
the advice of, the Federal, and the various regional, State, local,
and Indian Tribal Governments, consumer groups, and customers.
(d) Regional conservation and electric power plan
(1) Within two years after the Council is established and the
members are appointed pursuant to subsection (a) or (b) of this
section, the Council shall prepare, adopt, and promptly transmit to
the Administrator a regional conservation and electric power plan.
The adopted plan, or any portion thereof, may be amended from time
to time, and shall be reviewed by the Council not less frequently
than once every five years. Prior to such adoption, public
hearings shall be held in each Council member's State on the plan
or substantial, nontechnical amendments to the plan proposed by the
Council for adoption. A public hearing shall also be held in any
other State of the region on the plan or amendments thereto, if the
Council determines that the plan or amendments would likely have a
substantial impact on that State in terms of major resources which
may be developed in that State and which the Administrator may seek
to acquire. Action of the Council under this subsection concerning
such hearings shall be subject to section 553 of title 5 and such
procedure as the Council shall adopt.
(2) Following adoption of the plan and any amendment thereto, all
actions of the Administrator pursuant to section 839d of this title
shall be consistent with the plan and any amendment thereto, except
as otherwise specifically provided in this chapter.
(e) Plan priorities and requisite features; studies
(1) The plan shall, as provided in this paragraph, give priority
to resources which the Council determines to be cost-effective.
Priority shall be given: first, to conservation; second, to
renewable resources; third, to generating resources utilizing waste
heat or generating resources of high fuel conversion efficiency;
and fourth, to all other resources.
(2) The plan shall set forth a general scheme for implementing
conservation measures and developing resources pursuant to section
839d of this title to reduce or meet the Administrator's
obligations with due consideration by the Council for (A)
environmental quality, (B) compatibility with the existing regional
power system, (C) protection, mitigation, and enhancement of fish
and wildlife and related spawning grounds and habitat, including
sufficient quantities and qualities of flows for successful
migration, survival, and propagation of anadromous fish, and (D)
other criteria which may be set forth in the plan.
(3) To accomplish the priorities established by this subsection,
the plan shall include the following elements which shall be set
forth in such detail as the Council determines to be appropriate:
(A) an energy conservation program to be implemented under this
chapter, including, but not limited to, model conservation
standards;
(B) recommendation for research and development;
(C) a methodology for determining quantifiable environmental
costs and benefits under section 839a(4) of this title;
(D) a demand forecast of at least twenty years (developed in
consultation with the Administrator, the customers, the States,
including State agencies with ratemaking authority over electric
utilities, and the public, in such manner as the Council deems
appropriate) and a forecast of power resources estimated by the
Council to be required to meet the Administrator's obligations
and the portion of such obligations the Council determines can be
met by resources in each of the priority categories referred to
in paragraph (1) of this subsection which forecast (i) shall
include regional reliability and reserve requirements, (ii) shall
take into account the effect, if any, of the requirements of
subsection (h) of this section on the availability of resources
to the Administrator, and (iii) shall include the approximate
amounts of power the Council recommends should be acquired by the
Administrator on a long-term basis and may include, to the extent
practicable, an estimate of the types of resources from which
such power should be acquired;
(E) an analysis of reserve and reliability requirements and
cost-effective methods of providing reserves designed to insure
adequate electric power at the lowest probable cost;
(F) the program adopted pursuant to subsection (h) of this
section; and
(G) if the Council recommends surcharges pursuant to subsection
(f) of this section, a methodology for calculating such
surcharges.
(4) The Council, taking into consideration the requirement that
it devote its principal efforts to carrying out its
responsibilities under subsections (d) and (h) of this section,
shall undertake studies of conservation measures reasonably
available to direct service industrial customers and other major
consumers of electric power within the region and make an analysis
of the estimated reduction in energy use which would result from
the implementation of such measures as rapidly as possible,
consistent with sound business practices. The Council shall
consult with such customers and consumers in the conduct of such
studies.
(f) Model conservation standards; surcharges
(1) Model conservation standards to be included in the plan shall
include, but not be limited to, standards applicable to (A) new and
existing structures, (b) utility, customer, and governmental
conservation programs, and (C) other consumer actions for achieving
conservation. Model conservation standards shall reflect
geographic and climatic differences within the region and other
appropriate considerations, and shall be designed to produce all
power savings that are cost-effective for the region and
economically feasible for consumers, taking into account financial
assistance made available to consumers under section 839d(a) of
this title. These model conservation standards shall be adopted by
the Council and included in the plan after consultation, in such
manner as the Council deems appropriate, with the Administrator,
States, and political subdivisions, customers of the Administrator,
and the public.
(2) The Council by a majority vote of the members of the Council
is authorized to recommend to the Administrator a surcharge and the
Administrator may thereafter impose such a surcharge, in accordance
with the methodology provided in the plan, on customers for those
portions of their loads within the region that are within States or
political subdivisions which have not, or on the Administrator's
customers which have not, implemented conservation measures that
achieve energy savings which the Administrator determines are
comparable to those which would be obtained under such standards.
Such surcharges shall be established to recover such additional
costs as the Administrator determines will be incurred because such
projected energy savings attributable to such conservation measures
have not been achieved, but in no case may such surcharges be less
than 10 per centum or more than 50 per centum of the
Administrator's applicable rates for such load or portion thereof.
(g) Public information; consultation; contracts and technical
assistance
(1) To insure widespread public involvement in the formulation of
regional power policies, the Council and Administrator shall
maintain comprehensive programs to -
(A) inform the Pacific Northwest public of major regional power
issues,
(B) obtain public views concerning major regional power issues,
and
(C) secure advice and consultation from the Administrator's
customers and others.
(2) In carrying out the provisions of this section, the Council
and the Administrator shall -
(A) consult with the Administrator's customers;
(B) include the comments of such customers in the record of the
Council's proceedings; and
(C) recognize and not abridge the authorities of State and
local governments, electric utility systems, and other
non-Federal entities responsible to the people of the Pacific
Northwest for the planning, conservation, supply, distribution,
and use of electric power and the operation of electric
generating facilities.
(3) In the preparation, adoption, and implementation of the plan,
the Council and the Administrator shall encourage the cooperation,
participation, and assistance of appropriate Federal agencies,
State entities, State political subdivisions, and Indian tribes.
The Council and the Administrator are authorized to contract, in
accordance with applicable law, with such agencies entities,
tribes, and subdivisions individually, in groups, or through
associations thereof to (A) investigate possible measures to be
included in the plan, (B) provide public involvement and
information regarding a proposed plan or amendment thereto, and (C)
provide services which will assist in the implementation of the
plan. In order to assist in the implementation of the plan,
particularly conservation, renewable resource, and fish and
wildlife activities, the Administrator, when requested and subject
to available funds, may provide technical assistance in
establishing conservation, renewable resource, and fish and
wildlife objectives by individual States or subdivisions thereof or
Indian tribes. Such objectives, if adopted by a State or
subdivision thereof or Indian tribes, may be submitted to the
Council and the Administrator for review, and upon approval by the
Council, may be incorporated as part of the plan.
(h) Fish and wildlife
(1)(A) The Council shall promptly develop and adopt, pursuant to
this subsection, a program to protect, mitigate, and enhance fish
and wildlife, including related spawning grounds and habitat, on
the Columbia River and its tributaries. Because of the unique
history, problems, and opportunities presented by the development
and operation of hydroelectric facilities on the Columbia River and
its tributaries, the program, to the greatest extent possible,
shall be designed to deal with that river and its tributaries as a
system.
(B) This subsection shall be applicable solely to fish and
wildlife, including related spawning grounds and habitat, located
on the Columbia River and its tributaries. Nothing in this
subsection shall alter, modify, or affect in any way the laws
applicable to rivers or river systems, including electric power
facilities related thereto, other than the Columbia River and its
tributaries, or affect the rights and obligations of any agency,
entity, or person under such laws.
(2) The Council shall request, in writing, promptly after the
Council is established under either subsection (a) or (b) of this
section and prior to the development or review of the plan, or any
major revision thereto, from the Federal, and the region's State,
fish and wildlife agencies and from the region's appropriate Indian
tribes, recommendations for -
(A) measures which can be expected to be implemented by the
Administrator, using authorities under this chapter and other
laws, and other Federal agencies to protect, mitigate, and
enhance fish and wildlife, including related spawning grounds and
habitat, affected by the development and operation of any
hydroelectric project on the Columbia River and its tributaries;
(B) establishing objectives for the development and operation
of such projects on the Columbia River and its tributaries in a
manner designed to protect, mitigate, and enhance fish and
wildlife; and
(C) fish and wildlife management coordination and research and
development (including funding) which, among other things, will
assist protection, mitigation, and enhancement of anadromous fish
at, and between, the region's hydroelectric dams.
(3) Such agencies and tribes shall have 90 days to respond to
such request, unless the Council extends the time for making such
recommendations. The Federal, and the region's water management
agencies, and the region's electric power producing agencies,
customers, and public may submit recommendations of the type
referred to in paragraph (2) of this subsection. All
recommendations shall be accompanied by detailed information and
data in support of the recommendations.
(4)(A) The Council shall give notice of all recommendations and
shall make the recommendations and supporting documents available
to the Administrator, to the Federal, and the region's, State fish
and wildlife agencies, to the appropriate Indian tribes, to Federal
agencies responsible for managing, operating, or regulating
hydroelectric facilities located on the Columbia River or its
tributaries, and to any customer or other electric utility which
owns or operates any such facility. Notice shall also be given to
the public. Copies of such recommendations and supporting
documents shall be made available for review at the offices of the
Council and shall be available for reproduction at reasonable cost.
(B) The Council shall provide for public participation and
comment regarding the recommendations and supporting documents,
including an opportunity for written and oral comments, within such
reasonable time as the Council deems appropriate.
(5) The Council shall develop a program on the basis of such
recommendations supporting documents, and views and information
obtained through public comment and participation, and consultation
with the agencies, tribes, and customers referred to in
subparagraph (A) of paragraph (4). The program shall consist of
measures to protect, mitigate, and enhance fish and wildlife
affected by the development, operation, and management of such
facilities while assuring the Pacific Northwest and adequate,
efficient economical, and reliable power supply. Enhancement
measures shall be included in the program to the extent such
measures are designed to achieve improved protection and
mitigation.
(6) The Council shall include in the program measures which it
determines, on the basis set forth in paragraph (5), will -
(A) complement the existing and future activities of the
Federal and the region's State fish and wildlife agencies and
appropriate Indian tribes;
(B) be based on, and supported by, the best available
scientific knowledge;
(C) utilize, where equally effective alternative means of
achieving the same sound biological objective exist, the
alternative with the minimum economic cost;
(D) be consistent with the legal rights of appropriate Indian
tribes in the region; and
(E) in the case of anadromous fish -
(i) provide for improved survival of such fish at
hydroelectric facilities located on the Columbia River system;
and
(ii) 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.
(7) The Council shall determine whether each recommendation
received is consistent with the purposes of this chapter. In the
event such recommendations are inconsistent with each other, the
Council, in consultation with appropriate entities, shall resolve
such inconsistency in the program giving due weight to the
recommendations, expertise, and legal rights and responsibilities
of the Federal and the region's State fish and wildlife agencies
and appropriate Indian tribes. If the Council does not adopt any
recommendation of the fish and wildlife agencies and Indian tribes
as part of the program or any other recommendation, it shall
explain in writing, as part of the program, the basis for its
finding that the adoption of such recommendation would be -
(A) inconsistent with paragraph (5) of this subsection;
(B) inconsistent with paragraph (6) of this subsection; or
(C) less effective than the adopted recommendations for the
protection, mitigation, and enhancement of fish and wildlife.
(8) The Council shall consider, in developing and adopting a
program pursuant to this subsection, the following principles:
(A) Enhancement measures may be used, in appropriate
circumstances, as a means of achieving offsite protection and
mitigation with respect to compensation for losses arising from
the development and operation of the hydroelectric facilities of
the Columbia River and its tributaries as a system.
(B) Consumers of electric power shall bear the cost of measures
designed to deal with adverse impacts caused by the development
and operation of electric power facilities and programs only.
(C) To the extent the program provides for coordination of its
measures with additional measures (including additional
enhancement measures to deal with impacts caused by factors other
than the development and operation of electric power facilities
and programs), such additional measures are to be implemented in
accordance with agreements among the appropriate parties
providing for the administration and funding of such additional
measures.
(D) Monetary costs and electric power losses resulting from the
implementation of the program shall be allocated by the
Administrator consistent with individual project impacts and
system wide objectives of this subsection.
(9) The Council shall adopt such program or amendments thereto
within one year after the time provided for receipt of the
recommendations. Such program shall also be included in the plan
adopted by the Council under subsection (d) of this section.
(10)(A) The Administrator shall use the Bonneville Power
Administration fund and the authorities available to the
Administrator under this chapter and other laws administered by the
Administrator to protect, mitigate, and enhance fish and wildlife
to the extent affected by the development and operation of any
hydroelectric project of the Columbia River and its tributaries in
a manner consistent with the plan, if in existence, the program
adopted by the Council under this subsection, and the purposes of
this chapter. Expenditures of the Administrator pursuant to this
paragraph shall be in addition to, not in lieu of, other
expenditures authorized or required from other entities under other
agreements or provisions of law.
(B) The Administrator may make expenditures from such fund which
shall be included in the annual or supplementary budgets submitted
to the Congress pursuant to the Federal Columbia River Transmission
System Act (16 U.S.C. 838 et seq.). Any amounts included in such
budget for the construction of capital facilities with an estimated
life of greater than 15 years and an estimated cost of at least
$1,000,000 shall be funded in the same manner and in accordance
with the same procedures as major transmission facilities under the
Federal Columbia River Transmission System Act.
(C) The amounts expended by the Administrator for each activity
pursuant to this subsection shall be allocated as appropriate by
the Administrator, in consultation with the Corps of Engineers and
the Water and Power Resources Service, among the various
hydroelectric projects of the Federal Columbia River Power System.
Amounts so allocated shall be allocated to the various project
purposes in accordance with existing accounting procedures for the
Federal Columbia River Power System.
(D) Independent Scientific Review Panel. - (i) The Northwest
Power Planning Council (Council) shall appoint an Independent
Scientific Review Panel (Panel), which shall be comprised of eleven
members, to review projects proposed to be funded through that
portion of the Bonneville Power Administration's (BPA) annual fish
and wildlife budget that implements the Council's fish and wildlife
program. Members shall be appointed from a list of no fewer than
20 scientists submitted by the National Academy of Sciences
(Academy), provided that Pacific Northwest scientists with
expertise in Columbia River anadromous and non-anadromous fish and
wildlife and ocean experts shall be among those represented on the
Panel. The Academy shall provide such nominations within 90 days of
September 30, 1996, and in any case not later than December 31,
1996. If appointments are required in subsequent years, the Council
shall request nominations from the Academy and the Academy shall
provide nominations not later than 90 days after the date of this
request. If the Academy does not provide nominations within these
time requirements, the Council may appoint such members as the
Council deems appropriate.
(ii) Scientific Peer Review Groups. - The Council shall establish
Scientific Peer Review Groups (Peer Review Groups), which shall be
comprised of the appropriate number of scientists, from a list
submitted by the Academy to assist the Panel in making its
recommendations to the Council for projects to be funded through
BPA's annual fish and wildlife budget, provided that Pacific
Northwest scientists with expertise in Columbia River anadromous
and non-anadromous fish and wildlife and ocean experts shall be
among those represented on the Peer Review Groups. The Academy
shall provide such nominations within 90 days of September 30,
1996, and in any case not later than December 31, 1996. If
appointments are required in subsequent years, the Council shall
request nominations from the Academy and the Academy shall provide
nominations not later than 90 days after the date of this request.
If the Academy does not provide nominations within these time
requirements, the Council may appoint such members as the Council
deems appropriate.
(iii) Conflict of Interest and Compensation. - Panel and Peer
Review Group members may be compensated and shall be considered
subject to the conflict of interest standards that apply to
scientists performing comparable work for the National Academy of
Sciences; provided that a Panel or Peer Review Group members with a
direct or indirect financial interest in a project, or projects,
shall recuse himself or herself from review of, or recommendations
associated with, such project or projects. All expenses of the
Panel and the Peer Review Groups shall be paid by BPA as provided
for under paragraph (vii). Neither the Panel nor the Peer Review
Groups shall be deemed advisory committees within the meaning of
the Federal Advisory Committee Act.
(iv) Project Criteria and Review. - The Peer Groups, in
conjunction with the Panel, shall review projects proposed to be
funded through BPA's annual fish and wildlife budget and make
recommendations on matters related to such projects to the Council
no later than June 15 of each year. If the recommendations are not
received by the Council by this date, the Council may proceed to
make final recommendations on project funding to BPA, relying on
the best information available. The Panel and Peer Review Groups
shall review a sufficient number of projects to adequately ensure
that the list of prioritized projects recommended is consistent
with the Council's program. Project recommendations shall be based
on a determination that projects: are based on sound science
principles; benefit fish and wildlife; and have a clearly defined
objective and outcome with provisions for monitoring and evaluation
of results. The Panel, with assistance from the Peer Review
Groups, shall review, on an annual basis, the results of prior year
expenditures based upon these criteria and submit its findings to
the Council for its review.
(v) Public Review. - Upon completion of the review of projects to
be funded through BPA's annual fish and wildlife budget, the Peer
Review Groups shall submit its findings to the Panel. The Panel
shall analyze the information submitted by the Peer Review Groups
and submit recommendations on project priorities to the Council.
The Council shall make the Panel's findings available to the public
and subject to public comment.
(vi) Responsibilities of the Council. - The Council shall fully
consider the recommendations of the Panel when making its final
recommendations of projects to be funded through BPA's annual fish
and wildlife budget, and if the Council does not incorporate a
recommendation of the Panel, the Council shall explain in writing
its reasons for not accepting Panel recommendations. In making its
recommendations to BPA, the Council shall consider the impact of
ocean conditions on fish and wildlife populations and shall
determine whether the projects employ cost-effective measures to
achieve program objectives. The Council, after consideration of
the recommendations of the Panel and other appropriate entities,
shall be responsible for making the final recommendations of
projects to be funded through BPA's annual fish and wildlife
budget.
(vii) Cost Limitation. - The cost of this provision shall not
exceed $2,000,000 in 1997 dollars.
(viii) Expiration. - This paragraph shall expire on September 30,
2000.
(11)(A) The Administrator and other Federal agencies responsible
for managing, operating, or regulating Federal or non-Federal
hydroelectric facilities located on the Columbia River or its
tributaries shall -
(i) exercise such responsibilities consistent with the purposes
of this chapter and other applicable laws, to adequately protect,
mitigate, and enhance fish and wildlife, including related
spawning grounds and habitat, affected by such projects or
facilities in a manner that provides equitable treatment for such
fish and wildlife with the other purposes for which such system
and facilities are managed and operated;
(ii) exercise such responsibilities, taking into account at
each relevant stage of decisionmaking processes to the fullest
extent practicable, the program adopted by the Council under this
subsection. If, and to the extent that, such other Federal
agencies as a result of such consideration impose upon any
non-Federal electric power project measures to protect, mitigate,
and enhance fish and wildlife which are not attributable to the
development and operation of such project, then the resulting
monetary costs and power losses (if any) shall be borne by the
Administrator in accordance with this subsection.
(B) The Administrator and such Federal agencies shall consult
with the Secretary of the Interior, the Administrator of the
National Marine Fisheries Service, and the State fish and wildlife
agencies of the region, appropriate Indian tribes, and affected
project operators in carrying out the provisions of this paragraph
and shall, to the greatest extent practicable, coordinate their
actions.
(12)(A) Beginning on October 1 of the first fiscal year after all
members to the Council are appointed initially, the Council shall
submit annually a detailed report to the Committee on Energy and
Natural Resources of the Senate and to the Committees on Energy and
Commerce and on Natural Resources of the House of Representatives.
The report shall describe the actions taken and to be taken by the
Council under this chapter, including this subsection, the
effectiveness of the fish and wildlife program, and potential
revisions or modifications to the program to be included in the
plan when adopted. At least ninety days prior to its submission of
such report, the Council shall make available to such fish and
wildlife agencies, and tribes, the Administrator and the customers
a draft of such report. The Council shall establish procedures for
timely comments thereon. The Council shall include as an appendix
to such report such comments or a summary thereof.
(B) The Administrator shall keep such committees fully and
currently informed of the actions taken and to be taken by the
Administrator under this chapter, including this subsection.
(i) Review
The Council may from time to time review the actions of the
Administrator pursuant to this section and section 839d of this
title to determine whether such actions are consistent with the
plan and programs, the extent to which the plan and programs is
being implemented, and to assist the Council in preparing
amendments to the plan and programs.
(j) Requests by Council for action
(1) The Council may request the Administrator to take an action
under section 839d of this title to carry out the Administrator's
responsibilities under the plan.
(2) To the greatest extent practicable within ninety days after
the Council's request, the Administrator shall respond to the
Council in writing specifying -
(A) the means by which the Administrator will undertake the
action or any modification thereof requested by the Council, or
(B) the reasons why such action would not be consistent with
the plan, or with the Administrator's legal obligations under
this chapter, or other provisions of law, which the Administrator
shall specifically identify.
(3) If the Administrator determines not to undertake the
requested action, the Council, within sixty days after notice of
the Administrator's determination, may request the Administrator to
hold an informal hearing and make a final decision.
(k) Review and analysis of 5-year period of Council activities
(1) Not later than October 1, 1987, or six years after the
Council is established under this chapter, whichever is later, the
Council shall complete a thorough analysis of conservation measures
and conservation resources implemented pursuant to this chapter
during the five-year period beginning on the date the Council is
established under this chapter to determine if such measures or
resources:
(A) have resulted or are likely to result is costs to consumers
in the region greater than the costs of additional generating
resources or additional fuel which the Council determines would
be necessary in the absence of such measures or resources;
(B) have not been or are likely not to be generally equitable
to all consumers in the region; or
(C) have impaired or are likely to impair the ability of the
Administrator to carry out his obligations under this chapter and
other laws, consistent with sound business practices.
(2) The Administrator may determine that section 839a(4)(D) of
this title shall not apply to any proposed conservation measure or
resource if the Administrator finds after receipt of such analysis
from the Council that such measure of resource would have any
result or effect described in subparagraph (A), (B) or (C) of
paragraph (1).-SOURCE-
(Pub. L. 96-501, Sec. 4, Dec. 5, 1980, 94 Stat. 2700; Pub. L.
103-437, Sec. 6(u), Nov. 2, 1994, 108 Stat. 4587; Pub. L. 104-206,
title V, Sec. 512, Sept. 30, 1996, 110 Stat. 3005.)-REFTEXT-
REFERENCES IN TEXT
The Ethics in Government Act of 1978, referred to in subsec.
(b)(3), is Pub. L. 95-521, Oct. 26, 1978, 92 Stat. 1824, as
amended. Title II of the Ethics in Government Act of 1978 was set
out in the Appendix to Title 5, Government Organization and
Employees, prior to repeal by Pub. L. 101-194, title II, Sec. 201,
Nov. 30, 1989, 103 Stat. 1724. For complete classification of this
Act to the Code, see Short Title note set out under section 101 of
Pub. L. 95-521 in the Appendix to Title 5 and Tables.
The Federal Columbia River Transmission System Act, referred to
in subsecs. (c)(10)(A) and (h)(10)(B), is Pub. L. 93-454, Oct. 18,
1974, 88 Stat. 1376, as amended, which is classified generally to
chapter 12G (Sec. 838 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 838 of this title and Tables.
The Federal Advisory Committee Act, referred to in subsec.
(h)(10)(D)(iii), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as
amended, which is set out in the Appendix to Title 5, Government
Organization and Employees.-COD-
CODIFICATION
September 30, 1996, referred to in subsec. (h)(10)(D)(i), (ii),
was in the original ''the date of this enactment'', which was
translated as meaning the date of enactment of Pub. L. 104-206,
which enacted subsec. (h)(10)(D), to reflect the probable intent of
Congress.-MISC3-
AMENDMENTS
1996 - Subsec. (h)(10)(D). Pub. L. 104-206, which directed that
subpar. (D) be inserted after subsec. (h)(10)(C) of the Northwest
Power Planning and Conservation Act, was executed by adding subsec.
(h)(10)(D) to this section, which is from the Pacific Northwest
Electric Power Planning and Conservation Act, to reflect the
probable intent of Congress.
1994 - Subsec. (h)(12)(A). Pub. L. 103-437 substituted
''Committees on Energy and Commerce and on Natural Resources'' for
''Committees on Interstate and Foreign Commerce and on Interior and
Insular Affairs''.-CHANGE-
CHANGE OF NAME
Committee on Energy and Commerce of House of Representatives
treated as referring to Committee on Commerce of House of
Representatives by section 1(a) of Pub. L. 104-14, set out as a
note preceding section 21 of Title 2, The Congress.
Committee on Natural Resources of House of Representatives
treated as referring to Committee on Resources of House of
Representatives by section 1(a) of Pub. L. 104-14, set out as a
note preceding section 21 of Title 2.-MISC4-
REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES
References in laws to the rates of pay for GS-16, 17, or 18, or
to maximum rates of pay under the General Schedule, to be
considered references to rates payable under specified sections of
Title 5, Government Organization and Employees, see section 529
(title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note
under section 5376 of Title 5.
OPERATION AND MAINTENANCE OF FISH PASSAGE FACILITIES WITHIN THE
YAKIMA RIVER BASIN; FUNDING
Pub. L. 98-381, title I, Sec. 109, Aug. 17, 1984, 98 Stat. 1340,
provided that: ''The Secretary of the Interior, acting pursuant to
Federal reclamation law (Act of June 17, 1902, 32 Stat. 388, and
Acts amendatory thereof and supplementary thereto) (43 U.S.C. 371
et seq.) and in accordance with the Pacific Northwest Electric
Power Planning and Conservation Act (94 Stat. 2697) (16 U.S.C. 839
et seq.) is authorized to design, construct, operate, and maintain
fish passage facilities within the Yakima River Basin, and to
accept funds from any entity, public or private, to design,
construct, operate, and maintain such facilities.''-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 838i, 839a, 839c, 839d,
839e, 839f, 839h of this title.