§ 839b. — Regional planning and participation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC839b]
TITLE 16--CONSERVATION
CHAPTER 12H--PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION
Sec. 839b. Regional planning and participation
(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.) \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.
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(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 annual cost of this provision shall not
exceed $500,000 in 1997 dollars.
(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).
(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; Pub. L. 106-60, title VI,
Sec. 610, Sept. 29, 1999, 113 Stat. 502.)
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.
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.
Amendments
1999--Subsec. (h)(10)(D)(vii), (viii). Pub. L. 106-60 added cl.
(vii) and struck out former cls. (vii) and (viii) which read as follows:
``(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.''
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 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 Commerce of House of
Representatives changed to Committee on Energy and Commerce of House of
Representatives, and jurisdiction over matters relating to securities
and exchanges and insurance generally transferred to Committee on
Financial Services of House of Representatives by House Resolution No.
5, One Hundred Seventh Congress, Jan. 3, 2001.
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.
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in subsec.
(h)(12)(A) of this section relating to submitting 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, see section 3003 of Pub. L. 104-66, as
amended, set out as a note under section 1113 of Title 31, Money and
Finance, and page 188 of House Document No. 103-7.
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.''
Section Referred to in Other Sections
This section is referred to in sections 838i, 839a, 839c, 839d,
839e, 839f, 839h of this title.
