H.R. 3144, To provide for operations of the Federal Columbia River Power System pursuant to a certain operation plan for a specified period of time, and for other purposes

Floor Situation

On Wednesday, April 25, 2017, the House will consider H.R. 3144, to provide for operations of the Federal Columbia River Power System pursuant to a certain operation plan for a specified period of time, under a closed rule.  H.R. 3144 was introduced on June 29, 2017 by Rep. Cathy McMorris Rodgers (R-WA) and was referred to the Committee on Natural Resources as well as the Committee on Transportation and Infrastructure. The Committee on Natural Resources ordered the bill reported by voice vote on April 11, 2018 by a vote of 23-17.

Summary              

H.R. 3144 requires federally owned hydropower facilities within the Federal Columbia River Power System (FCRPS) in the Pacific Northwest to be operated according to the salmon management plan adopted by the National Oceanic and Atmospheric Administration in 2014. 

Background

Hydropower accounts for seven percent of all domestic electricity generation, divided equally between federal and non-federal output, and about 48 percent of all renewable generation. In Washington State, hydropower accounts for almost 70 percent of electricity generation, almost 60 percent each for Oregon and Idaho, and more than one-third for Montana. The Columbia Basin in the Pacific Northwest encompasses an area approximately the size of France, with 31 multipurpose federally-owned dams along the Columbia and Snake Rivers, many of which are Bureau of Reclamation dams.[1]

Under the Bureau of Reclamation’s policy, hydropower generated from its dams is first used to provide electricity to operate irrigation pumps. Any remaining Reclamation hydropower is then primarily sold by either of two federal agencies, the Bonneville Power Administration (Bonneville) or the Western Area Power Administration, to wholesale customers. The wholesale electricity rates are designed to repay the federal capital investment—plus interest—in federal electricity generation and transmission facilities, annual operation and maintenance costs of such facilities, and federal staffing.

Compliance with environmental mandates and replacement power services resulting from environmental regulation and litigation are also reflected in federal power rates. Federal court-mandated ‘‘spills’’—an operation when water is diverted around a hydropower-producing turbine to aid fish passage—have led to significant lost hydropower generation and associated replacement power purchases of mainly fossil-based, higher cost energy. At a Water, Power and Oceans Subcommittee hearing in 2016, Mr. Christopher Downen, Senior Policy Analyst at the Public Power Council, which represents consumer-owned utilities in the Pacific Northwest, testified ‘‘[a]t $757 million last year alone, this single category of costs accounted for about 30 percent of Bonneville’s costs charged in rates.’’[2]

Four large dams along the lower Snake River—Ice Harbor, Lower Monumental, Little Goose and Lower Granite – are part of the FCRPS and produce enough energy to power a city the size of Seattle every year and are responsible for being one of the largest trade gateways into the United States. Outside groups have claimed hydropower has negative effects on migratory fish and have called for these four dams to be closed.  The survival rate of species that migrate through the four dams is 99.5 percent, with an average of 97 percent. In addition, to replace the power supplied by these dams it would take two nuclear plants, three coal-fired plants, or six gas-fired plants. Long-standing litigation surrounding the FCRPS has caused major uncertainty concerning future power generation, rates, and reliability in the region. The litigation alone has cost taxpayers and Northwest ratepayers millions of dollars.[3]

The Endangered Species Act of 1973 (ESA) requires the Army Corps of Engineers, the Bureau of Reclamation, and Bonneville to consult with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service on how project operations may impact ESA-protected species. Following this consultation, NMFS issues a biological opinion (BiOp) specifying with either a jeopardy or no-jeopardy finding for the 13 separate species of salmon and steelhead that NMFS listed for protection under the ESA beginning in 1991. A finding of jeopardy requires NMFS to develop Reasonable and Prudent Alternatives (RPAs) to the proposed action.[4]

NMFS issued the first of three ‘‘no jeopardy’’ BiOps for FCRPS beginning in April 1992 but were found to be flawed and jeopardized ESA species. In 1995, NMFS issued the first BiOp that concluded that FCRPS operations jeopardized the continued existence of ESA-listed species, and proposed RPAs to avoid this finding. NMFS issued a new BiOp in December 2000, which again found that the operations of the FCRPS dams were likely to jeopardize the existence of certain ESA-listed species, and proposed RPAs to mitigate these impacts. It was determined that jeopardy would not be avoided even after implementing the RPAs. Eventually, the cumulative effect of the RPA, coupled with off-site measures including hatchery and habitat initiatives, was determined to be sufficient to warrant a ‘‘no-jeopardy’’ opinion.[5]

In 2001, the National Wildlife Federation and others sued the federal government, challenging whether the 2000 BiOp complied with the ESA. The court ruled that the 2000 BiOp failed to provide reasonable certainty that the offsite mitigation measures were reasonably certain to occur, and ordered NMFS to issue a new BiOp by 2004. In addition, the district court required the modification of the FCRPS dam operations during the spring and summer of 2006, requiring certain dams to bypass hydroelectric turbines and spill water during this period. Environmental organizations and others believe that spills aid in fish passage, while others (including water and power users) counter that spills, costing tens of millions of dollars, decrease hydropower production and provide little benefit to the few salmon that may be in the Columbia River system during the hottest months of the year.[6]

The court also rejected the 2004, 2008 and the 2010 Supplemental BiOps issued by NMFS. In 2014, a new judge found the 2014 Supplemental BiOp flawed, but allowed it to stay in place until a new BiOp can be completed. The 2014 Supplemental BiOp supplements, without replacing, the 2008 and 2010 BiOps. In addition, the court found that the Action Agencies had relied on an environmental impact statement (EIS) required under the National Environmental Policy Act of 1969 that was ‘‘too stale’’ or too ‘‘narrowly focused,’’ and the Action Agencies were granted an extension to complete a new EIS by March 26, 2021.[7]

Following arguments on environmental plaintiffs’ motions to block capital and maintenance expenditures at the dams and force substantially more spills, the court ordered ‘‘tailored injunctive relief’’ including additional spills, but ordered the federal agencies to test the impacts of these spills before deciding how much would be mandated at each dam in 2018. In addition, the judge ordered the federal agencies to disclose planned projects at the Snake River dams to the environmental plaintiffs in a ‘‘reasonable process and schedule.’’[8]

In response to the court’s order, four Members of Congress sent a bipartisan letter to Secretary of the Interior Ryan Zinke raising concerns over the impacts that additional spill requirements in the spring 2018 would cause, including increased power costs and actual harm to endangered fish species. A court-ordered spill in the FCRPS began on April 3, 2018, after the Ninth U.S. Circuit Court of Appeals rejected an appeal by the defendants to halt the order. This action will continue to drastically increase power rates for ratepayers across the Pacific Northwest, while failing to provide the additional benefits of safe fish passage argued by the plaintiffs. Federal agencies estimate the spill will cost ratepayers in the Northwest $40 million in higher rates in 2018 alone.[9]

H.R. 3144 brings certainty to the operations of the FCRPS by requiring the System to be operated according to the 2014 Supplemental BiOp issued by NMFS until 2022, or until certain conditions are met. In addition, the bill prohibits any structural modification or removal of the FCRPS hydropower dams, unless specifically and expressly authorized by an Act of Congress.[10]

Amendments

1. Rep. Bishop (R-UT) – This amendment narrows bill to avoid inadvertent impact on Army Corps of Engineers operation, maintenance and capital improvement activities consistent with project authorizations.

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   ​Cost

The Congressional Budget Office (CBO) estimates enacting the legislation would reduce net spending by $16 million over the 2019-2028 period.

Staff Contact

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 2-1374.