NRU’s New General Counsel Gets Started – Note from Zabyn
I was thrilled to begin work this week as NRU’s General Counsel. I spent the week getting familiar with NRU and talking with NRU staff and other public power folks about NRU’s priority policy and legal issues. There’s lots of good work ahead with rate cases, post-2028 planning, market transformations, carbon regulation, and everything else happening in the region. I’m excited to be approaching these issues on behalf of small, rural utilities. Please feel free to reach out to me at any time with questions, concerns, or if you just want to share your perspective on NRU, Bonneville, and your utility. You can reach me at email@example.com or 503-351-0485.
CRSO EIS Record of Decision (ROD) and Related News – Note from John
On September 29th, the three co-lead agencies, BPA, U.S. Army Corps of Engineers and Bureau of Reclamation, are set to release the ROD adopting the Final EIS and associated Biological Opinions (BiOps) from the National Marine Fisheries Service (NMFS) and Fish and Wildlife Service (F&W). The co-lead agencies are issuing a joint ROD but each agency will have their own section and cover page in the document. The document is anticipated to be about 70 pages long. The document will also include the executive summary of the EIS and the Preferred Alternative (PA) from the final EIS. The ROD essentially completes the legal requirements of the NEPA process and will not present any new information.
The co-lead agencies worked closely with the NMFS and F&W throughout the NEPA process to design the PA in such a way that the BiOps could, and would, conclude with an opinion of “No Jeopardy”. A no jeopardy opinion essentially means that the operations of the Columbia River System in accordance with the PA and actions listed within it, will not cause further harm or damage to fish stocks. A no jeopardy opinion does not carry further requirements for mitigation, referred to as reasonable and prudent alternatives in NEPA parlance. It’s important to note that coordination between the lead agencies and the consulting agencies, NMFS and F&W, was not well executed in the past and previous BiOps were issued with “Jeopardy” opinions and carried with them the requirement to further mitigate impacts of river operations. We are pleased to see that BPA and the other co-lead agencies were forward thinking in this regard.
While signing of the ROD signifies completion of the NEPA process, it is also a trigger point for other actions. It’s not well known, but the signing of the ROD effectively terminates the fish and wildlife accords, actually extensions of the original accords, that BPA has implemented with several states and tribes. BPA has been working hard to get new extensions signed to replace the extensions that will terminate with the signing of the ROD. BPA’s primary reasoning for their efforts to reinstate the current extensions is to retain the stability created with the existing accord partners and not expand funding or increase the duration of commitments. Stability with existing partners will be crucial as stakeholders consider their responses to the ROD. BPA has reported that they feel confident they will be able to get replacement extensions in place before issuance of the ROD next week.
As said above, the signing of the ROD will signify the end of the NEPA process. Unfortunately, that means the NEPA process and outcomes of the process will then be open to legal challenge. I wouldn’t want to speculate on the details, but I think it’s fairly safe to assume that at least a few parties have been hard at work preparing legal challenges to the process and/or the outcomes. We will keep our ears to the ground on this and include any information we can glean in future updates.
Another process closely related to the signing of the ROD that is intended to create stability while ultimately addressing the futility of near constant litigation over the Columbia River system, is something that is being referred to as the “Four State Process”. The process is not well developed and is described differently by each person who discusses it. As the name implies, the process began with the Governors of Montana, Idaho, Washington and Oregon. The governors were originally going to issue an MOU in advance of the ROD but have tapped the brakes and are contemplating something less formal like a joint statement of intent expressing their commitment to working together to establish a regional forum where a broad set of stakeholders could collaborate to address all the factors that impact endangered species survival in the river system. The latest word is that this letter or statement of intent will be issued simultaneously with the ROD on Tuesday morning of next week.
We are initially hearing that the Four State Process will have a plenary group consisting of 16 persons. Three from the action agencies who lead the NEPA process, one form NOAA, four tribal representatives, four from stakeholder groups and one from each of the four states; three of the four state representatives are said to be from the Northwest Power and Conservation Council. The four stakeholder groups are yet to be defined but are likely to be from the environmental community. We need much more information before we can form an opinion on this process, but one concerning piece of news already attached to it is the desire from the states to have BPA fund the effort. NRU has already pushed back strongly on this notion with our BPA contacts and we will be looking for other opportunities to voice resistance to BPA funding. We have consistently stated in comments throughout the NEPA process, both verbally and written, that any additional costs or requests for funding cannot be layered on top of the significant cost burden already born by public power in the Northwest.