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Report to Congress:

Fish and Wildlife Governance and

the Columbia River Hydropower System

May 15, 1996

96-10 
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CONTENTS

Page

I. Introduction and summary 1

II. Governance of the Columbia River 2

A. Legal and institutional background 2

B. Institutional questions 4

III. Recent developments in decision-making and 6

management

A. The emergence of an action agenda 6

B. The role of science and independent scientific advice 7

C. Budget planning and prioritization 8

D. More effective implementation 11

E. Dispute resolution 12

IV. Recommendations 12

A. Non-legislative recommendations 13

1. Work with sovereigns 13

2. Ensuring accountability 14

B. Legislative recommendations 15

1. Amendments to the Northwest Power Act to 15

 require consistency with the Council program

2. Other matters that could be formalized by executive 17

 order or limited legislation

a. Binding and non-binding dispute resolution 17
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b. Managing federally appropriated funds with 18

Bonneville fish and wildlife funds in an 

integrated manner

V. Broader changes 19

APPENDICES:

1. Procedure

2. Background materials for the workshop

3. The Workshop Report

4. Council issues and alternatives

5. Summary of comments

6. Glossary
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I. Introduction

A. Background and findings

In the energy and water appropriations legislation for 1996, adopted November 13, 

1995, Congress directed the Northwest Power Planning Council to report to Congress within 

180 days “regarding the most appropriate governance structure to allow more effective regional 

control over efforts to conserve and enhance anadromous and resident fish and wildlife within 

the Federal Columbia River Power System.” The Council has engaged the region in an 

extensive discussion regarding this matter. This report provides the Council’s findings and 

recommendations. The report’s appendices describe the process the Council followed to carry 

out Congress’s charge; discuss the issues and alternatives in detail; and summarize in detail the 

comments the Council received in its review. 

It merits particular emphasis that the Council heard widespread agreement on the 

following themes:

• There is a need for a single fish and wildlife recovery plan, not multiple plans.

• The region needs an implementation structure in which there are: clear and logical rules; 

clear responsibility and accountability for decisions; opportunities for interested parties to 

offer information and understand how and why decisions are made. 

• The region needs a way to evaluate the results of decisions (were they implemented, did 

they produce results?).

• Independent scientific advice is needed in decision-making and evaluation.

• Decision-making should be more watershed-up than top-down.

B. Recommendations

To summarize the Council’s findings and recommendations:

Several initiatives are underway to improve the region’s voice in management of the 

Columbia River hydropower system. For example, significant progress is being made in 

building independent scientific review into the decisionmaking process, in budget planning and 

prioritization and in coordinating implementation activities. Moreover, in part as a result of the 

dialogue generated by this review, a broad consensus has emerged on the steps the region 

needs to take to improve the way decisions are made and implemented.
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The Council believes that the region can capitalize on these efforts by taking 

several further steps:

First, there is broad consensus that federal, state and tribal fish and wildlife 

efforts should be consistent with each other. The Council supports and will continue to 

help facilitate efforts to bring sovereigns together periodically, on a basis of equality, to 

work toward a single fish and wildlife program, and to coordinate technical and policy 

aspects of implementation. Over the last year, federal, state and tribal entities have 

been working together in a more constructive manner. If these collaborative efforts fail, 

legislation will be needed. The Council recommends that an executive order be 

developed to help cement cooperation and greater consistency. An executive order 

should direct the federal agencies to implement the Council’s fish and wildlife program 

insofar as permitted by their statutory responsibilities, and to provide detailed, written 

explanations if they diverge from the program.

Second, if legislation is needed, the Council recommends that the federal 

agencies that govern operations of the hydropower system -- the Army Corps of 

Engineers, the Bureau of Reclamation, the Federal Energy Regulatory Commission and 

the federal fish and wildlife agencies (the National Marine Fisheries Service and the U. 

S. Fish and Wildlife Service) insofar as their activities affect hydropower operations --

be required to act consistently with the Fish and Wildlife Program developed under the 

Northwest Power Act. Importantly, this change would not modify the Endangered 

Species Act.

Third, the Council commits to play an active role in monitoring implementation 

of fish and wildlife mitigation measures. Based in part on the requirements of the 

Northwest Power Act, mitigation funding can be linked to progress in implementing a 

monitoring and evaluation program.

On several other matters, particularly dispute resolution and integrated fish and 

wildlife budget management, the Council will continue to work with interested parties 

and report further to the Congress this fall.

II. Governance of the Columbia River

A. Legal and institutional background

Over the past several decades, a constellation of agencies, courts and other entities has 

shaped the development and management of the Columbia River. Authority has shifted among 

them with the passage and interpretation of various laws and treaties. Since the 1930s, one of 

the largest influences on the river has been the construction and operation of dams owned or 

licensed by the federal government. During the late 1960s and 70s, salmon policy in the 

Northwest was strongly shaped by a series of federal court decisions interpreting the United 
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States’ treaties with four Columbia River tribal groups, the Yakama, Nez Perce, Warm Springs 

and Umatilla. This litigation aimed primarily at identifying an equitable balance between Indian 

and non-Indian harvesters. Salmon harvest management in the river remains rooted in 

processes developed by the ongoing federal court litigation, U. S. v. Oregon. Environmental 

conditions affecting salmon populations have been at issue in this litigation, and federal 

hydropower and other activities have been a concern insofar as they impinge on fish passage 

and habitat. However, the treaty litigation did not develop processes for river and dam 

operations. By 1980, it was fair to say that Columbia River fish and wildlife policy was in large 

part federal. Although not necessarily a coordinated policy, it was driven by federal decisions 

about dams, harvest management, and mitigation policy. 

With the passage of the Northwest Power Act in 1980, the Magnuson Fishery 

Conservation and Management Act, the U.S.-Canada Pacific Salmon treaty, and a settlement in 

the U. S. v. Oregon litigation, the states and the region’s Indian tribes exerted greater influence 

on the Columbia River and especially its salmon runs.

The Northwest Power Act created the Northwest Power Planning Council and gave it 

authority to plan for the region’s electric power system, including the Columbia River 

hydropower system. As the first step in preparing this plan, the Council was directed to 

develop a program to mitigate the effects of the Columbia River dams on fish and wildlife. 

Through their membership on the Council, the region’s four states acquired a significant voice in 

management of the hydropower system for power production and fish and wildlife rehabilitation. 

The program must be based on the recommendations of Indian tribes, fish and wildlife agencies 

and others. The Council is also charged with developing a program that, to the greatest extent 

possible, is designed to deal with the Columbia River and its tributaries as a system. 

Accordingly, the Council makes its own proposals to bring individual fish and wildlife 

recommendations into a systemwide framework.

It is worth noting that the Northwest Power Act requires the Council to consider certain 

economic factors in its fish and wildlife decisions (Columbia River Basin Fish and Wildlife 

Program, section 1.3). The Fish and Wildlife Program must assure an adequate, efficient, 

economical and reliable power supply for the region (16 U.S.C. § 839b(h)(5); Columbia River 

Basin Fish and Wildlife Program, section 1.8 (1994)). Fish and wildlife measures must 

“utilize, where equally effective alternative means of achieving the same sound biological 

objective exist, the alternative with the minimum economic cost” (16 U.S.C. § 839b(h)(6)(C)). 

These matters will continue to play an important role in the Council’s consideration of Fish and 

Wildlife Program amendments. As the region faces bigger and bigger investments in fish and 

wildlife recovery, an evaluation of economic impacts and a program of economic mitigation will 

be needed. In section 9 of its Fish and Wildlife Program, the Council has called for efforts to 

develop such a program (Columbia River Basin Fish and Wildlife Program, section 9 

(1994)).
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The primary implementors of the Council’s program are federal agencies. The 

Northwest Power Act requires the Bonneville Power Administration to use its fund and other 

authorities “in a manner consistent with” the Council’s fish and wildlife program. It also requires 

all federal agencies that manage, operate or regulate hydroelectric facilities on the river, which 

includes the Corps of Engineers, the Bureau of Reclamation, Bonneville and the Federal Energy 

Regulatory Commission, to take the program into account “at every stage of decision making to 

the fullest extent practicable.” These obligations can help integrate federal agency activities in 

support of a regionally supported fish and wildlife program. The seriousness with which federal 

agencies have implemented the Council’s program, however, has varied from agency to agency 

and time to time.

In 1990, Endangered Species Act petitions were filed to list Snake River salmon. 

When these populations came under the Act’s protection, much of the responsibility for salmon 

policy shifted back to the federal government. In the four years that followed the decision to list 

Snake River salmon more and more federal decisions -- critical decisions on dam operations, 

forest management (driven in part by independent efforts to protect another endangered 

species, the northern spotted owl), grazing, mining and salmon production -- have been focused 

on complying with the Endangered Species Act. 

B. Institutional questions

The fact that the salmon declines resumed even after passage of the Northwest Power 

Act, the Magnuson Act, the Salmon and Steelhead Conservation Act and the U. S. - Canada 

Salmon Treaty inevitably raises questions about the efficacy of these remedial measures. For 

purposes of this review, it is important to focus specifically on institutional questions that arise in 

fish and wildlife governance on the river:

1. The Northwest Power Act addresses energy, fish and wildlife in the Columbia 

River. Yet salmon, for example, are also affected by fishing, timber harvest, grazing, irrigation, 

ocean conditions, hatcheries and any number of human activities that are largely left out of the 

Northwest Power Act. To what extent are continuing species declines due to lack of progress 

in these other parts of the fish and wildlife ecosystem? 

2. The Council is composed of state representatives. Tribes and federal agencies 

have vital interests in river and fish management. Does the absence of federal and tribal 

representation on the Council limit the Council’s authority in principle and make implementation 

of remedial measures harder in practice?

3. The Northwest Power Act’s Fish and Wildlife Program development process is 

based on fish and wildlife agency and tribal recommendations. This can bring conflicting 

perspectives to the process: aggressive action on habitat issues and flows; support for hatchery 

production; focus on harvestable populations rather than wild fish. Are these perspectives 

appropriately balanced?
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4. The Act gave the region a bigger voice in river management, but also diffused 

responsibility for policy formulation and implementation. In principle, planners defer to fishery 

managers’ recommendations and federal implementers defer to planners. Does this diffusion of 

responsibilities breed implementation problems?

5. The Fish and Wildlife Program itself has limited authority. Bonneville must be 

consistent with the program. Other federal river management agencies must take the program 

into account to the fullest extent practicable. In practice, is the program too easily balanced 

against other federal agency obligations so that implementation suffers?

6. The states and tribes are not bound by the Council program (except in Oregon, 

where a state law requires some agencies to comply with the program in some matters). It is 

often assumed that state fish and wildlife agencies and Indian tribes support a plan based on 

their recommendations. In fact, the Council does not always adopt these recommendations and 

the agencies and tribes may sharply disagree with the program’s measures. A regional 

perspective sometimes requires that the Council adopt controversial recommendations. How 

much does this contribute to implementation problems?

7. One of the realities of Columbia River salmon recovery is that the Council 

knows of no sure solutions. A comprehensive monitoring and evaluation program is essential so 

that we can identify effective measures. Yet monitoring and evaluation require measurement at 

many different points in the life cycle. Measurements may be needed in headwater areas, 

various points in downstream and upstream migration in the river, in the estuary and in the 

ocean. Each of these points may require the cooperation of several jurisdictions. Without a 

way to ensure cooperation by all jurisdictions, can the region identify effective fish and wildlife 

measures?

The Endangered Species Act listings have highlighted some other issues for the region to 

consider:

1. Endangered Species Act decisions can be made in closed meeting rooms from 

which all but federal agencies are excluded. These decisions can neglect important perspectives 

and breed mistrust. In contrast, the Northwest Power Act calls for an extensive public process 

in which issues are debated and decisions are made in the open.

2. Unlisted species may receive little consideration in Endangered Species Act 

decisions. When a choice must be made between the interests of listed species and other 

species, listed species must be preferred whether or not this makes sense for the larger 

ecosystem. The Northwest Power Act aims to protect all fish and wildlife populations affected 

by the hydropower system and to treat the river and its tributaries as a system. In this sense, the 

Northwest Power Act may offer better protection for biodiversity and ecosystems than does the 

Endangered Species Act. 
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3. Community and economic impacts receive little attention in Endangered Species 

Act processes. This can generate opposition and overlook solutions that may be good for 

species and communities. Under the Northwest Power Act, the Northwest has had the ability 

to search for fish and wildlife solutions that account for the concerns of the energy system and 

energy solutions that accommodate fish and wildlife.

4. Indian legal rights can be threatened by Endangered Species Act decisions. 

While there is still debate about whether the Endangered Species Act overrides treaty and other 

commitments to tribes, it is true that the ESA has no explicit provision for respecting these 

commitments. In contrast, the Northwest Power Act accords tribes a special place in the policy 

development process and requires that fish and wildlife measures are consistent with the tribes’ 

legal rights.

Different conclusions can be drawn from these areas of discussion. Some conclude that 

the Endangered Species Act and the Northwest Power Act can complement each other, each 

shoring up the other’s weak points. From this perspective, the question is not whether one law 

should be implemented at the expense of the other but how to make the two work better 

together. 

Others conclude that the Endangered Species Act listings have knocked things out of 

balance. They argue that regardless of whether the two laws could work together in principle, 

in fact the Endangered Species Act dominates decisions on the river and leads to decisions that 

insufficiently reflect the region’s values and concerns. These voices do not necessarily argue for 

changes in the Endangered Species Act, but they do suggest that the region play a more 

prominent role in Endangered Species Act decisions.

Yet a third possibility is that neither the Endangered Species Act nor the Northwest 

Power Act strikes the right balance among species, ecosystems and economic development. 

They should be replaced by a single law that properly accounts for these interests.

Since the Endangered Species Act listings, the region has developed a variety of new 

tools with which to address fish and wildlife issues. Several of these developments occurred 

after Congress called for this fish and wildlife governance report. It is important to provide a 

detailed picture of these arrangements.

III. Recent developments in decision-making and management

Since Congress called for this review last fall, a number of developments have occurred 

that affect the way fish and wildlife decisions are being made in the Columbia River Basin. In 

this section, we review some of those developments.
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A. The emergence of an action agenda

In recent months, it has become clear that there is a surprising level of agreement about 

many steps that could be taken to improve fish and wildlife management on the River. The 

Report of the Workshop on Fish and Wildlife Governance elaborates on these steps (see 

Workshop Report pp. 10-11). For example, there is widespread agreement on the need to 

bring sovereign entities together to address important fish and wildlife issues; on the need for a 

dispute resolution mechanism; and on the need to ensure consistency between regional and 

federal agency activities; and in other areas. Not only is there a surprising level of agreement 

about the need to take such steps, parties have begun to take them. The next sections describe 

some of these developments. 

B. The role of science and independent scientific advice

One of the most basic requirements of both the Northwest Power Act and the 

Endangered Species Act is that decisions be based on the best available scientific information 

(Northwest Power Act, section 4(h)(6)(B); Endangered Species Act, section 4(b)(1)(A)). 

Under the Endangered Species Act, the agencies that administer the Act are accorded 

deference in determining what the best available scientific information is. The Northwest Power 

Act creates a more ambiguous situation. The Power Planning Council must determine whether 

fish and wildlife recommendations satisfy certain requirements, including the “best available 

scientific knowledge” requirement. When the Council receives conflicting fish and wildlife 

recommendations, it must resolve the inconsistency “giving due weight to the recommendations, 

expertise, and legal rights and responsibilities” of the fish and wildlife managers. (Northwest 

Power Act, section 4(h)(6)(D)). This does not mean that the fish and wildlife managers are the 

final arbiters of the “best available scientific knowledge.” The Northwest Power Act requires 

the Council to make this determination. However, in doing so the Council must rely heavily on 

the fish and wildlife managers.

At the same time, because there is so much uncertainty about how to rehabilitate fish 

and wildlife populations, improving the level of scientific knowledge is critical. In the early 

1980s, the Power Planning Council adopted a strategy called “adaptive management,” which is 

premised on the idea that fish and wildlife recovery measures should be structured as 

experimental probes, so that the region can learn from them. While there are institutional 

problems in making this idea work, there have been gains. For example, throughout the 1980s, 

the Council and others worked in a highly-charged atmosphere to focus evaluation efforts on the 

relationship between river flows and salmon survival. Progress was frustratingly slow, but by 

the turn of the decade, a consensus began to emerge on a research strategy. Over the past five 

years, important new data have been generated to help us begin to answer these important 

questions. The Council’s 1994 Fish and Wildlife Program was premised on a proposed headto-head evaluation of different mainstem measures. There is reason to hope that by the 

beginning of the next decade, the region will have significantly better information with which to 

make decisions about river operations.
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The fervor that has pervaded the policy debate over salmon recovery in the 1990s has 

only underscored the need for independent scientific advice in fish and wildlife policy 

development, monitoring and evaluation. With this in mind, the Council’s 1992 Strategy for 

Salmon called for the formation of an Independent Scientific Group to advise decision makers 

on critical uncertainties facing recovery efforts, evaluation strategies and ways of measuring 

progress. After the Council adopted its 1994 Fish and Wildlife Program, a number of parties --

including some Council members -- raised questions about the scientific merits of the more 

controversial features of the program. Accordingly, the Council asked the Independent 

Scientific Group to review the program, its conceptual foundations, and the extent to which its 

measures are based on the best available scientific knowledge. While reliance on the expertise 

of the fish and wildlife managers will continue, independent scientific review is an important aid 

in determining the best available scientific knowledge.

The importance of independent scientific advice in fish and wildlife policy has also been 

recognized by the National Marine Fisheries Service, its Recovery Team, and the National 

Research Council panel on salmon recovery. Recognizing that this need is common to the 

Northwest Power Act and the Endangered Species Act processes, the National Marine 

Fisheries Service and the Council worked together in late 1995 to form a single scientific group. 

With advice from the National Academy of Sciences, the Council’s Independent Scientific 

Group is being expanded to bring in new areas of expertise. A new charter has been developed 

for the expanded group, which will be called the Independent Scientific Advisory Board. The 

Council and NMFS anticipate that the Independent Scientific Advisory Board will play a crucial 

role in ensuring that the best available scientific information is used in decisionmaking and 

implementation and that effective monitoring and evaluation mechanisms are developed.

C. Budget planning and prioritization

In 1995, the region undertook for the first time to prioritize fish and wildlife projects for 

Bonneville Power Administration funding to meet an established budget. The fishery managers, 

the Northwest Power Planning Council, Bonneville and others continue to develop the 

prioritization process. Also in 1995, the Clinton Administration established a multi-year 

agreement for Bonneville’s fish and wildlife funding. While the specific details of the budget 

agreement are still under discussion, in general it provides for Bonneville to pay for the cost of 

river operations to meet flow and spill levels called for in the National Marine Fisheries 

Service’s Biological Opinion on hydropower operations. The agreement also provides that 

Bonneville will expend a certain sum of money for other fish and wildlife activities, and affords 

access to a contingency fund under certain circumstances. The federal agencies, in consultation 

with the Council and the region’s tribes, are in the process of negotiating a Memorandum of 

Agreement that is to describe the accounting and other financial workings of the budget. How 

these two developments -- an administrative budget and the prioritization process -- work 

together is a matter of great importance to the Council and the region.
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Beginning with the budget, Bonneville takes the following approach to allocation of its 

fish and wildlife funds:

• Bonneville assigns first priority to funding for measures that must be implemented to meet the 

requirements of the Biological Opinion’s reasonable and prudent alternative (as distinguished 

from other Endangered Species Act-related measures such as the Recovery Plan and as 

distinguished from measures in the Council’s program developed under the authority of the 

Northwest Power Act). This includes the cost of river operations, which is not discussed 

further here, as the budgeting for this item operates in a way different from the other 

Bonneville expenditures. Other costs in this category are capital investment costs (such as 

dam modifications by the Corps) identified in the Biological Opinion, which are funded 

originally by Congressional appropriations and then reimbursed by Bonneville. Other 

Biological Opinion measures will be funded directly by Bonneville (such as research activities 

and supplementation measures). Despite the essentially non-discretionary nature of these 

Biological Opinion projects, Bonneville, the Council, and the fish managers include them in 

the regional prioritization process (described below) for purposes of management and public 

review. Bonneville retains authority for project procurement and budgeting.

• Bonneville also accords top priority to funding mitigation activities for which Congress has 

appropriated the money and then imposed reimbursement obligations on Bonneville, 

whether or nor related to the Biological Opinion and the ESA. Thus repayment of capital 

investments by the Corps of Engineers under the Biological Opinion fits into this priority 

category as well as the last, but this priority category also includes other capital investments 

and operation and maintenance expenditures that come from Congressional authorizations 

and appropriations, including mitigation activities by the Corps and U. S. Fish and Wildlife 

Service under the Lower Snake River Compensation Plan.

• Finally, Bonneville expends funds as called for under the Northwest Power Act, to 

implement measures in the Council’s Columbia River Basin Fish and Wildlife Program. The 

Council’s program is developed on the basis of recommendations of the region’s fish and 

wildlife agencies and Indian tribes, and represents measures to mitigate for the adverse 

impact of hydropower operations on fish and wildlife species in the basin, whether or not 

the species are listed under the Endangered Species Act. Bonneville directly funds both 

capital and non-capital measures in the Council’s program.

Bonneville’s non-operational fish and wildlife budget can also be divided into three 

functional categories for accounting and prioritization purposes:

1. Repayment of capital investments (e.g., dam modifications and hatcheries) --

capital investments either funded by Congressional appropriations and then reimbursed by 

Bonneville (primarily Corps of Engineers projects, whether from the Biological Opinion, the 

Council’s program or other sources) or directly funded by Bonneville (primarily measures in the 

Council’s program that call for capital investments directly by Bonneville);
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2. Reimbursable costs -- fishery mitigation operation and maintenance expenses 

funded by Congress with a statutory reimbursement obligation on Bonneville (e.g., Lower 

Snake River Compensation Plan hatchery operation and maintenance costs); and

3. Direct program costs -- non-capital fish and wildlife mitigation expenditures 

directly funded by Bonneville (primarily measures in the Council’s program and non-operational 

measures in NMFS’ Biological Opinion on hydropower operations and, when finalized, 

Recovery Plan).

An initial allocation of the total budget into these three categories was made as part of 

the Administration-approved budget, reflecting an estimate of how much money Bonneville will 

need to expend to satisfy its funding obligations over the next six years. The expectation is that 

the amounts allocated to the three categories will remain in those categories unless there is a reallocation agreement. There is also an expectation that the processes to prioritize and allocate 

the money assigned to each category will be refined. These expectations must be tempered, 

however, by Bonneville’s understanding of its funding obligations, as described above. That is, 

the amount of money available for direct funding of the measures in the Council’s program 

depends in part on what is left after Bonneville funds the Biological Opinion’s “reasonable and 

prudent alternative” under the ESA and the Congressionally-imposed reimbursement 

obligations. Thus a high degree of coordination among implementing agencies, the Council and 

Congress is essential to ensure that funds are efficiently invested in rebuilding the region’s listed 

and unlisted fish and wildlife populations. Otherwise, inefficient expenditures or insufficient 

estimates for ESA and Congressionally-imposed obligations could threaten the funding of vital 

mitigation obligations identified pursuant to the Power Act.

This dynamic is important across the budget categories. For example, budgeting and 

management of funding in the reimbursable cost category must be adequate to ensure that 

reallocation of funds from the direct program category is unneeded. The budget agreement 

includes the concept, still being fleshed out, that the federal agencies that fund fish and wildlife 

activities by Congressional appropriations which are then reimbursed by Bonneville will 

coordinate their budget requests with the other entities in the region to ensure consistency with 

the budget allocations. This dynamic is also important within categories. For example, in the 

direct program funding category, NMFS’ non-discretionary direct funding needs under the 

Biological Opinion must make room for direct program funds for Northwest Power Act 

program activities. It is in the prioritization process that the Council expects to find the 

necessary budget discipline to make the budget allocations work.

The eventual aim is to include all Columbia River fish and wildlife mitigation activities in 

one prioritization process. At present the prioritization process has dealt with projects within 

budget categories or sub-categories. Thus one group (the System Configuration Team) is 

developing prioritization criteria and ranking projects for the Corps of Engineers’ 

Congressionally-appropriated capital investments. Within the direct funding category, separate 
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teams of fish and wildlife managers are developing prioritization criteria and ranking projects for 

resident fish activities, wildlife activities, and anadromous fish activities, including mainstem 

measures in the Council’s program, mainstem research measures and production, and habitat 

activities (divided into subregional units). Projects that NMFS identifies as a non-discretionary 

requirement of the Biological Opinion will be funded, of course, but will also go through the 

prioritization process for review as to their overall and relative merits.

As part of this prioritization process, the relevant fish and wildlife managers develop 

criteria for evaluating project proposals, which the Council reviews for consistency with the 

Council’s program. The fish and wildlife managers then rank projects according to the criteria 

and propose priorities for funding. The Council reviews these recommendations and submits its 

own recommendations to the Bonneville Power Administration. The region’s anadromous fish 

managers make recommendations regarding anadromous fish priorities, resident fish managers 

make recommendations regarding resident fish priorities and wildlife managers make 

recommendations regarding wildlife.

In early 1996, partly in connection with this fish and wildlife governance review, the 

region clarified a number of implementation issues. For budget purposes, one of the most 

important understandings was that a multi-year work plan should be developed to guide budget 

planning and prioritization. Such a work plan should provide the region with a valuable fish and 

wildlife management tool. The regional entities have also recognized the need to bring the rest 

of the mitigation activities funded by Bonneville into the prioritization process; to devise some 

mechanism for a broader prioritization review across budget categories and groups, to ensure 

that we have the appropriate allocations for each category; and to figure out a way to integrate 

the non-Bonneville fish and wildlife mitigation activities and funds into the prioritization process.

D. More effective implementation

One of the key findings of the Fish and Wildlife Governance Workshop was on the 

need for a more effective implementation process:

The greatest failing in regional governance of fish and wildlife, expressed repeatedly by 

workshop participants, has been the failure to implement plans. It was generally agreed 

that actions must be taken if salmon recovery is to be effective. For this to occur, the 

objectives of plans must be simplified. Those charged with carrying out plans should 

be accountable for doing so promptly and effectively.

In recent months, the National Marine Fisheries Service has proposed an 

implementation process for its recovery plan. The Council is working with the Service to see if 

this proposal can be expanded to serve both the Service’s and the Council’s needs. One 

feature of the Service’s proposal is the creation of an Executive Committee composed of 

representative of all federal, state and tribal sovereigns involved in salmon rehabilitation. As this 
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report is written, the implementation structure is still being discussed by the Executive 

Committee. 
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E. Dispute resolution

Without fair and efficient ways to resolve them, fish and wildlife disputes can lead to 

gridlock. One of the themes that emerged from the Council’s Fish and Wildlife Governance 

Workshop was the need for “[f]air and efficient means of dispute resolution . . . to avoid 

paralyzing planning and implementation of fish and wildlife mitigation.” The workshop explored 

several different models of dispute resolution.

For years, harvest disputes have been governed by the federal court in United States 

v. Oregon. The settlement agreement in that case has dispute provisions that use technical and 

policy groups to define and resolve issues without further judicial intervention whenever 

possible. The hydropower projects owned by the Mid-Columbia public utility districts in 

Washington have for years been involved in a settlement-based dispute resolution process that 

many parties find effective. That process, too, involves a series of technical and policy groups 

that define and attempt to resolve issues short of judicial intervention. In recent years, the court 

has been involved in reviewing the National Marine Fisheries Service’s biological opinions for 

operation of the hydropower system. One of the court’s opinions prompted the federal 

government to convene a large-scale collection of states, tribes and federal agencies to review 

salmon recovery issues and information. The biological opinion that resulted from this opinion is 

nevertheless being challenged.

In recent months, lawyers for the National Marine Fisheries Service, the Council, the 

tribes and the states have been working to refine these alternatives. Efforts to develop a 

process that will allow parties to take a dispute to an authoritative decision-maker on fairly short 

notice are underway.

IV. Recommendations

In this section, the Council makes a number of recommendations, some of which would 

not require legislation and some that would:

First, over the last year, federal, state and tribal entities have been working together 

constructively. The Council is encouraged by this cooperation and is committed to help 

facilitate it.

Second, the Council recommends that an executive order be developed to help cement 

cooperation and greater consistency. An executive order should direct the federal agencies to 

implement the Council’s fish and wildlife program insofar as permitted by their statutory 

responsibilities, and to provide detailed, written explanations if they diverge from the program.

Third, if collaboration fails, legislation will be needed. Such legislation should require the 

federal agencies that govern operations of the hydropower system -- the Army Corps of 
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Engineers, the Bureau of Reclamation, the Federal Energy Regulatory Commission and the 

federal fish and wildlife agencies (the National Marine Fisheries Service and the U. S. Fish and 

Wildlife Service) insofar as their activities affect hydropower operations -- be required to act 

consistently with the Fish and Wildlife Program developed under the Northwest Power Act.

Finally, the Council commits to play an active role in monitoring implementation of fish 

and wildlife mitigation measures.

A. Non-legislative recommendations

Since last fall, when Congress called for this review, a number of developments have 

changed the way fish and wildlife decisions are being made in the Columbia River Basin. For 

example, significant progress is being made in collaborative review of potential dam 

modifications; in building independent scientific review into the decisionmaking process; in 

budget planning and prioritization and in coordination of river operations; and in implementation 

generally. Moreover, in part as a result of the dialogue generated by this review, a broad 

consensus has emerged on the steps the region needs to take to improve the way decisions are 

made and implemented.

In this section, we provide the Council’s recommendations for how the region can build 

on these positive developments without additional legislation.

1. Work with sovereigns

There is widespread agreement on the need for a collaborative decision-making process 

in which sovereign entities participate on a basis of equality. Some of the basin’s Indian tribes 

have submitted a version of one possible process (see Appendix 5, pages 21-23). While other 

approaches are also possible, the Council will work with the sovereigns to organize a process 

as soon as practicable.

The details of the process will need to be worked out with the sovereign interests. 

However, there is one obvious way in which to mesh the requirements of the Northwest Power 

Act, the Endangered Species Act, Indian treaties and other obligations: The sovereigns could 

be convened to develop a cohesive set of recommendations to serve as the basis for 

amendments to the Council’s Fish and Wildlife Program. The National Marine Fisheries 

Service and U. S. Fish and Wildlife Service would be asked to determine whether the Council 

program satisfies the Endangered Species Act. If either Service finds the program does not 

satisfy the Endangered Species Act, the Council will engage the region in focusing on the 

specific statutory requirements at issue and determine the most appropriate regional response.

There is ample precedent for such an approach. For example, in the Upper Colorado 

River Endangered Species Act proceeding, three states, the Bureau of Reclamation, the U. S. 
18

Fish and Wildlife Service, the Western Area Power Administration and representatives of 

environmental and water user groups have developed a recovery agreement. The agreement 

became a “reasonable and prudent alternative” for operations of Bureau facilities, and which 

permits certain kinds of water development. The agreement also contains a Recovery Action 

Plan for the funding of specific fish and wildlife rehabilitation projects. The Fish and Wildlife 

Service monitors compliance with the agreement and makes an annual determination whether it 

still satisfies Endangered Species Act requirements, based on how well the Recovery Action 

Plan is being implemented.

Such an effort would require no legislation. It could be formalized by interagency 

agreement or in a federal executive order. 

2. Ensuring accountability

Based on discussions throughout the region, the Council is convinced of the need to 

improve accountability. The Council believes there are several ways the region should go about 

this. One is for the Council to conduct more frequent and more formal reviews of agency and 

tribal implementation of the fish and wildlife program. This should be coupled with even more 

emphasis on the type of performance monitoring that the Council’s Fish and Wildlife Division 

has done in monitoring reports. The Council proposes to adopt a practice of making findings on 

consistency or inconsistency with the program as a way of putting more teeth into such a 

process. The Council also proposes to publish a periodic “report card” summarizing the 

performance of implementing agencies. This report card will be shared regionally and with 

Congress. Finally, the Council will hold annual meetings reviewing progress with implementers 

and interested parties.

Second, the region badly needs an effective biological monitoring and evaluation 

program. The Council’s Fish and Wildlife Program contains a fairly extensive set of monitoring 

and evaluation measures. To date, success in implementing these measures has been limited. 

Implementation requires a higher degree of cooperation from the fish and wildlife managers than 

we have received and probably a heavier commitment of Council and staff effort. There has 

been recent progress in some areas, however. The Council believes that the region is now at a 

point at which the region is prepared to make a significant commitment to monitoring and 

evaluation. For its part, the Council makes such a commitment. 

The Council’s commitment is in part based on the requirements of the Northwest 

Power Act. Under the Act, the Council must determine that program measures are based on 

the best available scientific knowledge. Moreover, the Council must report annually to Congress 

on the effectiveness of the Fish and Wildlife Program. To determine whether program measures 

are effective, the Council proposes to adopt a general rule that: a) all but proven measures 

should include a monitoring and evaluation component; and b) as a condition of receiving 

continued funding, all implementers must cooperate in a monitoring and evaluation program. 

The purpose is to determine which measures are effective and merit continued funding, and 
19

which do not. The Council will review monitoring and evaluation information on a regular basis 

and make a determination whether specific measures were generating the kind of information 

needed to evaluate their effectiveness.

B. Legislative recommendations

There is broad consensus in the region that federal, state and tribal fish and wildlife 

efforts should be consistent with each other. As discussed above, federal, state and tribal 

entities are currently working together in a constructive manner. If these collaborative efforts 

fail, legislation will be needed. The Council does recommend that an executive order be 

developed to help cement cooperation. If legislation is proposed, however, we recommend the 

following.

1. Amendments to the Northwest Power Act to require consistency with 

the Council program

Amending the Northwest Power Act to require consistency with the Council program 

could improve implementation by giving the region more influence over river operations and 

other key recovery measures. Depending on the scope of the provision, a consistency 

requirement could bring more of the ecosystem under regional control. Consistency alternatives 

could work in combination with a Council position on the two foregoing issues.

For all consistency alternatives, we assume no changes in the Endangered 

Species Act or other environmental laws. That is, if there were a conflict between the 

Council’s fish and wildlife program and the Endangered Species Act, the Endangered Species 

Act would govern. This could be made clear by adding a savings clause to section 10(j) of the 

Northwest Power Act: “Nothing in this Act shall be construed to affect or modify the 

Endangered Species Act or other federal laws.”

As we mention above, it is possible that a result similar to a consistency requirement 

could be achieved without legislation, through a federal executive order. The Administration 

could direct affected agencies to use their discretion to act consistently with the Council’s 

program unless there was a clear conflict with the Endangered Species Act or other laws. Such 

an order would in effect help carry out the agencies’ current obligations to take the Council’s 

program into account to the fullest extent practicable. An executive order could commit the 

agencies to use the Council’s program as the baseline for implementation, and spell out specific 

impediments if any measure cannot be implemented. While an executive order would not be as 

durable or effective as legislation, it may be more achievable in the short term.

Currently, only one federal agency -- the Bonneville Power Administration -- is required 

to act consistently with the Council’s Fish and Wildlife Program. Certain federal agencies have 

other obligations with respect to the program, and many others do not. Because these agencies 

have different authorities and responsibilities, they may take varying approaches to fish and 
20

wildlife mitigation. In these circumstances, a consistent direction in fish and wildlife policy can 

be difficult to achieve (see Report of the Workshop on Fish and Wildlife Governance 

(Appendix 3), page 9).

This subject can be approached in several different ways. These options run from the 

most limited (covering federal hydropower agencies only) to the relatively broad, designed to 

approximate a jurisdictional scope that encompasses all federal, state and tribal agency activities 

that affect species addressed by the Council’s program. The Council recommends that if 

legislation is sought, it be focused on hydropower operations, as follows.

The consistency obligation that now applies only to Bonneville could be extended to the 

other federal agencies that operate federal hydropower facilities (the Army Corps of Engineers 

and the Bureau of Reclamation) or regulate non-federal hydropower facilities (the Federal 

Energy Regulatory Commission) and to the federal fish and wildlife agencies insofar as their 

activities affect hydropower operations and management. Section 4(h)(11)(A) of the Act could 

be amended as follows:

4(h)(11)(A) The Administrator and all other Federal agencies whose decisions affect 

theresponsible for managementing, operationing, or regulationng of Federal or nonFederal hydroelectric facilities located on the Columbia River or its tributaries shall--

* * *

(ii) exercise such responsibilities, taking into account at each relevant stage of 

decisionmaking processes to the fullest extent practicable, in a manner consistent 

with the program adopted by the Council under this subsection.

These agencies would be required to act consistently with the regional program unless 

the Endangered Species Act or other federal laws require otherwise.

It is worth noting that the constitutional questions that concerned Congress in drafting 

the Northwest Power Act are less pressing today. The court opinion that validated the 

Northwest Power Act, Seattle Master Builders v. Pacific Northwest Power Planning 

Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied 107 S. Ct. 939 (1987), would clearly 

sanction an extension of the consistency obligation to a broader collection of federal agencies.

This change would not affect the Council’s planning process, but could improve 

implementation of the program. Rather than taking the Council’s basin-wide program into 

account “to the fullest extent practicable,” these federal agencies would have to act “consistent 

with” the Council’s program.

Although such an amendment would in some ways be a small change in the Northwest 

Power Act, it could make a significant difference. The casual approach the federal agencies 

have sometimes taken to implementation of the Council’s program in the past would be much 
21

less likely with such a consistency obligation. Although the Council has had disagreements with 

Bonneville over the years, the consistency obligation has joined the Council and Bonneville into 

a relatively close relationship. A similar obligation could be expected to do something similar 

with the Corps, the Bureau, the FERC and the federal fish and wildlife agencies.

The region did explore broader consistency obligations, for example, a provision 

extending consistency obligations to the Forest Service, the Bureau of Land Management and 

state fish and wildlife activities. If one of the concerns about the Northwest Power Act is that it 

does not account for enough of the causes that contribute to species declines, this option would 

address the concern. By bringing production, habitat and harvest into the picture, the region 

could consider many more of the factors that affect fish and wildlife. Scientists increasingly take 

the view that this broader approach to habitat management is necessary if species recovery 

plans are to be effective. This change could make it more possible to develop an effective 

program.

However, at this point we do not see regional consensus on the advisability of such an 

approach. It is likely that such broad changes in the regional compact would require new action 

by the four states’ legislatures. Absent a broader sense in the region that these changes are 

advisable, the Council does not recommend them.

In summary, if legislation is sought, the Council recommends that Congress extend a 

consistency obligation to the federal hydropower operators and fish and wildlife managers 

insofar as their decisions affect hydropower operations and management. This would be the 

simplest way to improve the likelihood of effective implementation and forge a link with the 

Endangered Species Act process without broadly expanding the Council’s responsibilities.

2. Other matters that could be formalized by executive order or limited 

legislation:

The Council, workshop participants and commenters explored several other areas in 

which limited legislation could be useful: 

a. Non-binding and binding dispute resolution processes

The risk inherent in a broadly collaborative process of the kind that prevails in the 

Northwest is that gridlock can arise at virtually any point in the collaboration. Absent a dispute 

resolution process of some kind, agencies with particular responsibilities must decide how to 

proceed and litigation may follow.

The need for fair and efficient dispute resolution is widely perceived and we believe this 

is an area in which progress can be made. There are several ways to resolve these kinds of 

disputes:
22

One is the status quo: each agency makes a decision that can be challenged in litigation. 

Examples of such processes include the Federal Energy Regulatory Commission licensing 

process for the Mid-Columbia dams and the U. S. v. Oregon harvest management process. 

Both these processes emerged from longstanding litigation. It is possible that a similar dispute 

resolution process would emerge from litigation over hydropower operations. However, 

litigation can be slow and settlements are crafted by the parties to the litigation. Those who are 

unwilling to intervene in the litigation may not be heard. For these reasons, it makes sense to 

think about other forms of dispute resolution.

Second, a dispute resolution process could be created in which a neutral decisionmaker 

resolves factual and legal issues without litigation. As mentioned above, there is interest in 

creating this kind of dispute resolution process. In discussions to date, the parties have urged 

that technical and policy panels should try to resolve disagreements in the first instance. An 

authoritative decision-maker could be called in if resolution by technical and policy groups fails. 

However, it is not clear that a binding result could be produced under current law. If not, the 

question is whether non-binding dispute resolution processes would be sufficient.

Finally, a binding dispute resolution process could be created legislatively. There are 

many possible models. Some overlap with the broader legislative changes discussed below 

(e.g., a broad Council that makes Northwest Power Act and Endangered Species Act 

decisions, subject to judicial review). Others could be focused more narrowly on dispute 

resolution per se.

At this point the Council does not recommend new legislation establishing a special 

dispute resolution process. The Council and other policy makers will continue to develop 

dispute resolution alternatives for consideration. Once this is done, it should be clearer whether 

legislation is needed. The Council proposes to report back to Congress on this matter in the 

fall.

b. Managing federally appropriated funds with Bonneville fish and 

wildlife funds in an integrated manner

As noted above, the amount of money available to fund the Council program depends 

on what is left after funding the Endangered Species Act “reasonable and prudent alternative” 

and congressionally imposed obligations. A high degree of coordination among implementing 

agencies, the Council and Congress is essential to ensure that funds are efficiently invested in 

rebuilding the region’s listed and unlisted fish and wildlife populations. At this point, the Army 

Corps of Engineers and others have given helpful commitments to coordinate their budget 

processes with the regional budget process. The Council and the federal agencies are still 

working to formalize these commitments in a memorandum of agreement. At this point, the 

Council’s recommendation is that the discussions be allowed to proceed for another few 

months. However, we do think it will be important to formalize agency commitments and an 
23

executive order may be the best mechanism. Integrated management of funding for mitigation 

efforts could lead to substantial efficiencies in the mitigation program.
24

V. Broader changes

During this process, the Council explored a number of ideas for more significant change 

in fish and wildlife governance, which the Council does not recommend at this time. The Report 

of the Workshop on Fish and Wildlife Governance (Appendix 3) provides a detailed analysis of 

many of these ideas. Several commenters suggested that broad institutional reform is needed. 

Many others counsel that broader changes should be tested through incremental changes in the 

short term, either within existing legal authority or with limited legislation. Among the issues that 

were explored:

• Should the Council be expanded? 

At the beginning of this process, a number of parties were interested in the idea of 

expanding the Council to include federal and tribal representation. During the Fish and Wildlife 

Governance Workshop these ideas were discussed in detail and several issues arose.

It is critical to remember that the region’s Indian tribes play a significant role in fish and 

wildlife management in the Northwest, especially with regard to salmon. There are thirteen 

tribes in the basin, each with different legal rights. How would tribal representation be 

determined? Would each tribe have a representative (or two, like the states?). Would some 

tribes, e.g., those with judicially defined treaty rights, be entitled to more representation than 

others? One formula among many discussed in the Fish and Wildlife Governance Workshop 

would be to appoint four state members, four tribal members and two federal members. 

However, many other approaches are possible.

Ultimately, the tribes did not urge legislative expansion of the Council at this time. 

Rather, theyand many other parties urged smaller, incremental improvements in the short term. 

Other questions of representation were also explored but not resolved during this review: 

should non-sovereign parties be represented (environmental, utility or industrial interests)? 

Further expansions in Council membership would be needed in order to address harvest issues. 

Alaskan membership on the Council could be considered. What role should Canada play?

It should be noted that all of these broad changes in the regional compact would likely 

require ratification by the four states.

• Does the region need a new “Columbia River Basin” statute?

There is a case to be made that the Columbia River Basin merits its own law, adapted 

to the unique characteristics of its rivers, species and communities. The Basin provides the bulk 

of the financing for species recovery from hydropower revenues; the region is highly dependent 

on the energy output of the hydropower system; and the region has deep ties to its fish and 

wildlife. However, no party during this review urged amendment of the Endangered Species 
25

Act insofar as it applies to the Basin, and few urged amendment of the Northwest Power Act. 

Indeed, there was an almost unanimous sense that amending the Endangered Species Act or 

deeming compliance with other laws as satisfying the Endangered Species Act should not even 

be part of this debate. Most of the debate over broader changes concerned the prospect that 

the Endangered Species Act process and the Northwest Power Act process can lead to 

different results. Without legislative amendments, can recovery plans under these mandates be 

reconciled? Should legislation attempt to reconcile the two laws? 

The Fish and Wildlife Governance Workshop focused attention on these questions. In 

one of the models discussed at the workshop, all decisions of an expanded Council would have 

to satisfy the standards of the Endangered Species Act, where applicable, and the Northwest 

Power Act. The premise is that although the obligations of these two statutes sometimes 

overlap, they are not inconsistent. Decisions would also have to be consistent with the Indian 

tribes’ legal rights, as now. Because the expanded Council would be both a planning and 

implementing agency, it would be responsible for compliance with the National Environmental 

Policy Act. Financing would be shared between hydropower revenues and federal 

appropriations in the same proportion as currently exists.

The expanded Council would facilitate the integration of local watershed planning 

processes with Endangered Species Act and other requirements. The expanded Council would 

administer the Endangered Species Act’s habitat conservation planning process and administer 

Bonneville funds consistent with the current Council program’s emphasis on local, watershedbased habitat restoration programs. The authority of the expanded Council suggests local, 

watershed conservation efforts would be geared to Endangered Species Act standards, at least 

where listed species are present.

The workshop was unable to arrive at a resolution of these issues. The model 

discussed above was a step that few are willing to take. Again, such broad changes in the 

regional compact would likely require ratification by the four states.

• Should the region take an ecosystem approach to the rehabilitation of river basin 

ecosystems?

Scientists increasingly take the view that a broader, ecosystem approach is necessary if 

species recovery plans are to be effective. There is strong support in the region for the idea of 

ecosystem management -- the idea that fish and wildlife policy should make sense in the context 

of the entire watershed, and meet the needs of diverse species and resources. 

The Fish and Wildlife Governance Workshop explored the idea of relying more on 

local, watershed-based efforts to implement fish and wildlife policy. In general, there was not a 

strong sense that watershed efforts should invest more time in planning, or that changes in 

legislation were needed for watershed groups to be more active in implementation. At present, 

watershed efforts play a key role under the Council’s program, which calls for systematic 
26

coordination of fish and wildlife habitat and production activities at the watershed level. There 

are also opportunities to gear watershed efforts to the habitat conservation planning provisions 

of the Endangered Species Act.

Beyond this, the idea of an “ecosystem trust” arrangement could be explored. Under 

such an arrangement, ecosystem conservation and management goals could be developed at the 

federal level and regional interests would develop a plan to achieve these goals for an entire 

river basin. Federally appropriated funds and regional hydropower funds would be used to 

leverage funding from corporations, interest groups, states and municipalities. The workings of 

such a process are not entirely clear, however, and the Council is unable at this time to make a 

recommendation regarding this approach.
27

APPENDIX 1

Procedure followed in the 180-day review

To respond to Congress’s charge the Council: 1) Sought advice on alternative 

approaches that might be taken to fish and wildlife governance reform and issued a background 

paper (Appendix 2); 2) Conducted a facilitated workshop in which key alternatives were 

probed, elaborated and evaluated; 3) Considered a report and the recommendations resulting 

from the workshop (Appendix 3); 4) Circulated of a set of issues and proposals (Appendix 4); 

5) Invited public comment and consulted with a range of parties (Appendix 5); and 6) Prepared 

this report. The schedule for accomplishing the work was as follows:

November 30, 1995 to early January 1996: Discussions with interested parties on a 

range of approaches.

February 1-2, 1996: Workshop on alternative approaches.

February 9, 1996: Workshop transmitted report to Council.

February 20-22, 1996: Council developed draft proposal(s).

February 23-April 1, 1996: Circulation of proposals and public comment and 

consultations.

April 5 - May 14-16, 1996: Preparation of final report to Congress.

During the first phase of this process, discussions were held with a number of interested 

parties in December 1995. Five different approaches to fish and wildlife governance emerged. 

These approaches are summarized in the following table:
28

Table 1

Approach Authority/structure Standards to guide 

decision making

Approach 1 - No 

legislation; inter-agency 

agreement; Council 

program as baseline for 

implementation

No legislative change; federal 

agencies implement program 

or explain why not; interagency agreement creates 

management structure that 

facilitates implementation.

No change in current law.

Approach 2 - All federal 

agencies act consistently 

with Council program

Federal agencies must act 

consistently with Council 

program; disputes referred to 

Congressional committees.

Northwest Power Act 

changed to require federal 

agencies to act consistently 

with Council program; no 

change in standards used to 

develop Council program 

(sections 4(h)(5) & (6)).

Approach 3 - State/tribal/

federal council with ESA 

and Northwest Power Act 

responsibilities

Northwest Power Planning 

Council is replaced. An 

expanded state, federal and 

tribal council exercises 

Endangered Species Act and 

Northwest Power Act 

responsibilities and 

administers and prioritizes 

hydropower fish and wildlife 

funds.

Expanded council’s program 

is based on both Endangered 

Species and and Northwest 

Power Act standards.

Approach 4 - Watershed, 

not species focus for 

decisions

Endangered Species Act and 

Northwest Power Act 

focused on watershed 

conditions needed by fish and 

wildlife.

Rehabilitate watersheds’ 

biological functions measured 

by needs of key species; 

satisfy ESA habitat 

conservation standards. 

Unclear whether this could be 

accomplished under current 

law.

Approach 5 - Management 

by fish and wildlife 

managers aimed at 

sustainable harvest 

Fish and wildlife managers 

coordinate activities to 

manage fish and wildlife 

resources, funds and 

programs in groups 

appropriate to the resource 

being managed; disputes 

resolved by courts, Council or 

other processes.

ESA and Northwest Power 

Act are not amended, but are 

interpreted to achieve 

sustainable harvest objectives.
29

To explore the strengths and weaknesses of these approaches, the Council invited 40-

50 representatives of federal, state, tribal, industrial, agricultural, environmental and other 

sectors to meet in Portland, Oregon on February 1 and 2. The full list of workshop attendees is 

attached to the report (Appendix 3). The Council provided attendees with background on the 

task assigned by Congress, the fish and wildlife governance problem, the alternative approaches 

outlined above, and a proposed list of criteria with which to evaluate these alernatives.

At the workshop, a point-counterpoint presentation and critique of each alternative was 

conducted. Next, the group developed a list of criteria with which to evaluate the alternatives 

presented to the group as well as any other approach to regional governance of fish and wildlife 

(see section IV, Appendix 3). Following this, small groups were formed to consider each 

alternative extensively. The small groups discussed strengths and weaknesses of the alternatives 

and determined what changes should be made in the alternative to make it better fit the criteria 

and to respond to the region’s needs. Following the small group sessions, the full group of 

participants reviewed the work of the small groups and discussed the merits of the revised 

alternatives. Finally, the workshop identified several themes that pervaded the workshop and a 

series of short- and long-term steps that can be taken to move ahead in fish and wildlife 

mitigation.

The workshop participants stressed the practical, political, and legal feasibility of 

improving Basin governance of fish and wildlife without the inevitable delays and uncertainties 

inherent in developing and pursuing broad, systemic changes. Thus, the group, sometimes subgroups or individuals, suggested several short-term strategies. This does not imply a negative 

attitude toward all long-range or fundamental changes. Indeed, most people felt that the best 

way to identify and develop significant legislative changes would be through further debate. 

These concepts could be tested through incremental changes in the short term and effected so 

far as possible within existing legal authority.

Longer term issues to be considered include expansion of the Council, merging the legal 

requirements for planning and species recovery into a single plan, and establishing a dispute 

resolution mechanism. One of the major issues regarding systemic change in legal authority is in 

the composition of the Council: should it include representatives of the tribes and federal 

government? Should there be a role for Canada? For the time being this widely perceived 

issue can be addressed through voluntarily convened technical and policy groups. 

Drawing on the workshop report, the Council posed a series of issues and proposals 

concerning fish and wildlife governance reform. Specifically, after describing the results of the 

workshop, the Council set out three general proposals: 1) A non-legislative strategy in which 

various steps would be taken to use existing authorities more effectively; 2) a strategy in which 

the Northwest Power Act would be amended to require all federal agencies to act consistently 

with the Council’s Fish and Wildlife Program; and 3) a strategy in which broad changes to the 

Council’s composition and authorities would be sought. The Council raised a variety of 
30

questions for commenters to consider regarding the results of the workshop and the alternatives 

proposed by the Council. The comments are summarized in Appendix 5.

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