[Senate Report 106-235]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 451
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-235

======================================================================



 
     PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION ACT

                                _______
                                

                 March 9, 2000.--Ordered to be printed

                                _______
                                

  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1167]

    The Committee on energy and Natural Resources, to which was 
referred the bill (S. 1167) to amend the Pacific Northwest 
Electric Power Planning and Conservation Act to provide for 
expanding the scope of the Independent Scientific Review Panel, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.
    The amendment is as follows:
    On page 3, line 17, insert the following after the word 
``committees'':

        ``, and the U.S. Army Corps of Engineers, U.S. Fish and 
        Wildlife Service, Bureau of Reclamation, and the 
        Bonneville Power Administration''.

                         Purpose of the Measure

    The purpose of S. 1167 is to amend the Pacific Northwest 
Electric Power Planning and Conservation Act to provide for 
expanding the scope of the Independent Scientific Review Panel.

                          Background and Need

    In a 1996 amendment to the Northwest Power Act of 1980, 
Congress directed the Northwest Power Planning Council 
(Council) to create the Independent Scientific Review Panel 
(ISRP) to scrutinize the Bonneville Power Administration's 
annual direct expenditures that implement the Council's 
Columbia River Basin Fish and Wildlife Program. The 
implementation of the amendment over the last three years has 
resulted in improved credibility and public accountability for 
the program and the Council.
    The 1996 amendment, section 4(h)(10)(D) of the Northwest 
Power Act, directed the ISRP to make recommendations to the 
Council on project priorities within the Council's Program and 
to review project proposals for their scientific merit and 
consistency with the program. In addition, projects must be 
prioritized within a fixed annual budget. The amendment 
specified three criteria the ISRP must take into consideration 
when reviewing project proposals. Those criteria require the 
Panel to determine whether fish and wildlife proposals 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 ISRP 
is to include in its report to the Council ``any 
recommendations that the ISRP considers to make the project, 
program or measure meet the criteria.''
    The Council is required to make the ISRP's report available 
for public review and comment. The Council is then to ``fully 
consider'' the ISRP's findings when making its final 
recommendations to the Bonneville Power Administration. 
Ultimately, it is Bonneville's responsibility to determine 
which projects are funded. If the Council does not incorporate 
a finding of the Panel, the council must explain its reasons in 
writing.
    S. 1167 expands the responsibilities of the ISRP and the 
Council by directing that Bonneville's reimbursable fish and 
wildlife expenditures also be subject to annual scientific 
review. The reimbursable category includes those fish and 
wildlife expenditures made by other federal agencies using 
their annual congressional appropriations, which are later 
repaid to the U.S. Treasury by Bonneville. Those reimbursable 
programs currently consist of the Corps of engineers' capital 
construction and research activities associated with the 
Columbia River Fish Mitigation Program, and the U.S. Fish and 
Wildlife Service's Lower Snake River Compensation Program. In 
addition, S. 1167 requires that two other programs, the Corps 
of engineers' fish-related operations and maintenance 
activities and the Bureau of Reclamation's responsibilities for 
the Leavenworth National Fish Hatchery, be subjected to ISRP 
review. These two programs used to be reimbursed, but are now 
directly funded by Bonneville according to interagency 
agreements.congressional appropriations, Bonneville's 
reimbursable expenditures repay the Treasury for prior appropriated 
dollars. The Federal operating agencies in the Columbia River Basin 
request funds for these programs in their annual congressional budget 
submittals. While the Congress retains the ultimate authority to 
determine program funding levels through the appropriations process, 
and will have the opportunity to review the Council's annual 
recommendations on the reimbursable programs, the agencies should 
consider the recommendations of the Council when preparing annual 
budget requests. In doing so, improved coordination and consistency 
among the federal operating agencies is encouraged.

                          Legislative History

    S. 1167 was introduced by Senators Gorton, G. Smith and 
Craig on May 27, 1999. A hearing was held in the Water and 
Power Subcommittee on October 20, 1999. At the business meeting 
on February 10, 2000, the Committee on Energy and Natural 
Resources ordered S. 1167, as amended, favorable reported.

            Committee Recommendation and Tabulation of Votes

    The Committee on Energy and Natural Resources, in open 
business session on February 10, 2000, by a unanimous voice 
vote of a quorum present, recommends that the Senate pass S. 
1167, if amended as described herein.

                          Committee Amendment

    During the consideration of S. 1167, the Committee adopted 
an amendment that would require the Council to submit its 
recommendations to the U.S. Army Corps of Engineers, the U.S. 
Fish and Wildlife Service, the Bureau of Reclamation, and the 
Bonneville Power Administration.

                      Summary of Major Provisions

    S. 1167 amends section 4(h) of the Pacific Northwest 
Electric Power Planning and Conservation Act to provide that 
the Independent Scientific Review Panel: (1) review Columbia 
Basin fish and wildlife projects, programs or measures for 
consistency; (2) make appropriate recommendations; and (3) 
transmit recommendations to the Council. The measure also 
requires that determinations and recommendations made by the 
Panel be available to the public and subject to public comment. 
The recommendations of the Panel shall be fully considered by 
the Council and if the council does not incorporate a Panel 
recommendation, the Council must explain its reasons in 
writing. The measure contains an annual cost limitation for 
this provision of $750,000 (in 1997 dollars).

                   Cost and Budgetary Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 29, 2000.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1167, a bill to 
amend the Pacific Northwest Electric Power Planning and 
Conservation Act to provide for expanding the scope of the 
Independent Scientific Review Panel.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lisa Cash 
Driskill.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate

S. 1167--A bill to amend the Pacific Northwest Electric Power Planning 
        and Conservation Act to provide for expanding the scope of the 
        Independent Scientific Review Panel

    S. 1167 would amend the Northwest Power Act to expand the 
authority of the Independent Scientific Review Panel (ISRP) to 
allow review of certain federal projects designed to mitigate 
the damage to fish populations caused by the operation of 
hydroelectric projects in the Northwestern United States. 
Currently, the ISRP only reviews projects that are directly 
funded by the Bonneville Power Administration (BPA). Under the 
bill, the ISRP would review and make recommendations on 
projects undertaken by the Army Corps of Engineers, the Bureau 
of Reclamation, and other federal agencies whose costs are 
reimbursed by BPA.
    CBO estimates that enacting this bill would have no 
significant impact on the federal budget. Currently, BPA can 
spend up to $500,000 a year (in 1997 dollars) to pay for costs 
incurred by members of the ISRP. The bill would increase that 
limit to $750,000 a year (in 1997 dollars) to reimburse costs 
associated with the ISRP's increased responsibilities.
    Because enactment of S. 1167 would affect direct spending, 
pay-as-you-go procedures would apply; however, we estimate that 
any additional net direct spending would be less than $250,000 
annually. This bill contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would have no impact on the budgets of state, local, or 
tribal governments.
    The CBO staff contact is Lisa Cash Driskill. This estimate 
was approved by Peter H. Fontaine, Deputy Assistant Director 
for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1167. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1167, as ordered reported.

                        Executive Communications

    On October 13, 1999, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
Energy and the Office of Management and Budget setting forth 
Executive agency recommendations on S. 1167. These reports had 
not been received at the time the report on S. 1167 was filed. 
When the reports become available, the Chairman will request 
that they be printed in the Congressional Record for the advice 
of the Senate. The testimony provided by the Bonneville Power 
Administration at the Subcommittee hearing follows:

   Statement of Lorri Bodi, Senior Policy Advisor, Bonneville Power 
                  Administration, Department of Energy


                              introduction


    We appreciate the opportunity to appear today, Mr. 
Chairman, and applaud your and the Senate Energy and Natural 
Resources Committee's continued support and attention to 
Columbia Basin fish and wildlife mitigation.
    Bonneville Power Administration (BPA) is the primary funder 
of an ambitious program to mitigate impacts on fish and 
wildlife, including endangered salmon runs, of the Federal 
Columbia River Power System. Under the Pacific Northwest 
Electric Power Planning and Conservation Act (Northwest Power 
Act) and the Endangered Species Act, BPA funds a variety of 
Federal, State, tribal, and local efforts. Since 1980, we have 
spent more than $1 billion to improve fish passage and survival 
at Federal dams, operate and manage fish hatcheries, restore 
habitat in tributary watersheds, and conduct scientific 
research and monitoring.
    We divide our fish and wildlife expenditures into three 
categories: (1) BPA's direct fish and wildlife program, now 
budgeted at $127 million per year, (2) reimbursable expenses 
for operations and maintenance of fish mitigation projects 
undertaken by the U.S. Army Corps of Engineers, the U.S. Bureau 
of Reclamation, and the U.S. Fish and Wildlife Service, and (3) 
debt service on capital investments such as fish bypass 
facilities and spillway modifications that have been made since 
1981.
    Stabilizing and enhancing salmon and steelhead runs in the 
Columbia Basin will require a concerted effort on the part all 
interests in the Columbia Basin. BPA and the other Federal 
agencies active in the Basin are committed to working with the 
region to arrive at a unified plan to save these fish. For a 
unified plan to work, it must be grounded in the best science 
available. That is why BPA has consistently endorsed--and 
funded--independent science reviews to aid the region in 
assembling the best possible program.


               independent scientific review panel (isrp)


    Another reason for our support of independent reviews is 
the sheer magnitude of the annual expenditures we make in fish 
and wildlife. BPA is keenly concerned about the effectiveness 
of these dollars. We heartily supported the 1997 amendment to 
the Northwest Power Act that created the Independent Scientific 
Review Panel (ISRP) and its assessment and prioritization of 
projects.
    In our testimony to this Subcommittee on February 17, 1998, 
regarding the ISRP, BPA endorsed its activities to that point, 
stating that we were ``confident of its value.'' We noted that 
``. . . ratepayer dollars should be spent wisely and should 
produce the most positive biological results.'' At that time, 
we also suggested in our testimony some recommendations which 
would improve the ISRP process. One recommendation was to 
extend the ISRP review beyond the direct-funded fish and 
wildlife program into the reimbursable program and capital 
projects, which are large parts of our annual fish and wildlife 
expenditures.
    Today, with two full cycles of ISRP review behind us, BPA 
believes more than ever that independent review of fish and 
wildlife projects is a useful and important tool. Independent 
scientific review has freed the fish and wildlife 
prioritization process from much of the perceived conflict of 
interest that occurred when projects were recommended by some 
of the same interests that potentially could receive the 
funding. With the ISRP's strong emphasis on clearly defined 
objectives and the monitoring and evaluation of result, we are 
confident that we have a stronger scientific basis for projects 
BPA is funding under the Northwest Power Planning Council's 
(Council) program. There is no question that this process has 
brought needed credibility to this part of our fish and 
wildlife expenditures. It is time to expand the review to the 
entire BPA-funded program.
    Obviously, we were pleased with the recently-enacted 
amendment to the FY 2000 Energy and Water Development 
Appropriations Act that removed the original sunset clause and 
permanently established the ISRP. We believe that the 
scientific review and prioritization of fish and wildlife 
mitigation projects will always have an important place in any 
program where the region's fish managers are called upon to 
develop and implement a comprehensive mitigation program 
involving hundreds of discrete projects.


                            senate bill 1167


    Similarly, we support the new amendment currently proposed 
by S. 1167. This bill would further extend the benefits of the 
ISRP by calling for scientific review of the major fish 
mitigation capital construction activities of the U.S. Army 
Corps of Engineers, the U.S. Bureau of Reclamation, and the 
U.S. Fish and Wildlife Service, which BPA reimburses from 
ratepayer revenues.
    As we have suggested in the past, we believe that extending 
the ISRP's review to reimbursable projects--including 
operations and maintenance and capital costs that BPA 
reimburses to the U.S. Treasury--will provide a standard 
yardstick by which to judge all projects and help create an 
integrated package for review and implementation. It makes good 
sense to scrutinize the significant investments ratepayers are 
making in fish ladders, fish friendly turbines, and other fish 
passage devices at the dams just as we evaluate projects such 
as habitat restoration in the Council's Plan.
    As Subcommittee members may be aware, the Council is 
planning to move to a three-year rolling project selection and 
funding cycle for its fish and wildlife program. The Council 
envisions a sub-basin planning process and multi-year funding 
for some projects. We would recommend that the prescribed 
annual ISRP review of the projects in the Council's Plan should 
be coordinated with this new three-year process.
    In addition, the recent amendment to the Energy and Water 
Appropriations Bill, which eliminated the ISRP sunset 
provision, also provided for $500,000 in annual funding for 
ISRP operation. As we understand it, this funding was intended 
to apply only to the scientific review of the Council's fish 
and wildlife program (BPA's direct funded program) only. 
However, S. 1167, in addition to extending the ISRP review to 
the reimbursable and capital program, sets a new annual 
operating limit of $750,000. We would encourage the 
Subcommittee to clarify these overlapping provisions, i.e., 
whether the $750,000 figure includes the initial $500,000 or is 
in addition to it.


                               conclusion


    Mr. Chairman, BPA is committed to serving the important 
public purposes our agency was created to provide. This 
includes providing reliable and affordable power to the 
Northwest and sustaining healthy salmon runs. We will continue 
to work with the Congress, the Council, Northeast tribes, and 
the ISRP to ensure that ratepayer dollars are spent wisely and 
effectively.
    In closing, let me reiterate that we believe S. 1167 is a 
logical and desirable next step to extend a successful 
scientific review to a broader application. We believe the 
independent scientific review of fish and wildlife mitigation 
and enhancement project is the right course, and we believe the 
current panel is doing a good job. The region is much the 
better for it.
    Again, we appreciate the Committee's continued interest in 
the effectiveness and success of the region's fish and wildlife 
activities.
    This concludes my formal statement. I would be pleased to 
respond to your questions.

                        Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 1167, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

     PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION ACT


Public Law 96-501 (94 Stat. 2697)

           *       *       *       *       *       *       *


    (4)(h)(10)(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 the date of this enactment, 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 the date of this enactment, 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 him or herself from review 
of, or recommendationsassociated 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 Review 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 fundings to BPA, relying on the best information 
available. The Panel and Peer Review Groups shall review a 
sufficient number of projects to adequately ensure that the 
list of prioritized projects recommended is consistent with the 
Council's program. Project recommendations shall be based on a 
determination that projects: are based on sound science 
principles; benefit fish and wildlife; and have a clearly 
defined objective and outcome with provisions for monitoring 
and evaluation of results. The Panel, with assistance from the 
Peer Review Groups, shall review, on an annual basis, the 
results of prior year expenditures based upon these criteria 
and submit its findings to the Council for its review.
    (v) Public Review.--Upon completion of the review of 
projects to be funded through BPA's annual fish and wildlife 
budget, the Peer Review Groups shall submit its findings to the 
Panel. The Panel shall analyze the information submitted by the 
Peer Review Groups and submit recommendations on project 
priorities to the Council. The Council shall make the Panel's 
findings available to the public and subject to public comment.
    (vi) Responsibilities of the Council.--The Council shall 
fully consider the recommendations of the Panel when making its 
final recommendations of projects to be funded through BPA's 
annual fish and wildlife budget, and if the Council does not 
incorporate a recommendation of the Panel, the Council shall 
explain in writing its reasons for not accepting Panel 
recommendations. In making its recommendations to BPA, the 
Council shall: consider the impact of ocean conditions on fish 
and wildlife populations; and shall determine whether the 
projects employ cost effective measures to achieve program 
objectives. The Council, after consideration of the 
recommendations of the Panel and other appropriate entities, 
shall be responsible for making the final recommendations of 
projects to be funded through BPA's annual fish and wildlife 
budget.
    [(vii) Cost Limitation.--The cost of this provision shall 
not exceed $2,000,000 in 1997 dollars.
    [(viii) Expiration.--This paragraph shall expire on 
September 30, 2000.]
    (vii) Review by the Panel of Reimbursable Projects, 
Programs, and Measures.--
          (I) In General.--With regard to Columbia Basin fish 
        and wildlife projects, programs or measures proposed in 
        a Federal agency budget to be reimbursed by BPA, or 
        paid through a direct funding agreement with BPA, the 
        panel shall annually--
                  (aa) review such proposals;
                  (bb) determine whether the proposals are 
                consistent with the criteria stated in item 
                (iv);
                  (cc) make any recommendations that the Panel 
                considers appropriate to make the project, 
                program, or measure meet the criteria stated in 
                item (iv); and
                  (dd) transmit the recommendations to the 
                Council no later than April 1 of each year.
          (II) Public availability and comment.--Determinations 
        and recommendations made by the panel under subclause 
        (I) shall be available to the public and shall be 
        subject to public comment as in item (v).
          (III) Role of the council.--The Council shall fully 
        consider the recommendations of the Panel when making 
        its final recommendations of projects proposed by 
        Federal agencies and reimbursed by BPA, or paid through 
        a direct funding agreement with BPA. The Council shall 
        submit its recommendations to the House and Senate 
        Committees on Appropriations and relevant authorizing 
        committees, and the U.S. Army Corps of Engineers, U.S. 
        Fish and Wildlife Service, Bureau of Reclamation, and 
        the Bonneville Power Administration no later than May 
        15 of each year. If the Council does not incorporate a 
        recommendation of the Panel in its recommendations, the 
        Council shall explain in writing its reasons for not 
        accepting Panel recommendations.
    (viii) Cost Limitation.--The annual cost of this provision 
shall not exceed $750,000 in 1997 dollars.

                                
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