Glen Canyon Dam: The Elevation of Social Engineering Over Law Joseph M. Feller

1. Glen Canyon Dam: The Elevation of Social Engineering Over Law Joseph M. Feller College of Law, Arizona State University National Wildlife Federation, Boulder, CO

2. My Talk in a Nutshell • Operation of Glen Canyon Dam affects many resources: • Water Supply • Hydroelectric Power • (Endangered) Native Fish in the Grand Canyon • Non-Native Sport Fishery • Recreational boating and camping in the Grand Canyon • Archaeological Sites in the Grand Canyon • Decisions about the magnitude and timing of water flows through the dam, and into the Grand Canyon, involve tradeoffs among these resources • Applicable laws give priority to water supply and conservation of endangered fish • Other resources, including hydropower and non-native sport fishery, have lower legal priority

3. My Talk in a Nutshell (cont.) • U.S. Department of the Interior has created an “Adaptive Management Program” (AMP) for management of Glen Canyon Dam • Core of the AMP is the “Adaptive Management Work Group” (AMWG), comprising representatives of various “stakeholders” • AMP has, in effect, substituted the needs and desires of the “stakeholders” for the requirements of applicable laws • AMP has facilitated non-compliance with the Endangered Species Act

5. Effects of Glen Canyon Dam on the Colorado River in Marble and Grand Canyons • Water temperature • Pre-dam: highly variable near freezing in winter 80° - 90° F in summer • Post-dam: nearly constant, generally colder ~ 49° F year-round

6. Effects of Glen Canyon Dam on the Colorado River in Marble and Grand Canyons • Sediment content • Pre-dam: highly sediment-laden brown, muddy water “too thick to drink, too thin to plow” • Post-dam: virtually sediment-free clear, green water

7. Effects of Glen Canyon Dam on the Colorado River in Marble and Grand Canyons • Water flow (discharge) • Pre-dam: High seasonal and annual variability • determined mostly by winter snowfall and spring snowmelt in Colorado Rockies • spring flood peaks of 50,000 – 200,000 cubic feet per second (cfs) • winter minima of < 5,000 cfs • minimal daily variability • Post-dam: Minimal seasonal and annual variability • flood peaks (usually) limited by power plant capacity of ~ 33,000 cfs • high daily variability, caused by . . .

8. Hydroelectric Power Production • Hydroelectric facilities are particularly valued because they provide “peaking” power, i.e., they can be quickly turned up and down in response to changes in electric power demand • Typical Dam Operations (pre-1990): • Night time minimum flow ~ 5,000 cfs • Afternoon maximum flow ~ 31,000 cfs (power plant capacity) • Daily water level fluctuation in Grand Canyon: 7 – 13 feet

10. Humpback Chub • Endangered warm-water native fish found only in Colorado River system • minnow family • lives up to 22 years • adult size ~ 20 inches • Largest existing population is in the Grand Canyon and Little Colorado River (tributary to Grand Canyon)

11. Factors Affecting Humpback Chub Population in the Grand Canyon • Predation and competition from introduced fish • Parasites (Asian tapeworm) • Cold (46° F) water released from Glen Canyon Dam • prevents spawning in main stem of river • spawning limited to Little Colorado tributary • inhibits growth of young fish in the main stem • Daily fluctuating flows • disrupt backwater and near-shore habitat on which young fish may depend • Clear water • prevents maintenance of sandbars that create backwaters • facilitates predation

12. Grand CanyonHumpback Chub Population, 1989 - 2008

13. Humpback Chub v. Peaking Power:What Does the Law Say? Colorado River Storage Project Act (1956): “[F]or the purposes, among others, of regulating the flow of the Colorado River, storing water for beneficial consumptive use, making it possible for the States of the Upper Basin to utilize, consistently with the provisions of the Colorado River Compact, the apportionments made to and among them in the Colorado River Compact . . ., and for the generation of hydroelectric power, as an incident of the foregoing purposes, the Secretary of the Interior is authorized (1) to construct, operate, and maintain [Glen Canyon Dam].” (emphasis added)

14. Humpback Chub v. Peaking Power:What Does the Law Say? Colorado River Storage Project Act (1956): “The hydroelectric powerplants and transmission lines authorized by this chapter to be constructed, operated, and maintained by the Secretary shall be operated in conjunction with other Federal powerplants, present and potential, so as to produce the greatest practicable amount of power and energy that can be sold at firm power and energy rates, . . . ”

15. Humpback Chub v. Peaking Power:What Does the Law Say? Colorado River Storage Project Act (1956): • Key points – • Water storage and supply is the primary purpose of Glen Canyon Dam • Electric power production is an incidental purpose • BuRec is instructed to produce “the greatest practicable amount of power” that can be sold at firm rates, but not the greatest value of power • Fluctuating flows designed to enhance power revenues are not mandated by CRSPA

16. Humpback Chub v. Peaking Power:What Does the Law Say? Endangered Species Act, section 7: “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical habitat] of such species . . .”

17. Endangered Species Act Supreme Court: “This language [section 7] admits of no exception. . . . [E]xamination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities. . . .” TVA v. Hill (1978) On the other hand, section 7 of the ESA does not apply where mandatory requirements of another statute leave an agency no discretion. National Ass'n of Home Builders v. Defenders of Wildlife (2007)

18. Humpback Chub v. Peaking Power:What Does the Law Say? • Does section 7 of the Endangered Species Act take precedence over the mandatory water supply requirements of the Colorado River Compact and the primary purpose (water supply) of CRSPA? • Hard question. • Doesn’t matter: • No conflict between water supply and humpback chub protection • water supply depends on total annual (or decadal) release • adverse effects on chub caused by daily fluctuations • regime of steady flows would satisfy water supply requirements without adversely affecting chub

19. Humpback Chub v. Peaking Power:What Does the Law Say? • Does section 7 of the Endangered Species Act take precedence over the non-mandated objective of enhancing power revenues through daily fluctuating flows? • Yes.

20. Humpback Chub v. Peaking Power:What Does the Law Say? • Grand Canyon Protection Act (1992) (GCPA): “The Secretary shall operate Glen Canyon Dam . . . in such a manner as to protect, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established, including, but not limited to natural and cultural resources and visitor use.” • GCPA mandated development of new “operating criteria” to govern dam operations in accordance with this mandate.

21. 1995 Record of Decision (RoD) for Operation of Glen Canyon Dam • Adopted “Modified Low Fluctuating Flows” (MLLF) regime for future operation of Glen Canyon Dam • Features of MLLF include: • Daily flow fluctuation (difference between daily maximum and minimum flow) reduced from 25,000 cfs to ~ 6,500 cfs • daily water level fluctuation of 3+ feet • “Beach habitat building flows” (“controlled floods”) of ~ 45,000 cfs to rebuild beaches and sandbars • “Adaptive Management Program” to conduct experiments, monitor results, and adjust management accordingly

22. Glen Canyon Dam Adaptive Management Program (GCDAMP) Adaptive Management Work Group (AMWG) • stakeholder committee of 25 representatives from: • Federal agencies (5) • Arizona Game and Fish Department • Basin states (7) • Indian tribes (6) • Environmental organizations (2) • Electric power purchasers (2) • Recreational organizations (2) • Makes recommendations to the Secretary • Proceeds by 2/3 vote

23. Biological Opinion from U.S. Fish & Wildlife Service (1994) • Required by section 7 of the Endangered Species Act (ESA) • Agreed with establishment of GCDAMP • Agreed with use of Beach Habitat Building Flows (BHBFs) to restore beaches and sandbars • Found that fluctuations in flows, even as reduced by MLLF alternative, were “likely to jeopardize the continued existence of the humpback chub” • Presented a “reasonable and prudent alternative” (RPA), as required by the ESA, to remove jeopardy to the humpback chub

24. Reasonable and Prudent Alternative (RPA)(U.S. Fish & Wildlife Service, 1994) • “A program of experimental flows will be carried out to include high steady flows in the spring and low steady flows in summer and fall during low water years (releases of approximately 8.23 MAF) . . .” • Experimental flows to be initiated in 1997 • “If the [Fish & Wildlife] Service believes there is not sufficient progress, Glen Canyon Dam would be operated as Seasonally Adjusted Steady Flows (SASF) during spring through fall (April to October) beginning in 1998.”

25. Review of Sufficient Progress,U.S. Fish & Wildlife Service, 1997 “The [Fish and Wildlife] Service is not aware of progress towards designing a program of experimental flows which will include high steady flows in the spring and low steady flows in the summer and fall.” “There have been no efforts to develop/design experimental low steady flows by Reclamation or the Grand Canyon Monitoring and Research Center.”

26. Implementation Status ReportBureau of Reclamation, 1999 “A low flow study design has not been done, and low flows have not been implemented.”

27. Review of Sufficient Progress,U.S. Fish & Wildlife Service, 1999 “This element [steady flows] has not seen sufficient progress. Other than the controlled BHBF in 1996, there have been minimum efforts to develop experimental flows for native fishes.”

28. Implementation Status ReportBureau of Reclamation, 2002 “Although several experimental releases have been conducted under the auspices of the AMP, the program of experimental flows identified in the RPA is not yet completed. The longer than anticipated period for developing this program is attributable largely to its being made a part of the adaptive management process.”

29. Review of Sufficient Progress,U.S. Fish & Wildlife Service, 2002 “This element [steady flows] has not seen sufficient progress.”

30. Implementation Status ReportBureau of Reclamation, 2004 “Although several experimental releases have been conducted under the auspices of the GCAMP, the program of experimental flows identified in the RPA is not yet completed. The longer than anticipated period for developing this program is attributable largely to its being made a part of the adaptive management process.”

31. AMWG Meeting, August, 2007 • Motion to recommend implementation of Seasonally Adjusted Steady Flows (SASF) • Motion defeated 13 – 4, with 4 abstentions and 3 absences • Voting in favor: • U.S. Fish & Wildlife Service • National Park Service • Grand Canyon Trust • Grand Canyon River Guides • Voting against, abstaining, or absent: • Everyone else (states, tribes, power purchasers, other federal agencies)

32. Summary • The Glen Canyon Dam Adaptive Management Work Group (AMWG) is a stakeholder committee in which a broad variety of entities are represented • The primary interests of the vast majority of the entities represented on the AMWG are unrelated, and in some cases opposed, to the conservation of endangered species • This committee structure is a mismatch to the ESA, which requires that priority be given to protection of Endangered Species • The actions and inactions of the AMWG have contributed to, and/or served as a cover for, the failure of the Bureau of Reclamation to comply with the Endangered Species Act

33. Epilogue (Spring, 2008) (cont.) • New BuRec plan for dam operations, 2008 – 2012 • steady flows in September & October each year • (1994 biological opinion required April – October) • New biological opinion from Fish & Wildlife Service • New BuRec plan will not jeopardize humpback chub or adversely modify critical habitat • 1994 jeopardy opinion superseded • Pending ESA lawsuit by Grand Canyon Trust amended to challenge new biological opinion

35. Colorado River Compact (1922) • Divided the Colorado River watershed into the “Upper Basin” and the “Lower Basin” • Dividing point is Lee Ferry, just S of Utah/AZ border • States of the Upper Basin: • Colorado • Wyoming • Utah • New Mexico • States of the Lower Basin: • California • Arizona • Nevada

37. Colorado River Compact (1922) • Allocated 7.5 million acre-feet per year of Colorado River water to each basin • Compact Article III(d): “The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years . . . ”

38. Glen Canyon Dam • Built and operated by U.S. Bureau of Reclamation (BuRec) pursuant to Colorado River Storage Project Act (CRSPA) of 1956 • Located on the Colorado River • 15 miles below the Utah-Arizona border • Immediately upstream of the Grand Canyon • Dam operations determine magnitude, timing, and temperature of water flow through the Grand Canyon • Lake Powell is impounded behind the dam • storage capacity ~ 27 MAF • storage capacity is approximately three times the average annual flow of the river at the dam

39. Glen Canyon Dam • Primary function of the dam: • In wet years the reservoir fills • In dry years, releases from the reservoir can be used to satisfy Upper Basin’s obligation to the Lower Basin under the Colorado River Compact • Reservoir releases can prevent the need for curtailment of water uses in the Upper Basin that might otherwise be required in order to meet the Upper Basin’s Compact obligation to the Lower Basin • Dam also produces hydroelectric power • ~ 500 MW average production • peaking power up to 1,300 MW

40. Glen Canyon Dam • Important note: • Water released from Glen Canyon Dam goes through Lake Mead (Hoover Dam) before reaching Lower Basin water users • Hoover Dam regulates flow to match seasonal and short-term fluctuations in Lower Basin water demand • Seasonal and short-term fluctuations in releases from Glen Canyon Dam do not affect Lower Basin water users