Glen Canyon Dam Historic Uses, Modern Challenges

1. Glen Canyon DamHistoric Uses, Modern Challenges Douglas K. Miller December 15, 2008

2. Glen Canyon Dam • Glen Canyon Dam stores about 24 million acre-feet of water when full. • Provides about 47% of the total water storage capacity on the Colorado River.

6. The Humpback Chub

7. Prior Litigation • In 2006, the Center for Biological Diversity challenged the operation of Glen Canyon Dam because of its adverse effects on the humpback chub. • The case was settled later that same year with the filing of a stipulation under which Reclamation agreed to undertake additional NEPA and ESA compliance with respect to Glen Canyon Dam.

8. The Grand Canyon Trust Case • Filed in the U.S. District Court for the District of Arizona in Phoenix by the Grand Canyon Trust. • Challenges the operation of Glen Canyon Dam because of its alleged impact on the humpback chub, a species of endangered fish that inhabits the Grand Canyon.

9. The Endangered Species Act • The purposes of the ESA are to conserve endangered and threatened species and their critical habitats. • There are several statutory mechanisms by which the purposes of the ESA are to be achieved and enforced.

10. The Endangered Species Act • First, the Secretary must identify and list endangered and threatened species. (“Secretary” means the Secretary of the Interior for non-marine species and the Secretary of Commerce for anadromous and marine species.) • Second, the Secretary must identify their critical habitats.

11. The Endangered Species Act • Third, each federal agency must consult with the Secretary in order to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species’ critical habitat (“Section 7 consultations”).

12. The Endangered Species Act • Fourth, the Section 9 of the ESA prohibits the taking of any endangered species by any person. • “Taking” means killing or harming an endangered species. “Harm” includes the degradation or destruction of an endangered species’ habitat. • “Person” means individuals, businesses, state and local governments and federal agencies.

13. Section 7 Consultations • A federal agency must first determine whether a proposed action (e.g., the delivery of water through a federal water project) “may affect” a listed species or its critical habitat. • If the determination is made that the action “may effect” a listed species, some form of consultation is required with either FWS or NMFS, depending on the species involved.

14. Section 7 Consultations • Formal consultation requires that the FWS prepare a “biological opinion” which includes a determination of whether the proposed action is likely to jeopardize the continued existence of an endangered species or result in the destruction or adverse modification of its critical habitat.

15. Section 7 Consultations • If jeopardy or adverse modification is found, the FWS suggests those reasonable and prudent alternatives (RPAs) (mitigation measures) that would avoid the problem and allow the action to proceed. • The biological opinion may also include conditions that permit incidental takings of endangered species to occur (an “incidental take statement”), thereby avoiding violation of Section 9.

16. Grand Canyon Trust v. U.S. Bureau of Reclamation • This case was filed on December 7, 2007. It again challenges the operation of Glen Canyon Dam because of its alleged impact on the chub. • Plaintiff alleged in its original complaint (1) that the operation of the Dam fails to comply with an RPA of a 1995 Biological Opinion that found that Dam operations jeopardized the chub and (2) that Reclamation must comply with the ESA and NEPA when it issues annual operating plans (AOPs) for the Dam.

17. Grand Canyon Trust • Shortly after the original complaint was filed, the Fish and Wildlife Service issued a new BO that superseded and replaced the 1995 BO. • The new BO calls for a five year experimental plan of steady flows in September and October and a high flow test, which has already occurred. Otherwise, the Dam will be operated under the existing Modified Low Fluctuating Flow (MLFF) operating regime.

18. Grand Canyon Trust • The new BO also calls for renewed consultation if chub population levels drop below target levels, the continued development of a comprehensive plan for management of the chub, and non-native fish control and other measures to benefit the chub. • This time, the BO concludes that Dam operations will not jeopardize the chub or adversely modify its critical habitat, citing increases in population levels since 1995.

19. Grand Canyon Trust • Reclamation studied the environmental impact of various operating regimes for Glen Canyon Dam and selected the MLFF alternative in a ROD issued in 1996. • The MLFF alternative permits higher water releases during the peak power demand months of the winter and summer.

20. Grand Canyon Trust • In contrast, the Seasonally Adjusted Steady Flow (SASF) alternative – the operating regime preferred by the plaintiff – did not consider the need for power production. Instead, water releases would be steady throughout any given month, with higher monthly releases in the spring and lower monthly releases in the summer and fall.

21. Grand Canyon Trust • Plaintiff contends that the SASF operating regime would be better for the chub because it more closely mimics the natural hydrograph. • The differences between the MLFF alternative and the SASF alternative are significant.

22. Grand Canyon Trust • Total monthly flows under the MLFF alternative are low in the spring and high in the summer to correspond to electricity demand. • Monthly flows under the SASF alternative would be the opposite – high in the spring and low in the summer to approximate natural flows.

23. Grand Canyon Trust • Because of the potential impact of the lawsuit on water and power operations, and particularly on Reclamation’s adoption of the AOPs, all seven basin states moved to intervene in support of the United States, as did important representatives of water and power users. These motions were granted on June 3, 2008.

24. Grand Canyon Trust • Plaintiff filed a motion for summary judgment on its original complaint. Reclamation filed a cross motion for summary judgment and a motion to dismiss. • Plaintiff also filed a supplemental complaint that challenges the sufficiency of the new BO.

25. Grand Canyon Trust • The United States argued (1) that the Trust’s original complaint was moot insofar as it alleges that Reclamation has violated the 1995 BO, because that BO has been replaced by the 2008 BO, and (2) that the Trust was wrong as a matter of law insofar as it argued that Reclamation’s issuance of AOPs each year requires separate NEPA and ESA compliance each year.

26. Grand Canyon Trust • Reclamation issues an Annual Operating Plan each year for Glen Canyon Dam and the other Colorado River dams and reservoirs.

27. Grand Canyon Trust • Reclamation argued that these Annual Operating Plans do nothing more than report on operations for the prior year and projected operations for the forthcoming year based upon probable hydrologic conditions (snowpack and runoff) in the Colorado River basin. • It argued that even the projected operations described in the AOPs are subject to change as conditions change and more information becomes available.

28. Grand Canyon Trust • Reclamation argued that the choice of the operating regime for Glen Canyon Dam was made in other documents which underwent separate and comprehensive NEPA and ESA compliance. • These documents include the Long Range Operating Criteria for Glen Canyon Dam adopted under the 1968 Colorado River Basin Project Act and the 1996 ROD that selected the MLFF alternative as the operating regime for Glen Canyon Dam.

29. Grand Canyon Trust • In contrast, “the AOPs simply communicate the manner by which Reclamation proposes to implement these decisions in response to the existing and projected water conditions for a particular water year.” • Accordingly, Reclamation argued that it takes no action in the AOPs which would trigger the need for ESA consultation or NEPA review.

30. Grand Canyon Trust • On September 26, 2008, Judge Campbell ruled on the pending motions. • First, he found that the Trust’s complaint was not moot, because the Trust is essentially alleging that Reclamation’s operation of the Glen Canyon Dam is in violation of the Endangered Species Act.

31. Grand Canyon Trust • However, he deferred reaching a decision on that issue until after briefing of the allegations relating to the legal sufficiency of the new biological opinion. • Second, he held that Reclamation’s Annual Operating Plans do not require separate, annual NEPA or ESA compliance, because Reclamation’s adoption of the AOPs each year is not “agency action” triggering NEPA or ESA review.

32. Grand Canyon Trust • The judge found that Reclamation’s choice of the operating regime for Glen Canyon Dam was made in other documents that had undergone independent NEPA and ESA review, and that the AOPs are merely projections of water releases given the best available information about Basin hydrology. He found that AOPs do not choose among different operating regimes or release patterns.

33. Grand Canyon Trust • In reaching these conclusions, the judge reinforced certain principles regarding the application of the ESA that are critical for those of us who use Colorado River water. • The first is that, in order for Section 7 of the ESA to apply, the agency must take some affirmative action. Inaction cannot serve as the basis for requiring Section 7 consultation.

34. Grand Canyon Trust • The second is that the agency action must be discretionary. ESA rules provide that Section 7 only applies to those agency actions in which there is discretionary federal involvement or control. If the action is compelled by law, for example, Section 7 does not apply. Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007).

35. Grand Canyon Trust • This is consistent with Defenders of Wildlife v. Norton , 257 F. Supp. 2d 53 (2003), where the D.C. District Court held that the Law of the River gave Reclamation no discretion to alter deliveries of Colorado River water to Mexico for the benefit of endangered species found there. Therefore, Reclamation had no duty to consult with the Services regarding the impact of those deliveries on Mexican species.

36. Grand Canyon Trust • Third, the judge said that not just any discretion will do. The agency must retain discretion to alter its action for the benefit of endangered species before Section 7 will be found to apply. • Using these principles, the judge found that Reclamation’s adoption of the AOPs did not constitute “agency action” within the meaning of Section 7 of the ESA.

37. Grand Canyon Trust • The Court carefully reviewed the Law of the River and the part that the AOPs play in the operation of Glen Canyon Dam. • “Plaintiff cites statements in various documents which suggest that annual water release decisions are made in the AOP. The Court does not find these statements convincing . . .. Plaintiff’s true complaint is with the Bureau’s use of the MLFF system, a decision made in the ROD and Operating Criteria, not in the AOP.”

38. Grand Canyon Trust • “The Court also concludes that the Bureau does not exercise discretion in the AOP that could inure to the benefit of the humpback chub. The benefit Plaintiff has identified – the change Plaintiff seeks in the AOP – is adoption of the SASF system. But the Bureau does not have discretion to adopt SASF in the AOP. The Secretary of the Interior decided to adopt the MLFF system (and not to adopt the SASF system) in the 1996 ROD. The MLFF was also chosen as the controlling method of dam operations in the Operating Criteria that Congress required to be established.”

39. Questions?