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Environmental Law

: ESA Blawg

With some procedural issues resolved, litigation over Glen Canyon Dam and the humpback chub moves to next phase

By Keith Rizzardi

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Grand Canyon Trust, Plaintiff, vs. U.S. Bureau of Reclamation, Case No. CV-07-8164 PCT-DGC (D. Arizona, Sept. 26, 2008), 2008 U.S. Dist. LEXIS 83853

Plaintiff Grand Canyon Trust filed suit (see press release) against the United States Bureau of Reclamation and the Commissioner of the Bureau (collectively, the "Bureau"). Dkt. # 1. Plaintiff has named the United States Fish and Wildlife Service ("FWS") as a defendant in a supplemental complaint. Plaintiff describes itself as an organization created to "protect and restore the canyon country of the Colorado Plateau" including its "diversity of plants and animals." Dkt. # 59 P 8. Plaintiff claims that the Bureau's current operation of the Glen Canyon Dam, particularly the Dam's non-seasonal fluctuating releases of water into the Colorado River, jeopardizes the endangered humpback chub and its habitat and fails to comport with statutory procedures. The Court allowed several States and other entities to intervene in this case as defendants.

The Bureau operates the Dam using a water release system known as the "modified low fluctuating flow" or "MLFF." Plaintiff contends that the MLFF system impermissibly harms the humpback chub and its habitat, while a "seasonally adjusted steady flow" or "SASF" system would be more accommodating of the chub and more consistent with the Bureau's obligations under the ESA. Plaintiff also claims that the Bureau has failed to fulfill its obligation to consult with FWS in developing the Dam's annual operating plans and to assess the environmental impacts of those plans.

In this decision, the U.S. District Court attempted to resolve a series of preliminary, procedural questions for some claims, but ultimately concluded that most of the claims were intertwined, and would require additional briefing. Most notably, the Court found that claims originally associated with a 1994 biological opinion were not rendered moot by the issuance of a 2008 biological opinion, because the Plaintiff supplemented its original complaint, apparently alleging that the Bureau of Reclamation, by relying upon the 1994 and 2008 biological opinions, had violated and continued to violate the ESA. From November 2008 through February 2009, the parties will be submitting additional briefs in an effort to resolve this record review case through cross-motions for summary judgment.

Glen Canyon Dam is located on the Colorado River in Northern Arizona. (Picture from Wikipedia). The Dam creates Lake Powell, 186 miles long and the second largest reservoir in the United States. Congress authorized the construction of the Dam in 1956 for the purposes of "regulating the flow of the Colorado River, storing water for beneficial consumptive use, ndmaking it possible for the States of the Upper Basin to utilize . . . the apportionments made to and among them." 42 U.S.C. ? 630. Generation of hydroelectric power was recognized as "an incident of the foregoing purposesquot; Id.

The humpback chub is a "big-river fish" that developed in the canyons of Northern Arizona three to five million years ago. (Picture above from the Glen Canyon Dam Adaptive Management Program). The species exists primarily in the relatively inaccessible canyons of the Colorado River. Six humpback chub populations have been identified, five upstream of the Dam and one downstream. The humpback chub was listed as endangered under the statutory predecessor to the Endangered Species Act ("ESA"). 32 Fed. Reg. 4001 (Mar. 11, 1967). In 1973, the chub was listed as endangered under the newly-enacted ESA. 38 Fed. Reg. 106 (June 4, 1973). In 1994, critical habitat for the chub was designated. Such habitat is essential for the endangered species' survival and therefore requires special management. 59 Fed. Reg. 13374 (Mar. 21, 1994).

Full post as published by ESA Blawg on November 02, 2008 (boomark / email).