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

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

• College of Law, Arizona State University
• National Wildlife Federation, Boulder, CO

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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

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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

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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

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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 . . .

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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

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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 Basins 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 Basins Compact obligation to the Lower
  Basin
• Dam also produces hydroelectric power
• 500 MW average production
• peaking power up to 1,300 MW

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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

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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
• 46 F year-round

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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

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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 lt 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 . . .

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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

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Humpback Chub

• Endangered native fish found only in Colorado
  River system
• minnow family
• adult size 20 inches
• Largest existing population is in the Grand
  Canyon and Little Colorado River (tributary to
  Grand Canyon)

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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

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Humpback Chub v. Peaking PowerWhat Does the Law
Say?

• Colorado River Storage Project Act (1956)
• For 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)

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Humpback Chub v. Peaking PowerWhat 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, . . .

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Humpback Chub v. Peaking PowerWhat 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

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Humpback Chub v. Peaking PowerWhat 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 . . .

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Endangered Species Act

• Supreme Court
• This language section 7 admits of no
  exception. . . . Examination 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)

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Humpback Chub v. Peaking PowerWhat 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.
• Doesnt 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

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Humpback Chub v. Peaking PowerWhat 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.

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Humpback Chub v. Peaking PowerWhat Does the Law
Say?

• Grand Canyon Protection Act (1992) (GCPA)
• The Secretary shall operate Glen Canyon Dam . .
  . in such a manner as to project, 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.

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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

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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

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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

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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.

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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.

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Implementation Status ReportBureau of
Reclamation, 1999

• A low flow study design has not been done, and
  low flows have not been implemented.

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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.

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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.

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Review of Sufficient Progress,U.S. Fish
Wildlife Service, 2002

• This element steady flows has not seen
  sufficient progress.

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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.

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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)

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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

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Epilogue (Spring, 2008)New Data on Humback Chub
Population, 2002 - 05
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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

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