Download Glen Canyon Dam: The Elevation of Social Engineering Over Law

Glen Canyon Dam:
The Elevation of Social Engineering
Over Law
Joseph M. Feller
College of Law, Arizona State University
National Wildlife Federation, Boulder, CO
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
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
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
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 . . . ”
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
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
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
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
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
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 . . .
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
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)
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
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)
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, . . . ”
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
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 . . .”
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)
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
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.
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 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.
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
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
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
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.”
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.”
Implementation Status Report
Bureau of Reclamation, 1999
“A low flow study design has not been done, and low
flows have not been implemented.”
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.”
Implementation Status Report
Bureau 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.”
Review of Sufficient Progress,
U.S. Fish & Wildlife Service, 2002
“This element [steady flows] has not seen sufficient
progress.”
Implementation Status Report
Bureau 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.”
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)
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
Epilogue (Spring, 2008)
New Data on Humback Chub Population, 2002 - 05
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