On August 13, 2012, the United States Court of Appeals for the Ninth Circuit laid to rest litigation that threatened to profoundly affect water and power supplies for 25 million people throughout the arid Southwest.
In Grand Canyon Trust v. U.S. Bureau of Reclamation (pdf), the Ninth Circuit held that the U.S. Bureau of Reclamation (Reclamation) is not required to consult with the U.S. Fish and Wildlife Service (Service) under section 7 of the Endangered Species Act (ESA) every year when it prepares an annual operating plan for the Glen Canyon Dam.
The court held that even if operation of the dam may affect the endangered humpback chub (Gila cypha)
or adversely modify its critical habitat in the Colorado River below the dam, Reclamation is not required to consult because, by statute, it is not at liberty to deviate from certain long-term operating criteria each time it formulates a new annual operating plan. The court observed that "to allow ESA challenge on an annual basis for each [annual operating plan] would be unduly cumbersome and unproductive in addressing the substance of environmental issues."
Of more concern to the states that depend on water from the Colorado River, if Reclamation were required to consult every year, it could have largely transferred the operation of the dam to the Fish and Wildlife Service, which could have imposed different operational constraints on the dam from year-to-year for the benefit of the humpback chub, regardless of its effects on long-term water and power supply.
The court reasoned that under section 7 of the ESA, a federal agency is only required to consult with the Service if it takes a discretionary action that could inure to the benefit of a listed species. The Court determined that Reclamation is restricted by statute to describe its operation of the Glen Canyon Dam in accordance with the long-term operating criteria in each annual operating plan. In other words, Reclamation is not at liberty to deviate from, or revise the long-term operating criteria pursuant to which it must operate the timing, rate, and volume of water it releases every time it prepares an annual operating plan. Therefore, in preparing an annual plan, Reclamation lacks the discretion to deviate from the long-term operating criteria in a way that could benefit the humpback chub. No discretion; no duty to consult.
As the court concluded, "by challenging the [annual operating plans] and urging each one requires separate ESA consultation, the Trust is continuously challenging Reclamation’s implementation of [the long-term operating criteria] on an annual basis . . . ." In the court’s view, the true target of the Trust’s ESA citizen suit is Reclamation’s choice of long-term operating criteria. But, as the court observed, Reclamation fully complied with ESA consultation requirements before it selected those long-term criteria, and issuance of each annual operating plan according to those criteria does not continuously re-open the criteria to challenge under the ESA.
Of course, the decision ends only one battle in a larger war. In 2011, the Service issued a new biological opinion and incidental take statement for Reclamation’s proposed 10-year continued operation of the dam pursuant to the long-term operating criteria as well as certain "High Flow Experimental Releases" designed to benefit the humpback chub. Given the history of litigation, the 2011 biological opinion and incidental take statement are not likely to escape judicial scrutiny.