Grand Canyon Trust v. U.S. Bureau of Reclamation

The Glen Canyon Dam on the Colorado River created Lake Powell, the second-largest reservoir in the country. The dam changed the historical flow and characteristics of the river downstream as the river flowed through the Grand Canyon by trapping sediment and releasing colder water from deeper parts of the lake. Those factors harmed the endangered humpback chub, which thrives in warmer waters. The Colorado River Basin Project Act of 1968 (CRBPA) required the secretary of the interior (the secretary) to adopt operational criteria setting minimum annual releases and to transmit annual operating plans (AOPs) describing “the actual operation under the adopted criteria” for the preceding year and projected operation for the current year to Congress and governors of seven states in the basin. The Grand Canyon Protection Act of 1992 (GCPA) required the secretary to operate the dam to protect and mitigate adverse environmental impacts and finalize environmental-impact statements (EISs) under the National Environmental Policy Act (NEPA). The GCPA also required the Bureau of Reclamation (Reclamation) (defendant) to transmit AOPs describing operations for the preceding year and “projected year operations undertaken pursuant to [the GCPA].” In 1995, Reclamation completed a final EIS evaluating alternatives including a modified-low-fluctuating-flow (MLFF) regime fluctuating with electricity demand and a seasonally-adjusted-steady-flow regime mimicking natural flows. The secretary selected MLFF as the dam’s operating criteria under a NEPA-required record of decision. The Fish and Wildlife Service (FWS) (defendant) issued a biological opinion (BiOp) finding MLFF jeopardized the humpback chub and recommending alternatives. Reclamation adopted a plan that continued MLFF while adding steady fall flows and a one-time release to replenish sediment. A second BiOp concluded the new plan did not jeopardize the chub. The Grand Canyon Trust (plaintiff) sued asserting Reclamation violated the Endangered Species Act (ESA) by not consulting with FWS or preparing environmental assessments (EAs) or EISs for each AOP. The seven basin states and several organizations intervened. The district court granted Reclamation and FWS summary judgment. Grand Canyon Trust appealed. Meanwhile, FWS issued a 2011 BiOp supplanting the prior BiOps.