(CN) – Arizona dam operators trying to restore the habitat of the Colorado River in the Grand Canyon need not consult with wildlife officials about the endangered humpback chub, the 9th Circuit ruled.
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The Grand Canyon Trust claim that the Bureau of Reclamation’s seasonal modified low fluctuating flow (MLFF) project harms the chub by releasing too much cold water into the upper canyon during the summer spawning months. The program is meant to reform the once teeming banks of the Colorado as it moves through the Grand Canyon. Much of the riverbank habitat was destroyed by the Glen Canyon Dam, which turned a previously warm and sediment-filled river cold and relatively clear downstream.
The group alleged, among other things, that it was a violation of federal law for the government agencies to issue its annual operation plan before consulting with the Fish and Wildlife Service.
As summarized by the 9th Circuit, U.S. District Judge David Campbell in Phoenix ruled that bureau had no duty to consult on an annual operating plan (AOP) because the agency “does not exercise discretion that could inure to the benefit of the humpback chub.”
The federal appeals court affirmed Monday from San Francisco, finding most claims moot in light of a new biological opinion that covers the dam’s operations through 2020.
“The operation of the dam is subject to some uncertainty, which stems from variances in hydrologic conditions, such as snowpack, and in yearly electricity and water demand, based on obligations established by the so-called Law of the River, that are necessarily unknowable before their occurrence but affect the operation of the dam,” Judge Ronald Gould wrote for a three-member panel. “For example, a year with extreme temperatures might increase the demand for electricity necessary to run heating and cooling systems. Reclamation exercises some discretion in preparing each AOP insofar as Reclamation must make projections about how it will operate the dam for the upcoming year based on forecasts. That discretion, however, does not affect Reclamation’s specific, nondiscretionary obligation to implement MLFF in its operation of the dam, which the Trust identifies as the primary harm to the humpback chub.”
Gould added that it is “neither practical nor required by law to permit challenges to each operating plan that is necessarily fashioned reflecting the operating criteria in its current setting.”
Because the bureau “does not exercise discretion that inures to the benefit of the chub” in preparing the plan, it did not violate the Endangered Species Act in issuing that plan without formally consulting with Fish and Wildlife, Gould wrote.
The court heard oral arguments on the case in June.
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