SAN FRANCISCO (CN) – Advocates for the endangered humpback chub told the 9th Circuit that the government does not open its annual water release plan for the Glen Canyon Dam to public review.
Grand Canyon Trust says the current release lets too much cold water flow into the upper stretches of the Grand Canyon during the summer months when chub spawn.
Though the U.S. Bureau of Reclamation enacts a new plan for the pattern of water releases each year, it does not reveal the data behind such plans, the environmental group says.
A federal judge in Arizona ruled last year that the dam’s annual operating plans are properly based on a 2009 biological opinion by the U.S. Fish and Wildlife Service, which found that chub populations were low but recovering.
That 2009 opinion estimated the Grand Canyon population of humpback chub between 6,000 and 10,000.
The trust’s appeal went before a three-judge panel of the 9th Circuit on Monday.
“The agency has failed to comply with its mandatory duties,” Earthjustice attorney McCrystie Adams said, arguing on behalf of the trust.
Changes the bureau has made to the way it implements the water-release plan contradict both the Endangered Species Act and the National Environmental Policy Act, she added.
Justice Department attorney David Shilton argued the bureau follows the law, and that water release plans must balance environmental concerns with demands from agriculture, recreation and power generation.
“NEPA compliance was done then, Endangered Species Act compliance was done then,” Shilton said.
“The annual operating plans simply report,” he added. “They report on the releases for the prior year and they predict what the releases will be in the upcoming year. So that everyone in the basin who has an interest will know what they can probably expect will be the pattern of releases. Now, of course that depends on the hydrology, so it is just a prediction that can be changed during the year.”
Judge Ferdinand Fernandez quizzed environmental attorney Adams on the frequency of the reviews demanded by chub advocates.
“How do you ever actually do anything in the real world?” Fernandez asked. “Maybe the answer is we don’t want them to do anything in the real world, but that’s a different question.”
“That’s not the answer, Your Honor,” she said. “It’s actually not unusual for an annual action to be consulted upon by the Endangered Species Act or by the National Environmental Policy Act.”
The trust’s opening brief said that “consultation is triggered whenever an agency can exercise some discretion over the action to benefit an endangered species.”
The chub, which are found only in the Colorado River basin and can live up to 30 years, have been on the endangered species list since 1967.
Activists say warm water helps with reproduction, while cooler water helps non-native species like trout that prey on the chub.
By adjusting water release or flow regimes from the dam in the summer months, when the flow is normally weaker, the chub experience warmer water when they need it most, advocates for the fish say.
Shilton, the government lawyer, said that the bureau will continue with the “moderate low fluctuating flow alternative, which does permit the historic pattern of monthly releases at the dam, and under which the releases are higher in the summer and the winter when the power demand is higher.”
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