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August 31, 2012

An agency’s annual implementation of statutory criteria is not a “major federal action” or “agency action” pursuant to NEPA or the ESA.

Grand Canyon Trust v. United States Bureau of Reclamation ___ F.3d ___ (2012) [United States Court of Appeals, Ninth District District Court of Appeal No. 11-16326, filed Aug. 13, 2012]

By Jeffrey K. Dorso, Esq.

The Grand Canyon Trust (“Trust”) filed suit in federal court in the District of Arizona alleging that the United States Bureau of Reclamation (“Reclamation”) and the United States Fish and Wildlife Service (“FWS”) violated the Endangered Species Act (“ESA”) and the National Environmental Policy Act (“NEPA”) when it failed to perform an environmental analysis in conjunction with issuing an annual operation plan (“AOP”) for the Glen Canyon Dam.

The Glen Canyon Dam operates pursuant criteria established by the Colorado River Basin Project Act (“CRBPA”) and the Grand Canyon Protection Act of 1992 (“GCPA”).  The GCPA mandated that an environmental impact statement (“EIS”) be completed for all covered dams.  As part of the Final EIS, Reclamation adopted modified low fluctuating flow (“MLFF”) criteria as the basis for operating the dam.

Under the applicable statutory regime, the Secretary of Interior is required to prepare and transmit to the Governors of the Colorado River Basin and Congress, an annual operation plan (“AOP”) that describes the actual operation under the statutory MLFF criteria for the prior year and the projected operation for the upcoming year.

Along with several other claims, the Trust filed suit claiming that Reclamation violated NEPA and the ESA by not preparing a separate environmental analysis for each AOP, and not consulting with FWS for each AOP.

The district court concluded that AOPs are not affirmative agency actions sufficient to trigger NEPA and the ESA.

The Trust appealed the district court’s ruling on this issue, along with several others. The Trust argued that because the statutory scheme did not expressly dictate the entire contents of each AOP, Reclamation was exercising discretion sufficient to trigger NEPA and consultation with FWS under the ESA.

The Court of Appeal disagreed.  As respects the ESA, the Court of Appeal explained that the CRBPA specifically provides that AOPs must “‘describ[e] the actual operation [of the Dam] under the adopted criteria for the preceding compact water year and the projected operation for the current year.’” (Quoting 43 U.S.C. § 1552(b).) The fact there is some discretion in terms of implementing these required conditions is immaterial.  The Court of Appeal explained:

That the statute does not dictate with specificity the precise content of each AOP does not detract from this conclusion.  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.  For example, a year with extreme temperatures might increase the demand for electricity necessary to run heating and cooling systems. . . . That discretion, however, does not affect Reclamation’s specific, non-discretionary obligation to implement MLFF in its operation of the Dam.

In other words, since Reclamation could not exercise discretion flow as to the criteria required to prepare the AOPs, Reclamation did not violate the ESA by issuing each AOP without consultation.

Likewise the Court of Appeal concluded that issuance of an AOP did not constitute “major federal action” sufficient to trigger NEPA.  The Court explained:

Reclamation is not authorized to operate the Dam under another flow regime by simply declaring such a change in an AOP.  Instead, as stated above, an AOP merely chronicles Reclamation’s ongoing operation of the Dam under the existing operating criteria, MLFF, during the preceding year and projects how Reclamation will do the same in the upcoming year.

Thus, the Court considered operational fluctuations pursuant to established statutory criteria to be insufficient to trigger NEPA review.

Authored by:

Jeffrey K. Dorso

Jeffrey’s practice focuses on land use law and related environmental issues in California and the western United States.  He assists developers, business owners, and public agencies in all aspects of project permitting and entitlements, environmental compliance, and litigation.

(916) 496‑8500

jeffrey@pioneerlawgroup.net

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