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A Legal History of Operations at Glen Canyon Dam

October 03, 2008
by John Weisheit

For 34 years, the Bureau of Reclamation has performed a dog and pony show, that currently costs taxpayers $36,000 a day to avoid effective environmental compliance for the protection and preservation of Grand Canyon National Park. This agonizing spectacle has been a complete waste of public resources and will continue to be until the current constructs of federal law are better defined by Congress to eliminate the clever manipulation of state and federal managers of hydropower. These managers hide behind a public relations messaging system they created, explaining how hydropower is cheap, renewable and plentiful, which in every case is false. The hidden costs and trade-offs to mitigate the environmental harm brought on to water quantity, water quality and destruction of critical habitat, completely nullifies the so-called benefits of federal hydropower.

Special thanks to Robert Lippman for his help to compose this chronology.

1990 - Agency Recalcitrance and Evasion Regarding Compliance with NEPA Relating to GC Dam Operations: A Documented Need for Congressional Intervention. Lippman.

 

July 19, 1962 - Lake Powell filling and Glen Canyon Dam (GCD) operating criteria are set by Department of the Interior (27 Fed. Reg. 6851). Stewart Lee Udall is Interior Secretary. The criteria provided for, among other things, minimum flows of 1,000 cubic feet per second (cfs), and annual minimal release of 8.23 million acre-feet (maf). There are no comprehensive federal or state environmental laws to be compliant with. Glen Canyon Dam is operated to maximize hydropower revenue as a peaking power facility.

January 1, 1970 - The National Environmental Policy Act (NEPA) becomes effective, which provides that all federal decision makers must systematically consider and document environmental impacts (either a comprehensive Environmental Impact Statement (EIS), or a less detailed Environmental Assessment (EA)), of all major federal actions having a significant impact on the quality of the human environment, and with the goal "to create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic and other requirements of present and future generations of Americans."

June 10, 1970 - Department of the Interior (DOI) publishes, pursuant to the Colorado River Basin Project Act (CRBP) of 1968, "criteria for coordinated long range operation of Colorado River reservoirs" (70 Fed. Reg. 7138). DOI and the Bureau of Reclamation (Reclamation) fail to initiate NEPA compliance for this major federal action.

Even as of today, the five-year and annual operating plans (AOP) for the Colorado River basin does not undergo any formal public review process outside of elite "working groups" that typically meet at McCarran Airport in Las Vegas. Therefore, for example, the beaches and sandbars in Grand Canyon, that were enhanced by an artificial flood flow last March, are being destroyed by higher fluctuating hydropower releases from Lake Powell upstream to help refill Lake Mead downstream (read article).

2005 - Long-Range Operating Criteria (LROC)
2004 - Environmental Assessment of 2005 LROC
2002 - Letter from Upper Colorado River Commission discouraging public participation

October 27, 1972 - Public Law 92-593 establishes Glen Canyon National Recreation Area from Lee's Ferry, Arizona to the Orange Cliffs west of Canyonlands National Park. Glen Canyon was first proposed as a national monument in 1935 by the Roosevelt administration. National recreation areas are managed under a multiple use agenda, which is a tier below national monuments and parks. However, designated wilderness areas are not necessarily precluded in a national recreation area.

April 21, 1973 - Friends of the Earth (FOE) v. Armstrong (360 F Supp, 165, 1973). Joining FOE in this suit for relief and injunction are Wasatch Mountain Club and outfitter Kenneth Sleight. The defendants are DOI and Reclamation; Armstrong is Reclamation Commissioner. The purpose is to prevent the rising waters of Lake Powell from creeping into Rainbow Bridge National Monument (RBNM) as a violation of the Colorado River Storage Project Act (CRSP) of 1956, which states the intent to keep impounded waters out of RBNM. The case was upheld by the federal District Court in Utah, but was lost in the appeal process.

June 1973 - The National Science Foundation begins to publish studies related to Lake Powell and called the Lake Powell Research Project Bulletin. The reports provide baseline data and analysis for the reservoir and the surrounding region.

July, 31, 1973 - Grand Canyon Dories v. Walker. Two river trip concessioners, Grand Canyon Dories and OARS, bring forward to federal court a temporary injunction regarding Reclamation's announcement (July 27, 1973) about extreme low water releases from GCD following extreme peaking power releases in the morning. The defendants are National Park Service (NPS), Reclamation and DOI; Walker is Director of National Park Service (NPS).

Water year 1973 created a significant elevation rise at Lake Powell reservoir, which increases the efficiency of hydropower production. People such as myself were visiting Lake Powell that summer and remember mature, green cottonwood trees completely underwater, as well as ancient Indian ruins and rock art. The federal government, during the Great Depression, tried to protect the cultural heritage of Glen Canyon, but insensitivity to this concept by Utah politicians prevailed. The National Historic Preservation Act was passed by Congress in 1966.

August 1, 1973 - Grand Canyon Dories v. Walker. A court order of dismissal was entered.

August 2, 1973 - FOE v. Armstrong. The defendants appeal and the court decides that CRSP does not prohibit Lake Powell from entering RBNM because Congress denied funding to construct a proposed concrete dike to keep Lake Powell reservoir water from entering the monument. An appeal to US Supreme Court was presented, but the high court refused to hear the case.

September 5, 1973 - Grand Canyon Dories v. Walker. Plaintiffs file an appeal stating that Reclamation cannot arbitrarily set operations of GCD without first initiating NEPA compliance procedures.

December 28, 1973 - Endangered Species Act (ESA) is passed by Congress. The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend upon may be conserved, and to provide a program for the conservation of endangered and threatened species.

August 20, 1974 - Grand Canyon Dories v. Walker (500 F. 2d. 588). Plaintiffs bring forward a complaint to the federal court on the issue of Reclamation's non-compliance with NEPA regarding operations at GCD and seek injunctive relief.

The appellants allege that operations at GCD interfered with the safe operation of licensed float trips, and that the continuing operations of GCD are indeed a major federal action, and therefore NEPA requires the preparation of an EIS. The court denied judicial relief on the grounds that no evidence was produced to show DOI had considered how NEPA applies to the operations at GCD. The court thus held, in those adolescent days of NEPA litigation, that a determination must be undertaken by the agency prior to any judicial review.

With this action the DOI was effectively put on notice for future NEPA compliance and, in the following year, Reclamation did undertake a formal study to prepare an EA on operations at GCD, but it was never finalized.

In fact, Reclamation will never follow through on finishing a properly prepared EA or EIS for another 22 years, which finally occured in October, 1996 with the signing of the Record of Decision (ROD), and only because Congress mandated completion by passing the Grand Canyon Protection Act (GCPA), 1992. This multi-decadal NEPA experiment in agency recalcitrance came with a multi-million dollar price tag for taxpayers and a ruined ecosystem in Grand Canyon National Park.

Reclamation is currently involved in an EIS called LTEP (cached), or Long-Term Experimental Plan. This EIS is the result of a 2006 court settlement. Reclamation is again dragging its feet and has recently stretched a 2 year EIS schedule into a five year (or more) schedule. It is possible Reclamation may terminate (see page 6) (cached) this new EIS altogether, as was Reclamation's fashion in the 1970s and 80s.

September 3, 1974 - The Navajo Legal Aid Society (DNA) files suit in federal court to keep Lake Powell reservoir water from inundating RBNM. The case will evolve into Badoni v. Higginson. Badoni is a Navajo medicineman and Higginson is Commissioner of Reclamation. Click here for history of Navajo legal claims.

January 3, 1975 - Grand Canyon National Park Enlargement Act essentially doubled the size of park to 1.18 million acres (1,904 square miles). The Act also enlarged Havasupai Indian Reservation.

January, 1976 - DOI circulates for public review a Draft Assessment of Environmental Impacts Regarding Operation of Glen Canyon Dam and Lake Powell (Draft EA), to serve as the "basis for determining whether or not a formal environmental statement will be required by NEPA." The draft not only addressed downstream impacts of the dam, but discussed "alternatives to provide replacement peaking capacity at GCD in order to facilitate a release more oriented to recreation and boating." DOI and Reclamation never followed through with hearings or the preparation of a final EA, nor was any Finding Of No Significant Impact (FONSI) issued. (In 1982 a FONSI was eventually issued, which concluded that GCD impacts to park values would be neglible and therefore no action program was required.)

July 1, 1976 - NPS publishes, among many others, a scientific report on the degraded conditions of beaches and sandbars of Grand Canyon National Park as a result of operations at GCD and human visitation.

July 23, 1976 - Federal Register Notice announces public hearings concerning the Preliminary Wilderness Proposal for Grand Canyon submitted by the National Park Service. The final recommendation is issued in February 1977, but is subsequently delayed until August 1980 to complete an Environmental Impact Statement for developing a Colorado River Management Plan. After this public process, the National Park Service recommends that Congress grant wilderness protection to the Colorado River in Grand Canyon and that oar boats replace motor boats within seven years. This management plan and wilderness recommendation were derailed by the river outfitters using the legislative influence of Utah Senator Orrin Hatch, in the 1981 Interior Appropriations Bill.

Thus, like Reclamation, the outfitters are self-exposed by their actions for manipulating public resources for a privilege over a shared obligation to improve the integrity of the Colorado River and enhance the Grand Canyon experience. Read Hijacking a River by Jeffrey Ingram.

1977 - DOI and Reclamation released its Western Energy Expansion Study (WEES, Full Report), which summarized the "results of an assessment of Reclamation's opportunities to respond to urgent needs for electrical power and energy in the West." The report focused upon enhancing peaking power generation through significant operational and structural modifications at existing Reclamation facilities, including GCD. The study identified a proposal for a 250 megawatt power plant addition to the existing outlet works at GCD, rewinding of existing generators for 104 megawatts of capacity, and proposals for the coordination of power marketing criteria and transmission techniques for instantaneous operations. WEES did not reference any NEPA compliance study.

Spring, 1977 - Badoni v. Higginson (455 Fed. Supp. 641). Navajo medicinemen allege that Reclamation had not complied with NEPA regarding not only operations at GCD and Lake Powell, but the entire CRSP. Plaintiffs sought to prevent destruction to a natural area and desecration of sacred areas at RBNM resulting from threatened inundation by Lake Powell. The district court ruled consistent with Dories v. Walker that the NEPA issue was not yet ripe for review. This decision was subsequently appealed by the plaintiffs.

May 25, 1978 - US Fish and Wildlife Service issues Biological Opinion on operations of GCD and its effect on endangered fish in Grand Canyon National Park.

June 21, 1978 - Environmental Defense Fund (EDF) v Higginson (655 FR 2d, 1981). EDF files a complaint against DOI and Reclamation in federal district court (District of Columbia) on the issue of a comprehensive EIS (CEIS) for the entire Colorado River basin. Joining EDF in the suit is Wilderness Society and Trout Unlimited.

September 28, 1978 - Peaking Power Status Report is issued, and describes various sites and applications where additional dams and their reservoirs would be located. One dam site (see also WEES, Full Report) is located directly above Lee's Ferry, Arizona. River flows from behind Glen Canyon Dam (15 miles above Lee's Ferry) would be as high as 68,000 cfs for 6 hours during the day, and as low as 2,000 cfs for the rest of the day. River flows behind the dam near Lee's Ferry (60-feet tall) would be a constant 12,000 cfs.

1979 - Pursuant to WEES and Peaking Power Status Report (1978), Reclamation initiated a study "to determine the economic, environmental and engineering feasibility of expanding the Glen Canyon Dam Power Plant." A proposal for project alternatives were articulated and technical teams engaged to review planning for biological, social and recreational aspects, with a view towards a "feasibility report and EIS by 1981." (Glen Canyon Dam Power Plant Expansion Study Newsletter No. 1, November 1979). Proposals included increasing high flows between 28,000 to 33,000 cfs, and even 40,000 cfs for short periods of time, and with a corresponding decrease in average low flows for longer periods of time. US Geological Survey records at Lees Ferry gage show that proposed flows were already implemented by Reclamation without any regard to a public review process. Click here to see a table of high water releases.

Click here to view selected Reclamation literature.

1979 - Grand Canyon is designated by the United Nations as a World Heritage Site.

US Fish and Wildlife Service present a recovery plan for the endangered fish of the Colorado River.

September, 1979 - Reclamation publishes a five page Environmental Evaluation for the GCD Power Plant Generator Rewinding Project, noting that the rewinding of two of eight generators were already finished. The completed project was stated as yielding an increase in the capacity of GCD from 1,150 megawatts to 1,336 megawatts and increasing the maximum release from 32,000 cfs to 33,700 cfs.

1980 - More specific operating criteria are proposed for GCD, and to be revised in 1985 and every five years thereafter. The effect of these operational proposals (major federal actions) is evident in documented plans for enhanced peaking power generation by Western Area Power Administration (WAPA), which markets and distributes federal subsidized hydropower from GCD.

November 3, 1980 - Badoni v. Higginson (638 F. 2d. 172). The Court of Appeals affirms the decision of District Court that the issue of NEPA compliance was not yet ripe for judicial review and acknowledged that Reclamation had formally decided to draft a CEIS for the entire Colorado River Basin Project: "The information gathered in the preparation of the DEA on the operation of Glen Canyon Dam and Reservoir is intended to be used in the preparation of a comprehensive basin wide EIS, which will evaluate the operation of all the Bureau of Reclamation projects on the Colorado River and its tributaries. The determination to prepare a comprehensive basin wide EIS on the Colorado River dams is a reasonable one within the administrative discretion of the Department of Interior" (Brief of Federal Appellees, Badoni v. Higginson, 1978, pp. 26-27).

The Court agreed that the government's decision to draft the CEIS, as opposed to a site specific EIS, was reasonable since GCD and Lake Powell were important links in the Colorado River development scheme and cannot be considered alone (Badoni v. Higginson, p. 181). However, the initial work in 1977 by Reclamation for NEPA compliance was abandoned, even though Congress has never specifically denied funds for such a project.

March 27, 1981 - Badoni v Higginson. The plaintiffs appealed and the court maintained, as in EDF v. Higginson (655 F. 2d 1244), that the agency would seek funding for the CEIS. Reclamation decided instead to meet its NEPA obligations by continuing "its past practice of addressing cumulative and synergistic impacts in site specific impact statements for individual projects and their components in the Colorado River Basin." (Appellee' s Memorandum to Court, p. 1.) The Court of Appeals thus affirmed the District Court's decision based upon the government's original promise to complete the CEIS, but remanded the case to the District Court for determination of the legality of the government's shift from a CEIS to a site specific project EIS, emphasizing that NEPA compliance was required one way or another, and that EIS's must be prepared addressing cumulative impacts.

April 3, 1981 - EDF v. Higginson. Plaintiffs include Trout Unlimited and Wilderness Society. The appeal is argued in the District of Columbia.

November, 1981 - Public and administrative pressure over the Power Plant expansion at GCD caused Reclamation to revise their Draft Environmental Assessment for the uprating of the generators. A preliminary document was released "in accordance with the NEPA and current DOI and Reclamation guidelines," which concluded that environmental and recreational impacts were insignificant or nonexistent.

January, 1982 - As the generating rewinding project is nearing completion, a Draft Environmental Assessment on the project was issued. Again, the conclusion of the environmental impacts were considered negligible.

April 20, 1982 - EDF v. Broadbent. EDF, Wilderness Society, Trout Unlimited offer a settlement agreement in federal court (District of Columbia), wherein Reclamation and DOI agreed to prepare EIS's on Colorado River hydropower facilities, specifically addressing cumulative and synergistic environmental impacts within each document. The cases pending were thus dismissed pursuant to the stipulation filed and accepted by the court. Broadbent replaced Higginson as Reclamation Commissioner. James Watt is DOI Secretary.

April 30, 1982 - Philip Williams and Associates provide professional public comments for proposed uprating plans at GCD power plant.

December 9, 1982 - Reclamation publishes the final EA and FONSI for the Glen Canyon Power Plant Uprating, stating that the "preferred plan would not be a major federal action resulting in significant environmental impacts." Public and professional comments were ignored contrary to the NEPA process.

December 1982 - Glen Canyon Environmental Studies (GCES) begins as a component of the environmental assessment developed for the uprating and rewinding of generators at GCD. The studies are to focus on a broad range of ecological and recreation issues related to the operations at GCD, but were not to address any economic or societal issues. This program was terminated after the eventual completion of an EIS of 1995 and the signing of the Record of Decision in 1996. The replacement is called the Adaptive Management Program.

March 24, 1983 - Statement of National Wildlife Federation (NWF) before the Senate Subcommittee on Water and Power opposing Reclamation's proposed hydropower expansion plans.

April 30, 1983 - The Sierra Club proposes a resolution to oppose peaking power at Glen Canyon Dam to protect park values at Grand Canyon National Park, for DOI to complete an EIS, and to initiate oversight meetings in Congress.

June, 1983 - Warm temperatues and rain on melting snow in the Rocky Mountains caused near record levels of total annual streamflow to roar through the canyons of the Colorado River. Failure by Reclamation to prudently leave filling space in the reservoirs for flood control purposes is ignored, for reasons that spills of reservoir water do not turn generators and maximize potential hydropower revenue. The mandate of flood control has always been superior (and remains so today) to the incidental purpose of hydropower production at federal dams, which is the same tier as reservoir recreation.

Emergency spills resulted in unprecedented damage not only to the river corridor in Grand Canyon (dam releases do not contain a natural river's life supporting sediment and organic material, like leaf litter and driftwood), but also to the residents and businesses in the floodplain communities of Arizona, California and Mexico. Structural damage was incurred to the spillways at Glen Canyon and Hoover dams; the emergency at Glen Canyon Dam nearly reached a threshold event of dam failure. Flood control protocols for Colorado River reservoirs began in 1982 by Reclamation and US Army Corps of Engineers (finalized in 1984) and without NEPA guidance. Obviously these fresh protocols were not determined correctly by the federal government. Perhaps involving the public would have provided the realistic objectives Colorado River managers need.

While DOI and Reclamation paint this incident as an example of federal engineers mastering the trickery of Nature, the problem was indeed self-imposed by greed and playing the odds. This rolling of the dice, as it were, with billions of dollars in infrastructure on the line and, if the dams had busted, interrupting water deliveries to farms and cities that would have lasted for decades. The potential for a great abandonment of metropolitan cities such as Las Vegas, Los Angeles and San Diego (Phoenix and Tucson were not quite online with their Colorado River aqueduct) would have become a reality. And for what, a few extra million dollars in hydropower revenues? There is no greater piece of evidence about Reclamation's impudence than this one incident.

Click here to read article by novelist Steve Hannon.

November 15, 1983 - Comments by EDF and NWF to WAPA about proposed general power marketing criteria.

March 2, 1984 - Comments by NWF to WAPA regarding post-1989 power marketing criteria.

March 6, 1984 - Testimony on Federal Reclamation Hydroelectric Powerplant Act before House Subcommittee on Water and Power.
Friends of the River (FOR) testimony.
EDF testimony.

October 26, 1984 - EDF comments to WAPA on revised proposed general power marketing criteria.

December 21, 1988 - NWF, Grand Canyon Trust, American Rivers, Western River Guides Association petition federal court to consolidate their complaint with the similar complaint by Salt Lake City (SLC v WAPA), for reasons of saving resources. This action, in both complaints, is based on WAPA failing to conduct a proper EIS in compliance with NEPA.

September 29, 1989 - NWF v. WAPA. A court injunction orders WAPA to stop its Call for Applications for Power. The reason is lack of preparing an EIS. Joining as plaintiffs are: Trout Unlimited, Stonefly Society of the Wasatch, Utah Wildlife Leadership Coalition, Salt Lake County Fish and Game Association and Utah Wildlife Federation. Joining the defendant is Colorado River Energy Distributors Association (CREDA).

The Plaintiffs will prevail in District Court (Utah) and WAPA is ordered to prepare an EIS. WAPA is permitted to market power on a court approved interim plan, which still provides for the generation and sale of peaking power pursuant to their previous marketing criteria.

October 30, 1989 - In response to the implications of this court decision, the Secretary of DOI, Manuel Lujan Jr., orders Reclamation to prepare an EIS on GCD operations, which is published in the Federal Register and specifically "to examine the operation of Glen Canyon Dam and its impacts on downstream natural resources within the Grand Canyon National Park and Grand Canyon National Recreation Area (GCNRA)," which is what Reclamation (and NPS) had been doing since 1974.

Reclamation subsequently articulates a two-year study schedule which, despite a congressional intervention, will take seven years to complete (Record of Decision is signed, October 8, 1996). The purpose of the completed EIS in 1995, according to the Federal Register is "to minimize adverse impacts on the downstream environmental and cultural resources and Native American interests in Glen and Grand Canyons." Ten years later, the Federal Register informs us the intent of the 2006 EIS (LTEP) is to "protect, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established." Nothing has essentially changed except for the lack of results.

Click here and here to read about the failing programs of the 1995 EIS.

1990 - Agency Recalcitrance and Evasion Regarding Compliance with NEPA Relating to GC Dam Operations: A Documented Need for Congressional Intervention. Lippman.

List of extirpated species in Grand Canyon. 2009.

NPS memo of impairment. 2008.

2011 - Testimony by Leslie James. CREDA.

 

 

 


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