Perkins Coie Update:
Ninth Circuit Rules That Plans for Dam Operation Do Not Require Annual Environmental Reviews
On August 13, 2012, the Ninth Circuit ruled in Grand Canyon Trust v. U.S. Bureau of Reclamation, that the Bureau’s preparation of statutorily mandated Annual Operating Plans for the Glen Canyon Dam in Arizona do not trigger the requirements of the National Environmental Policy Act or the Endangered Species Act.
- The court held that annual approval of the operating plans for the Dam did not constitute a “major federal action” under NEPA. As a result, yearly environmental reviews were not required and the Bureau’s previous programmatic Environmental Impact Statement, completed in 1995, was sufficient for purposes of NEPA compliance.
- The court similarly found that Congress did not intend for the annual operating plans to be subject to the formal consultation requirement of the ESA. As with its ruling under NEPA, the court found that a programmatic approach was appropriate.
- This decision is the third Ninth Circuit opinion of the summer touching on what constitutes “agency action” for purposes of triggering ESA consultation.