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002474 NEPA, NHPA, and ESA compliance UNDER THE ADAPTIVE MANAGEMENT PROGRAM (REVISED JANUARY 15, 1998) Backeround As we proceed with long-term monitoring and research in accordance with the Adaptive Management Program (AMP) for operations of Glen Canyon Dam, it's apparent that long lead times for planning and implementing certain types of research may not always be feasible. Also, given the extensive amount of compliance activities that have taken place to date under the National Historic Preservation Act (NHPA), the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), it should be possible to quickly and efficiently facilitate supplemental compliance for future events, both scheduled and unscheduled. The following series of questions & answers seeks to clarify the issues and provide some sense of direction. 1. WHAT ABOUT FUTURE NEPA COMPLIANCE ASSOCIATED WITH THE OPERATIONS OF GCD? In the October 9, 1996 ROD, the section on Adaptive Management states: "This commitment includes the establishment of an Adaptive Management Work group, chartered in accordance with the Federal Advisory Committee Act; and development of a long-term monitoring, research, and experimental program which could result in some additional operational changes. However, any operational changes will be carried out in compliance with NEPA." In the Upper Colorado Regional Director's October 25, 1996 memo forwarding the long-term operating criteria for GCD, adopted per requirements in the GCPA, flood frequency reduction measures by means of raising the spillway gates is discussed and it's stated that "since other methods are available to accomplish the same goal, a final decision about the method would not be made until additional NEPA compliance is completed to evaluate environmental impacts on Lake Powell shoreline resources." In the EIS, under discussion of further study of selective withdrawal, it's stated: "Reclamation would be responsible for design, NEPA compliance, permits construction, operation and maintenance," and this commitment is further emphasized in the Service's 1996 biological opinion, under Reasonable and Prudent Alternative item (3), "Elements of the reasonable and prudent alternative that address operations have been reviewed and included in the draft EIS as viable alternatives. Additional NEPA compliance would be necessary for a selective withdrawal structural element." In other words, the GCDEIS and implementing ROD was not all-inclusive and does not represent a one-time NEPA compliance effort. DOESN'T THE "BLACK BOX" VIEW OF OPERATIONS APPLY FOR OPERATIONS AT GCD, AND EXEMPT US FROM FURTHER NEPA, AT LEAST FOR EXPERIMENTAL FLOWS? Informally, in regards to experimental test flows from Glen Canyon dam, Interior Solicitor Scott Loveless offered the view that NEPA compliance is not required, based on the fact that the Secretary is authorized to conduct tests as needed, and the flows are within normal operating patterns and are covered by case law. This is the historic "black box" theory, that any operations that have occurred post-dam are authorized and exempt from NEPA. However, it's important to note that for GCD in particular, we have a history of required NEP A compliance, including with the 1991 decision by the SOl to do an EIS on operations, and the 1992 GCPA directing completion of an EIS on operations, plus the commitments stated in the preceding question and answer, where Reclamation agreed to provide NEP A compliance for things like selective withdrawal, flood frequency reduction by use of flashboards, and any permanent future changes outside the bounds of the preferred alternative that may be recommended by the AMWG. 1 C/t7'145 / ~A)' /P;~/7/ /br; /~ ~; Ph ~" /lr~3",.-u.-Fj!c; .~I- ~_u..L,