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8/11/2009 11:32:56 AM
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8/10/2009 3:35:47 PM
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UCREFRP
UCREFRP Catalog Number
7416
Author
U.S. Fish and Wildlife Service.
Title
Flaming Gorge Aspinall Joint Operations Study December, 15, 1988-Draft.
USFW Year
1988.
USFW - Doc Type
Denver, Colorado.
Copyright Material
NO
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for fish and wildlife, and the generation and sale of <br />electrical power as an incident of the foregoing purposes. <br />43 U.S.C. 5 1501(a). <br />The 1968 Act also directs the Secretary to establish criteria for <br />the long-range operation of the reservoirs on the Colorado River, <br />43 U.S.C. S 1552, and provides that Section 7 of the Colorado <br />River Storage Project Act of 1956, shall b6 administered in <br />accordance with the criteria established by the Secretary, 43 <br />U.S.C. 5 1552(c). The criteria were established and published in <br />a document entitled, Colorado River Reservoirs Coordinated Long- <br />Range Operation, she by then Secretary Hickel on June 4, 1970, <br />and provide that the reservoirs be operated with 'appropriate <br />consideration of their use for all purposes, "including flood <br />control, river regulation, beneficial consumptive uses, power <br />production, water quality control, recreation, enhancement of <br />fish and wildlife, and other environmental factors." Thus, <br />notwithstanding any priority given to power production by the <br />1956 Act, it can certainly be argued that the 1968 Act and the <br />established criteria clearly evidence an intent that power be no <br />more equal than other enumerated purposes. <br />As we have orally advised your staff, we are of the opinion that <br />the Secretary may change the operation of the dam, provided there <br />are well supported reasons, such as resource considerations, <br />which require the change. We also are of the opinion that the <br />issue of compliance with the National Environmental Policy Act <br />(NEPA) needs to be examined more closely. While we are not <br />prepared to say that a change in the operation of the dam will <br />necessarily trigger the requirements of NEPA, we believe that it <br />could be a possibility, and the issue has been raised in the WAPA <br />opinion. We note in this regard a decision issued by U.S. <br />District Judge J. Thomas Green on April 14, 1988, in Salt Lake <br />City, et al. v. Western Area Power Administration, et al., Civil <br />No. C86-100G, U.S.D.C., (D. Utah), which granted summary judgment <br />for defendants on the issue of WAPA's promulgation of power <br />marketing and allocation criteria for Glen Canyon Dam, but denied <br />summary judgment on the issue of WAPA's compliance with NEPA. We <br />are uncertain at this time what ramifications this decision may <br />have on the question of the application of NEPA to the Bureau's <br />operation of Glen Canyon Dam. <br />Finally, we have referred this matter to the Associate Solicitor <br />for Energy and Resources and the Acting Associate Solicitor for <br />Conservation and Wildlife for their review and further analysis. <br />Our examination of the WAPA opinion has been limited by our not <br />having ready access to the legislative histories and other <br />materials concerning the statutes at issue. Also, we feel it <br />B-2
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