Laserfiche WebLink
1 <br />1 <br />i <br />u <br />1 <br />`I <br />1 regime violates the ESA section 7(a)(2) prohibition against adverse modification of <br />2 chub critical habitat. <br />3 55. FWS offered a Reasonable and Prudent Alternative that, if performed, <br />4 would eliminate adverse modification to chub critical habitat from Glen Canyon Dam <br />5 operations. Compliance with the Reasonable and Prudent Alternative 1(A) would <br />6 eliminate adverse modification from Glen Canyon Dam operations. RPA 1(A) requires <br />7 Reclamation to operate Glen Canyon Dam under a Seasonally Adjusted Steady Flow <br />8 regime in low water years. <br />9 56. Accordingly, by failing to comply with the 1994 Biological Opinion and <br />10 operate Glen Canyon Dam under a Modified Low Fluctuating Flow regime, <br />11 Reclamation is violating its mandatory ESA section 7 duty to avoid actions that destroy <br />12 or adversely modify critical habitat. 16 U.S.C. § 1540(g)(1)(A). Reclamation's failure <br />13 to ensure against adverse modification renders its operations of Glen Canyon Dam <br />14 arbitrary and capricious, an abuse of discretion, not in accordance with law, and without <br />15 observance of procedure required by law, within the meaning of the APA. 5 U.S.C. § <br />16 706(2). <br />17 THIRD CLAIM FOR RELIEF <br />(Violation of ESA Section 9(a)(1)(B) -- Duty to Avoid Taking Against the Bureau of <br />18 Reclamation) <br />19 57. Each and every allegation set forth in this complaint is incorporated herein <br />20 by reference. <br />21 58. Reclamation operates Glen Canyon Dam. Reclamation's operation of <br />22 Glen Canyon Dam determines how water is released from the Dam. Releasing water <br />23 from Glen Canyon Dam under a Modified Low Fluctuating Flow regime causes the <br />24 "taking" of humpback chub. <br />25 59. FWS included an incidental take statement in the 1994 Biological <br />26 Opinion. The take statement is predicated upon compliance with the 1994 Biological <br />27 Opinion, including the reasonable and prudent alternative. The take statement exempts <br />28 compliance with the ESA section 9(a)(1)(B) prohibition against take if Reclamation <br />Complaint 17 <br />Case 3:07 -cv- 08164 -DGC Document 1 Filed 12/07/2007 Page 17 of 20 <br />