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1 <br />0 <br />fl <br />1 <br />2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />10 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />26 <br />27 <br />28 <br />result: Reclamation's operations are adversely impacting river flows, sediment loads, and <br />temperatures, which, in turn, harm the chub and degrade its habitat by eliminating seasonal <br />flows, destroying shoreline habitats, and preventing river warming. Not only is <br />Reclamation violating these ESA section 7(a)(2) requirements, but the agency's failure to <br />comply with the Biological Opinion also means it is violating ESA section 9's prohibition <br />against actions that "take" the endangered humpback chub. <br />Plaintiffs last two claims address Reclamation's failure to follow mandatory <br />procedures in preparing Annual Operating Plans for Glen Canyon Dam. ESA section <br />7(a)(2) requires Reclamation to consult with FWS on all agency actions, including Annual <br />Operating Plans, impacting endangered species. 16 U.S.C. § 1536(a)(2). NEPA requires <br />Reclamation to evaluate and disclose to the public the environmental impacts of its Annual <br />Operating Plans. 42 U.S.C.§ 4332(C). Reclamation has ignored both environmental review <br />processes prior to issuing its Annual Operating Plans despite impacts to the chub, its <br />habitat and other Grand Canyon resources. <br />STATUTORY BACKGROUND <br />I. ENDANGERED SPECIES ACT <br />Before the ESA operates for the benefit of an imperiled species, FWS must list them <br />as "threatened" or "endangered," within the meaning of the ESA, and concurrently <br />designate their critical habitat. 16 U.S.C. § 1533. Once listed, the ESA provides several <br />procedural and substantive protections for imperiled species and their habitat. These <br />include: (1) the section 7 duty on federal agencies to "consult" with FWS before <br />undertaking any action that may affect a listed species or critical habitat, Id. § 1536(a)(2); <br />(2) the section 7 prohibition against federal activities that jeopardize the continued <br />existence of listed species, id; (3) the section 7 prohibition against federal activities that <br />adversely modify or destroy critical habitat, id; and (4) the section 9 prohibition against <br />"taking" individual members of a listed species which applies comprehensively to all <br />"persons." Id. § 1538(a)(1)(B). <br />Memorandum in Support of Pls.' <br />Motion for Summary Judgment <br />2 <br />